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Criminal Procedure
Profs. Steiker and Stuntz
Spring 2004
Course Outline
Terminology.................................................................................................................................... 1
Initial Appearance ........................................................................................................................... 1
Bail and Preventive Detention ........................................................................................................ 2
Prosecutorial Discretion .................................................................................................................. 4
Preliminary Hearing ........................................................................................................................ 7
Grand Jury Investigation ................................................................................................................. 8
Grand Jury Screening .................................................................................................................... 10
Right to Appointed Counsel.......................................................................................................... 12
Ineffective Assistance ................................................................................................................... 13
Discovery: Prosecutorial Disclosure ............................................................................................. 17
Discovery: Defense Disclosure ..................................................................................................... 20
Guilty Pleas ................................................................................................................................... 21
Competency to Stand Trial ........................................................................................................... 25
Right to a Jury ............................................................................................................................... 27
Sentencing ..................................................................................................................................... 31
Double Jeopardy ........................................................................................................................... 35
Appellate Review and Harmless Error ......................................................................................... 37
Terminology
Three ways to be charged with a crime: complaint signed by a police officer or citizen (after a
warrantless arrest), information signed by a prosecutor, or indictment signed by grand jury after
determination of probable cause. Class notes 1.
Court appearances: The initial appearance (required under Fourth Amendment) is a nonadversarial probable cause hearing intended as a check on detention. If probable cause is not
found, pretrial custody is not permitted. Arraignment is when the defendant is told of the
charges. Preliminary hearing (not required by the Constitution) is an adversarial probable cause
determination intended as a check on charging decisions. If probable cause is not found, case is
dismissed without prejudice. Class notes 1.
Initial Appearance
Probable cause hearing required: Where a defendant is arrested without a warrant, “the Fourth
Amendment requires a judicial determination of probable cause as a prerequisite to extended
restraint on liberty following arrest,” that is, “any significant pretrial restraint on liberty.”
Custody qualifies as such restraint, but the Court declined to say what other restraints do or do
not so qualify. (A person arrested on a warrant has already received a determination of probable
cause, so no separate probable cause hearing is needed after arrest. [Note that a warrant may be
granted based solely upon a grand jury’s indictment, without further inquiry by a judge. Ex parte
United States (1932) (610 n.2). In light of this fact, Gerstein must assume that prosecutors are
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closer to adversarial partisans than judges are. Class notes 2.]) A judicial probable cause hearing
does not require “adversary safeguards” and hearsay is admissible. The standard of probable
cause in such a hearing “is the same as that for arrest”—“probable cause to believe that the
suspect has committed a crime.” The probable cause hearing is not a “critical stage” under
Coleman v. Alabama (1970) (612), and therefore the defendant does not have a right to
appointed counsel during it. A detained suspect may challenge detention based on the failure to
provide a probable cause hearing, but “a conviction will not be vacated on the ground that the
defendant was detained pending trial without a determination of probable cause.” Gerstein v.
Pugh (1975) (607). Note that if Gerstein were based on the Due Process Clause rather than the
Fourth Amendment, defendant would get an adversarial hearing. The Fourth Amendment is
related to the warrant process, which by default is not adversarial. Class notes 1.
Timing of probable cause hearing: The hearing must take “promptly” after arrest. Gerstein v.
Pugh (1975) (607). Providing a hearing within 48 hours is generally sufficient. Any tighter
restriction would intrude on federalism. Even if a hearing is provided within 48 hours, it “may”
violate Gerstein if the defendant can prove that it was “delayed unreasonably.” If the hearing is
provided after 48 hours, “the burden shifts to the government to demonstrate the existence of a
bona fide emergency or other extraordinary circumstance.” Efforts to consolidate pretrial
proceedings do not qualify as such circumstances. Weekends do not qualify as such
circumstances. County of Riverside v. McLaughlin (1991) (Supp. 1-14). Alternatively, the point
of the probable cause hearing is to free the innocent. Therefore, it should be held within 24
hours. Scalia, J., dissenting in County of Riverside v. McLaughlin (1991) (Supp. 1-14). Many
states in fact require hearings within 24 hours. Class notes 2.
Federal rule, Fed. R. Crim. P. 5, appears at Supp. 1-27.
Bail and Preventive Detention
Reasons for government to detain defendant pretrial: to prevent flight (an official reason), to
prevent more crime (an official reason in some jurisdictions), to extract a plea (an unofficial
reason), to obstruct defense counsel (an unofficial reason). Class notes 2.
State law usually governs bail and pretrial release because the Supreme Court has not applied the
Eighth Amendment to the states. (616). The Eighth Circuit once held that the Eighth Amendment
is incorporated into the Fourteenth Amendment and thus binding on the states, Hunt v. Roth (8th
Cir. 1981), but the Supreme Court vacated the decision as moot. Murphy v. Hunt (1982) (644).
Setting bail: “Bail set at a figure higher than an amount reasonably calculated to [assure the
presence of the accused] is ‘excessive’ under the Eighth Amendment.” Considerations in setting
bail should include the nature of the offense, the strength of the evidence, the ability of the
defendant to pay, and the character of the defendant. “If an amount greater than that usually fixed
for serious charges of crimes is required … that is a matter to which evidence should be directed
in a hearing.” Stack v. Boyle (1951) (616). A defendant may be incarcerated pending trial if he
presents a flight risk. Bell v. Wolfish (1979) (641).
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Reforming the bail system: Studies in the 60s determined that bail tended to be set without
regard for defendants’ ability to pay, such that wealthy defendants were released and poor
defendant were not, Freed & Wald (617), and that pretrial detention increased the chances of
conviction. Rankin (618). Pretrial detention can also increase sentences by preventing defendant
from getting a job and doing other things that look good at sentencing, where a sentence is “time
served” they can actually run longer than statutory sentences would, they encourage guilty pleas,
and they stop defendants from intimidating witnesses. Furthermore, bail bondsmen acted as
surety for some defendants but not for others, effectively taking over responsibility for deciding
who would be released. Pannell v. United States (D.C. Cir. 1963) (Skelly Wright, J.) (618). Bail
bondsmen are also a problem because they remove defendants’ financial incentive to return to
court and discriminate against the poor. They are good because they’re cheaper than the
government, good ones help defendants get to court, and one study said they were less racist than
judges. Class notes 2. The Bail Reform Act of 1966 (as amended by the Bail Reform Act of
1984) instructs that courts should release defendants pretrial “unless the judicial officer
determines that such release will not reasonably assure the appearance of the person as required
or will endanger the safety of any other person or the community.” [The safety of the community
factor was added in 1984.] It further instructs courts imposing conditions on release to impose
“the least restrictive further condition, or combination of conditions, that he determines will
reasonably assure the appearance of the person as required and the safety of any other person and
the community.” Further, “The judicial officer may not impose a financial condition that results
in the pretrial detention of the person.” (621). State systems adopted similar reforms, sometimes
citing due process, Allen v. Burke (E.D. Va. 1981) (623), equal protection, Pugh v. Rainwater
(5th Cir. 1978) (en banc) (623). A county may act as a bail bondsman and impose a 1% charge
on defendants who appear as required, without violating the due process or equal protection
provisions of the Fourteenth Amendment. Schilb v. Kuebel (1971) (623). Violation of pretrial
conditions can result in revocation of release, prosecution for contempt of court, or prosecution
for an independent criminal offense (usually failure to appear, e.g., 18 U.S.C. § 3146). (629). In
the federal law, a defendant convicted of committing a crime while on pretrial release will
receive an enhanced sentence for that crime. (629). Some argue that pretrial detention should be
limited through the increased use of citations in place of arrest. (629).
Federal preventive pretrial detention: As noted above, the Bail Reform Act of 1984 permits
pretrial detention to protect the community. (621). It also permits the judicial officer to order
detention pending trial if after a detention hearing “the judicial officer finds that no conditions or
combination of conditions will reasonably assure the appearance of the person as required and
the safety of any other person and the community.” 18 U.S.C. § 3142(e) (632). In cases in which
detention hearings must be held, essentially serious cases 18 U.S.C. § 3142(f) (632), it must be
held at the defendant’s first appearance unless the court grants a continuance, which may be up
to five days at the request of the defendant or up to three days at the request of the government.
18 U.S.C. § 3142(f) (632). A defendant at a detention hearing has the right to appointed counsel,
the opportunity to testify, present witnesses, and cross-examine government witnesses, and the
opportunity to present information by proffer or otherwise. Ordinary rules of evidence do not
apply, and the determination must be made by clear and convincing evidence. A defendant may
be detained pending completion of the hearing. 18 U.S.C. § 3142(f) (633). The court is to
consider the offense charged “including whether the offense is a crime of violence or involves a
narcotic drug,” the strength of the evidence, various characteristics of the defendant, and the
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specifics of risks the defendant might pose. 18 U.S.C. § 3142(g) (633). Where a hearing is to be
held on the government’s motion, 18 U.S.C. § 3142(f) (632), a rebuttable presumption that no
conditions other than detention will be sufficient applies to defendants convicted of certain
crimes while on pretrial release and the end of the sentence for that conviction was less than five
years before. 18 U.S.C. § 3142(e) (634). The same presumption applies if there is probable cause
that the defendant committed certain drug or gun crime eligible for 10 years imprisonment. 18
U.S.C. § 3142(e) (634). In issuing a detention order, a judge must include written findings of fact
and reasons, and the defendant must be confined separately from convicts. 18 U.S.C. § 3142(i)
(634). This system, allowing federal courts to detain defendants pretrial upon the government’s
proving by clear and convincing evidence that no release conditions “will reasonably assure …
the safety of any other person and the community” is constitutional, and does not violate
substantive due process under the Fifth Amendment or the prohibition of excessive bail under the
Eighth Amendment. Such detention is regulation, not punishment, with that distinction
depending on “whether an alternative purpose to which [the restriction] may rationally be
connected is assignable to it, and whether it appears excessive in relation to the alternative
purpose assigned [to it].” The conditions where preventive detention applies are limited, the
hearing is prompt, the Speedy Trial Act implicitly limits the length of detention, the hearing is
adversarial, and detention must be separate from convicts. United States v. Salerno (1987) (636).
Alternatively, the system allows imprisonment without proof beyond a reasonable doubt, which
is no more permissible after mere arrest than it would be after acquittal. Marshall, J, dissenting in
United States v. Salerno (1987) (Supp. 2-1). Note that the Salerno majority is really concerned
with sexual predators. Class notes 2. If a detention hearing is not provided in the time required
by the statute, automatic release is not required as a remedy. The only remedy is to hold the
hearing. United States v. Montalvo-Murillo (1990) (645).
State preventive pretrial detention: State systems vary widely in how such preventive detention is
imposed: some require specific hearings, impose limits on such detention, or set varying burdens
of proof. Many state constitutions deny bail to defendants charged with capital crimes. (631).
Prosecutorial Discretion
Discretion in general: “[I]n the absence of clear evidence to the contrary, courts presume that
[prosecutors] have properly discharged their official duties.” United States v. Chem. Found.
(1926) (Supp. 3-17). Victims cannot sue prosecutors to force them to prosecute potential
defendants, such as prison guards. A court’s ordering prosecution would violate separation of
powers. Inmates of Attica Correctional Facility v. Rockefeller (2d Cir. 1973) (Supp. 3-2).
Though Inmates of Attica did not raise an equal protection claim, such claims have been raised
and rejected in other cases. Supp. 3-7. “[S]o long as the prosecutor has the probable cause to
believe that the accused committed an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his
discretion.” Bordenkircher v. Hayes (1978) (Supp. 3-17).
Selective prosecution: This is a constitutional doctrine with two prongs: discriminatory effect
and discriminatory purpose. Class notes 3. Prosecutorial decisions may not be based on “an
unjustifiable standard such as race, religion, or other arbitrary classification[s].” Oyler v. Boles
(1962) (Supp. 3-17). A city can enforce health and building codes deliberately against sex-
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related establishments because of their high incidence of crime. The codes are not “customarily
ignored” and have not “fallen into desuetude.” People v. Mantel (N.Y. 1976) (Supp. 4-5). To
prove discriminatory intent, defendant must prove that prosecution was because of, not in spite
of, the effect on the group. A “passive enforcement policy under which the Government
prosecutes only those who report themselves as having violated the law, or who are reported by
others,” does not violate the First or Fifth Amendments. Such a policy may have discriminatory
effects, but it does not have discriminatory intent, so it does not violate due process. [In this case
the government prosecuted 16 of approximately 674,000 violators, so the result suggests that
there is no minimum level of enforcement below which defendants may complain. Supp. 3-33.
This case is really about resource constraints. Class notes 3.] Wayte v. United States (1985)
(Supp. 3-27). [Unusual result:] A police department cannot implement a policy of enforcing all
ordinances, such as the requirement of keeping a bell on a bicycle, against suspected prostitutes,
because the bell ordinance has no rational relationship to the lcass of suspected prostitutes.
People v. Kail (Ill. App. 1986) (Supp. 4-1). Alternatively, the rational basis that must be shows in
between the enforcement policy and a legitimate governmental policy, rather than between the
enforcement policy and the law being enforced. The majority’s conclusion will obstruct
prosecution against organized crime, such as the Al Capone prosecution. Green, J., dissenting in
People v. Kail (Ill. App. 1986) (Supp. 4-1). General allegations that race plays a statistically
significant role in death sentences will not require the vacation of a particular death sentence
where the defendant does not show racism in his case. McClesky v. Kemp (1987) (Supp. 3-11).
