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CRIM PRO 2
| Question | Answer |
|---|---|
| Procedure | Offense and complaint, First appearance – gh, Custody and bail, Preliminary hearing, Charging, Grand jury – inditement or Prosecutor bill of information, Arraignment, Motions, Discovery , Trial or pleas, Trial: jury- unanimous or judge |
| Deciding to charge | |
| DC: Prosecutorial Discretion | Special realm of the prosecutor when making charging descions Presumption of regularity for prosecutors (Pressumed reasonable) |
| DC: PD: Compel | Unable to compel a prosecutor to bring charges- ATTICA The judiciary is unable without legislative guidance – BELL |
| DC:PD: GJ | declines to bring charges- be forced- not unless leg guidline- attica to GJ find PC- does not have to move forward to gj find no PC -can then decide to use a BOI charge(direct bill/ bill of information)Judge finds no PC - can even without the PC |
| CD:PD: Destuetude | PAUL BLAKE Requires: Malum prohibitum crimes only – not in se A crime only because made so by statute – not inherently immoral b.Open, notorious and pervasive violation c.Conspicuous police of non-enforcemen |
| DC:PD: Overlapping penalties | Two different statutes for the same crime, one has a higher crime- Overlapping Pens discretion to pick either as long as they do not discriminate |
| DC:PD: Selective Pros | YICK WO other similarly situated not prosecuted but d was decision to prosecute based on impermissible reasons i. Race, religion, political, exercise of constitutional right |
| DC:PD:SP: CASES | OYLER- lack of prosecutorial knowledge that simialr offenders were also habitual is not enough to be an improper motive a. Conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation |
| CD:PD:SP: Passive enforcement | WAYTE person was treated differently from others in simialry situatied – t =(discriminatory effect) such differential treatment was based on an impermissible reason (discriminatory purpose)- only some pros- persited after gov- not enough |
| CD:PD: SP: Evidience | discovery in selective prosecution claim must have equally high bar – rigorous standard a credible showing of different treatment of similarly situated person – address effect and purpose - bit of a catch 22 |
| DC: PD: Vindictive Prosecution | charges brought or upgraded in retaliation of exercising constitutional rights – violation of EP and DP |
| DC:PD:VP: Presumption | BLACKLEDGE V. PERRY Pretrial/pre charging def Post-trial/ post charging presume vindictiveness rebutted by gov with evidence – it was impossible to proceed on the more NC V. PEARCE high bar-– not persueiave but right to tetsify– JENKINS |
| CD:PD:VP:Exception | kind of- haven’t actualy looked at charges until later/aftee – GOODWIN |
| DC: PD: VP: Pleas | Presumption of vindictiveness does not arise from plea negotiations when prosecutor threatens to bring additional charges if the accused refuses to plead - DP does not bar prosecutor from carrying out threat – MOLINA- IQUADO |
| VENUE | |
| Venue def | Physical location of the criminal proceedings Need to be in the right location and prosecutor must prove it by POE Venue is constitutionally mandated and can be waived |
| Jurisdiction | authority of court to try a particular case |
| J: Subject matter Jurisdiction | State- Often – original jurisdiction in all matters civil and criminal in this state not vested by this constitution in some other court Federal – magistrate court for misdemeanors or district court for more |
| J: Geographical | State- the jurisdiction of the state/ Federal – divisions and districts |
| J: Exclusive and concurrent | Exclusive and concerruent Some states will only cover a certain issue other will cover or allow near by to |
| LOCUS DELICTI | Venue lies where crime is committed Point in time/ countinuing - movement across lines – even if performed all of the elements of the offense in the first district – may create a new venue |
| Venue rules: Art 111, section 2 | Trial of all Crimes . . . shall be held in the state where the said crimes shall have been committed; but when not committed within the state, the trial shall be such place or places as the congress may by law have directed |
| VR: 6TH A | Trial by an impartial jury of the state and district wherein the crime shall have been committed |
