CRIMINAL PROCEDURE: ADJUDICATION
Judge Ethan Greenberg
Text: Allen, Stuntz, Hoffman & Livingston, COMPREHENSIVE CRIMINAL PROCEDURE
I. Due Process and Criminal Procedure
a. “No person shall … be deprived of life, liberty, or property, without due process of law.” (U.S.
Const. Amend. V)
b. “Nor shall any state deprive any person of life, liberty, or property, without due process of
law.” (U.S. Const. Amend. XIV)
c. Examples of Due Process violations:
i. Mob-dominated trial (Moore v. Dempsey)
ii. State counsel appointed on the morning of trial (Powell v. Alabama)
iii. Intentional exclusion of blacks from the jury (Norris v. Alabama)
iv. Admitting as evidence a confession extracted by torture (Brown v. Mississippi)
v. Criminalization of private sexual conduct between consenting adults (Lawrence v.
Texas)
d. Selective Incorporation: right to public trial, right against unreasonable searches and seizures
and exclusionary rule, right to counsel, prohibition against cruel and unusual punishments, right
against self-incrimination, right to a speedy trial, right to a jury trial, right to compulsory process
for defense witnesses, prohibition against double jeopardy
e. *Duncan v. Louisiana: Incorporation of jury trial right for crimes punishable by 6 months or
more.
i. A crime that is punishable by a prison term of six months or greater requires a jury trial.
ii. The right to a jury trial is a fundamental right guaranteed by the Fourteenth Amendment’s
due process clause and thus applies to state prosecutions.
f. *Pate v. Robinson: Residual due process guarantee prohibits trial of defendant while
incompetent
i. Due Process requires that a defendant must be competent to stand trial.
ii. The standard of competence is that the defendant have actual understanding of the
proceedings against him and have sufficient ability to consult with his lawyer with a
reasonable degree of rational understanding.
g. Burden of Proof for Showing Competency: Preponderance of Evidence. A procedure which
required defendant to prove incompetence by a preponderance of evidence did not offend Due
Process (Medina v. California).
h. On the other hand, a procedure which required defendant to rebut presumption of competence
by clear and convincing evidence violates Due Process (Cooper v. Oklahoma).
i. Unincorporated Rights: grand jury indictment, excessive bail
i. States may proceed either by grand jury indictment or by information. There is no
constitutional requirement that a state must proceed by grand jury indictment. The grand
jury requirement of Amendment VI has not been incorporated through due process.
(Hurtado v. CA)
II. The Screening and Charging Process: Prosecutorial Discretion
a. Courts do not have the power to direct the exercise of discretion by an officer or agency, or to
overturn the discretionary decisions of prosecuting authorities not to prosecute persons, even
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persons about whom a criminal complaint was made. (Inmates of Attica v. Rockefeller (2d
Cir.))
b. Equal Protection: Equal protection claims require a showing of both: (1) discriminatory intent;
and (2) discriminatory effect.
i. Relief is denied where the defense fails to show a conscious, deliberate bias by officials
associated with a case.
ii. E.g. Statistical evidence of a profound racial disparity in the application of the death
penalty is insufficient to invalidate a death sentence (McKlesky v. Kemp)
c. Selective Prosecution: Although selective prosecution based on a discriminatory motive is
unconstitutional, such claims require substantial proof that is difficult to obtain, absent direct
prosecutorial admissions.
i. E.g. Blacks prosecuted for drug offenses failed to satisfy a threshold showing for a
selective prosecution claim, by failing to show that the government had declined to
prosecute others similarly situated. (United States v. Armstrong)
ii. In general, pretextual prosecutions are permissible as long as the charges are objectively
supported.
iii. A decision to prosecute select defendants based on self-reporting is permissible. (Wayte
v. U.S.)
d. The Fifth Amendment privilege against self-incrimination confers a right to remain silent, but
it does not include a right to lie about guilt or innocence. The word “no” is a statement like any
other, and the government may prosecute a defendant for making a false statement of innocence
(Brogan v. U.S.)