To obtain discovery to investigate allegations that a prosecutor singled out a defendant on the
basis of race, the defendant must show that the government failed to prosecute similarly situated
suspects. United States v. Armstrong (1996) (Supp. 3-14). In the words of the supplement,
“traffic stops are permissible when the officer has sufficient cause to believe the suspect has
committed a traffic offense, even if the officer is in fact stopping the car due to suspicion of
another offense.” Whren v. United States (1996) (Supp. 4-5).
Vindictive prosecution: Where, upon retrial after a defendant successfully attacks a conviction
on appeal, a trial judge imposes a harsher sentence than that same judge imposed after the first
trial, “the reasons for his doing so must affirmatively appear … [and] must be based upon …
conduct on the part of the defendant occurring after the time of the original sentencing
proceeding.” This rule is effectively a presumption of vindictiveness on the part of the judge.
North Carolina v. Pearce (1969) (Supp. 3-35). Where a state allows criminal defendants a trial
de novo after conviction in an inferior court, and a defendant receives a higher sentence after
conviction in the second than he received in the first, where the second trial and sentencing are
conducted by a different court than the first, the second court does not need to demonstrate any
new facts arising since the first trial to justify the higher sentence. Colten v. Kentucky (1972)
(Supp. 3-37). Where, upon retrial after a defendant successfully attacks a conviction on appeal, a
jury imposes a harsher sentence than the judge had imposed after the first conviction, the second
court does not need to demonstrate any new facts arising since the first trial to justify the higher
sentence. Chaffin v. Stynchcombe (1973) (Supp. 3-37). Where a state allows criminal defendants
a trial de novo after conviction in an inferior court, and after conviction a defendant files for that
trial, the prosecutor obtains an indictment for a new, more serious charge, the presumption of
vindictiveness applies, though the prosecutor can overcome it by “show[ing] that it was
impossible to proceed on the more serious charge at the outset.” Blackledge v. Perry (1974)
(Supp. 3-38). “[S]o long as the prosecutor has the probable cause to believe that the accused
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committed an offense defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely in his discretion.” During plea
negotiations, a prosecutor may threaten to return to the grand jury to obtain an additional charge
if the defendant does not plead guilty without violating due process. This conclusion rests on an
assumption that both sides in the negotiation have equal bargaining power, a recognition that the
prosecutor has a legitimate interest in trying to persuade the defendant not to go to trial, and a
recognition that a different result would simply encourage prosecutors to charge all available
counts at the start and offer to drop some of them if the defendant pleaded (which would be
worse for defendants at the bail stage). Bordenkircher v. Hayes (1978) (Supp. 3-39). Where a
defendant asks for a jury trial and a prosecutor subsequently indicts the defendant on more
serious charges, no presumption of vindictiveness is required, in part because “[a]n initial
decision [by the prosecutor] should not freeze future conduct.” A prosecutor may obtain more
information or think more about a case after the initial charging decision. “It is unrealistic to
assume that a prosecutor’s probable response to [pretrial defense] motions is to seek to penalize
and to deter.” A defendant, however, could in theory prove that a prosecutor did in fact act
vindictively. The government could probably defend itself against a presumption of
vindictiveness in most cases, but that rule would encourage litigation. United States v. Goodwin
(1982) (Supp. 3-35).
Public order offenses: Describing vagrancy ordinances in 1956: “The acts which are made
punishable are petty in terms of social dangerousness, but the chief significance of this branch of
the criminal law lies in its quantitative impact and administrative usefulness. … In most
jurisdictions these statutes are sufficiently indefinite to give the police wide scope. …
[V]agrancy-type statutes facilitate the apprehension, investigation or harassment of suspected
criminals. … Unwanted drunkards, panhandlers, gamblers, peddlers or paupers are committed or
banished, a procedure that is alleged to deter other like persons from entering or remaining in a
given locality.” Foote (1956) (Supp. 4-7). A vagrancy ordinance was unconstitutionally vague
because it punishes “activities … historically part of the amenities of life as we have known
them. … [The ordinance gives “unfettered discretion … in the hands of the Jacksonville police.
… Arrest ing a person on suspicion, like arresting a person for investigation, is foreign to our
system, even when the arrest is for past criminality. Future criminality, however, is the common
justification for the presence of vagrancy statutes.” Papachristou v. City of Jacksonville (1972)
(Supp. 4-8). A stop-and-identify statute was similarly unconstitutionally vague. Kolender v.
Lawson (1983) (Supp. 4-10). [Unusual result:] A police department cannot implement a policy of
enforcing all ordinances, such as the requirement of keeping a bell on a bicycle, against
suspected prostitutes, because the bell ordinance has no rational relationship to the lcass of
suspected prostitutes. [Note that this ordinance does two different things: it allows prosecutors to
use one statute to enforce another, and it allows police to use a rarely enforced statute to exercise
power over a particular group of people. It appears impossible for legislators to get one effect
without getting the other. (If the could, which would be the more legitimate?) Class notes 4.]
People v. Kail (Ill. App. 1986) (Supp. 4-1). Alternatively, the rational basis that must be shows in
between the enforcement policy and a legitimate governmental policy, rather than between the
enforcement policy and the law being enforced. The majority’s conclusion will obstruct
prosecution against organized crime, such as the Al Capone prosecution. Green, J., dissenting in
People v. Kail (Ill. App. 1986) (Supp. 4-1) One argument is that police should be able to apply
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different standards to different areas of town, such that they keep panhandlers out of business
districts but let them go in “skid row” areas. Ellickson. (1997) (Supp. 4-12). Public order
offenses are often used to support police action without actually being used in prosecution.
Livingston (1997) (Supp. 4-10). A gang loitering ordinance was unconstitutionally vague. City of
Chicago v. Morales (1999) (Supp. 4-12).
Preliminary Hearing
Definition: The preliminary hearing is not constitutionally required. Lem Woon v. Oregon (1913)
(680). It is an adversarial, judicial probable cause determination. If probable cause is not found,
the case will be dismissed without prejudice. Under Uniform Rule of Criminal Procedure 481, a
defendant can move for a pretrial judgment of acquittal. If the motion appears meritorious, the
trial court will rule on it based on depositions and other evidence. If the motion is granted, the
government can appeal, but the decision is otherwise treated as an acquittal. (680). Under
Federal Rules of Criminal Procedure 5.1, the defendant may cross-examine witnesses and
introduce evidence. Motions to suppress are not permissible. If probable cause is not found, the
complaint will be dismissed without prejudice. Preliminary hearing must be held no later than 10
days after initial appearance if defendant is in custody, otherwise no later than 20 days after
initial appearance. (683). The Federal Rules of Evidence allow hearsay in preliminary hearings.
(Supp. 5-17). Hearsay is also admitted in North Dakota, State v. Morrissey (N.D. 1980) (691),
Colorado, People v. Szloboda (Colo. 1980) (691). Hearsay is not admitted in Massachusetts,
Myers v. Commonwealth (Mass. 1973) (686), and testimony by affidavit is not permitted in Utah.
State v. Anderson (Utah 1980) (691). Many states permit the government to bring charges again
after dismissal at preliminary hearing but require that it do so via indictment rather than
information. State v. Thomas (Mo. 1975) (692). Some states limit prosecutor to the charges
alleged at preliminary hearing, State v. McCrary (N.M. App. 1982) (692), but others permit the
prosecutor discretion in altering the charges. State v. Hooper (Wis. 1981) (692).
The government might want a preliminary hearing: to preserve a witness’s testimony, to use
testimony to clarify what actually happened, to test the victim’s interest in going forward
(whether by testimony or simply cooperation). (682). The government might also want a hearing
to force a judge to dismiss case that the government, for political reasons, does not want to drop
by itself. Class notes 5. The defense might want a preliminary hearing to cross-examine the
prosecution’s witness, to obtain informal discovery, and to commit prosecution witnesses to
testimony. The defense counsel will rarely call its own witnesses. The defense may also try to
use the hearing to review the conditions of pretrial release. (682). Some states require the
prosecutor’s choice between a grand jury and a preliminary hearing, in the words of the
casebook, to “be based on permissible criteria consistently applied,” State v. Freeland (Or. 1983)
(692), and consider the greater speed of the grand jury a permissible criterion. State v. Eells
(1985) (692).
Right to counsel: In Alabama, where preliminary hearing is not required, the purpose of the
hearing is to determine whether to go ahead to the grand jury and to fix bail, and if defendant
does not have a lawyer testimony given there cannot be introduced at trial, the hearing is a
“critical stage” of the proceedings such that the defendant has a right to appointed counsel. A
lawyer at the hearing might convince the judge not to hold the defendant on bail, might impeach
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prosecution witnesses, preserve testimony, conduct discovery, and argue for mental exam or
other procedures. In the case deciding this, the Court vacated the conviction and remanded for
harmless error determination; if state court found harmlessness, it was to reinstate the conviction.
If it did not, new trial was ordered. Coleman v. Alabama (1970) (683). Under Massachusetts
statute, defendant has right to cross-examine prosecution witnesses and present testimony
“before the examining magistrate determines” probable cause. This is so because “the standard
of probable cause to bind over [for trial] must be require a greater quantum of legally competent
evidence than the probable cause to arrest.” The rules of evidence “should in general be the
same” as those for trial. The magistrate should treat the hearing similarly to a motion to acquit as
a matter of law. “[T]he judge at a preliminary hearing should allow reasonable latitude to the
scope of the defendant’s cross-examination of prosecution witnesses in order to effectuate the
ancillary discovery and impeachment functions of the hearing noted in the Coleman case.” If
defendant’s rights in the hearing are violated, he must receive a new hearing. Myers v.
Commonwealth (Mass. 1973) (686). Defense discovery is not a permissible aim during the
preliminary hearing under Coleman v. Burnett (D.C. Cir. 1973) (691). A defendant may not call
child abuse victims at a preliminary hearing where their testimony would not lead directly to
dismissal. State v. Rud (Minn. 1984) (691). The construction of a contract that would constitute a
defense could not be considered at a preliminary hearing but must be held for trial. People v.
Johnson (Colo. 1980) (691).
Relation to indictment: In most jurisdictions, an indicted defendant has no right to a preliminary
hearing, because the two procedures serve the same functions. United States v. Simon (E.D. Pa.
1981) (693), King v. Venters (Ky. 1980) (693), State ex rel. Rowe v. Ferguson (W. Va. 1980)
(693). Some jurisdictions allow the trial judge to decide whether an indicted defendant should
receive a preliminary hearing. State v. Holmes (La. 1980) (693). California once required that
indicted defendants receive a preliminary hearing to meet state equal protection standards,
Hawkins v. Superior Court (Cal. 1978) (693), but voters overturned that decision in the Crime
Victims Justice Reform Act of 1990, which also barred defense discovery at preliminary
hearings, made hearsay admissible, and limited defendants’ rights to cross-examine and to
present witnesses. (693). The California Supreme Court subsequently reversed its previous equal
protection decision, Bowens v. Superior Court (People) (Cal. 1991) (695), but limited hearsay
testimony at preliminary hearings by barring mere “readers.” Whitman v. Superior Court
(People) (Cal. 1991) (695).
Grand Jury Investigation
Subpoena power: “The unique advantage the grand jury has as an investigatorial agency is its
subpoena power.” (536). The government does not need probable cause or reasonable suspicion
to obtain a grand jury subpoena, as police officers do to obtain a search warrant or conduct a
Terry stop. Class notes 6. Answering a grand jury subpoena, however, is less intrusive than being
subjected to these other methods. United States v. Doe (Schwartz) (2d Cir. 1972) (543). Also, the
targets of subpoenas—white-collar criminals—can protect themselves politically against abuse,
so they do not need the constitutional protection granted to the targets of search warrants, such as
drug dealers. Ely. Class notes 6. The government may like to use a subpoena rather than a search
warrant because it may not know exactly what it’s looking for and searches are narrower,
subpoenas make the targets do the work, subpoenas involve lawyers and lawyers can be useful,
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white-collar prosecutors rarely have probable cause in advance, and white-collar prosecutors
want to be nice to white-collar defense counsel. On the whole, negotiations between defense
counsel and prosecutors govern who subpoenas work, not the law. Class notes 6. A subpoena ad
testificandum compels testimony; a subpoena duces tecum (Fed. R. Crim. P. 17(c)) compels the
production of items, including documents. (536). “In theory the grand jury decides whether to
compel appearance of a witness and the court determines whether to issue the subpoena.” But in
practice the prosecutor makes the decisions. In re Grand Jury Proceedings (3d Cir. 1973) (537).
The Fourth Amendment bars subpoenas duces tecum too sweeping “to be regarded as
reasonable.” Hale v. Henkel (1906) (543). If a witness does not appear or refuses to answer
questions, the court that created the grand jury can hold the witness in contempt. 28 U.S.C. §
1826 (538). The court can confine such a witness for the term of the grand jury, but not longer.
Though a court could use criminal contempt, civil contempt is preferred. Shillitani v. United
States (1966) (538). A grand jury does not infringe Fourth or Fifth Amendment rights when it
requires approximately 20 people to provide “voice exemplars.” United State v. Dionisio (1973)
(541). A grand jury does not infringe Fourth or Fifth Amendment rights when it requires a
witness to provide “handwriting exemplars.” United States v. Mara (1973) (545) (issued the
same day as Dionisio). “[A] grand jury subpoena [duces tecum] issued through normal channels
is presumed to be reasonable, and he burden of showing unreasonableness must be on the
recipient who seeks to avoid compliance. … [W]here … a subpoena is challenged on relevancy
grounds, the motion to quash must be denied unless the district court determines that there is no
reasonable possibility that the category of materials the Government seeks will produce
information relevant to the general subject of the grand jury’s investigation.” The Court
recognized that the subject of a subpoena may not know the subject of the grand jury’s
investigation, but did not address how to solve this problem. United States v. R. Enterprises, Inc.
