CRIMINAL PROCEDURE
Class Ten
Today’s Topics: Bail
Tensions
 Constitutional Basis
 Mechanics
 Federal Act
 Miscellaneous Issues
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Capital Murder
Juveniles
Post-Conviction
Today’s Topics: Discovery
Issues
 D’s Discovery
 Mechanics
 Constitutional Duty
 Preservation of Evidence
 Prosecutor’s Discovery
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CHAPTER SEVEN
BAIL AND PRETRIAL
DETENTION
Initial Considerations

What is the purpose of bail pending trial?
Initial Considerations
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Suspect/Defendant View
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Query: What “costs” are associated with
pretrial detention?
Query: How might pretrial imprisonment
prejudice merits of D’s case?
Government/Society View
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Query: What are the chief interests of State?
Constitutional Basis

Article I, Section 9
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Gives person in custody right to seek writ of
habeas corpus
“The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of
Rebellion or Invasion the pubic Safety may
require it”
Constitutional Basis

8th Amendment
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“Excessive bail shall not be required, …”
Congressional Power to Limit
Bail

Carlson v. Landon
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Civil action
Denial bail to alien communists awaiting
deportation hearings
Rationale: 8th Amd prohibits excessive bail
but does not require bail
State Constitutional Provisions
Many states, including Texas, have added a
bail requirement to the State Constitution
 Texas Constitution, Article I, Sections 11
and 11(a)
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Even where Texas Constitution provides that
bail can be denied, D.A. must do something to
trigger
Mechanics: Delivery Methods
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Cash Bail
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Including bail bondsman
Mechanics: Delivery Methods
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10% Plan
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D pays directly to Court
Often “assignable”
Personal Bond
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“Personal recognizance”
Bondsmen
Important role in determining which
defendants are released and which remain
incarcerated
 Uniquely American
 Private citizens
 Traditionally broad discretion to establish
collateral and to retrieve clients
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Exercise: Private Bail Bondsmen

Identify a minimum of 3 arguments
supporting a private bonding system
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Identify a minimum of 3 arguments against
a private bonding system
Setting Bail

Judge Discretion
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Amount
Criteria
Setting Bail
Schedules
 Significant Factors
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Seriousness of offense
Strength of prosecutor’s case
Defendant’s prior criminal record
Federal Act: 1966
Purpose: Encourage federal courts to
release people without requiring them to go
through bail bondsmen
 Focus: What amount would reasonably
assure trial appearance?

Federal Act: 1966
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Missing Element: Did not permit D to be
confined pending trial because of perceived
risk of general danger to community
Federal Act: 1984
Preference: Release on personal
recognizance
 Recognizes: Danger to community as
factor
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Federal Act: 1984
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Procedure: Hearing at which judicial officer may
determine if any conditions can adequately protect
against bail flight risk and community danger
Rebuttable Presumptions: Certain offenses and
certain offenders --- no conditions adequate to
warrant pretrial release
Conditions: Judge can add least restrictive means
necessary
Pretrial Detention vs. Conditional
Release
Distinct concepts
 Reno v. Koray
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Constitutionality of Federal Bail
Reform Act

Issue: Is “preventive detention” prior to
trial constitutional?
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Due process violation?
8th Amd violation?
United States v. Salerno
Other Types of Preventive
Detention
Confinement in mental institution following
verdict of “not guilty by reason of insanity”
 Civil commitment of sex offender following
discharge of criminal punishment
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Miscellaneous Issues
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Capital Offenses
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Long standing rule that permissible to deny
where proof gives rise to strong presumption of
guilt
Practice Tip: Defense attorney may still want
to pursue bail hearing even if release unlikely.
Why?
Miscellaneous Issues
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Juvenile Offenders
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Difficult to establish right to bail
Miscellaneous Issues
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Post-Conviction Bail
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No constitutional right to bail or release
pending appeal
Federal Bail Reform Act of 1984 frowns on
release
Texas more liberal than federal system, but
limits by punishment assessed and type of
crime
CHAPTER EIGHT
DISCOVERY
General Concepts

No general right to discovery in criminal
cases
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Much more limited than typical civil case
General Concepts
Role of 5th Amd in prosecution’s right to
discovery
 Limits on D’s right to discovery primarily
result of Rules of Procedure, not
constitutional limitations
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Issues and Tensions
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Arguments against discovery by D
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Gov’t should not have to share information
when D cannot be compelled to do same
Likely to endanger witnesses
Places D in better position to commit perjury
Promotes fishing expeditions
Issues and Tensions
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Arguments favoring discovery by D
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Promotes guilty pleas
Best protection against manipulation = early
exposure of facts and enforcement of ethical
rules
Issues and Tensions
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ABA Position: Administrative advantages
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Expeditious resolution
Reduces motions
Minimizes inequities among similarly situated
Ds
Reduces collateral attacks
D’s Discovery: Basics
Extent to which discovery as matter of right
exists depends on local law
 Judge discretion to order enlarged discovery
varies by jurisdiction
 Prosecutor discretion
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Open file policy
“Discovery by Grace”
Application Exercise: Federal
Rule 16