| VR: Rule 18 | fed districts: govt must offense was committed. The court must set the place of trial within the district with rosecute an offense in a due regard for the convenience of the defendant, any victim, and the witness, and the prompt administration of justice |
| Venue: Challanges | wrong venue and litigating venue |
| V:CC: Wrong Venue | LD- nature of offense test – where was the offessnse committed -CABRALES |
| V:CC: Wrong Venue: continung crimes ish | Continuing crimes- a. Verb test v. broader (nature of offense) – RODRIQUEZ-MORENO b. “willfully remaining -Gov - Continuing crime, anywhere found- CORES c. Content elements v. intent/ substantial effect- AUERNHEIMER |
| V:CC: Offenses outside of US | ART 3, sec 2: State where crime committed, But not commtied in any state - trial shall be at such place or plaes as the congress may be law have directed 18 USC 3238 - Arrested or, First brought , or Last known residence, or District of Columbia |
| V:CC: Litigating Venue | Proper venue but concerns regarding fairness and prejudice Motion brought by D, may use voir dire to prob- Burden on D to show |
| V:CC: Litigating Venue; Rule 20a | Transfer for plea and sentence: d wants to plea guitly or nolo and USAtt in both district approave in writting |
| V:CC: Litigating Venue; Rule 21a | For Prejudice. Upon the d motion, court must transfer the proceeding against that det to another district if the court is satisfied that so great a prejudice against the d exists- cannot obtain a fair and impartial trial there |
| V:CC: Litigating Venue; Rule 21b | b) For Convenience. Upon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of JUSTICE |
| V:CC: Litigating Venue; Rule 21: presumption of prejudice | Not presumed – except - exceptional cases “utterly corrupted,” media “circus atmosphere,” or “lynch mob mentality.” can be rebutted, If rebutted must prove actual prejudice |
| V:CC: Litigating Venue; Rule 21: presumption of prejudice: FACTORS | Large city / population (dilutes bias) • Jury questionnaire • Individual voir dire • Follow up voir dire • Jury FNG on several counts - Exhaustion requirement- used to show prejudice ii. most cases – resolved through voir dire |
| V:CC: Litigating Venue; Rule 21: Conveince factors | location of d/ witnesses/ event and docs, disruption to d’s business, expense of paryies, location of counsel, docekt condition, any other special elements |
| Vicinage | where jury is selected from – often overlaps with venue |
| complaint and initial appearance | |
| CIA: Complaint | Provide notice to D of charges, Brings citizen from police to a neutral judicial officer, Protects citizen, Informs citizen |
| CIA: C: Rule 3 | written statement of the essential facts constituting the offense charged. Except as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer. |
| CIA: C: Rule 3: Elaboration | Ess. facts include- identify of perp and offense US ex rel Savage v. Arnold |
| CIA: Inital Apperance | Non adversarial ▪Limited in scope ▪Can be on paper, without testimony ▪No counsel (typically) Probabale cause determination when arrested without a warrant Info Comp ▪Counsel ▪Bail / Detention / Release, right to make stat, and not a citizen – rule 5d |
| CIA: IA: PC | If arrest warrant (wont need to)– Inform, right to ATY & Bail conditions ▪ If no arrest warrant – Same, plus Probable Cause determination – judicial- |
| CIA: IA: RULES- con | 4th A for arrest based on PC- constitutionaly mandated |
| CIA:IA: R: CASES= G | Neutral Judicial Officer must determine PC before accused extended detention - Prompt - GERSTIEN |
| CIA:IA: R: CASES=M | RIVERSIDE V. MCLAUGHLIN a. Before 48 hours ok – Delay presumed reasonable b. After 48 hours not ok – Government must show extraordinary circumstances justifying delay c. Remedy for violation: Evidence- Searches & Statements- May be Challenged |
| CIA:IA: R: CASES=mc | MCNABB (1943) – MALLORY (1957 a. Statements made during unnecessary delay in bringing to Magistrate are inadmissible (per se) – not binding on states |
| CIA:IA: R: CASES=mir | Miranda, (1966) - Exclusionary rule and focus on warning |