(1991) (549). Federal district courts held that grand jury subpoenas seeking blood samples, In Re
Grand Jury Proceedings (W.D. Ky. 1993) (550), and saliva samples, United States v. Nicolosi
(E.D.N.Y. 1995) (550), constituted unreasonable searches and seizures under the Fourth
Amendment. One federal district court conducted a reasonableness inquiry, based on several
factors, to determine the constitutionality of a subpoena of saliva samples and ultimately
permitted them, but this approach is unusual. In re Grand Jury Proceedings (Vickers) (D.N.H.
1998) (550). One state court permitted subpoenas for blood samples only where the grand jury
foreman submits an affidavit supporting probable cause to believe the sample would develop
evidence of criminal activity. Woolverton v. Multi-County Grand Jury (Okla. Crim. App. 1993)
(552). Another state court permitted subpoenas for blood samples when the grand jury has a
reasonable basis for believing the results will significantly help it investigate circumstances it has
good reason to believe involve crime. In the Matter of a Grand Jury Investigation (Mass. 1998)
(552). A grand jury may not take testimony to pursue civil remedies available to the government.
United States v. Procter & Gamble Co. (1958) (552). A grand jury cannot use its subpoena
power, in the words of the casebook to “assist the prosecution in preparing for trial.” State v.
Johnson (1996) (552). A subpoena duces tecum cannot direct a witness to provide documents to
police, because if it could, police could effectively avoid warrant procedures. In re John Doe
Grand Jury Proceedings (R.I. 1998) (553).
Procedure: Prosecutors can be present for investigation but not for deliberation or vote on an
indictment. Fed. R. Crim. P. 6(d) (538). Some jurisdictions, including Connecticut and Michigan,
allow individual judges to serve, essentially, as grand juries for investigations purposes, even
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though they retain the grand jury for indictment. (539). Under the federal rules, an indictment
will not be dismissed on the ground that a grand juror was not legally qualified if at least 12
qualified grand jurors concurred in the indictment. Fed. R. Crim. P. 6(b)(2). (Supp. 6-8). Under
the federal rule, everyone present during grand jury proceedings is bound to secrecy except the
witnesses. Fed. R. Crim. P. 6(e)(2)(b). (Supp. 6-9).
Witnesses’ Fifth Amendment rights: A witness may not rely on the Fifth Amendment do avoid
answering questions if he is given use and derivative use immunity. Transactional immunity is
not required. Such a witness can later force the government to prove that its evidence was
obtained independent of the testimony. Kastigar v. United States (1972) (563). The Fifth
Amendment does not protect the contents of a document (because the admissions made by
creating it were made before the subpoena issued and thus could not have been compelled by it),
but turning over a document may itself be testimonial and incriminating in that it tacitly
acknowledges, in the words of the casebook, “(1) that the documents described in the subpoena
exist and are in the person’s possession [really two separate points, according to Stuntz]; and (2)
that the produced documents are the ones described and thus constitute an ‘implicit
authentication’ of the documents produced.” If these points are at issue, the witness has a Fifth.
Fisher v. United States (1976) (554). A grand jury witness can be prosecuted for perjury, in part
because the Fifth Amendment permits the witness to remain silent. United States v. Wong (1977)
(561). Where a grand jury witness is a “potential defendant whose indictment [is] considered
likely by the prosecution,” under the Constitution the government does not need to warn the
witness of that status. United States v. Washington (1977) (555). A witness can be prosecuted for
perjury committed during immunized testimony, and the government is not limited in the perjury
prosecution to the testimony alleged to be perjurious. United States v. Apfelbaum (1980) (564).
New Mexico statutes require that the target of a grand jury investigation be informed of his status
as such and given an opportunity to testify. Utah statutes require that grand jury witnesses be
informed if they are targets or subjects. (562). A subpoena was quashed under the Fisher
standards in United States v. Doe (1984) (554). A defendant who puts documents into categories
described in a subpoena may be incriminating himself and may therefore have a Fifth
Amendment privilege against the use of those documents. [Note: This suggests that the
government cannot comply with the Fourth Amendment (by limiting the scope of a subpoena)
without violating the Fifth (by forcing a defendant to think and then benefiting from those
thoughts).] United States v. Hubbell (2000) (Class notes 6.)
Right to counsel: A grand jury witness does not have a constitutional right to have counsel
present in the grand jury room. United States v. Mandujano (1976) (562). Colorado statutes
permit grand jury witnesses to have lawyers present in the grand jury room. Kansas statutes
permit grand jury witnesses to have lawyers present in the grand jury and permits those lawyers
to object to questions, but not to examine his client. (562).
Grand Jury Screening
Grand jury screening: The Fourteenth Amendment’s due process requirement does not require
indictment by a grand jury. Hurtado v. California (1884) (680). The Fifth Amendment requires
federal prosecutions for crimes eligible for more than a year’s imprisonment to be indicted by a
grand jury. (679). The grand jury may indict based on incompetent evidence, Holt v. United
10
States (1910) (698), and on hearsay. An alternative rule would essentially require two trials.
Costello v. United States (1956) (697). The Second Circuit reversed a conviction and dismissed
the underlying indictment where the grand jury had seen only the testimony of one police officer
who did not have first-hand knowledge of the facts. United States v. Estepa (2d Cir. 1972) (700).
The exclusionary rule does not apply to the grand jury, in part because “a prosecutor would be
unlikely to request an indictment where a conviction could not be obtained.” United States v.
Calandra (1974) (700). Under California law, prosecutors “aware of evidence reasonably
tending to negate guilt” must provide it to the grand jury. Johnson v. Superior Court (1975)
(702). The Ninth Circuit has held, in the words of the casebook, that “deliberate use of perjured
testimony before a grand jury by the prosecution constitutes misconduct invalidating the
indictment.” United States v. Samango (9th Cir. 1979) (700). In the words of the casebook, “a
defendant cannot be convicted on the basis of evidence proving matters not alleged in the
indictment.” A defendant can, however, be convicted “on the basis of facts which constitute the
offense but are less than the total facts alleged in the indictment.” United States v. Miller (1985)
(696). In the federal system, prosecutors are not required to present exculpatory evidence to the
grand jury, even if it is substantial. If they were, the grand jury would be transformed “from an
accusatory to an adjudicatory body.” Also, the only way to enforce such a rule would be to place
a judge in the grand jury, which would obstruct investigation. [Note that the screening role and
the investigation role are essentially contradictory, and that in general the investigatory role
wins.] United States v. Williams (1992) (702, Supp. 7-1).
Judges may review grand jury evidence to ensure that indictments are supported in some
jurisdictions, such as Colorado. (702).
Disclosure to defendant: Arizona requires that within 20 days of indictment, the defendant
receive a transcript of the court reporter’s notes of the grand jury’s proceedings, except for its
deliberations. (704).
Procedural violations: Where two government witnesses were present in the grand jury when
each testified and defendant was subsequently convicted, the conviction will not be reversed or
vacated because the procedural violation was harmless in light of the conviction. [Concurrence
noted disapprovingly that under this approach, acquittal would render the violation moot.] United
States v. Mechanik (1986) (704). Prosecutorial misconduct before the grand jury, if raised in a
pretrial motion to dismiss, will result in dismissal of the indictment “if it is established that the
violation substantially influenced the grand jury’s decision to indict” or if there is “grave doubt”
that the indictment was free of the violation’s influence. Bank of Nova Scotia v. United States
(1988) (705). A defendant cannot move for dismissal on the grounds of violation of the secrecy
of the grand jury because such an appeal is interlocutory, despite the fact that such a rule,
combined with Mechanik and Bank of Nova Scotia effectively bar remedy for violations.
Midland Asphalt Corp. v. United States (1989) (705).
The government might want to use the grand jury to avoid witness intimidation, to resolve a
high-profile case quickly, to save court time, or to make the process more convenient for
witnesses. Gilboy (1984) (693).
11
Right to Appointed Counsel
Development of the right: “In all criminal prosecutions, the accused shall enjoy the right … to
have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. All defendants have the
right to bring retained counsel to trial, and some capital cases require appointed trial counsel.
Powell v. Alabama (1932) (the Scottsboro boys case) (Supp. 8-1). Federal defendants have a
right to appointed trial counsel under the Sixth Amendment. Johnson v. Zerbst (1938) (Supp. 82). All defendants have a right to appointed trial counsel only where counsel’s absence would
result in a “trial … offensive to the common and fundamental ideas of fairness and right.” Betts
v. Brady (1942) (Supp. 8-2). All capital defendants have a right to appointed trial counsel, under
due process clauses. Hamilton v. Alabama (1961) (Supp. 8-2). All felony defendants have a right
to appointed trial counsel. Gideon v. Wainwright (1963) (Supp. 8-3). Defendants have a right to
appointed trial counsel where the charge carries more than six months’ imprisonment. Duncan v.
Louisiana (1968) (Supp. 8-14). “[N]o person may be imprisoned for any offense, whether
classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial.”
Argersinger v. Hamlin (1972) (Supp. 8-13), reaffirmed in Scott v. Illinois (1979) (Supp. 8-15). A
defendant does not, per se, have a right to appointed counsel at a revocation hearing, though
some defendants might in some cases. Gagnon v. Scarpelli (1973) (Supp. 8-20). Defendants
prosecuted for multiple offenses, each of which carry less than six months’ imprisonment but
that, together, carry more than six months, does not have a right to appointed counsel. Lewis v.
United States (1996) (Supp. 8-14). A defendant may not receive a suspended sentence unless he
was represented by counsel at trial. Alabama v. Shelton (2002) (Supp. 8-17). [Apparently no case
has considered what Shelton means that defendants may not receive probation unless they are
represented at trial. Class notes 8.]
Consequences of conviction: A defendant can receive a sentence enhancement of two years, as
under the federal sentencing guidelines, based on a previous conviction that was uncounseled.
[This case, especially when compared to Shelton, demonstrates the informality of sentencing as
compared to trial. The consistent point between the two is that the determination of guilt for
which the defendant is formally being sentenced must be counseled. Also, in both cases the
details of the trigger case—the crime that triggers the imposition of the suspended sentence and
the crime that increases the criminal history level under the guidelines—are irrelevant and thus
require less protection.] Nichols v. United States (1994) (Supp. 8-16), overturning Baldasar v.
Illinois (1980) (Supp. 8-16). Note all of the potential consequences of conviction other than
incarceration: enhanced subsequent sentence, enhanced subsequent charge, disenfranchisement,
deportation, exclusion, denial of citizenship. Class notes 8.
Note that defense counsel make trial process more accurate but also more expensive. As a result,
the right to counsel improves the trials but do take place but probably also reduces the number of
trials that take place. The same can be said of many of the defendants’ rights established in the
1960s. (Supp. 8-13).
Self-Representation: A defendant has a Sixth Amendment right to proceed without counsel
“when he voluntarily and intelligently elects to do so. … [A]lthough he may conduct his own
defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the
individual which is the lifeblood of the law.’” A state may appoint standby counsel, even over
12
defendant’s objections. “[A] defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a denial of ‘effective assistance of
counsel.’” To waive the right to counsel and choose to represent himself, a defendant “should be
made aware of the dangers and disadvantages of self-representation.” [Note that the Court could
apply this same logic to waiver of conflicts, but it chooses not to in Wheat.] [Note that Faretta
and Nix v. Whiteside are in some tension; the point of Nix is that defense counsel are an accuracy
screen, but the point of Faretta is that defense counsel are not needed. Class notes 12.] Faretta v.
California (1975) (1132). “The pro se defendant must be allowed to control the organization and
content of his own defense, to make motions, to argue points of law, to participate in voir dire, to
question witnesses, and to address the court and the jury at the appropriate points in the trial.”
Where a defendant does those things but objects to other unsolicited “intrusions” by standby
counsel, defendant’s Faretta rights are maintained. “In determining whether a defendant’s
Faretta rights have been respected, the primary focus must be on whether the defendant had a
fair chance to present his case in his own way.” The denial of the right cannot be deemed
harmless. “If standby counsel’s participation over the defendant’s objection effectively allows
counsel to make or substantially interfere with any significant tactical decisions, or to control the
questioning of witnesses, or to speak instead of the defendant on any matter of importance, the
Faretta right is eroded.” Also, “participation by standby counsel without the defendant’s consent
should not be allowed to destroy the jury’s perception that the defendant is representing
himself.” “Faretta does not require a trial judge to permit ‘hybrid’ representation of the type
Wiggins was actually allowed. But if a defendant is given the opportunity and elects to have
counsel appear before the court or jury, his complaints concerning counsel’s subsequent
unsolicited participation lose much of their force. A defendant does not have a constitutional
right to choreograph special appearances by counsel. … Faretta rights are also not infringed
when standby counsel assists the pro se defendant in overcoming routine procedural or
evidentiary obstacles to the completion of some specific task, such as introducing evidence or
objecting to testimony, that the defendant has clearly shown he wishes to complete.” (Supp. 121). Note that there is no right to know about the Faretta right, because the system does not really
want defendants to exercise it. You can view Faretta as not a right itself, but a system of waiving
the Gideon right. A defendant might reasonably want to represent himself to make a political
argument regardless of conviction, because counsel isn’t worth the money in light of minor
potential penalties, to speak to the jury without being subject to cross-examination, to avoid
really bad defense counsel, to appear honest, or to obtain leniency from the judge in procedural
matters. Many defendants also want to represent themselves because they have paranoid
delusions. How is competency to stand trial relevant here? Class notes 12.