III. The Screening and Charging Process: Grand Jury
a. *Costello v. U.S. Rules of Evidence for Grand Jury
i. The Fifth Amendment does not prescribe the forms of evidence upon which a grand jury
may indict.
ii. The federal rules of evidence do not necessarily apply to a grand jury proceeding.
iii. A grand jury may even indict a defendant based solely on hearsay evidence.
iv. (Also, exclusionary rules for illegally obtained evidence do not apply for grand jury
proceedings. The only rule of evidence that does apply is evidentiary privilege.)
b. *United States v. Williams: Exculpatory Evidence before the Grand Jury
i. An indictment remains valid even if the prosecution fails to disclose substantial
exculpatory evidence to the grand jury.
ii. Federal courts have only limited supervisory authority over grand juries, and cannot
fashion rules of procedure.
iii. (The Department of Justice now does require its federal prosecutors to submit substantial
exculpatory evidence.)
c. New York Grand Jury: stronger safeguards for defendants than elsewhere
i. New York State grants defendants a statutory right to testify before the grand jury (and
dismissal of indictment as remedy for violation of right).
ii. In New York, the defendant may request that the grand jury call additional witnesses.
iii. Upon a motion, the grand jury minutes can be reviewed by a judge for sufficiency of
evidence, to ensure that all of the charges are substantiated.
iv. Defendants have a right to be accompanied by defense counsel during proceedings, but
counsel is not allowed to examine witnesses or raise objections.
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v. The rules of evidence do apply in NY grand jury proceedings, but they are relaxed to
some degree.
vi. Unfair conduct by the district attorney in role as judge of evidence at hearing may be the
basis for dismissing an indictment.
vii. NY 180-80 rule: The government must show probable cause within six days of an arrest,
either through indictment or through preliminary hearing.
IV. Right to the Assistance of Counse
a. “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of
counsel for his defence.” (U.S. Const. Amend. VI)
b. *Gideon v. Wainwright: Appointed Counsel for Indigent Defendants
i. The Sixth Amendment right to counsel requires that the government appoint counsel for
an indigent defendant.
ii. The court overturned the old ‘special circumstances ’test from Betts v. Brady and
expanded the right to appointed counsel from Powell v. Alabama to non-capital felonies.
c. *Argersinger v. Hamlin: Right to Counsel where Defendant Receives Actual Jail Time
i. In all trials involving potential jail time, states are obligated to appoint counsel, regardless of
whether the crime is classified as petty, misdemeanor, or felony.
ii. The Court refused to extend the 6-month rule from Duncan v. LA which applies to the
right to jury trial.
iii. On the other hand, there is no right to counsel where a jail sentence is merely authorized
but not imposed. (Scott v. Illinois)
d. *Nichols v. United States: Uncounseled Convictions for Sentence Enhancement
i. The defendant Nichols had a prior misdemeanor DUI conviction, which the court used to
impose the maximum sentence for felony cocaine possession.
ii. An uncounseled prior conviction may be used to enhance a sentence for a later
imprisonment.
e. Right to Counsel when Suspended Sentence Imposed: Even proceedings that do not result in an
immediate, actual imprisonment trigger an indigent defendant’s right to state-appointed counsel
under the Sixth Amendment. A suspended sentence that may result in incarceration may not be
imposed unless the defendant was given counsel at trial. (Alabama v. Shelton)
f. Right to Counsel for Discretionary Appeals: Due Process does not require that a state, after
appointing counsel for a defendant’s first appeal at an intermediate appellate court, must also
appoint counsel for defendant’s subsequent discretionary appeals to the highest state court or to
the Supreme Court. (Ross v. Moffitt)
V. Bail
a. “Excessive bail shall not be required.” (U.S. Const. Amend. VIII): remains unincorporated
b. Overall test: determine likelihood that defendant will appear at trial.
c. Typical Bail Factors:
i. seriousness of crime,
ii. extent of criminal record,
iii. strength of case,
iv. personal background and ties to the community,
v. prior failures to appear, and
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vi. [in some states] potential danger to the community
d. Bail set at a figure higher than an amount reasonably calculated to assure the appearance of the
accused is excessive under the Eighth Amendment. If bail in an amount higher than that usually
fixed for serious charges is required, then that evidence must focus on the characteristics of the
accused. (Stack v. Boyle)
e. The right to counsel applies at preliminary hearings. (Coleman v. U.S.)
f. The right to counsel does not apply at probable cause hearings, where most bail determinations
are made (Gerstein v. Pugh).
g. *United States v. Salerno: Denial of Bail for Protection of Community
i. The Court upheld the constitutionality of the Bail Reform Act, which permitted federal
courts to detain an arrestee prior to trial if the government could prove that the individual
was potentially dangerous to the community.
ii. The government has a compelling interest in the safety of its people.
iii. The Bail Reform Act permits the government to retain an arrestee pending trial if it can
demonstrate by clear and convincing evidence at an adversary hearing that no release conditions
reasonably will assure the safety of another person or the community.
iv. [In New York, courts are not supposed to consider danger to the community as a factor in
making a bail determination. However, judges are sensitive to political pressure and public
appearances.]