| CIA:IA: R: CASES=CORELY | Up to six hours – Safe Harbor ▪ Not inadmissible if voluntary i. within 6 hours of arrest, and otherwise voluntary, presumed admissible ii. outside 6 hours, and voluntary, and delay unreasonable, poss suppressed |
| CIA:IA: R: 5 | without necessary delay, Procedue in a felony case- Judge must - complaint,counsel, pretrial, PH, statemnt, couslar - img, relase, get cousnel |
| Bail | Governed by 18 U.S.C. 3141, 3142 and 3143 Typically, after Initial Appearance and before trial May be combined with Preliminary Hearing and mos Contradictory, counsel, relaxed evidentiary rules Federal 1.Usslay presumption to release |
| Preliminary Hearing | PC on CRIME, not ARREST – 1) Crime arrested been committed; and ▪ (2) Defendant committed that crime AYALA |
| PH: particluars | No Constitutional Right to PH- if Remember PH only if GJ not found LIGHT MOST FAVORABLE TO PROSECUTION |
| PH:procedures | Full hearing with evidence, counsel and cross examination, motion can be an issue do after – start to get adversarial ---Rules of evidence relaxed ▪ 4 th A issues not app ▪ Exclusionary rule not |
| PH; GJ | GJ issues Indictment after finding Probable Cause •Or if Bill of Information, before trial BILL OF INFORMATION - Prosecutor “direct bill” charging document Use of Grand Jury to deny D a Preliminary Hearing |
| PH: Critical Stage | Any stage where Counsel’s absence might derogate from the accused’s right to a fair trial- allowed to have counsel- entitled to 6th – COLEMAN V. AL |
| PH: Rule 5.1 | If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless, d waive or indited sceduling 14, 21 no pc - dischagre d |
| PH; Double jeporady | 5th A constitutional right protecting individuals from being prosecuted or punished twice for the same criminal offense by the same governmentin a jury trial when the jury is sworn in, or in a bench trial when the first witness is sworn- not for civil |
| PH: Waiver | D may waive - Affirmative, written, open court waiver,- Waiver must be knowing, intelligent, and voluntary |
| Grand Jury | a. Also determine PC in the same way as a PH b. 5th applies . . . c. Ruel 6 d. Judge presides-oaths, selection, immunity, subpoenas/ prosecutor- day to day- legal advser |
| GJ: Chalenges: Excuplatory | Exculpatory material withheld from GJ- material that clears or tends to clear a defendant from alleged guilt or blame in a criminal case- not a successful challenge 1. 3.8d- ethical violation – DOJ – exculpatory case- WILLIAMS |
| GJ: Chalenges: hearsay | Hearsay: be entirely on hearsay – relaxed evidicne rules/ 5th just GJ – COSTELLO |
| GJ: Chalenges: Exclusionary rule | doctrine that prohibits evidence obtained in violation of a defendant's 4th or 5th Amendment rights from being presented in criminal case- can still present to GJ – CALANDRA USAM – cant if – con rights clearly violated and att has personal knowlegde |
| GJ: Chalenges: Relevance | Relevance- witness cannot refuse to testify based on belief the info is outside of GJ Can refuse if self- incrimination of privilege- BLAIR |
| GJ: Chalangese: Reasonableness | balancing test – 17c2- On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive. dependent on context- Burden on challenger- unreasonable or oppressive – ENTERPRISES |
| GJ: 5TH A | No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury |
| GJ: 5TH A: right | Government is compelling HOFMAN Material or information compelled is testimonial (incriminating) Testimonial- an accused’s communication- w, o,- must explicitly or implicitly, relate a factual assertion or disclose information. Privilege is Personal |
| GJ: 5TH: Acts of Production | FISHER/ DOE Production concedes existence of documents 2. Production acknowledges documents in party’s possession or control 3. Production can be used for authentication purposes |
| GJ: 5TH: Collective Entity Doctrine | Corporations ▪Unincorporated (labor unions) ▪Partnerships BELLIS, 5th A protection available to a sole proprietorship BRASWELL - custodian for corporation wholly owned by one person, not entitled to 5th A privilege |
| GJ: 5TH: Required Records Doctrine | Documents required kept by law were public- no expectation of privacy for records mandatory disclosure for income tax preparation.- WILSON |