Ineffective Assistance
You can divide the Sixth Amendment’s regulation of defense counsel into three categories: effort
(Cronic, but mostly Strickland), competence (Strickland), and loyalty (Cuyler, Schwartz, Nix v.
Whiteside). Effort gets very little regulation. If Schwartz is the law, the loyalty standard is very
high (but not very protective of defendant autonomy). Note, however, that Cuyler and Schwartz
can’t coexist unless one of them is very weak. Cuyler’s argument is that the trial judge should
respect the defendant’s autonomy; Schwartz’s is that the trial judge cannot know that the
defendant is acting autonomously. Class notes 12.
13
Specific tasks: Counsel may not be barred from presenting and examining client. Ferguson v.
Georgia (1961) (Supp. 9-1). The state may not limit attorney’s choice of when to put defendant
on the stand. Brooks v. Tennessee (1972) (Supp. 9-1). Counsel may not be barred from giving
summation in a bench trial. Herring v. New York (1975) (Supp. 9-1). Counsel may not be barred
from conferring with client during overnight recess between direct- and cross-examination.
Geders v. United States (1976) (Supp. 9-1). Trial court may prohibit defendant from conferring
with his lawyer during a 15-minute recess between direct- and cross-examination. Perry v. Leeke
(1989) (Supp. 9-1).
Right to effective assistance: To succeed in a claim of ineffective assistance of counsel, the
defendant must show (1) that counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense. Courts should apply the same standard to capital and
noncapital cases. [Note that an entirely different approach might have been to look at financing.
Courts might have been willing to do that a decade or two earlier, when they were desegregating
schools and overhauling prisons, but that wasn’t happening by the time this case arose. Class
notes 9.] Strickland v. Washington (1984) (Supp. 9-3). In fact, however, the Supreme Court is
more likely to find ineffective assistance in a capital case, as it did in Williams v. Taylor (2000)
(Supp. 9-22) where defense counsel failed to perform sufficient investigation, even though doing
so would have produced both good and bad evidence. The same two-part test applies to
challenges to guilty pleas based on ineffective assistance. Hill v. Lockart (1985) (Supp. 9-24).
The same two-part test applies to counsel’s post-sentencing advice concerning timely appeals.
Roe v. Flores-Ortega (2000) (Supp. 10-12). In a federal habeas court, under AEDPA, a
defendant raising an ineffective assistance claim must show that any court that addressed the
claim on direct appeal “applied Strickland to the facts of his case in an objectively unreasonable
manner.” Bell v. Cone (2002) (Supp. 9-32).
Deficient performance: “[T]he performance inquiry must be whether counsel’s assistance
was reasonable considering all the circumstances. … Judicial scrutiny of counsel’s
performance must be highly deferential. … A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsels conduct
falls within the wide range of reasonable professional assistance. … A convicted
defendant making a claim of ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional judgment.
… [C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. … The reasonableness of
counsel’s actions may be determined or substantially influenced by the defendant’s own
statements or actions.” Strickland v. Washington (1984) (Supp. 9-3). Defense counsel
does not perform deficiently where he threatens to withdraw and tell judge if defendant
perjures himself. [This result means that defense counsel have an incentive not to let their
clients tell them anything. On the other hand, a contrary result would give defense
counsel an incentive to encourage perjury. Class notes 11.] Nix v. Whiteside (1986)
(opinion of five-member majority) (Supp. 10-1). The Court has explicitly “decline[d] to
hold either that the guarantee of effective assistance of counsel belongs solely to the
innocent or that it attaches only to matters affecting the determination of actual guilt.”
14
Where defense counsel fails to file a timely motion to suppress critical evidence, he acts
deficiently. (The Court remanded for prejudice determination.) Kimmelman v. Morrison
(1986) (Supp. 10-6). Where defense counsel fails to object to government theory of
aggravating sentencing factors that violates circuit precedent at the time of the trial but
that becomes legal following the trial and before Supreme Court resolution of
ineffectiveness claim, counsel performs deficiently. Lockhart v. Fretwell (1993) (Supp.
10-7). “[C]ounsel has a constitutionally imposed duty to consult with the defendant about
an appeal where there is reason to think either (1) that a rational defendant would want to
appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he was interested in
appealing.” If counsel does consult with defendant, “Counsel performs in a professionally
unreasonable manner only by failing to follow the defendant’s express instructions with
respect to an appeal.” Roe v. Flores-Ortega (2000) (Supp. 10-12). Where defense counsel
fails to conduct sufficient investigation for sentencing proceeding, even though such an
investigation would have produced both good and bad evidence, counsel’s performance is
deficient. Williams v. Taylor (2000) (Supp. 9-22).
Prejudice: An actual conflict of interest, such as that presented by multiple representation
presumptively prejudices the defendant. [Circuit courts have divided over whether this
rule applies to conflicts other than multiple representation. (Supp. 11-21).] Cuyler v.
Sullivan (1980) (Supp. 9-11). “Actual or constructive denial of the assistance of counsel
altogether is legally presumed to result in prejudice. … The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. … When a defendant challenges a
death sentence … the question is whether there is a reasonable probability that, absent the
errors, the sentencer—including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death. In making this determination, a court
hearing an ineffectiveness claim must consider the totality of the evidence before the
judge or jury.” Strickland v. Washington (1984) (Supp. 9-3). Prejudice is presumed if (1)
counsel is completely absent at a critical stage, (2) “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing,” (3) or counsel is appointed under
circumstances making competent representation impossible. United States v. Cronic
(1984) (Supp. 9-31). In a challenge to a guilty plea, “the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” [Note that this standard ignores the fact that
more effective counsel in most cases would result in a better bargain but would still result
in a plea. Supp. 9-26.] Hill v. Lockhart (1985) (Supp. 9-22). Defense counsel does not
prejudice defendant where he threatens to withdraw and tell judge if defendant perjures
himself. Nix v. Whiteside (1986) (view held by all nine justices) (Supp. 10-1). Failure to
put on any mitigating evidence at a capital sentencing hearing is not presumptively
prejudicial. Darden v. Wainwright (1986) (Supp. 9-36). Counsel’s decision not to put on
any mitigating evidence at a capital sentencing hearing is not presumptively prejudicial.
Burger v. Kemp (1987) (Supp. 9-36). Where defense counsel fails to object to
government theory of aggravating sentencing factors that violates circuit precedent at the
time of the trial but that becomes legal following the trial and before Supreme Court
15
resolution of ineffectiveness claim, counsel’s performance does not prejudice defendant.
“To set aside a conviction or sentence solely because the outcome would have been
different but for counsel’s error may grant the defendant a windfall to which the law does
not entitle him.” This is a “compound legal error” argument. [Note the contrast with
Kimmelman v. Morrison (1986) (Supp. 10-6), listed under performance above.] Lockhart
v. Fretwell (1993) (Supp. 10-7). If counsel’s failure to consult with defendant concerning
timely appeal deprives defendant of the right to an appeal, prejudice is presumed if “there
is a reasonable probability that, but for counsel’s deficient failure to consult with him
about an appeal, [defendant] would have timely appealed.” Roe v. Flores-Ortega (2000)
(Supp. 10-12). re defense counsel fails to conduct sufficient investigation for sentencing
proceeding, even though such an investigation would have produced both good and bad
evidence, counsel’s performance prejudices the defendant. Williams v. Taylor (2000)
(Supp. 9-22). Counsel’s error in non-capital sentencing proceeding that increases
defendant’s sentence by six to 21 months prejudices the defendant. [Does this approach
conflict with the “reasonable probability standard”? Supp. 10-12. Does it conflict with
Hill v. Lockhart (1985) (Supp. 9-22)? Class notes 10.] Glover v. United States (2001)
(Supp. 10-9). Counsel’s waiver of summation in sentencing proceeding (in part to prevent
prosecution rebuttal) and failure to put on mitigating evidence is not presumptively
prejudicial. Bell v. Cone (2002) (Supp. 9-32).
Conflicts of interest: Requiring a single defense lawyer to represent two co-defendants whose
interests conflict violates the defendants’ Sixth Amendment right to effective assistance of
counsel. Glasser v. United States (1942) (Supp. 11-2). Where defense counsel represents several
co-defendants and one defendant pleads guilty, that defendant does not have a successful
ineffectiveness claim when he later learns that counsel had sought leniency for the other codefendants on the grounds that their cooperation led to the guilty plea. Dukes v. Warden (1972)
(Supp. 11-10). Where defense counsel representing three co-defendants moves for separate
counsel and is denied, and all three defendants elect to testify, the defendants are denied effective
assistance of counsel because counsel cannot cross-examine them. Holloway v. Arkansas (1978)
(Supp. 11-2). Where defense counsel represents three defendants and is paid entirely by two of
them, and the defendants receive separate trials, and no party objects to the joint representation,
the trial court has “no affirmative duty to inquire into the propriety of the multiple representation.
… In order to establish a violation of the Sixth Amendment, a defendant who raised no objection
at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance. … We hold that the possibility of conflict is insufficient to impugn a criminal
conviction.” These circumstances do not demonstrate actual conflict, so defendant has no claim.
The defendant must demonstrate (1) an actual conflict, that has (2) an adverse effect. Note that
there is no prejudice standard, so the point is the defense counsel’s conduct, not the outcome, and
that the two prongs essentially fold together. Cuyler v. Sullivan (1980) (Supp. 11-6). Where two
law partners represent two co-defendants, one partner writes the appellate briefs for both
defendants, and one defendant’s brief does not make a “lesser culpability” argument, an actual
conflict is not present. Burger v. Kemp (1987) (Supp. 11-20). Trial courts can override
defendants’ waivers of the right to conflict-free representation and impose separate counsel.
[This rule means that trial courts will never be overturned if they always impose separate
counsel. They do not actually do so, however, because, especially where defendant is indigent
and the potentially conflicted counsel is privately retained by a co-defendant, it’s not clear that
16
imposing separate counsel is in the defendant’s interest. Supp. 11-20.] Wheat v. United States
(1988) (Supp. 11-14). The Second Circuit has held that “no rational defendant would knowingly
and intelligently be represented by a lawyer whose conduct was guided largely by a desire for
self-preservation.” As a result, the court reversed the conviction of a defendant who waived
conflicts where a prosecution witness admitted that he had illegally imported heroin on behalf of
defense counsel, meaning that counsel could not adequately cross-examine him. United States v.
Fulton (2d Cir. 1993) (Supp. 11-15). Where defense counsel had been murder victim’s lawyer at
the time of the murder, and counsel did not notify the trial court, on appeal defendant must
“establish that the conflict of interest adversely affected his counsel’s performance” to void the
conviction. The trial court’s awareness of the potential conflict and failure to investigate it does
not change the analysis. Mickens v. Taylor (2002) (Supp. 11-21). The Second Circuit has also
declared that a waiver will defeat a subsequent claim of ineffective assistance unless (1) the
conflict is “so severe as to be unwaivable” or (2) the waiver is “not knowing and intelligent with
respect to the specific conflict.” Where a police union’s lawyer receives a large retainer from the
union, his representation of an individual officer in a trial alleging misconduct, the conflict is so
severe as to be unwaivable. [This result is unusual; most appeals courts enforce waivers. Class
notes 10.] United States v. Schwarz (2d Cir. 2002) (Supp. 11-16).
Government might want separate counsel imposed to turn one defendant against another, to get
some defendants worse lawyers, or to get some defendants lawyers with less money for
investigation. Class notes 11.
Discovery: Prosecutorial Disclosure
Federal courts have inherent authority to compel disclosure during trial by both the defense and
the prosecution. United States v. Nobles (1975) (753).
In general, prosecution disclosure is desirable because it encourages thorough preparation,
promotes recognition and disposal of legal questions, minimizes inequities among defendants,
and informs plea bargains. ABA Standards (754). Prosecution disclosure might not be desirable
if it lets defendants tailor perjured testimony to the prosecution’s case and bribe and intimidate
witnesses. State v. Eads (Iowa 1969) (754). Prosecution disclosure might also be undesirable
because it would reveal informants and other law enforcement methods, and because it would
discourage internal criticism within law enforcement (for fear that such criticism would be
discovered). Class notes 13. Note that all discovery requirements make gathering evidence more
expensive (for both sides), which discourages collecting evidence. Class notes 16.
Statutory requirements: In general, a defendant has broader rights to prosecution disclosure
during trial than before. (755). In general, duties to disclose, where they exist, continue
throughout pretrial and proceedings. (755). In general, lawyers’ work product is not subject to
discovery. Fed. R. Crim. P. 16(a)(2) (Supp. 13-13). The defense has a right to “inspect and copy
or photograph” certain physical evidence in the government’s possession. Fed. R. Crim. P.
16(a)(1)(c) (754). Upon request, the government must provide the defense with “the substance”
of any relevant oral statement made by defendant “in response to interrogation by a person the
defendant knew was a government agent, if the government intends to use the statement at trial.”
Fed. R. Crim. P. 16(a)(1)(A) (Supp. 13-13). Upon request, the government must provide the
17
defense with any relevant written or recorded statement of the defendant in its possession. Fed.
R. Crim. P. 16(a)(1)(B) (Supp. 13-13). Upon request, the government must provide the defense
with a copy of the defendant’s criminal record. Fed. R. Crim. P. 16(a)(1)(D) (Supp. 13-13). Upon
request, the government must provide documents and objects material to the defense, intended
for the government’s use in the case-in-chief, or obtained from or belonging to the defendant.
