CrimPro Checklist
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 Due Process Theories
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Rule of Law: open and knowable, specificity, nonarbitrary enforcement, render
judgment only after trial
Bill of Rights: selective incorporation for the states
Accuracy: civil rights decisions in the 1920s (mob-dominated trial/counsel for
minorities in capital cases/no exclusion of a race from a jury/no use of torture to
extract confession)
Fundamental Fairness: judicial intuition (ex: jury should not be able to draw adverse
inferences because ∆ did not take the stand, stomach pumping)
 Right to Grand Jury in a Federal Case (Hurtado, but NOT for state case)
 Right to Jury (Baldwin, >6 mos. imprisonment)
 Right to Counsel
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Right to Effective Assistance of Counsel (Strickland)
Multiple Representation (Cuyler)
Right to Self-Representation (Faretta)
Standby Counsel’s Appropriate Role (Wiggins)
Right to Counsel of Choice (Gonzalez-Lopez)
 Prosecutorial Discretion/Strategic Prosecution/Vindictiveness (Inmates of
Attica/Wayte)
 Joinder (Velasquez)
 Severance (Zafiro)
 Pretrial Detention
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First Appearance (Gerstein/Pew)
Excessive Bail (Stack/Salerno)
Speedy Trial (Barker/Lovasco/Doggett)
 Guilty Pleas
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Voluntariness (Brady/Bordekircher)
Ineffective Assistance of Counsel (Hill/Glover)
Rule 11 Violations (Dominguez-Benitez)
Plea Wiring (Pollard)
Enforcement of Plea Agreements (Santobello/Mabry)
 Discovery/Disclosure
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Brady Obligation
Defense Obligations (Williams v. Florida/Taylor)
 Size of the Jury (Ballew)
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Unanimity (Burch)
 Venire Composition (Duren)
 Jury Composition
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Challenges For Cause (Wainwright)
Peremptory Challenges (Batson)
Publicity (Skilling)
 Prosecutorial Misconduct (Darden)
 Prosecution Comments and Inferences (Griffin)
 Sentencing
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Proportionality (Ewing)
Special Treatment of Juveniles (Simmons/Graham)
Death Penalty = Limited to Murder and Felony Murder (Kennedy)
Indeterminate Sentencing (Williams)
Increasing Floor = Permitted (McMillan)
Increasing Statutory Maximum Fact Without Jury ≠ Permitted (Apprendi)
CrimPro Checklist
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Page 2
Federal Sentencing Guidelines ≠ Mandatory, Standard of Review =
Unreasonableness (Booker)
Unreasonableness = Abuse of Discretion Standard, Highly Deferential to the Courts
(Gall)
 Double Jeopardy
Dismissal: grounds relating to guilt/innocence = no retrial
NOT above = retrial ok (Scott) Acquittal: no retrial or appeal by gov’t (Fong Foo)
Trial begins
Verdict
Conviction: (∆ appeal)
retrial ok, original jeopardy resumed (Ball)
except if sufficiency of evidence (Burkes)
Mistrial
Conviction but j. nov.: appeal ok, retrial ok (Wilson)
gov’t request: manifest necessity? (ex: hung jury) retrial ok
(reinstates guilty verdict)
∆ request + prosecutor’s intent to provoke/goad = no retrial (Kennedy)
 Manifest Necessity: Appellate courts tend to be deferential to trial courts’
finding that there’s manifest necessity for a new trial, whether the mistrial
was due to guilt or innocence is important to the determination
 When Jeopardy Attaches
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Jury trial = first juror is sworn
Bench trial = first witness is sworn
 “Same Offense”
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Two offenses are different if each offense requires proof of a fact that the other does
not (Blockburger/Dixon)
Prosecutor cannot divide a single crime into a series of temporal/spatial units
(Brown)
 Harmless Error
Chart of Errors
= YES
= NO
Constitutional: Gov’t, beyond a
reasonable doubt (Chapman)
Non-Constitutional:
Structural Error
Trial/Non-Structural Error
Gov’t, substantial and injurious effect
(Kotteakos)
Plain/Unpreserved:
Defendant, reasonable probability on
outcome (Olano/Dominguez-Benitez)
Automatic reversal
 Structural Errors
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Identity of the decisionmaker (judge, jury)
Error = very hard to evaluate using harmless error analysis
Errors that affect the whole trial (v. small subset of proceedings)
CrimPro Checklist
Structural
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Complete denial of counsel through
the entire proceedings
Denial of self-representation
Race discrimination in composition
of grand jury
Denial of right to public trial
(Scott) 5-member petit jury with 5
members
Defective reasonable doubt
instruction (Sullivan)
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Trial/Non-structural
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Restriction of cross-examination of a witness
Denial of a defendant’s right to be present
Denial of counsel at preliminary hearing but
not the trial itself
Improper prosecutorial comment on ∆’s
failure to testify (Chapman)
(Scott) Misjoinder of offenses or defendants
Improper instruction that an element is
presumptively satisfied that a ∆ must rebut
(Rose)
Failure to instruct the jury at all on one
element of the crime (Neder)
Overbroad jury instructions at sentencing in a
capital case (Satterwhite)
Jury instruction containing an erroneous
conclusive/rebuttal presumption
(Pope/Crane)
Erroneous exclusion of ∆’s testimony
regarding the circumstances of his confession
(VanArsdall)
Restriction on ∆’s right to cross-examine for
bias (Rushen)
Failure to instruct jury on presumption of
innocence (Moore)
Admission of evidence obtained in violation of
4th Amendment (Coleman)
 Collateral Estoppel
 Cannot relitigate a factual issue that’s already resolved just by
charging a separate offenses (rare because it’s often unclear why the
jury ruled not guilty, hard to identify whether the issue is being
relitigated since jury doesn’t tell why) (Ashe)
Potential Policy Questions – Sentencing: Possible solutions post-Booker
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Make the guidelines advisory
Make the entire system indeterminate
Force prosecutors to prove each sentencing element beyond a reasonable
doubt
Create a rule that keeps the advisory guidelines maximum but makes the
minimum discretionary
Get rid of sentencing system and tighten the statutory range (ex: 16-18
months for forgery)
Get rid of all exceptions that allow for statutory maximums to be raised
Increasing sentencing punishments in ways other than length (parole/type of
prison etc.)