VI. Speedy Trial
a. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
(U.S.Const. Amend. VI)
b. *Barker v. Wingo: Factors in Speedy Trial Determination
i. There is no particular time limit to determine whether a defendant’s right to a speedy trial has
been violated.
ii. Instead, courts evaluate speedy trial claims on a case-by-case basis, looking at the
conduct of both parties for the following factors:
1. the defendant’s assertion of the right;
2. prejudice to the defendant caused by the delay;
3. the length of the delay; and
4. the reason for the delay.
c. Preindictment Delay is mostly irrelevant.
i. The delay between the commission of an offense and the initiation of prosecution does not
deprive defendant of due process, even if his defense might have been prejudiced by the lapse in
time. (United States v. Lovasco)
d. Postindictment Pre-Arrest Delay might be relevant.
i. An extraordinarily long delay between indictment and arrest will create a presumption of
prejudice.
ii. For instance, an 8 ½ year laps between indictment and arrest violates a defendant’s right to a
speedy trial, where the government had been negligent in pursuing the defendant.
(Doggett v. United States)
VII. Discovery and Disclosure
a. Typical Government Disclosure Statute: Fed. R. Crim. P. Rule 16
i. oral statements made by the defendant to any government agent , and written statements
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by the defendant to any party
ii. record of defendant’s criminal history
iii. documents, objects, exhibits that the government will offer, including items taken from the
defendant and items material to preparing a defense
iv. reports or examinations that the government plans to use or is material to the defense
b. *Brady v. Maryland: Constitutional Disclosure Obligation
i. Withholding evidence that is favorable to the defense and material to either guilt or
punishment is a violation of due process.
ii. Brady material includes statements of witnesses, physical evidence, and impeachment
evidence.
iii. [Also, any agreement by a material witness with the prosecution for a more lenient
sentence must be disclosed.]
c. *Kyles v. Whitley: Brady Materiality: Reasonable Probability of a Different Outcome
i. A prosecutor has an affirmative duty to disclose evidence favorable to the defendant.
ii. Brady material includes evidence that would create a reasonable probability of a
different outcome.
iii. Reviewing courts must look at all of the evidence in record, and not simply conduct a
sufficiency of evidence review. [There is no separate harmless error review.]
d. Even evidence relating to the credibility of key witnesses is not automatically Brady material.
The reasonable probability prong of Brady materiality is not the same as a bare possibility.
(Strickler v. Greene)
e. The Brady disclosure requirement applies to the trial stage, not to the plea bargaining stage.
(U.S. v. Ruiz)
f. *Williams v. Florida: Defense Disclosure of Alibi Witnesses
i. The Fifth Amendment privilege against self-incrimination is not violated by a statute that
requires pretrial notice of the names and addresses of alibi witnesses.
ii. The Court relied on an accelerated disclosure theory.
iii. (Williams v. FL also holds: the Sixth Amendment does not require a 12-man jury, and a 6man jury for noncapital cases is sufficient.)
g. Exclusion of Surprise Witnesses
i. The Sixth Amendment does not create an absolute bar against preclusion of testimony by
surprise witnesses. Exclusion is justified where the omission was willful and motivated by a
desire to obtain a tactical advantage, to minimize effectiveness of cross-examination, and to
advance rebuttal evidence. (Taylor v. Illinois)
VIII. Guilty Pleas and Plea Bargaining
a. *Boykin v. Alabama: Knowing and Voluntary Plea
i. A guilty plea is not valid unless there is an affirmative showing that it was made
knowingly and voluntarily.
ii. It is plain error to accept a plea where the judge asks no questions and the defendant does not
address the court.
iii. [Rule 11 of Fed. R. Crim. P. provides more extensive plea colloquy than state practice.]