Fed. R. Crim. P. 16(a)(1)(E) (Supp. 13-13). This rule applies only to items material to defeating
the government’s case in chief; it does not apply to items that would support a defendant’s claim
of selective prosecution. United States v. Armstrong (1996) (759). Upon request, the government
must provide “results or reports of physical or mental examinations, and of other scientific tests
and experiments” material to the defense or intended for the government’s use. Fed. R. Crim. P.
16(a)(1)(F) (759). Upon request, the government must provide a summary of intended expert
testimony. Fed. R. Crim. P. 16(a)(1)(G) (759). “The Jencks Act, 18 U.S.C. § 3500, requires the
prosecutor to disclose, after direct examination of a Government witness and on the defendant’s
motion, any statement of the witness in the Government’s possession that relates to the subject
matter of the witness’ testimony.” (as characterized in United States v. Bagley (1985) (760 n.2).
Under Uniform Rule of Criminal Procedure 422, the prosecution would need to provide notice if
any evidence was obtained by search, wiretap, lineup, voice identification, confession, or
admission. (754). If a party fails to comply with discovery, the court may order compliance,
grant a continuance, prohibit the party from entering undisclosed evidence, or “enter any other
order that is just under the circumstances.” Fed R. Crim. P. 16(d) (Supp. 13-16). Note that many
of the Rule 16 requirements apply only to evidence the government intends to use in case in
chief, thus allowing surprise rebuttal evidence. Yet Wardius says that non-reciprocal discovery is
unconstitutional. The two probably do not conflict because the rule is close enough. Class notes
16. The California Supreme Court has held that charges should not be dismissed where
government files concerning police officers alleged to have used excessive force have been
destroyed; instead the jurors should be instructed that they could infer that the records would
have harmed the prosecution. People v. Zamora (Cal. 1980) (756).
Constitutional disclosure requirements: “[T]he 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.” [Note that Brady was a capital case, but that Court did not limit the rule
to capital cases. Class notes 13. Note that the test sounds two-pronged, but the second prong
(materiality) includes the first (favorability). Class notes 14.] Brady v. Maryland (1963) (759).
The Brady rule applies to evidence that would impeach government witnesses. In this context the
materiality requirement functions so that a “new trial is required [only] if ‘the false testimony
could … in any reasonable likelihood have affected the judgment of the jury.’” A prosecutor’s
office is a single entity, and all prosecutors are responsible for the knowledge of each. Giglio v.
United States (1972) (763). Where a state requires a defendant to notify the government before
trial of his intent to raise an alibi defense, the state must require the prosecution to notify the
defense of any rebuttal witnesses it plans to call. Failure to so require would violate due process.
Wardius v. Oregon (1973) (783). “A fair analysis of the holding in Brady indicates that implicit
in the requirement of materiality is a concern that the suppressed evidence might have affected
the outcome of the trial.” Also, government is subject to a higher standard when defendant
lodges a specific discovery request. United States v. Agurs (1976) (763). Where the prosecution
fails to inform the defense that government witnesses have been paid, “the conviction must be
reversed, only if the evidence is material in the sense that its suppression undermines confidence
18
in the outcome of the trial.” Whether the defendant asked for the discovery is irrelevant, but a
specific request will help defense prove materiality. [A plurality of the Court concluded that the
relevant materiality question was “whether there is a reasonable probability that, had the
inducement offered by the Government to [the witnesses] been disclosed to the defense, the
result of the trial would have been different.” (768).] United States v. Bagley (1985) (759). The
Eleventh Circuit has held that if the government inadvertently fails to disclose a tape recording
of defendant’s statement, his conviction will be reversed. United States v. Noe (11th Cir. 1987)
(Supp. 13-1). Where defendant asks for exculpatory or impeachment evidence, prosecution
responses that there is none despite the existence of extensive impeachment evidence, the
conviction will be vacated [or reversed? Not clear]. The significance of suppressed evidence
must be considered collectively, not item by item. “The question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
[Note that the majority cites Bagley for the proposition that the materiality test is whether there is
a reasonable probability of a different result, but seems to consider reasonable probability of a
substantial effect on the outcome. If the former were really the rule, the defendant would win any
close case, by definition; because the majority doesn’t say that, the latter must be the real rule,
though substantial effect alone probably isn’t enough either. The real rule must be substantial
effect on the outcome and a reasonable probability of a different result. The dissent, meanwhile,
seems more interested in a reasonable probability of innocence. (Class notes 14).] Kyles v.
Whitley (1995) (Supp. 14-1). The disclosure of polygraph tests in a particular case “could have
had no direct effect on the outcome of the trial, because respondent could have made no mention
of them either during argument or while questioning witnesses.” Wood v. Bartholomew (1995)
(per curiam) (Supp. 14-28). A reasonable “possibility” of a different result is not sufficient to
support a defendant’s claim. [In this case the “guilty anyway” argument seems to prevail, though
it didn’t in Kyles. Class notes 14.] Strickler v. Greene (1999) (Supp. 14-25). Where prosecutor
knew about a government witness’s perjury but did not disclose it, the Court votes 7-2 in favor of
the defendant. [This result demonstrates that even though the doctrine says that government good
or bad faith is irrelevant, it’s really not. It also may demonstrate that Strickler was the aberration
and Kyles is the law.] Banks v. Dretke (2004) (Class notes 14).
Timing of disclosure: The Seventh Circuit has held, “The appropriate standard to be applied … is
whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” (7th
Cir. 1979) (771). In the words of the supplement, “[T]he Constitution does not require
prosecutors to disclose impeachment material relating to informants or other witnesses before
entering into a binding plea agreement.” The Court noted that an alternative rule would interfere
with the government’s interest in obtaining pleas. [Note that this decision effectively means that
for 90% of defendants, Brady does not exist.] United States v. Ruiz (2002) (Supp. 14-21).
Other government agencies: Where a defendant subpoenas the records of a non-prosecutorial
government agency and that agency refuses to comply and the defendant is convicted, the
defendant is entitled on appeal to have the court review the records in camera to determine
whether they contain information “that probably would have changed the outcome of [the] trial.”
Pennsylvania v. Ritchie (1987) (Supp. 14-24).
19
Preserving evidence: The government is not required to preserve evidence unless it both
“possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is]
of such a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” Under this test, officers are not required to preserve a breath
sample after a DWI arrest. California v. Trombetta (1984) (770). “[U]nless a criminal defendant
can show bad faith on the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process.” Police officers’ failure to preserve semen stains on a
sexual assault victim’s clothing are not per se bad faith. Arizona v. Youngblood (1988) (771).
Where defendant is arrested for drug possession, seeks the drugs in a discovery motion, becomes
a fugitive for more than 10 years, police, “acting in good faith and according to normal police
procedures,” destroy the drugs, and defendant is later caught and prosecuted on possession
charge, the charges will not be dismissed. “We have never held or suggested that the existence of
a pending discovery request eliminates the necessity of showing bad faith on the part of police.”
Illinois v. Fisher (2004) (Supp. 20-pre). Note that in direct contrast to rules on disclosure, this
inquiry hinges completely on the good or bad faith of the government. In effect, this rule rewards
police departments that are always sloppy and punishes police departments that usually do it
right, because in the latter one mistake looks like bad faith . (Class notes 14).
Discovery: Defense Disclosure
Statutory requirements: In general, duties to disclose, where they exist, continue throughout
pretrial and proceedings. (755). In general, lawyers’ work product is not subject to discovery.
Fed. R. Crim. P. 16(a)(2) (Supp. 13-13). If the defendant requests disclosure from the
prosecution of documents and objects and the government complies, the defense must disclose to
the prosecution objects the defense intends to use in its case-in-chief. Fed R. Crim. P.
16(b)(1)(A) (Supp. 13-15). If the defendant requests disclosure of examinations and tests, the
defense must provide the government results of any tests it intends to use in its case-in-chief. Fed
R. Crim. P. 16(b)(1)(B) (Supp. 13-15). Upon request, the defendant must provide a summary of
any expert testimony he intends to use if the defendant requested same and government complies
or the defendant has given notice of an insanity or similar defense. Fed R. Crim. P. 16(b)(1)(C)
(Supp. 13-15). The defendant does not need to provide any statement made to the defendant,
defense counsel, or defense counsel’s agent by the defendant, a government or defense witness,
or a prospective government or defense witness. Fed R. Crim. P. 16(b)(2)(B) (Supp. 13-15). The
defendant must provide pretrial notice of intent to raise an insanity or mens rea, expert-based
defense, Fed. R. Crim. P. 12.2, and, upon government request, of intent to raise an alibi defense
(including the places the defendant will claim to have been and the witnesses he will call to
support the claim). Fed R. Crim. P. 12.1 (780). If a party fails to comply with discovery, the
court may order compliance, grant a continuance, prohibit the party from entering undisclosed
evidence, or “enter any other order that is just under the circumstances.” Fed R. Crim. P. 16(d)
(Supp. 13-16). Arizona requires defendant to notify the government of all defenses he plans to
raise, “including but not limited to, alibi, insanity, self-defense, entrapment, impotency,
marriage, insufficiency of a prior conviction, mistaken identity, and good character.” Ariz. R.
Crim. P. 15.2(b) (780). California requires defendants to provide the names and addresses of
planned witnesses and written or recorded statements of those persons. (786). Uniform Rule of
Criminal Procedure 434 would require, under some circumstances and only on prosecution
motion granted by the court, that a defendant participate in a lineup, submit handwriting samples,
20
and cooperate in other nontestimonial procedures. (755). A defense witness should be precluded
from testifying where defense counsel, in violation of a court order, did not disclose the identity
of the witness to the prosecution and the violation is deliberate and intended to gain tactical
advantage, and the witness’s testimony is suspect. Taylor v. Illinois (1988) (756).
Defense disclosure and the Fifth Amendment: A state may require a defendant to notify the
government before trial of his intent to rely on an alibi defense, because without such a rule, the
government could simply ask for a continuance after the defendant put on an alibi witness, and
such a continuance would disrupt the trial. [The dissent argues that this rule forces the defendant
to make a decision earlier than he otherwise might and violates the language of the Fifth
Amendment. Also, the advance warning allows the government to alter its case-in-chief. The
best argument for the government, which wasn’t part of the law at the time, is that the defendant
here is not faced with the “cruel trilemma” that, today, the Fifth Amendment is all about. Class
notes 15.] Williams v. Florida (1970) (Supp. 15-1). Where a state requires a defendant to notify
the government before trial of his intent to raise an alibi defense, the state must require the
prosecution to notify the defense of any rebuttal witnesses it plans to call. Failure to so require
would violate due process. Wardius v. Oregon (1973) (783). Where defense counsel impeaches
the credibility of a prosecution witness with statements obtained from that witness by a defense
investigator, a federal trial court may require the defense “to reveal the relevant portions of the
investigator’s report for the prosecution’s use in cross-examining him.” The statements of the
witness are not the statements of the defendant and therefore are not protected by the Fifth
Amendment. If defense counsel fails to turn over the report, the trial court may bar the
impeachment by cross-examination, at least where it allows the investigator to testify directly.
United States v. Nobles (1975) (783). A state may require a rape defendant who plans to
introduce evidence of prior sexual acts between the defendant and victim give notice of those
plans and an offer of proof within 10 days of arraignment. Michigan v. Lucas (1991) (785).
Guilty Pleas
Procedure: Guilty pleas are governed by Fed. R. Crim. P. 11, which appears at Supp. 16-2.
Under that rule, the court must address the defendant and ensure that he understands the
consequences of a plea. The court must also “determine that there is a factual basis for the plea.”
The rules allow conditional pleas, under which defendant reserves the right to appeal a particular
issue, but require the consent of the court and the government. Also, “A variance from the
requirements of this rule is harmless error if it does not affect substantial rights.
Voluntariness: Federal courts have the power to impose a prison sentence offering a plea of nolo
contendere, in which a defendant does not expressly admit guilt but waives trial and permits
court to treat him as guilty. Hudson v. United States (1926) (Supp. 16-24). Plea bargaining does
not render a plea involuntary, even where a defendant is threatened with the death penalty. (If it
did, it would violate the Fifth Amendment, because in pleading guilty a defendant is a witness
against himself. (Supp. 18-1).) Brady v. United States (1970) (Supp. 16-4). Where there is “a
strong factual basis for [a] plea demonstrated by the State” and the defendant at the plea hearing
“clearly expresse[s] desire to enter” a guilty plea but simultaneously announces that he is not in
fact guilty, a trial judge may accept the plea and sentence the defendant. Judges, however, are not
required to accept every constitutionally valid guilty plea merely because the defendant wants to
21
plead. States may even bar courts from accepting guilty pleas from defendants who maintain
their innocence. North Carolina v. Alford (1970) (Sup. 16-20). Bibas argues that nolo and Alford
pleas should not be accepted, because they undermine the values of accuracy and public
confidence, allow guilty defendants to avoid accepting responsibility, and undermine the state’s
condemnation of the defendant. (Supp. 16-27). Alternatively, the defendant’s autonomy should
be respected and he should have all possible options available to him. Class notes 16. The
“factual basis” requirement applies only to the substantive charge, not to the sentence, such that a
defendant cannot challenge the factual basis of an agreed-upon forfeiture provision of a plea.
Libretti v. United States (1995) (Supp. 16-29).
Rights lost upon plea: Where a defendant assisted by counsel pleads guilty, he may not later
challenge the plea in habeas with the claim that he misjudged the admissibility of his confession.
