Crim Pro Adjudication

limitations to prosecutorial discretion

no retaliatory charging

bar on selective prosecution

bar on vindictive prosecution

how to prove selective prosecution

• prosecutorial decisions had the effect of targeting an arbitrary classification of individuals

• prosecutor had the intent to target the group

  • individuals who were “similarly situated” in all ways other than the arbitrary classification were not prosecuted

vindictive prosecution

adding or increasing the severity of charges in retaliation for the defendant’s exercise of his statutory or constitutional rights

**only applies to re-trials

6th amendment

• right to counsel

• right to self-representation

• right to effective counsel

• right to counsel during indictment interrogations

6th amend interpretation by SCOTUS

• right does not attach until formal charges are filed

• right only applies at “critical stages”

• any waiver must be voluntary, knowing, and intelligent

types of competency

to plead guilty - rational understanding of the proceedings

to represent oneself - competent to stand trial + competent to conduct trial proceedings by oneself

to prove ineffective counsel

• failed to perform an essential duty AND

• that failure effected the outcome

FRCP 5

initial appearance

w/ a warrant - without unnecessary delay

w/out a warrant - must be promptly filed

FRCP 10

procedure for an arraignment

• indictment/information field

• D is formally informed of the substance of the charges

• D 1st change to plea

FRCP 28

procedure for misdemeanor case

unnecessary delay requirement

NOT amount of time, instead HOW the time is spent

what is “promptly” for initial appearance information

48 hours

grand jury

ALL felony cases must go here

no D or defense lawyers

hearsay is admitted

ONLY thing to prove is PC

arrest with or without a warrant

with a warrant - initial appearance within 48 hours ONLY for bail or plea

without a warrant - initial appearance within 48 hours to determine PC

separation of powers issue

if the prosecutor refuses to bring charges, the judge can not force them to do so

overcharging

more counts and/or higher charge

unethical

Strickland standard

deficient performance + prejudice

deficient performance

was counsel’s performance objectively unreasonable

prejudice to the D

is there a reasonable probability that the result of the proceeding would have been different absent counsel’s deficiency

who has the burden of proof in an ineffective assistance of counsel claim

the convicted person

when the Cronic approach applies

• when right to counsel is completely denied

• when counsel is operating under an actual conflict of interests

• when the government meaningfully interferes with counsel’s assistance

how to we evaluate counsel’s performance in an IAC case

perspective of the lawyer at the time of trial

effective assistance + guilty pleas

• ensure client is aware of the consequences

• counsel must inform clients about plea offers

• counsel must give reasonable advice about accepting/denying a plea offer

when will a preliminary hearing not occur

if the indictment or trial information is filed before

can statements be used if 6th amend is violated

yes for impeachment

if not voluntary - can not be used at all

Gideon v Wainwright

SCOTUS applies 6th amend right to counsel

decisions of counsel v decisions of defendant

counsel - trial strategy, witnesses, evidence

defendant - plea, appeal, testify, jury trial

when does 6th amend right to counsel attach

charges + deliberate elicitation

how to invoke + when it is waived

invocation - must be clear

waiver- if D reinitiates conversation

deliberate elicitation is …

NOT interrogation

more than mere listening

6th amend right is . . .

offense specific

promissory leinency

NOT allowed

can lead to false confessions

mid-stream Miranda analysis

what was the cops intention

did the cops know the charges had been filed

how connected are the pre and post Miranda statements

Blockburger test

determines when questioning under a specific offense applies to another offense

reasons to keep a D in jail

to ensure they make all court appearance

to prevent them from committing other crimes

bail balance

how can we ensure the D’s future appearance in court while considering systemic and societal costs + respecting the accused basic rights

tools to strike the bail balance

threat of incarceration

court can require D to pay if he fails to show

8th amend

no excessive bail

what is excessive bail

• must take into account facts and circumstance of the case and particular D

• amount must be no more than is necessary to meet the legitimate interest of the government

18 USC 3142(g)

factors to consider for bail

• nature and circumstances of the offense charged

• weight of the evidence

• history and characteristics of the person

• nature and seriousness of the danger to any person or the community

18 USC 3142(e)

enumerates charges which create a rebuttable presumption that bail should be denied outright

possible outcomes at a bail hearing

released on recognizance

unsecured bond (pay a fee if fail to appear)

monitoring

cash bond

percentage bond

property bond

surety bond

other requirements at bail hearing

don’t commit another crime

NCO or protective order

surrender passports

weekly drug testing

things to consider for excessive bail

can only be set as high as needed to ensure the appearance of the D for further court proceedings

right to individualized determination is NOT a right to bail

misdemeanor or felony

misdemeanor - less than 1 year, complaint filed

felony - more than 1 year, complaint, AND information/indictment

preliminary hearing functions

evaluate PC

can effect plea bargaining process

provides defense attorney with info about prosecutor’s case

preserves testimony of witnesses

preliminary hearing v grand jury testimony

preliminary hearing - CAN be used at trial, subject to cross

grand jury - can NOT be used at trial, not subject to cross

grand jury

secret proceeding to determine if there is PC

types of grand juries

investigative

indicting

indicting grand jury

review evidence in the case + determine whether PC exists

investigative grand jury

gather evidence in a case

call witnesses to perform fact investigation

outcome of a grand jury

true bill - enough evidence for PC

no true bill - not enough evidence for PC

grand jury is required

at FED level

secrecy of grand jury applies to

prosecutor, court report, grand jurors

NOT to witnesses

peculiar characteristics of a grand jury

rules of evidence do not apply

neither does the exclusionary rule

D has no right to appear

prosecutor has no duty to disclose any exculpatory evidence

any errors during indictment process = harmless

no double jeopardy protection

no opportunity for judicial review

charging instrument

misdemeanor - complaint

felony - information/indictment

2 policy considerations for charging

1. provide defendant with enough information to putt on a good defense and prepare for trial