| GJ: 5TH: Required Records Doctrine: abuse | Purpose of inquiry must be regulatory;Information sought by requiring preservation of records be must be of a kind customarily kept by regulated party; and Records themselves must have assumed some “public aspect” |
| GJ: Immunity | immunity bath but derivative- Info directly or indirectly derived from testimony immune- cannot be used by pros- KASTIGAR |
| GJ: I:Exception | Gov secures preimmunized testimony can prove what had indepe- CANNING Manna from heaven - Prosecution must establish evidence for indictment obtained independent of compelled / immunity produced evi |
| GJ: I: Act of production | HUBBELL If Government not relying on information from citizen to prove existence of documents ▪And Existence and Location are a foregone conclusion- no con |
| GJ: Types | Informal – prosecutor, lacks judiciary force, Formal – judicial contempt, from judge Federal immunity extends to states, and vice versa ▪Murphy v. Waterfront, page 248 ▪But international too far to extend |
| GJ; Breach | KASTIGAR- If immunity provided, and evidence adduced by such ▪Government has (heavy) burden prove in future prosecution did not use such immunized testimony- A “heavy” burden ▪“Manna from Heaven” ▪Yet, burden (likely) preponderance of the evidence |
| Inditement | notice- REQUIRES- Contain elements of the offense and fairly inform; Enable D to plead acquittal or conviction in possible future prosecution |
| I: Rule 7 | requirements and surplusage, ameniding, bill of particulars |
| I: Requires | Plain, concise and definite written statement ▪ Essential facts constituting offense; Signed by attorney for the government 12b challenge - Motion alleging a defect in indictment a.Must be brought before trial so can be fixed, if possible |
| I: Challange | Presumption of regularity – court will uphold indictment whenever possible Variances- Can amend to form NOT amend as to substance- BAIN RULE Substantive- may be fatal Form – ussaly fixed |
| I: C: GJ | EP Grand juror bias, misfeasance , Evidentiary in GJ Inflaming, personal views, Testifying, Unauthorized presence, Improper or inadequate legal advice, Conflicts of interest,GJ for improper purp, secrecy vi, Selective prosecution, Unreasonable delay |
| I: C: GJ- NEED | Prejudice at trial Difficult, absent showing of prejudice, courts look to uphold Conviction after fair trial moots most; and ▪Must establish prejudice- rules were violated but still fair trial – prolly nothing US v. Mechanik and Bank of Nova Scotia |
| I: C: GJ- Misconduct | MISCONDUCT EXCEPTION Knowing misconduct by prosec-material, indictment may be dismissed |
| I:C: sub | difference between proof at trial and notice in indictment ▪ Substantive ▪If pre-trial, superseding indictment ▪ trial, may be a fatal variance ▪ DP violation poss constitutional defect: 5 th A guarantees felony charge by indictment Possible DJ |
| I:C; FORM | Form is more like spelling ro time. . .. usslay even in trial can fix |
| Joinder and Severance | |
| Joinder | process of joining two people or crimes together in one indictment or trial |
| Rule 8: Joinder of Offenses | with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. |
| Rule 8 : Joinder of Defendants | charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses |
| Rule 13- Joint trial of seperate cases | separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment |
| Severance: rule 14: Relief from Prejudicial joinder | prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires. abuse of discretion |
| Jand S: Issues | Most prejudice can be cured via – jury instructions BUT BURTON ISSUE- inculpatory information Implicating D - Conflicting Constitutional Rights: ▪5th A right not to testify and ▪6 th A right to confront - denial of confrontation. – MUST SEVERE |
| Raise J and S | JOINDER- raise pre-trial – will only be reversed- if actual prejudice- JAWARA SEVERANCE- raise pre-tiral and reurge at end of case- HAS PREJUDICE |
| Severance Factors | Proper jury instruction by Court, Guilt overwhelming- counts or ds, No disparate treatment of one count versus another- equally proven or only got some, Charges not similar WALKER CASE- NOT ENOUGH |
| S for Exculpatory | prejudiced – both D would provide evidicne- FACTORS- 1) Likelihood of Co-D testifying ▪(2) Degree (strength) of exculpatory testimony ▪(3) How impeached (sic) Co-D would be ▪(4) Judicial economy DAVIS |