b. The defendant who pleads guilty is not required to understand subjectively the full range of
potential defenses. A guilty plea and ensuing conviction comprehends all of the necessary
elements to sustain a binding, final judgment of guilt and lawful sentence. A counseled plea that
is free and voluntary precludes collateral attack. (United States v. Broce)
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c. There are no constitutional barriers in place to prevent a judge from accepting a guilty plea
from a defendant who wants to plead guilty but who still protests his innocence. (North
Carolina v. Alford)
i. [Alford also holds: the threat of the death penalty does not render a plea involuntary.]
d. Enormous sentencing discounts and the threat of the death penalty is not sufficient evidence of
coercion. As long as the defendant enters his plea with full knowledge and willingness, there is
no offense to due process. (Brady v. United States)
e. Bordenkircher v. Hayes: Prosecutorial Threats During Plea Negotiations
i. Due process is not offended when a prosecutor carries out a threat during plea
negotiations to reindict the accused for a more serious charge, as long as the actual
charges are objectively supported by the evidence in the prosecutor’s possession.
f. *United State v. Pollard (D.C. Cir.): Plea Wiring
i. It is not unconstitutional for a prosecutor to “wire” a defendant’s guilty plea to the plea of a
third-party defendant, as long as the actual plea is knowing and voluntary and as long as there is
a factual basis for the prosecutor’s threat or promise.
g. Release-Dismissal Agreements
i. There is no per se rule invalidating release-dismissal agreements. Such agreements do not pose
a more coercive choice than other situations involving the waiver of constitutional rights. (Town
of Newton v. Rumery)
h. Waiver of Evidence Rules for Plea Negotiations
i. Absent some affirmative indication that a waiver agreement was entered involuntarily or
unknowingly, an agreement to waive the exclusionary provisions of plea-statement rules is valid
and enforceable. (U.S. v. Mezzanatto)
i. *Santobello v. New York: Plea Agreements as Contracts
i. When a plea rests on a promise or agreement from a prosecutor, such promise must be
fulfilled.
ii. The defendant’s sentence must be vacated where a plea agreement specified that a
prosecutor would not recommend a sentence, and then the prosecutor breached the
agreement by recommending the maximum.
iii. [On the other hand, acceptance of a plea bargain does not create a constitutional right to
have the bargain specifically enforced.] (Mabry v. Johnson)
IX. Jury Trial
a. “In all criminal trials, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed.” (U.S.
Const. Amend. VI)
b. *Duncan v. Louisiana: Incorporation of Jury trial right for crimes punishable by 6 months or
more.
i. A crime that is punishable by a prison term of six months or greater requires a jury trial.
ii. The right to a jury trial is a fundamental right guaranteed by the Fourteenth Amendment’s due
process clause and thus applies to state prosecutions.
iii. [But a defendant charged with multiple offenses together adding up to greater than six
months is not entitled to a jury.]
c. *Ballew v. Georgia: Six-Member Minimum for Juries
i. A criminal conviction by a five-member jury is unconstitutional under the Sixth Amendment.
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ii. The minimum size of a jury for a petty offense is six persons.
iii. Williams v. Florida previously upheld a six member jury.
➕Crawford v. WA, a witness who spoke with the police but did not testify against her husband.
(Overrules Roberts' trustworthiness standard)
1) Police states are testimonials, and under the Confrontation Clause, this evidence can only be
used if
(A) The witness is unavailable:
(B) The defendant had prior ability to cross-examine.
➕Michigan v. Bryant, dying declaration.
1) The statements must objectively and clearly indicate that the primary purpose of the
interrogation was to enable police assistance to meet an ongoing emergency and must
be objectively evaluated in the circumstances, considering the statements and actions
of the parties at the time.
(A) Test is objective.