McMann v. Richardson (1970) (Supp. 16-12). A defendant who pleads guilty does not waive the
right to raise a vindictive prosecution challenge, where such a challenge does not require a
factual hearing. Such a claim challenges “the very initiation of proceedings against him.”
Blackledge v. Perry (1974) (Supp. 16-14). Where a defendant is adjudicated in contempt of
court, is sentenced to a term in civil jail, is later released and prosecuted for the same actions that
led to the contempt adjudication, and pleads guilty, he does not waive the right to raise a double
jeopardy challenge, where such a challenge does not require a factual hearing. Such a claim
challenges the government’s ability to “hal[e] a defendant into court on a charge.” Menna v. New
York (1975) (Supp. 16-14). “It is well settled that a voluntary and intelligent plea of guilty made
by an accused person, who has been advised by competent counsel, may not be collaterally
attacked.” Mabry v. Johnson (1984) (Supp. 16-17). Where defendants plead guilty to two counts
of conspiracy, they may not later seek to have one count set aside with the argument that only
one conspiracy existed such that double jeopardy bars conviction on both counts, even if such an
argument is correct. The indictments on their face described separate conspiracies. “Our
decisions have not suggested that conscious waiver is necessary with respect to each potential
defense relinquished by a plea of guilty. Waiver in that sense is not required.” [Note that the
defendant could reformulate the claim as one of ineffective assistance of counsel. (Supp. 16-15).
The decision essentially means that the defendant loses all procedural claims, except as they can
be reformulated as ineffectiveness claims.] United States v. Broce (1989) (Supp. 16-12). Where a
defendant does not object at the plea hearing to the judge’s definition of an element of the crime,
and the judge’s definition is later held incorrect in a separate case, the defendant may not
challenge the definition as used in his case on habeas unless he shows first that he is “actually
innocent” under the correct definition. Only after making that showing may his claim that the
incorrect definition led to an unintelligent plea be considered on the merits. That claim will be a
due process claim, which is that the defendant was never informed of the charge against him.
Bousley v. United States (1998) (Supp. 16-16). A defendant’s guilty plea does not waive that
defendant’s Fifth Amendment rights at sentencing. Mitchell v. United States (1999) (Supp. 1615).
Ineffectiveness claims: The same two-prong test applies to challenge a guilty plea. In such a
challenge, “the defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Where
defendant fail to do so, he fails to meet the prejudice prong of an ineffective assistance claim.
[Note that this standard ignores the fact that more effective counsel in most cases would result in
22
a better bargain but would still result in a plea. Supp. 17-6.] Hill v. Lockhart (1985) (Supp. 17-1).
In an unusual case, the Louisiana Supreme Court held that appointed counsel were presumptively
ineffective under state constitutional law because of inadequate funding. The court deemed this
result the only way to address ineffective counsel in guilty plea cases. [Note that in general,
resource-constraint arguments are not useful in ineffectiveness claims because of the prejudice
prong. If a defendant can point to a specific instance of prejudice, the generalized resource
constraints are irrelevant; if a defendant cannot point to an instance of prejudice, the resource
constraints are not enough to satisfy the test. Class notes 17.] State v. Peart (La. 1993) (Supp. 1712). The Seventh Circuit has held that where defense counsel tells defendant he will receive 46
to 57 months, the defendant pleads, and he receives 262 to 327 months, a subsequent
ineffectiveness claim will not satisfy the performance prong or the prejudice prong. United States
v. Barnes (7th Cir. 1996) (Supp. 17-8). The Sixth Circuit has held that where a defendant pleads
guilty, a subsequent allegation this defense counsel in negotiating sentence used the wrong
version of the federal guidelines does not satisfy by the performance prong or the prejudice
prong. Nagi v. United States (6th Cir. 1996) (Supp. 17-7). Counsel’s error in non-capital
sentencing proceeding after a conviction at trial that increases defendant’s sentence by six to 21
months prejudices the defendant. [Does this approach conflict with the “reasonable probability
standard”? Supp. 10-12. Does it conflict with Hill v. Lockhart (1985) (Supp. 9-22)? Class notes
10.] Glover v. United States (2001) (Supp. 17-7).
Constitutionality of plea bargaining: Plea bargaining does not render a plea involuntary, even
where a defendant is threatened with the death penalty, where there is no “evidence that [the
defendant] was so gripped by fear of the death penalty or hope of leniency that he did not or
could not, with the help of counsel, rationally weigh the advantages of going to trial against the
advantages of pleading guilty.” This result holds even if the death penalty provision of the
relevant statute is later held unconstitutional. An involuntary plea would violate the Fifth
Amendment, because in pleading guilty a defendant is a witness against himself. The state
legitimately encourages plea bargaining, though “the agents of the State may not produce a plea
by actual or threatened physical harm or by mental coercion overbearing the will of the
defendant.” The Court does not believe plea bargaining induces innocent defendants to plead
guilty. Brady v. United States (1970) (Supp. 18-1). A prosecutor may threaten during plea
bargaining to indict a defendant on more serious charges if he does not plead guilty, then carry
out the threat, without violating the Due Process Clause of the Fourteenth Amendment.
Bordenkircher v. Hayes (1978) (Supp. 18-11). The government can “wire” one defendant’s plea
to another’s (including the defendant’s wife) such that the government will not allow one to
plead unless the other does so. In such a situation the latter is the true target. A defendant is
entitled to raise such a claim, however, on habeas even though he did not raise it on direct appeal
because he reasonably wanted to wait until his wife’s plea agreement was final. Where a trial
judge asks a defendant about his understanding of his rights and the consequences of his plea but
fails to ask specifically whether the plea is voluntary, he may violate Rule 11, but a defendant
who raises such a violation on habeas will not succeed because the violation is not a “complete
miscarriage of justice.” [How is plea wiring different from blackmail? (Supp. 18-27).] United
States v. Pollard (D.C. Cir. 1992) (Supp. 18-20). The bottom line is that the government can
threaten, during plea negotiations, to do anything otherwise legally within its power. Note that a
defendant who pleads can never claim the discounted sentence he received is excessive, because
it is presumed that the maximum sentence is not excessive. But what if it is? The real concern
23
should be with the maximum sentence, because that’s the threat that induces the plea. A better
test of coercion would be comparing the maximum sentence to the plea sentence—the disparity
between the two is where coercion arises. Note that the fact that the government agreed to the
lower sentence demonstrates that it never really wanted the higher sentence. Class notes 18.
Consequences of plea bargaining: Where plea bargaining is prohibited, 45% of defendants will
nonetheless plead guilty, half the percentage who typically do so in a bargaining regime.
Schulhofer (Supp. 18-8). If there is no plea bargaining, lawyers’ ability will matter more, which
will disproportionately hurt the poor. Scott & Stuntz (Supp. 18-9). Stuntz believes that without
plea bargaining, prosecutor screening would be less effective and trials would be sloppier, so
there would be more incorrect results. Class notes 18.
Procedure of plea bargaining: Under Fed. R. Crim. P. 11(c), the parties must disclose plea
agreements in open court, and courts are not bound to accept them. (Supp. 18-9). The
government might agree to dismiss other charges, to recommend a sentence, or to guarantee a
sentence (i.e., withdraw the deal if the court does not agree, an approach courts don’t like). Fed
R. Crim. P. 11(c)(1)(A)-(C). (Class notes 19). Note that in general the defendants who get the
best deals are the ones with the best information to sell; these are often the “least innocent.”
(Class notes 19).
Enforcing plea bargains: Where prosecutor agrees to make no recommendation as to sentence,
defendant enters plea but obtains new counsel before sentencing, new counsel files motion to
withdraw plea and motion to inspect grand jury minutes, both motions are denied, different
prosecutor appears at subsequent sentencing, and that different prosecutor recommends
maximum sentence, which judge imposes, the Supreme Court will remand the case to state court
to determine whether the defendant should be granted specific performance before a new judge
or the opportunity to withdraw his guilty plea. [Note that this decision must be constitutional,
presumably based on due process, because if it’s not, then it’s state contract law, which the
Supreme Court has no jurisdiction over. Note also that neither specific performance nor
withdrawal of plea will fully compensate the defendant if circumstances have changed at all over
time, which they undoubtedly have. (Supp. 19-6). Ordering a particular sentence would be the
best resolution, but courts never do that. Instead, they usually order specific performance, though
under contract law they would give the victim the choice of remedy. (Class notes 19).]
Santobello v. New York (1971) (Supp. 19-1). If the prosecutor promises to “stand silent” at
sentencing, can the prosecutor speak up if the defendant says something factually incorrect? If
the prosecutor promises not to recommend a sentence, can he present all of the negative evidence
he can find? A defendant could usually argue that ambiguities in agreements should be resolved
in his favor. (Supp. 19-6). Where a deputy prosecutor proposes a very good plea bargain to a
defendant on Friday, defense counsel tries to accept on Monday but a more senior prosecutor
calls the offer a mistake (the mistake being the difference between concurrent and consecutive)
and withdraws it, and the defendant eventually pleads guilty in exchange for a subsequent
harsher offer, the defendant has no right to challenge his plea on habeas based on the original
offer. The first offer did not induce the defendant’s plea. [What would have happened if the
defendant had sued before pleading guilty? Note that the government never has the authority to
enforce a defendant’s performance of a plea bargain.] Mabry v. Johnson (1984) (Supp. 19-7).
Note that most plea agreements must give some form of immunity to defendants against future
24
charges that could have been brought in the original case. Courts address this issue in varying
ways. Relevant factors might be charges arising out of the same facts, what the government
knew when, and exactly what the agreement said. (Class notes 19). Richman argues that giving
defendants broader immunity here encourages them to conceal the full extent of their criminal
liability and thus reduce their bargained-for sentences. Richman (Supp. 19-11). Note that each
side can accuse the other of fraud if an agreement is not specific enough. (Class note 19). Where
defendant pleads as part of a cooperation agreement that includes testifying against other
defendants, defendant does so, defendant receives his sentence, the other defendants convictions
are reversed, the first defendants plea agreement said nothing about testifying again, the
defendant refuses to testify again, double jeopardy does not bar the government from vacating
his original conviction and charging him with new counts based on the original facts. [Note that
ordering specific performance by the defendant would not penalize the defendant; he could
simply violate repeatedly. (Class notes 19).] Ricketts v. Adamson (1987) (Supp. 19-15). A
prosecutor may impose on a defendant as a condition of discussing a cooperation agreement an
agreement that the defendant waives his rights under Federal Rule of Evidence 410 not have
statements made in such discussion admitted at trial. The prosecutor can then use those
statements to cross-examine the defendant. “[A]bsent some affirmative indication that [such an]
agreement was entered into unknowingly or involuntarily, an agreement to waive the
exclusionary provisions of the plea-statement Rules is valid and enforceable.” United States v.
Mezzanatto (1995) (Supp. 19-25). The prosecution may use statements subject to Mezzanatto
agreements in its case-in-chief. United States v. Burch (D.C. Cir. 1998) (Supp. 19-33). A plea
agreement with a cooperating defendant “allows one of the two parties to be the judge of whether
it has been violated, and if that is so judged, the judging party is free to keep all of its benefits
from the bargain and make even fuller use of them.” Rasmusen (Supp. 19-34).
Overview of challenging guilty pleas: There are three claims: innocence (Alford), sentence is too
harsh (Bordenkircher), and government broke its promise (Ricketts). The defendant loses the first
unless he has evidence of innocence that would have won the case (i.e., an ineffectiveness
claim). The defendant always loses the second. The defendant usually loses the third, but not
quite as often as he loses the first and second. Note that the defendant making the third argument
is probably guilty, perhaps unlike the defendants making the first and second. (Class notes 19).
Competency to Stand Trial
Note that Supreme Court cases tend to address procedures for determining competency and
disposing of incompetent defendants, but not with the substance of the determination. (732).
Competency standard: The conviction of an incompetent person violates due process. Bishop v.
United States (1956) (736). “[I]t is not enough for the district judge to find that ‘the defendant is
oriented to time and place and [has] some recollection of events.’ … [T]he test ‘must be [1]
whether he has sufficient present ability to consult with his lawyer with reasonable degree of
rational understanding—and [2] whether he has a rational as well as factual understanding of the
proceedings against him.” Logically part one is really part of part two, so the test comes down to
two. Dusky v. United States (1960) (per curiam) (732).
25
Competent to do what? “We do not read this Court’s previous decisions to preclude the States
from allowing at a minimum, an incompetent defendant to raise certain defenses such as
insufficiency of the indictment, or make certain pretrial motions, through counsel.” Jackson v.
Indiana (1972) (743).
Represent self: The Supreme Court once, in the words of the casebook, “held that a
separate inquiry into [a defendant’s] competency to waive his constitutional right to the
assistance of counsel and to proceed to conduct his own defense might be necessary and
remanded for consideration of this question. It did not address what standard should be
applied if such an inquiry were found necessary.” Westbrook v. Arizona (1966) (733).
The Court later concluded, however, that no separate competency standard must be met
by a defendant proceeding pro se. Godinez v. Moran (1993) (733). Alternatively, the
Dusky test is, by its terms, a test of whether a defendant can proceed with counsel, and
therefore cannot be sufficient to determine whether one can proceed without counsel.
Blackmun, J., dissenting in Godinez v. Moran (1993) (733). Note that most courts in fact
apply a higher standard to a defendant who wants to proceed pro se, sometimes simply by
denying a Faretta motion. Class notes 20.