| S: Mutually antagonistic D | NO Severance- danger cured by jury instruction – ZAFIRO Severance proper when- Serious risk joinder compromise a specific trial right of a D 2. Or prevent jury from making reliable judgement of guilt or innocence |
| Discovery | 6th effective counsel - Government ▪Ultimately want a fair trial and DP Rule 16 – main rule for discovery, Rule 12 – Alibi and Insanity ▪Rule 15 – Depositions (rare) ▪ Rule 17 – Compel through subpoena ▪Rule 26.2 – Witness statements ▪Jencks Act |
| D: Exculpatory Evidence | suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of good faith or bad faith |
| D:EE: Brady | Prosecutor must provide to defense exculpatory evidence when such evidence is material to guilt or punishment- Brady |
| D:EE: Augurs | takes away Upon request – confirm affirmative duty No request, but knowing use of perjured testimony ▪ Never ok; Reversal likely ▪ Reasonable likelihood effect on verdict |
| D:EE: Bagley | Evidence (withheld) is material only if there is a reasonable probability that, had the evidence been disclosed, the results of the proceeding would undermine the confidence in the outcome(changed |
| D:EE: Giglio | Brady material prosecution- specifically exculpatory material about deals or promises of leniency to prosecution witness Proof that would help impeach a government witness by establishing a deal for leniency in exchange for the testimony |
| D:EE: Kyles | Prosecutor thus must affirmatively go and look at police files AND Totality of the circumstances analysis for materiality |
| D:EE: Smith v. Cain | turn over all impeachment evidence- Brady violation = reversal |
| D:EE: Ethics | 3.8d, g, h, - make timely disclosure of all material( not just maerial) that is favorable to d – known to prosecutor – ds consent does not dissolve it 8. What about specific situation where the eveidnce is exculpatory |
| D:EE: Specifics: Inadmissible evidence | WOOD V. BARTHOLOMEW: Does not stand for proposition may withhold exculpatory material if inadmissible |
| D:EE: Specifics: Guilty Plea | i. Turn over exculpatory prior to pleas ii. Must you still disclose exculpatory material. ▪Yes, 1. United States v. Ruiz ▪ Gov. may enter into plea deal with D ▪ Wherein D waives Brady but right to Giglio material, (impeachment material) |
| D:EE: Specifics: False Info | Prosecutor aware of exculpatory ▪ Believes it is false / not credible ▪ Always turn over |
| D:EE: Specifics: Timing | TURN OVER BRADY AS SOON AS YOU LEARN IT |
| D:EE: Specifics: Constitutionl Violations | i. If withheld evidence was material ▪ Reasonable probability evidence disclosed, results would have been different- REVERSAL – new Trial |
| D:EE: Specifics: Open files | BANKS V. DRETKE- Withheld GIGLIO and coaching evidence- important to preserve for the record |
| D: Rule 16 | A- government disclosure- OS, W/R S, PR, DOCS, REPORTS, EW, NOT- WP BTU GJ B- d disclosure- same but inly that will be used nto just exists- not WP C- CONTINUES DISCLOSURE D MODYFY IN DONT not self executing- recipercoal |
| D: Rule 12.1 | Notice of an Alibi Defense:---(a) Government's Request for Notice and Defendant's Response. Williams once notice - recipercaol - Warduis v. oregon |
| D: Rule 12.2 | 12.2- Notice of an Insanity Defense; Mental Examination a- is a must b- may - this mro emental defect at time need to do comeptence first 5th and nobles- wp |
| D: Preservting evidicne | Youngblood- Government finds or has the evidence- Defense right to inspect, examine and test i. Good faith Bad faith- Matters |
| D: Acess to witness | 1. Either side can subpeanoa a. Neither side may counsel witnesses not to cooperate with other side (except Defendant |
| D: Rule 12b3 | Intent to use specified evidence at trial and Any evidence that may be entitled discoverable under Rule 16 |
| D: Rule 12b4 | Notice of Government’s Intent to Use Evidence, what will be litigate |
| D: Rule 12.3 | Notice of a Public-Authority Defense 1. If defense of actual or believed exercise of public authority on behalf of Government or Intelligence authority |
| D: Rule 15 | rare- Material witness or presevre include - outisde of us- 1) Necessity, (2) Materiality, (3) Unavailability, and here (4) 5th A and Consent ii. United States v. Esquivel |