(B) Forfeiture by wrongdoing applies when the defendant engaged in conduct designed to
prevent the witness from testifying.
d. *Johnson v. Louisiana: Juror Unanimity
i. A conviction by a jury vote of nine to three does not violate the reasonable doubt standard
embodied in due process.
ii. Allowing a less-than-unanimous verdict serves a rational state purpose.
iii. On the other hand, unanimity is required for capital cases and for six-member juries.
iv. [Federal verdicts must be unanimous.]
e. Voir Dire and Jury Selection
i. In death penalty cases, it is always permissible to question jurors about racial
attitudes.(Fickum v. SC)
ii. Death penalty qualification questions do not violate the fair-cross section requirement, even
though doing so increases chances of conviction. (Lockhart v. McCree)
iii. Jurors do not have to satisfy the court that they have been insulated from all pretrial publicity,
but only that they can discharge their civic responsibilities adequately. (Mu’min v. Virginia)
iv. Systematic exclusion of women from jury service violates a defendant’s right to a jury trial,
regardless of whether the defendant is a member of the group. (Taylor v. Louisiana)
1. On the other hand, there is no requirement that the actual petit jury represent the community’s
demographics, only that the pool of prospective jurors be representative.
f. Duren v. Missouri: Fair-Cross Section Requirement
i. The Sixth Amendment right to a jury trial guarantees that the jury pool be made up of a faircross section of the community.
ii. A systematic exclusion of a distinctive group in the community violates this requirement.
iii. (Only gender and race are considered distinctive for such purposes.)
iv. A Missouri statute which exempts women from jury service and results in only 15% female
jurors violates this right.
g. Batson v. Kentucky: Equal Protection in Jury Selection
i. Prosecutors may not abuse peremptory challenges by striking jurors based on race. To show a
Batson violation, the defense must:
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1. make a prima facie showing that the prosecutor is using peremptories to exclude members
based on race;
2. the prosecutor has a burden to proffer a neutral explanation for the challenges;
3. the judge makes the ultimate finding of whether a violation has occurred.
ii. The Court overruled the old rule of Swain v. Alabama, which required a defendant to
show a systematic striking of black jurors throughout the county.
iii. Batson originally required the defendant to show that he was a member of a cognizable
racial group and that the prosecutor was excluding members of his race. Power v. Ohio
modifies Batson, and no longer requires that the plaintiff be a member of the excluded
group.
iv. Batson also applies to defense counsel’s actions (GA v. O’Connell)
X. Effective Assistance of Counsel
a. “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of
counsel for his defence.” (U.S. Const. Amend. VI)
b. *Strickland v. Washington: Two Prongs of Ineffective Assistance
i. To obtain relief for ineffective assistance of counsel, a defendant must show:
1. that the counsel’s performance fell below an objective standard of reasonableness, below the
level of legal competence customarily found in the jurisdiction; and
2. that counsel’s deficient performance gives rise to a reasonable probability that the result of the
proceeding would have been different if counsel had performed adequately.
ii. The courts look only at the assistance in light of the circumstances at the time, and employ a
deferential standard with a presumption of competence within a wide range of reasonableness.
iii. (New York does not require the defendant to satisfy the prejudice standard fully, and instead
focuses more on process than on outcome.)
c. Prejudice is presumed where counsel failed to function in any meaningful sense as the
government’s adversary. (U.S. v. Cronic)
d. The right to assistance of counsel is not violated when the attorney refused to assist in
presenting perjured testimony. (Nix v. Whiteside)
e. An attorney’s failure to file a timely suppression motion is constitutionally deficient
performance. (Kimmelman v. Morrison)
f. Collateral Immigration Consequences
i. The lawyer for an alien charged with a crime has a constitutional obligation to tell the client if
a guilty plea carries a risk that he will be deported. (Padilla v. Kentucky)
g. Effective Assistance for Guilty Pleas
i. A guilty plea is not rendered involuntary merely because counsel supplies defendant with
erroneous information about parole eligibility, unless the defendant also alleges that he would
not have pleaded guilty and insisted upon going to trial if he had accurate information. (Hill v.
Lockhart)
➕Missouri v. Frye, counsel did not tell the defendant about an initial plea deal, which expired,
and the defendant took a lessor deal.
1) Defendant must show for plea bargaining
(A) A reasonable probability that he would have accepted the earlier plea offer had he had
effective counsel: And,
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B) A reasonable probability that the plea would have been entered without the state withdrawing
it or the trial court rejecting it.
h. A criminal defendant is entitled to counsel with undivided loyalty. Imposition of joint counsel
over a defendant’s objections is per se ineffective. (Glasser v. United States and Holloway v.