Plead guilty: “[W]hile the decision to plead guilty is undeniably a profound one, it is no
more complicated than the sum total of decisions that a defendant may be called upon to
make during the course of a trial. … This being so, we can conceive of no basis for
demanding a higher level of competence for those defendants who choose to plead
guilty.” Godinez v. Moran (1993) (733).
Reject an insanity defense: In an unusual result, the District of Columbia Court of
Appeals held that “the trial judge may not force an insanity defense on a defendant found
competent to stand trial if the individual intelligently and voluntarily decides to forego
that defense. … [T]he court’s finding of competency to stand trial is not, in itself,
sufficient to show that the defendant is capable of rejecting an insanity defense; the trial
judge must make further inquiry into whether the defendant has made an intelligent and
voluntary decision.” A defendant may have good reasons to reject an insanity defense:
commitment might last longer than prison time, treatment while committed may be bad,
insanity carries a stigma, a defendant could suffer collateral consequences such as the
loss of the right to vote or drive, a defendant may believe such a defense would weaken
the political argument he wants to make. United States v. Frendak (D.C. App. Ct. 1979)
(Supp. 20-1).
Procedure for determining competency: A state cannot require a defendant to demand a
competency hearing where the evidence he introduces should prompt the court to conduct one
sua sponte. Where a defendant is convicted and later raises competency such that “a meaningful
hearing” can no longer be held, the conviction should be vacated. Pate v. Robinson (1966) (735).
The court should initiate its own inquiry into competency even if trial has already begun. Drope
v. Missouri (1975) (740). Though a competency inquiry may be required, a defendant “who
neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may
not be compelled to respond to a psychiatrist if his statements can be used against him at a
capital sentencing proceeding.” A competency proceeding can nonetheless be held, however, and
an examination conducted, if the results are used solely for that hearing. Where a competency
examination will cover matters relevant to sentencing, defense counsel must be so warned to
avoid violation of the defendant’s Sixth Amendment rights. Estelle v. Smith (1981) (740). Where
26
a defendant introduces psychiatric testimony to argue for insanity during trial, defense counsel
still must be warned that any state-ordered examination will cover sentencing matters. Powell v.
Texas (1989) (per curiam) (741). A state may place the burden of proving competency on the
defendant, because the defendant will have the best access to evidence. Medina v. California
(1992) (741). Where a state places the burden of proving competency on the defendant, the
burden must be limited to a preponderance of the evidence. Cooper v. Oklahoma (1996) (742).
Disposing of incompetent defendants: “[A] person charged by a State with a criminal offense
who is committed solely on account of his incapacity to proceed to trial cannot be held more than
the reasonable period of time necessary to determine whether there is a substantial probability
that he will attain that capacity in the foreseeable future. If it is determined that this is not the
case, then [under the Equal Protection Clause of the Fourteenth Amendment] the State must
either institute the customary civil commitment proceeding that would be required to commit
indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that
the defendant probably soon will be able to stand trial, [under the Due Process Clause of the
Fourteenth Amendment] his continued commitment must be justified by progress toward that
goal.” Jackson v. Indiana (1972) (743).
Forced medication: Where a state forces a defendant to take medication to become competent
against his own objections, the defendant is convicted at trial, and the defendant later
demonstrates “a strong possibility that [his] defense was impaired” by the drug, the conviction
will be vacated, even if he was permitted at trial to present expert testimony on the drug’s effects
on his demeanor. Riggins v. Nevada (1992) (750). A defendant can be forcibly medicated, but
the medication must be (1) medically appropriate, (2) unlikely to undermine the fairness of the
trial (such as by undermining an insanity defense or preventing defendant from acting
appropriately expressive in front of jury), and (3) necessary in light of less intrusive means. Seel
(2003) (Class notes 20).
Right to a Jury
Purpose of the right: There are several potential purposes for juries: ensuring accuracy, serving
as a democratic check on the executive and judiciary (and even the legislature), ensuring that
minorities are punished with the consent of their peers. (Supp. 21-8). A jury must be drawn from
a fair-cross section of the community (1) to “guard against the exercise of arbitrary power,” (2)
to preserve “public confidence in the fairness of the criminal justice system,” and (3) to
implement the belief that “sharing in the administration of justice is a phase of civic
responsibility.” Duren v. Missouri (1979) (Supp. 22-9).
When the right attaches: “[T]he Fourteenth Amendment [via incorporation] guarantees a right of
jury trial in all criminal cases which—were they tried in a federal court—would come within the
Sixth Amendment’s guarantee.” Where a criminal offense carries up to years’ imprisonment and
a fine, the defendant is entitled to a jury. [Note that this conclusion is based on the possible
sentence rather than the actual sentence, as the right to counsel is.] [Note that this is a rule rather
than a standard, as might have developed had the Court used an Equal Protection or Due Process
argument. This approach reduces litigation but also ensures that the decision is based on the case
at bar rather than on looking at all cases together. Stuntz thinks this determines the outcome in
27
McClesky. (Class notes 21).] Duncan v. Louisiana (1968) (Supp. 21-1). A defendant charged
with any crime punishable by more than six months in prison is entitled to a jury. . [Note that this
conclusion is based on the possible sentence rather than the actual sentence, as the right to
counsel is.] Baldwin v. New York (1970) (Supp. 21-7). A defendant who received a mandatory
two-day jail term does not have a right to a jury. Blanton v. City of North Las Vegas (1989)
(Supp. 21-13). A defendant charged with multiple crimes that add up to a year of potential jail
time does not have a right to a jury. The defendant does not have a jury trial right when the
charge carries six months or less unless the charge involves “additional statutory penalties so
severe as to indicate that the legislature considered the offense serious.” Lewis v. United States
(1996) (Supp. 21-13). Where statutes do not list a maximum sentence, a defendant has a jury trial
right if sentenced to more than six months in prison, Codispoti v. Pennsylvania (1974) (Supp. 2113), but not if sentenced to six months or less. Taylor v. Hayes (1974) (Supp. 21-13)
Who holds the right: A defendant does not have a constitutional right to waive jury trial and be
tried before a judge. Singer v. United States (1965) (Supp. 3-35). If the purpose of the jury is to
be a democratic check, then it should not be waivable because it is held by the people. (Class
notes 21).
Content of the right: A state criminal jury may be composed of six people. Williams v. Florida
(1970) (Supp. 21-14). State criminal juries of 12 need not be unanimous. 10-2 is permitted; 9-3
might b permitted. Apodaca v. Oregon (1972) (Supp. 21-25). A state criminal jury may not be
composed of five people. [Note the Court’s misuse of empirical data in this case. (Supp. 21-24).]
Ballew v. Georgia (1978) (Supp. 21-14). State criminal juries of six must be unanimous. Burch v.
Louisiana (1979) (Supp. 21-26). Taylor-Thompson argues that permitting non-unanimous juries
allows majorities to ignore minority views. (Supp. 21-26).
Nullification: “[I]t is the duty of juries in criminal cases to take the law from the court and apply
that law to the facts as they find them to be from the evidence.” Sparf and Hansen v. United
States (1895) (Supp. 21-11). “[T]he most recent and exhaustive study of the jury in criminal
cases concluded that juries do understand the evidence and come to sound conclusions in most of
the cases presented to them and that when juries differ with the result at which the judge would
have arrived, it is usually because they are serving some of the very purposes for which they
were created and for which they are now employed.” Duncan v. Louisiana (1968) (Supp. 21-1).
In the words of the supplement, “prospective jurors who identify themselves, during jury
selection, as potential nullifiers may be excluded from jury service.” United States v. Thomas (2d
Cir. 1997) (Supp. 21-12). Trial judges generally bar defense lawyers from arguing for
nullification. (Supp. 21-12).
Jury composition claims: Convicted defendants may raise three claims against the jury: the jury
was not impartial (Sixth Amendment), the jury venire did not represent a “fair cross-section” of
the community (Sixth Amendment), and the jury was not selected in compliance with the Equal
Protection Clause of the Fourteenth Amendment (or the Fifth, in federal cases). (Supp 22-3).
Impartiality: Jurors can be excluded for partiality if they hold “strong and deep
impressions which close the mind against the testimony that may be offered in opposition
to them, which will combat that testimony and resist its force.” Reynolds v. United States
(1879) (Supp. 22-3). Partiality results only from views strong enough to “prevent or
28
substantially impair the performance of [the juror’s] duties as a juror.” Wainwright v. Witt
(1985) (Supp. 22-4). Pretrial publicity can so taint a jury pool that a defendant is entitled
to a change of venue to another county. Irvin v. Dowd (1961) (Supp. 23-3). Where “under
all circumstances presented there [is] a constitutionally significant likelihood that, absent
questioning about racial prejudice, the jurors would not be [impartial],” a trial judge
must, on defendant’s request, as about such prejudice. Ristaino v. Ross (1976) (finding
that such questioning was not required in the case at bar) (Supp. 22-4). Where a trial
court finds that jurors are impartial, that finding will “be overturned only for ‘manifest
error.’” “The relevant question [in assessing partiality based on pretrial publicity] is not
whether the community remembered the case, but whether the jurors at [the second] trial
had such fixed opinions that they could not judge impartially the guilt of the defendant.”
Patton v. Yount (1984) (Supp. 23-7, 23-21). “[T]he proper standard for determining when
a prospective juror may be excluded for cause because of his or her views on capital
punishment … is whether the juror’s views would ‘prevent or substantially impair the
performance of his [or her] duties as a juror in accordance with his [or her] instructions
and his [or her] oath.’ … [T]his standard … does not require that a juror’s bias be proved
with ‘unmistakable clarity.’” Wainwright v. Witt (1985) (Supp. 22-5). “[A] capital
defendant accused of an interracial crime is entitled to have prospective jurors informed
of the race of the victim and questioned on the issue of racial bias.” If such questions are
not asked, the defendant is entitled to have his death sentence, but not his guilty verdict,
overturned. Turner v. Murray (1986) (Supp. 22-5). Where death-qualifying juries induces
them to be more conviction-prone than other juries, a defendant does not have a partiality
claim because the individual jurors in his case were not partial and the same 12 jurors
could have been chosen without death qualification. Lockhart v. McCree (1986) (Supp.
22-6). A defendant’s right to an impartial jury is not violated where 8 of 12 jurors admit
to having read or heard about the case in advance, all 8 claim they have not formed an
opinion and to be able to decide based solely on trial evidence, and court refuses to
question prospective jurors about the contents of news reports they had seen or heard.
[The dissent argues that a trial court cannot assess impartiality without knowing
specifically what the prospective jurors have seen.] [Studies demonstrate that the most
effective way to fight bias is change of venue. Continuance, voir dire, and deliberations
do not help. Studebaker & Penrod (Supp. 23-20).] Mu’Min v. Virginia (1991) (Supp. 231).
Fair cross-section in venire: A system in which women cannot serve on juries unless they
volunteer violates the fair cross-section requirement. A defendant has standing to raise a
fair cross-section challenge regardless of whether he is a member of the excluded class.
Taylor v. Louisiana (1975) (Supp. 22-9). A system in which grand juries were only 39%
Mexican-American in a community with a population 79.1% Mexican-American violates
equal protection. Casteaneda v. Partida (1977) (Supp. 22-19). To establish a claim, a
“defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in
the community; (2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic exclusion of the
group in the jury-selection process.” [Note that defendants who succeed at prongs one
and two never lose on prong three, because three essentially asks whether the state could
fix the problem, and the answer is always yes. Class notes 22.] The third prong
29
apparently does not require deliberate exclusion. The state can defend an otherwise
impermissible system with “a significant state interest [that is] manifestly and primarily
advanced by those aspects of the jury-selection process, such as exemption criteria, that
result in the disproportionate exclusion of a distinctive group. … [E]xempting all women
because of the preclusive domestic responsibilities of some women is insufficient
justification for their disproportionate exclusion on jury venires.” A system that exempts
women from jury service upon request and results in venires that are, on average, less
than 15% female (compared to 53-54% in the community) violates the fair cross-section
requirement. Duren v. Missouri (1979) (Supp. 22-9). A system in which no black had
served on a grand jury in 62 years violates equal protection. Vazquez v. Hillery (1986)
(Supp. 22-19). A defendant cannot raise a fair-cross section claim based on strikes used
to create the petit jury, as in death-qualification. Even if such a challenge were
permissible, “groups defined solely in terms of shared attitudes that would prevent or
substantially impair members of the group from performing one of their duties as jurors
… are not ‘distinctive groups’ for fair cross-section purposes.” Lockhart v. McCree
(1986) (Supp. 22-6).
Equal protection in petit jury selection: “[T]he Equal Protection Clause forbids the
prosecutor to challenge potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially to consider the State’s
case against a black defendant.” To raise a claim, “the defendant must first show that he
is a member of a cognizable racial group, … and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant’s race.
Second, the defendant is entitled to rely on the fact, as to which there can be no dispute,
that peremptory challenges constitute a jury selection practice that permits ‘those to
discriminate who are of a mind to discriminate.’ … Finally, the defendant must show that
these facts and any other relevant circumstances raise an inference that the prosecutor
used that practice to exclude the veniremen from the petit jury on account of their race.