| D: 17 | subponeas - a. Used to compel witness attendance at trial, hearing, etc. – both sides can use b. If can establish necessity, relevance and specificity to Court i. ▪Party prepares blank subpoena (person) ▪Or subpoena duces tecum (docs |
| D: 26.2 | Jenck act- motion to produce wit docs after they testify es,rs, examine, sanctions, scope |
| D: 26. an Brady | i. If brady Cant turn over- take precedent over jenkcs - turn over as soon as you can - Minister of justice always overwhlems desire to win |
| Pleas and plea bargining | |
| PPB: Types | i. PGAC – Plead guilty as charged, PGLC – Plead guilty lesser charge, NG – Not guilty ▪NGBRI – Not guilty by reason of insanity, Nolo Contendere- Accepts charges, declines to assert or admit guilt ▪ Not (most likely) admissible in civil, Alford |
| PPB: Different tyrpes | Recomendation, specifci sentence, fact stipulation, charge, conditional , 5k1 |
| PPB: Test | Strickland v. washington Error - Conduct below objective standard of reasonableness Prejudice as a result of such error |
| PPB: Prejudice | But for attorney error: 1. Would not have plead; Would have gone to trial instead 2. Would not have gone to trial; Would have plead instead |
| PPB: IAC | Fails to inform of plea, Offered no advice regarding accepting/ rejecting plea, Inaccurate information was provided by lawyer, Coerced d into either accepting or rejecting the plea 3. Upheld v. Lockhart – applied Strickland in the plea context |
| PPB: Death | ii. JACKSON/ BRADY (1970)- Just because there is a posisbiltiy of death when you go to trial does not mean you didn’t have a choice 1. Voluntary ▪Intelligently made ▪Knowingly made ▪Truthful admission of guilt ▪Rule 11 2. And on the record |
| PPD: Hard line | Pabilla and bauder |
| PPB: HL: Padillia | Must properly advice re “truly clear” plea consequences ▪ Here incorrect advice re mandatory deportation |
| PPB: HL: Bauder | ii. Bauder v. Dept. Corrections (2010), - Similar incorrect advice re civil commitment ▪ But, not mandatory advice re all collateral post-plea consequences iii. Art of representation - looks bad in one case, may be masterful in another |
| PPB: TRIAL | LaFler v. Cooper- counsel failure prosecutor. – even with trial still was prejudice 2. Or plead guilty as charged, ie without benefit of plea offer (Missouri v. Frye case, like new offense between, need to prove the Prosecution would reoffer |
| PPB: Vindictive | Bordenkircher v. Hayes,- Give and take, allowed to threaten -- In ”give and take” of plea bargaining, no punishment or retaliation |
| PPB: Waive | i. Jones v. United States- Yes, waiver of appeal rights permissible ▪But, cannot preclude a post conviction challenge (2255) of such waiver based on a claim of IAC waive fifth woth plea- not operate as a waiver of the privilege at sentencing |
| PPB: Rule 10 | Arraignemnt - open court and must give copy, read inditement, ask for plea can eb waived- if recive a copy and not plea nto guitly and waiver is accepted by court |
| PPB: Rule 11 | entering a plea, considering and accepting a guiltyor nolo, ensuring that a plea is voluntary, factual basis, procudere, disclosing a plea, judica consideration, withdrawal and erro r |
| PPB: RULE 11: Boykin | Must ensure – Ds admonishment of such constitutional rigths through a guilty plea are knowing and voluntary - And intelligent a. Needs to be in the record- or invalidated Not really good for EN MASSE PLEAS – unless poss each one |
| PPB: alford | b. Individual may voluntarily, knowingly, and understandingly consent to a prison term even if unwilling or unable to admit participation in acts constituting the crime |
| PPB: bREACH | Santobello v. New York- use of contractuaul interpretation Rickets v. adomson- When there is a breach the plea agreement, the P ros no longer is rquired to uphold its end of the bargin – NO DJ BAR Gov breach- no remedy- DH, SP, remand Withdarwal plea |
| PPB:B: Withdrawal | iv. D Withdrawal – Back out before entering plea, After judge accepts btu before sentencing for fair and just reason, After judge accept plea and imposes sentence gov W- if not Detrimental Reliance |
| PPB:B:W: post conviction | 1. Appeal – d may file a direct appeal from the judgement of guilt based upon the guilty pleas 2. For rule 11- remember – Harmeless error, though also Plain error, collateral attack |