Arkansas)
i. A trial court’s erroneous deprivation of a criminal defendant’s choice of counsel (e.g. improper
denial of pro hac vice appointment) is a structural error which requires automatic reversal
without showing prejudice. (U.S. v. Gonzales-Lopez)
j. *Cuyler v. Sullivan: Conflicts of Interest in Joint Representation
i. The mere possibility of a conflict of interest does not establish ineffective assistance of counsel
in cases of joint representation.
ii. The Sixth Amendment requires courts to investigate timely objections to multiple
representation, but the trial court has no affirmative duty to inquire unless the court should have
known of a conflict.
iii. If a defendant raises no objection at trial, then he is required to show that an actual
conflict of interest adversely affected the performance of counsel.
iv. Cuyler also held that ineffective assistance by retained counsel also violates the constitutional
right, even though it is not a state action in the direct sense. [However, 42
U.S.C. § 1983 does not apply.]
k. A trial court that finds an actual conflict of interest can decline defendants ’proffer of waiver
of conflict-free representation. (Wheat v. United States)
l. *Caplin & Drysdale, Chartered v. United States: Forfeited Assets for Legal Fees
i. The federal drug forfeiture law does not permit the release of forfeited assets for the payment
of legal fees.
ii. A defendant has no Sixth Amendment right to spend another person’s money for the services
of an attorney, even if those funds are the only way that the defendant can retain his attorney of
choice.
m. *Faretta v. California: Right of Self-Representation
i. A criminal defendant in a state proceeding has a constitutional right to refuse knowingly
the aid of an attorney.
ii. The state cannot force a lawyer upon a defendant who is literate, competent,
understanding, and who voluntarily exercises his informed free will.
iii. Such a defendant may not later raise a claim for ineffective assistance of counsel.
iv. However, a defendant does not have a right to refuse standby counsel, even if the
defendant does not approve of what he counsel says. (McKaskle v. Wiggins (5th Cir.)).
XI. Sentencing
a. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” (U.S. Const. Amend. VIII)
b. *Roper v. Simmons: Death Penalty for Minors
i. The Eighth Amendment prohibits a state from executing a person for crimes committed before
the age of eighteen.
ii. The Court overturned Stanford v. Kentucky, which had upheld previously capital
punishment for offenders at the age of sixteen.
iii. The Court evaluated the constitutional challenged under evolving standards of decency,
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and looked for a national consensus as well as to other countries.
c. The execution of the mentally retarded is also unconstitutional under Amendment VIII
(Atkins v.VA)
d. Open-ended jury discretion in death sentencing violates Amendment VIII because it tends to
produce arbitrary, capricious, and often discriminatory results. (Furman v. Georgia)
e. Guided discretion statutes which outline aggravating and mitigating circumstances in jury
instructions comply with the Eighth Amendment. (Gregg v. Georgia)
f. *Ewing v. California: Proportionality in Sentencing
i. California’s three-strikes sentencing law does not violate the Eighth Amendment
prohibition against cruel and unusual punishment, even when it results in a life sentence
for shoplifting $399 worth of golf clubs.
ii. The Justices disagreed as to whether the Eighth Amendment requires proportionality.
iii. The Ewing majority affirmed the proportionality standard: looks at
1. the gravity of the offense,
2. the harshness of the sentencing,
3. the sentences for the same crime in other jurisdictions, and
4. the sentences for other crimes within the same jurisdiction
g. Excessive fines clause of Eighth Amendment includes a proportionality guarantee. E.g. It is
unconstitutional for the government to seek forfeiture of $357,144 for failure to declare currency.
h. Old view: trial court may consider probation report in sentencing defendant. (Williams v.
New York, the high-watermark of “black box” sentencing)
i. Capital sentencing requires a higher level of protection, and a defendant facing the death
penalty must have the opportunity to deny or explain information used in his sentence. (Garnder
v. Florida)
j. A fact which does not increase the maximum, but merely raises the minimum within the range,
need not be proved to the jury. Imposing a mandatory minimum sentence within the statutory
range, based on an aggravating factor found by the judge, is permissible. (McMillan v.
Pennsylvania)
k. Any factual determination, other than the fact of a prior conviction, which authorizes an
increase in the maximum prison sentence, must be proven to the jury beyond a reasonable doubt.