2. allow flexibility for the prosecutor to learn more information

alternative theory instruction

jury does not have to agree which theory the crime was committed under but must agree the crime did occur

FRCP 7

a plain, concise, and definite written statement of the essential facts constituting the offense charge v

variance

occurs when the proof the prosecutor presents at trial is different from the allegations made in the charging instrument

what the proseuctor can do for a variance

seek to amend

let the variance stand + let the judge decide

likely outcome of a variance

will stand UNLESS

• it deprives the D of fair notice of the charges against him

  • it creates the risk of double jeopardy

the charging document must

be sufficient - describing elements of the crime (NEVER waived)

be specific - facts for each element (must object prior to trial)

duplicitous charging

ex - D recklessly caused serious physical injury to George Stevens + Victor James

prob - jury may convict on the count even if they are split on who the harm occurred to

fix -

• strike one of the charges

• limiting instruction - must be unanimous

multiplicitous charging

charges a single offense in multiple counts

ex -

1. D provided false income info

2. D provided false physical condition info

permissible to charge the D this way BUT not permissible for the D to be punished separately for both counts (double jeopardy) am

amending an information v amending an indictment

information - any time before the verdict, no new offenses

indictment - can only move forward on specific charges approved by the GJ

bill of particulars

prosecution provides more detail about crime charges (the alleged facts)

types of pretrial motions

to dismissed based on improper pleading

to amend the charging document

to review the D’s bail or pre-trial detention status

to change venue

to compel discovery or for a bill of particulars

to assess the competency of the D

to dismiss bc the prosecutor has violated the D’s right to a speedy trial

to sever or join Ds or charges

to suppress evidence based on alleged constitutional violations

motion in limine

who hears most motions

magistrates

SMJ

state - general

fed - by statute or constitution

can NOT be waived

personal jurisdiction

whether the D has had sufficient minimal contacts with the proposed forum to justify the court’s exercise of authority over the D

venue

where the court proceedings will be held

generally appropriate if it is the site where at least one of the elements of the crime occurred

required so the D is tried by a jury of their peers

vicinage

community from which the jury pool is taken

can fed. and state prosecute for the same crime

yes

congress can also grant exclusive jurisdiction to the feds

SMJ v venue

SMJ - whether ANY fed court can hear the case

venue - WHICH fed court should hear the case

double jurisdiction is . . .

NOT applicable for overlapping jurisdictions

IS for multiple venues

personal jurisdiction

explores questions such as:

• whether the effects of the alleged conduct were felt within the proposed forum

• whether the accused held or enjoyed the products of the alleged extraterritorial criminal conduct within the forum

continuing offense

a crime that begins in one jurisdiction and is completed in another

venue could be in any district where the crime began, continued, or was completed

open file discovery

prosecutor shares all discovery when they get it (with the expectational of confidential informant information)

Brady rule

prosecution MUST disclose exculpatory evidence

sources of law for discovery

DP clause

FRCP

Fed rules of evidence

reciprocity for discovery

whatever the defense must do, the prosecution must do too

exculpatory evidence

any evidence of D’s innocence

evidence that could be used to impeach a prosecution’s witness

materiality

whether the outcome of the trial wold have been different had the prosecutor disclosed the exculpatory evidence

reasonable probability for materiality

whether in the absence of the disclosure the D received a fair trial, understood as a trial resulting in a verdict worthy of confidence

must argue specifically how the undisclosed info would have changed the result

rules 12.1, 12.2. and 12.3

D requirements to disclose for an alibi defense, insanity defense, or a defense he was acting under the authority of a law enforcement agency

remedies for discovery violations

grant a continuance

grant a mistrial

prohibit witness from testifying/evidence from being introduced

instruct the jury that it is allowed to presume certain facts adverse to the non-disclosing party

sanction the attorney

defense v prosecution advantage

defense - ability to speak with D and gain names/information

prosecution - subpoena power, ability to grant immunity in exchange for cooperation, plea bargaining

types of immunity

use immunity

derived use immunity

transactional immunity

use immunity

prosecutor can not use any statements made by a witness against them in a later prosecution

derived use immunity

use immunity + can not use evidence that was found because of statements made

transactional immunity

total immunity

motion for change of venue is usually based on

prejudice or convenience

Giglio evidence

D may have an obligation to take steps to preserve routinely destroyed evidence

bad faith - if the state/cops purposefully destroys possible exculpatory evidence - remedies are available

rules of professional responsibilitiy

don’t be sneaky

dont lie

abide by court orders

don’t make frivolous requests

Jenks act

once the prosecution witness testifies @ trial, the D is entitled to any prior statements

*usually given ahead of time anyway (saves time)

positives of joinder

promotes efficiency + saves resources

lessens changes of inconsistent verdicts for identical conduct

decreases inconvenience to witnesses

negatives of joinder

spillover of evidence

guilt by association

inconsistent defenses

self-incrimination

if D brings motion to sever, analysis:

• did prosecutor have the right to join in the 1st place

• is the D prejudiced by the joinder

motion to consolidate

judge makes decision that the charges/Ds could originally have been brought together