| Time limitations | |
| TL: Times | Pre- acc Delay commission and the institution charges 5th, Post- ac - Delayarrest and trial- 6th but DP loimt every portion of the criminal justice- Prejudice , Post – convn Speedy trial does not have implications – Delay imposition and execution 8th |
| TL: SOL | 1. Once runs, no longer able to prosecute- begins to run when the crime is committed and ends either an arrest of an intement/ information is used a. Use of tolling |
| TL: SOL | state v. federal - jurisiditional |
| TL: Statutory speedy trial | 1. States - Often Justification for going beyond Statutory Speedy Trial 2. Federal Rule 9 a. Trial shall be set for no later than two-hundred and seventy (270) days after arraignment |
| TL:SSL: Federal speedy trial act | i. 30 days to charge (indict) from arrest, 70 days try from charge (indictment) or from when appeared before judge, Not less than 30 days, no trial before 30 days after indictment remedy dismissal - except intrest of justice |
| TL: Constitutional - 5TH | DP- No person shall be….deprived of life, liberty, or property, without due process of law…“ Test - Prjeudice and reason - kinda barker |
| TL: C: 6TH | In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”- Prevent lengthy pre-trial delay |
| TL:C: 6th cases | Klopfer v. NC- 6th amendment applies to the states theough due process and 14th amendment Barker test - length of delay, reason, assertion, prejudice Lovasco- ex dogget- negligence counts smith v. hooey - get the body Marion TL distDe la B 5th braod |
| JT: | i. Jury determines facts relating to Innocne and gulr AND applies legal standard |
| JT: Rules | 1. Article III, Sect. 2, para 3 – The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury… 2. 6th amenedment right – RULE 23: |
| JT: Right | iii. Duncan v. LA- applies the 6th to states 14/BOR 1. Jury trial – fundemtnal to American scheme, protect against oppressive government, |
| JT: R: Petty Offenses | i. presumption that a maximum sentence of 6 month or less is a petty offense for which the constitution does not mandate a jury trial ii. Line is drawn – by the statute/ legislation |
| JT:R:PO: EL | i. Don’t aggregate: One count less than 6 months, but several together… ▪ Lewis v. U.S. (1996, p. 538 - ▪ Not entitled to jury trial. ▪ But, if any one of counts a charge carrying more then 6 months, would be entitled to jury trial |
| JT:R:po:EL:Presumption | a. Meaning it can be challenged b. Argue additional penalties offense beyond the max sentence, other legislative penalties- Blanton v, City of North Las Vega, drievr licsnceh c. Fines i. inordinate |
| JT:R:PO:EL:NO R | v. This right does not apply to a Juvenile- focus there on the best interest of the child vi. De Novo Hearing – BLACKLEDGE V. PERRY |
| JT: waiver | a. Most jurisdictions defendant alone waives ▪Some require consent of Government and / or approval of Court ▪ b. Waiver must be knowing, intelligent and voluntary, (and on the record) i. Givernemnt burden ▪Remember Rule 11 ▪ ▪But also Rule 23 |
| JS | i. Rule 23b- comprised of 12 people, unless written stipulation ii. MUST be greater then 6 – Ballew v. Georgia |
| JS: AJ | 1. Federal Rule 24 – a. permits court select up to six alternates b. ▪Typically, one or two alternates ▪Sit and hear case as regular jurors c. ▪Either excused once deliberation begins ▪Or kept and separated from deliberating jurors ▪ |
| JS: Selection | 1. Jury pool – a. People eligible to be called for jury duty ▪Selected from all eligible jurors in jurisdiction ▪ Voting list, Driver licenses list, Tax rolls 2. ▪Jury Venir...petit juryJury Selection / Voir Dire in court process begins and challenges |
| JS: Eligiblity | 4. Elegiblity a. Typically ▪18 years or older ▪Citizen ▪Resident of district ▪Able to read ▪Speak / Understand English ▪MS – Not Habitual drunkard or gambaler |
| JS: Fair cross section | 1. 6th ensures that a criminal case shall be tried before an imaprtail jury of the state and district where in the crime shall have been committed 2. Taylor v. LA 3. Duren v. Missour |
| VDP: | i. Concern of anonymity, carry widely, Common questions: job, health, relations – 24 cause and prempatory - FAIR AND IMPARTIAL |