Query: To which of the following items is
D entitled to discovery under Federal
Rules?
Application Exercise: Federal
Rule 16
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Grand Jury Transcript
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Defendant’s own statement
Witness statement after direct testimony at trial
Anything exculpatory
Application Exercise: Federal
Rule 16
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Names and Addresses of Witness?
Application Exercise: Federal
Rule 16
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D’s Statements?
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D’s oral statements to undercover agents? Non
government agents?
Application Exercise: Federal
Rule 16
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Co-Defendant Statements?
Application Exercise: Federal
Rule 16
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Witness Statements?
Application Exercise: Federal
Rule 16
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D’s Prior Criminal Record?
Application Exercise: Federal
Rule 16
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Witness’s Prior Criminal Record?
Application Exercise: Federal
Rule 16
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Evidence Obtained from or Belonging to D?
Application Exercise: Federal
Rule 16
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Offense Reports?
Application Exercise: Federal
Rule 16
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Autopsy Reports? Other Forensic Reports?
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Medical?
Psychiatric?
Blood tests?
Handwriting or fingerprinting comparisons?
Application Exercise: Federal
Rule 16
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Summary Proposed Expert Witness
Testimony?
Application Exercise: Federal
Rule 16
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Information Concerning Potential Juror’s
Prior Service?
Mechanics
Motion for Discovery
 Motion to Suppress
 Motion to Reduce Bail
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Constitutional Duty
Exists independently of obligations imposed
by discovery rules
 Informed by due process clause [5th Amd]
 Types of evidence impacted
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Exculpatory information [Brady rule]
False evidence
Continuing duty
Preliminary Exercise
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Facts: You are the prosecutor in the Sally Vee
aggravated sexual assault case against Johnny
Dee. Her claim is that she was raped, at
knifepoint, inside of her apartment by a stranger
she later identified in a lineup. D has consistently
asserted his innocence, offering investigating
officers an alibi defense. Court-appointed defense
counsel has filed a Motion for Discovery seeking
“anything exculpatory” in your files.
Preliminary Exercise

Query: What should you do about
disclosing each of the following. Why?
Preliminary Exercise
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Houston Police Department lab report on knife
found at scene. Results: Inconclusive match with
D’s fingerprints.
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Variation One: Investigating officer testifies that
various scientific tests were performed and D was
linked to scene.
Variation Two: Prints come back to Bobby Saltzburg.
Variation Three: Prints come back to Bobby but you
were never told that by police.
Variation Four: Sally’s identification of D was tentative
at first, and “positive” only after a suggestive one-onone show up in court.
Preliminary Exercise
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Confession to offense by Crazy Will, a man
who routinely confesses to sexual crimes.
You do not believe the confession. Police
tend to dismiss Willie as a crank.
Preliminary Exercise
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Sally Vee’s “rap sheet” indicating that she
has had several arrest warrants for hot
checks, which each time she cleared up by
paying her creditors.
Preliminary Exercise
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Fact that underwear worn by Sally Vee at
time of offense was misplaced somewhere
in hospital emergency room.
Preliminary Exercise
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Fact that Sally Vee volunteered to take a
polygraph test, the results of which were
inconclusive, with the examiner stating his
personal opinion that she may have been
lying on the questions of consent and prior
relationship.
Prosecutor’s Constitutional Duty
to Disclose: Recap
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Trumps any discovery rules of statutes
Prosecutor’s Constitutional Duty
to Disclose: Recap
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False Evidence: Due process violated if gov’t
engages in deliberate deception by presenting
testimony known to be perjured
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Mooney v. Holohan
Alcorta v. Texas
Napue v. Illinois
Brady Rule: Due process violated if gov’t
withholds evidence would would tend to exculpate
D or reduce punishment
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Brady itself required demand; later modified
Prosecutor’s Constitutional Duty
to Disclose: Recap
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Good Faith: No relevance
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Giglio
Prosecutor’s Constitutional Duty
to Disclose: Recap
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Determining “materiality”: Material only if
there is a reasonable probability that, had
the evidence been disclosed, result of
proceeding would have been different.
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Probability sufficient to undermine confidence
in outcome
United States v. Agurs
United States v. Bagley
Observations from Kyles (1995)
To meet burden, D does not have to show
by preponderance that disclosure would
have meant acquittal
 Do not confuse with sufficiency test
 No harmless error analysis [Bagley
materiality substitutes]
 Consider “big picture” of trial rather than
piecemeal
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Application to Guilty Pleas
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Issues: Does Brady apply to guilty pleas?
If so, what is the test for materiality?
Application to Guilty Pleas

United States v. Ruiz (2002) [Supplement]
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Impeachment
Information bearing on affirmative defense
Fairness of trial vs. voluntariness of plea
Application to Guilty Pleas
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Query: What if withheld evidence tends to
establish factual innocence?
Preservation of Evidence

Issue: What duty does gov’t have to keep
evidence? Is D denied due process when
evidence is destroyed and he looses
opportunity for independent analysis?
Preservation of Evidence
California v. Trombetta
 Arizona v. Youngblood
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Presumption destroyed evidence is exculpatory
if destruction done in bad faith
Discovery by Prosecution

Concept: Is it constitutionally permissible
to require D to provide material to gov’t?
Discovery by Prosecution
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Constitutional provisions implicated
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5th Amd: self-incrimination
5th Amd: due process [fundamental fairness]
Discovery by Prosecution
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Williams v. Florida
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Advance notice of intent to claim alibi
Due process analysis
Self-incrimination analysis
Discovery by Prosecution
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Reciprocity
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Wardius v. Oregon
Federal Rule of Criminal Procedure 16
Discovery by Prosecution
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General Discovery
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ABA Standards
Illustrative State examples
Texas: insanity; experts
Discovery by Prosecution
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Remedies
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Taylor v. Illinois [exclusion of defense witness]
Ethical implications
Discovery by Prosecution
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Discovery During Trial
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United States v. Nobles [work product]