(Apprendi/Blakely)
l. *United States v. Booker: Federal Sentencing Guidelines
i. Apprendi and Blakely, which require that all facts (other than prior convictions) that
increase a defendant’s sentence beyond the statutory maximum must be presented in the
indictment and proved to the jury beyond a reasonable doubt, apply to the Federal
Sentencing Guidelines.
ii. The provision of the Federal Sentencing Guidelines which made the guidelines
mandatory is stricken.
iii. Instead, appellate courts must review sentences for reasonableness.
m. A sentence within the statutory range is presumptively reasonable. (Rita v. U.S.)
n. A sentence outside the guidelines is not presumptively unreasonable. A judge need not show
extraordinary circumstances, but greater departures require more compelling justifications. (Gall
v. US)
o. The decision of whether to impose consecutive or concurrent sentences is a legal
determination for the judge, and need not be decided by the jury. (Oregon v. Ice)
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XII. Double Jeopardy
a. “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or
limb.”(U.S. Const. Amend V.)
b. Prevents a second prosecution after an acquittal, a second prosecution after a conviction, and
prevents successive punishments.
c. *Fong Foo v. United States: Acquittal on the Merits
i. The Fifth Amendment’s protection against Double Jeopardy bars a retrial even if the
conduct of the defendant’s trial resulting in an acquittal was improper.
ii. In Fong Foo, the district judge improperly instructed the jury to acquit.
iii. A jury’s acquittal stands even despite clear error.
d. Postverdict Ruling: Where a judge has ruled in favor of a defendant after a guilty verdict by
the jury, the government is permitted to appeal a postverdict ruling without violating Double
Jeopardy. Reversal would not require a new trial, but merely would reinstate the jury’s original
conviction. (U.S. v. Wilson)
e. Insufficiency of the Evidence: A judge’s final determination that a charge is unsupported by the
evidence acts as a judgment of acquittal on the merits and bars the prosecution from reinstating
charges later in the trial. (Smith v. Mass.)
f. *Ashe v. Swenson: Collateral Estoppel
i. When an issue of ultimate fact has once been determined by a valid final judgment, that issue
cannot be litigated again.
ii. Double Jeopardy prevents a state from prosecuting the same defendant for a closely
related charge, where the verdict necessarily means that the defendant could not be guilty of the
other crime.
g. *Oregon v. Kennedy: Mistrials and Double Jeopardy
i. A defendant who moves successfully for a mistrial because of prosecutorial or judicial
misconduct may not invoke the bar of Double Jeopardy against retrial, except in those
cases where the conduct was intended to and did provoke the motion.
h. *Blockburger v. U.S.: The Same Offense
i. When the same act or transaction violates two distinct statutory provisions, the test is
whether each provision requires proof of an additional fact that the other does not.
ii. Blockburger is the traditional standard for judging whether two offenses are the same under
Double Jeopardy.
i. *Harris v. Oklahoma: Double Jeopardy and Felony Murder
i. When the conviction for the greater crime (e.g. felony murder) could not be obtained
without conviction of the lesser crime (e.g. armed robbery), then Double Jeopardy bars
prosecution for the lesser crime after conviction for the greater one.
j. *U.S. v. Dixon: Double Jeopardy and Contempt
i. Where the subsequent underlying offenses do not contain any element not contained in their
previous contempt offenses, subsequent prosecutions are barred.
ii. The Double Jeopardy bar applies where the same elements are present, not the same conduct.
iii. The Court reinstated the Blockburger test and rejected the same-conduct approach from
Grady v. Corbin.
k. *Heath v. Alabama: Dual Sovereignty and Double Jeopardy
i. Double Jeopardy does not prohibit two different states (or states and the federal
government) from prosecuting separately and convicting the same individual for the same
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illegal act, because of the doctrine of dual sovereignty.
APPENDIX: Judge Greenberg Exam Tips
• Studying: Memorize the holding of the top cases, which are marked with an asterisk (*).
• It is best to write the names on flashcards and study pre-prepared three-sentence responses.
• Also understand and be able to apply the rest of the doctrines and rules.
• Don’t overlook the New York material. Be able to contrast federal rules with New York rules.
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Write concise answers within the given word limits.
Also think about the policy implications for major rules.
Mention opposing policy arguments supporting the contrary rule.
Greenberg does not write trick questions, but in his longer fact patterns, you will need to think
about and account for other potential interpretations that you might initially overlook
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