| VDP: Cause | a. inability to serve or bias that would prevent the juror from fairness i. there is no limit to the amount of these |
| VDP: C: I/A | i. Implied - use of avegrae person test- whether an average person in similar circumstant would feel pressure- hard to discover ii. Actual- include juror neing biase in a particular case- must excuse |
| VDP:C: CAP DEATH | i. With death – trial for guiilt and then separate sentencing trial ii. Voir Dire: Witherspoon / Death Qualification and WITHERSPOON V. ILLINOIS D has right be tried by jury not tilted in favor of prosecution ( |
| VDP:C:CAP DEATH: WHTIERSPOON | 2. May exclude from venire jurors who would ▪(1) Automatically vote without regard to evidence; or ▪(2) Whose attitude towards death mak an impartial decision dams v. Texas- View on capital so strong substantially impair their |
| VDP: P: | a. Just because- choice by lawyer that a particular juror should not serve i. Need for objective reason limited amount |
| VDP: P: Batson | i. Evdicnetary burden on d when claiming denied EP through states use of premaptory challenges to exclude a member based on the same race as d Defense makes prima facia case exclusion due to race ◦ Burden shifts to State to race neutral◦ Court decid |
| VDP: P : Exhaustion Req | Do you need to ”burn” your peremptory challenges in order to argue improper denial of a challenge for cause. ◦ Be aware of issue: Some jurisdictions may require it. ◦ But USCT may not find error to be of constitutional magnitude |
| VDP: Batson: Progeny | Batson case- same, Powers – different race – EP Edmonson – Civil case, McCollum – Defense (Rev) - Batson extended – Defense Challenges McCollum challenge or “Reverse Batson” D white, V black, J.E.B – Gender. , Taylor v. Louisiana -Gender heightened |
| VDP: Removal: | 1. Removal- impartially, inability to perfom duty- lying, refusal to follow law 2. Smith v. philps- investigation at the department – need to inquire into the basis not just dismiss 3. Ruel 23 alllows an 11 memebr jury |
| VDO: PRE- Diliberation | Note-taking, no questions- observer, sequestion- - contamination |
| Trial: Right | i. This is a right of the DEFENDANT (6th) and PUBLIC (1st) ii. Applies to: All aspects of criminal proceeding |
| T: Closing the court | Reason for closing, Narrow, Consider reasonable alternatives; Adequate findings on record for closure WALLER |
| T: CC: exceptions | a. Victim, witness, undercover, security, short term arguments i. But, Court must consider least restrictive option ▪ apply Waller - waver need c/gov consent |
| T:cc: remedy | i. ▪Objection at trial and raised on direct appeal ▪“Automatic reversal” (generally) ▪Need not show prejudice (sic) ii. ▪No objection at trial ▪Issue raised as IAC on PCR ▪ 1. Need to show prejudice,- flexible |
| T:cc: press | richmond- recongnized right- closed only c. Close only if find: ▪ (1) D will be denied fair trial without closure, and ▪ (2) No other means but closing will protect D’s fair trial rights- |
| T:cc:P: globe | ii. Two-part inquiry – Close only if: 1. (1) Substantial probability D’s fair trial would be prejudiced which public closure could prevent; and 2. (2)Reasonable alternatives cannot adequately protect D’s fair trial rights. |
| T:cc:p: partial | a. Gag orders i. Permissible- Telling parties may not discuss case ▪Must be narrowly tailored and specific ▪1 st A and vagueness concerns ▪- jury thoughts ii. Cameras, recording |
| T: Jd: Imparitality | i. 5th A Due Process perempatroy- is affiadaft is proeprly compelteed not reason self disqualification - judge recuses self |
| T: D rights | Presence: 43- absences 43c, medicated, disruption Testify - rock v. as, waiver, jury instrutin - griffin, lakeside, carter, direc/ indirect evdicne- chamber/ alaska- rigth to put on a case- DP cross- 6th, l/w - remedy |
| T: BOP | Beyond reaosnabel doubt d- affiemative defecse -POE shfits burden back Beyond reassonabel doubt - state and case order |
| TT: DR: Confrintation | Davis v. al rovario md v. craig - room - indiualied and ds c,c,c, |
| Jury points | jury unaminity - DP/EP violation - ramos and Burch/ ballew hung jury - aleend insturction - ... jury nulifcation - been proven but dont agree witht he concept of suhc sidenote- rule 29 directed verdict - not sufficent evidicne |
Created by:
Vanderhoof_