… Once the defendant makes a prima facie showing, the burden shifts to the State to
come forward with a neutral explanation for challenging black jurors.” An assumption
based on their race that such jurors would be sympathetic to the defendant is not a neutral
explanation. If the prosecutor presents a neutral explanation, the defendant must show
purposeful discrimination. A violation will be remedied by reversal of conviction. Batson
v. Kentucky (1986) (Supp. 22-19). A white defendant may raise a Batson claim
concerning strikes of black venire members. The Batson right belongs to both the
defendant and the jurors. Powers v. Ohio (1991) (Supp. 22-37). A prosecutor presents a
neutral explanation for strikes when he argues that he struck Spanish-speaking jurors
because he was concerned that they would not listen to the court interpreter when
witnesses spoke Spanish. Hernandez v. New York (1991) (Supp. 22-38). Prosecutors can
raise Batson challenge to peremptories used by defendants. Georgia v. McCollum (1992)
(Supp. 22-38). Gender-based peremptory challenges violate the Equal Protection clause.
J.E.B. v. Alabama ex rel. T.B. (1994) (Supp. 22-34). A prosecutor presents a neutral
explanation when he cites black defendants’ “unkempt” hair and facial hair. Purkett v.
Elem (1995) (Supp. 22-39). A defendant presents a valid claim when the prosecutor
strikes 10 of 11 eligible blacks, and the defendant presents historical patterns of race
discrimination, different questioning of blacks and whites in his own case, and an unusual
venire procedure. Miller-El v. Cockrell (2003) (Supp. 22-40).
30
Ramirez argues that black defendants should have a right to place black jurors on their juries.
(Supp. 22-40). Butler suggests that black jurors should nullify prosecutions of black defendants.
(Supp. 22-41). Note that fair cross-section and impartiality rules conflict, because the only
possible purpose of fair cross-section is to let jurors vote on their biases. (Class notes 22). What
if the purposes is purely for appearances?
Prosecutorial misconduct before jury: “[T]he Fifth Amendment … forbids either comment by the
prosecution on the accused’s silence or instructions by the Court that such silence is evidence of
guilt.” Griffin v. California (1965) (1088). A defendant is not entitled to prevent the court from
instructing the jury not to draw adverse inferences from the defendant’s silence, even where
defense counsel’s strategy is to avoid all mention of that silence. Lakeside v. Oregon (1978)
(1089). A “state trial judge has the constitutional obligation, upon proper request, to minimize
the danger that the jury will give evidentiary weight to a defendant’s failure to testify” by
providing a jury instruction. Carter v. Kentucky (1981) (1087). Where defense counsel spurs the
prosecutor to make inappropriate remarks, known as an “invited response,” “the issue is not the
prosecutor’s license to make otherwise improper arguments, but whether the prosecutor’s
‘invited response,’ taken in context, unfairly prejudiced the defendant.” United States v. Young
(1985) (Supp. 23-37). A prosecution argument that the jury’s decision in a capital case violates
the Eighth Amendment. Caldwell v. Mississippi (1985) (Supp. 23-37). Improper arguments alone
will not result cause a verdict to be overturned. “The relevant question is whether the
prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” [Note that the closing argument here focused on how bad the crime was.
Stuntz thinks all such arguments violate due process because how bad the crime was is not
relevant to the determination of guilt. One answer to this argument is that if juries are democratic
and nullification is valid, the prosecutor’s job includes proving not just that the defendant
committed the crime, but that he should be punished. This argument would be stronger if juries
decided sentences. Class notes 23.] Darden v. Wainwright (1986) (Supp. 23-22). A prosecutor
does not violate the defendant’s Fifth, Sixth, or Fourteenth Amendment rights by, “in her
summating … call[ing] the jury’s attention to the fact that the defendant had the opportunity to
hear all other witnesses testify and to tailor his testimony accordingly.” [Note that a state may
not require a defendant to testify first among defense witnesses, because doing so burdens the
decision of whether to testify. Brooks v. Tennessee (1972) (Supp. 24-5). Note that defendants are
not subject to the same sequestration standards as other witnesses because sequestering them for
too long denies the Sixth Amendment right to counsel. Geders v. United States (1976) (Supp. 244). Also, a judge may not use a defendant’s silence to increase a sentence. Mitchell v. United
States (1999) (Supp. 24-14).] [Note that the dissent in this case would permit cross-examination
on this issue.] [Does this case cast doubt on Griffin and Carter?] Portuondo v. Agard (2000)
(Supp. 24-1). Note that these cases are not the only regulators of what jurors see: the rules of
evidence, the exclusionary rule, and Miranda all regulate “jury inputs.” Class notes 23.
Sentencing
Sentencing considerations:
Past criminal conduct may be considered at sentencing, in general. (Supp. 25-4).
Sentencing courts can consider past criminal behavior even if no conviction resulted from
it. Williams v. New York (1949) (Supp. 8-17). Sentences may not be increased based on
31
prior felony convictions that violated the right to counsel. United States v. Tucker (1972)
(Supp. 25-4). Sentences may be increased based on uncounseled misdemeanor
convictions where the right to counsel did not apply. Nichols v. United States (1994)
(Supp. 25-4).
Future dangerousness may be considered at sentencing, including capital sentencing.
Barefoot v. Estelle (1983) (Supp. 25-4).
False testimony at trial may be considered at sentencing. United States v. Dunnigan
(1993) (Supp. 25-4).
Silence at sentencing may not be considered at sentencing, eve where the defendant
pleads guilty. Mitchell v. United States (1999) (Supp. 25-4).
Racial bias on the part of the defendant in committing the crime may be considered at
sentencing. Wisconsin v. Mitchell (1993) (Supp. 25-4). But abstract beliefs and
membership in groups may not be considered. Dawson v. Delaware (1992) (Supp. 25-4).
Victim impact statements may be considered at sentencing, as long as such statements are
not so prejudicial that they violate the rules of evidence or the Due Process Clause. In
capital cases, such statements may not include the survivors’ beliefs about whether the
death penalty should be imposed. Payne v. Tennessee (1991) (Supp. 25-4).
Proportionality:
The death penalty can be imposed only when it is proportional to the crime. It cannot be
imposed for the rape of an adult woman, Coker v. Georgia (1977) (Supp. 25-6), and it
cannot be imposed on felony murders unless they exhibit “reckless disregard for human
life.” Tison v. Arizona (1987) (Supp. 25-6).
Outside the death penalty, imposing a life sentence under a three-strikes statute on a
defendant who had been convicted of credit card fraud ($80), passing a forged check
($28.36), and obtaining money by false pretenses ($120.75) is not cruel and unusual
punishment under the Eighth Amendment. Unconstitutionally disproportionate sentences
cannot be established by considering (1) the gravity of the offense and the severity of the
penalty, (2) penalties imposed for similar crimes within the jurisdiction, and (3) penalties
imposed for the same offense in other jurisdictions. Rummel v. Estelle (1980) (Supp. 256). A prison sentence of 40 years and a $20,000 fine is not a cruel and unusual
punishment for distribution of nine ounces of marijuana. Hutto v. Davis (1982) (Supp.
25-6). A sentence of life imprisonment without possibility of parole is cruel and unusual
punishment because it is disproportionate when imposed under a three-strikes statute for
a defendant with three convictions for third-degree burglary, one for obtaining money by
false pretenses, one for grand larceny, one for DUI Third, and one for writing a “no
account” check with intent to defraud. Solem v. Helm (1983) (Supp. 25-7). Mandatory
sentences, which judges must impose for certain crimes without considering mitigating
circumstances, are not cruel and unusual under the Eighth Amendment. Harmelin v.
Michigan (1991) (Supp. 25-6). “Solem was simply wrong; the Eighth Amendment
contains no proportionality guarantee.” A mandatory life sentence for possession of 672
grams of cocaine is therefore not constitutionally disproportionate. Plurality (Scalia, J.,
joined by Rehnquist, C.J.) in Harmelin v. Michigan (1991) (Supp. 25-6). “The Eighth
Amendment does not require strict proportionality between crime and sentence. Rather, it
forbids only extreme sentence that are ‘grossly disproportionate’ to the crime.”
“[I]ntrajurisdictional and interjurisdictional analyses are appropriate only in the rare case
32
in which a threshold comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality.” Under this approach, a mandatory life
sentence for possession of 672 grams of cocaine is not constitutionally disproportionate.
[Note that it is essentially impossible to argue that a sentence is disproportionate to a
crime without comparing it to other crimes. Therefore defendants can never get over the
first hurdle. (Class notes 25).] Kennedy, J., joined by O’Connor and Souter, JJ. in
Harmelin v. Michigan (1991) (Supp. 25-6). The Solem factors should be applied and
demonstrate that a mandatory life sentence for possession of 672 grams of cocaine is
constitutionally disproportionate. White, J., joined by Blackmun and Stevens, JJ.,
dissenting in Harmelin v. Michigan (1991) (Supp. 25-6). A sentence of 25 years to life
for stealing three golf clubs, worth $399 each, under a three-strikes law, is not
unconstitutionally disproportionate under the Eighth Amendment. There was no majority
opinion in the case. O’Connor joined by Rehnquist and Kennedy followed Kennedy’s
Harmelin approach. Scalia and Thomas wrote separate concurring opinions arguing that
there is no proportionality requirement. The other four justices dissented. Ewing v.
California (2003) (Supp. 25-18).
Excessive fines are prohibited by the Eighth Amendment. A defendant convicted of failing to
report carrying more than $10,000 when leaving the country (in fact $357,144) cannot be forced
to forfeit all of the money, because such a forfeiture would violate the Excessive Fines Clause,
under the same test applied in Harmelin. United States v. Bajakajian (1998) (Supp. 25-20).
Procedure: Traditionally, most of the constitutional rules of criminal procedure did not apply to
sentencing proceedings because they were thought to discourage individualized sentencing.
Williams v. New York (1949) (Supp. 25-27). Capital sentencing requires a higher level of
procedural protection, such that the defendant is denied due process “when the death sentence is
imposed, at least in part, on the basis of information which he had no opportunity to deny or
explain.” Gardner v. Florida (1977) (Supp. 25-32). The en ban Eighth Circuit has held that the
Federal Sentencing Guidelines do not require that the Confrontation Clause attach to sentencing
proceedings. United States v. Wise (8th Cir.. 1992) (Supp. 25-32).
Beyond a reasonable doubt: The Constitution requires that the government prove every fact
necessary to constitute the crime beyond a reasonable doubt. In re Winship (1970) (1003). A
state may not, under the Due Process Clause, require that a defendant charged with murder prove
by a “fair preponderance” that he acted “in the heat of passion on sudden provocation” to obtain
a manslaughter rather than a murder conviction. If it could, on the theory that the heat of passion
was a sentencing factor rather than an element of the crime, all elements could simply be
converted into sentencing factors and Winship could be avoided. Such a shift in burden is likely
to lead to incorrect results. Mullaney v. Wilbur (1975) (1005). Where a state defines murder as
causing the death of another with intent to cause the death of that person or a third person and
allows a defendant to be convicted of manslaughter if he proves, by a preponderance of the
evidence, that he was “under the influence of extreme emotional disturbance,” the scheme does
not violate due process because it does not presume any element of the crime, such as lack of
provocation. The EED claim was instead an affirmative defense. Patterson v. New York (1977)
(1009). Where a state requires a minimum five-year sentence when convicts of certain crimes are
shown at sentencing by a preponderance of the evidence to have “visibly possessed a firearm,”
33
such a scheme will be constitutional. The state has merely attached a specific weight to a
traditional sentencing factor, rather than converting an element. McMillan v. Pennsylvania
(1986) (1010). A state may assign to a trial judge the task of finding aggravating circumstances
that can lead to the imposition of a death sentence. Walton v. Arizona (Supp. 26-1). Where a
defendant pleads guilty to an indictment for reentering the United States after deportation (with a
two-year maximum), then admits at sentencing that he had been deported based on three prior
aggravated-felony convictions, the court may sentence him under a different applicable statute
with a 20-year maximum. The fact involved was recidivism, “as typical a sentencing factor as
one might imagine.” The Court concluded that the second statute, in light of its language, title,
and history was “a provision that deals with penalties for a substantive crime” rather than a
separate crime itself. “Mullaney’s language, if read literally, suggests that the Constituion
requires that most, if not all, sentencing factors be treated as elements. But Patterson suggests
the exact opposite, namely that the Constitution requires scarcely any sentencing factors to be
treated in that way.” Almendarez-Torres v. United States (1998) (Supp. 26-2). Where the federal
carjacking statute authorizes 15 years for the basic crime, 25 years if “serious bodily injury”
results, and life if death results, and a defendant’s indictment does not allege any facts necessary
for the second or third provisions, and after conviction a presentence report recommends 25
years under the second provision, and the court finds serious bodily injury by a preponderance of
the evidence, and the court sentences to 25 years, the sentence will be reversed. “[U]nder the
Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable
doubt.” Because the government’s reading of the statute would be open to constitutional doubt
under these principles, so the Court construed it as the defense suggested. Jones v. United States
(1999) (Supp. 26-6). “[T]he Due Process Clause of the Fourteenth Amendment requires that a
factual determination authorizing an increase in the maximum prison sentence for an offense
from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” The
statute at issue was a hate crime statute, addressing “purpose to intimidate,” which cannot be
characterized as about motive and therefore a traditional sentencing factor; it is instead about
mens res, “as close as one might hope to come to a core criminal offense ‘element.’” “[T]he
relevant inquiry is one not of form, but of effect—does the required finding expose the defendant
to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi v. New
Jersey (2000) (Stevens, joined by Souter, Scalia, Thomas, and Ginsburg) (Supp. 26-10). A
“‘crime’ includes every fact that is by law a basis for imposing or increasing punishment (in
contrast with a fact that mitigates punishment.” [The “by law” is an attempt to preserve
discretionary sentencing.] Thomas, concurring, joined by Scalia in
Apprendi v. New Jersey (2000) (Supp. 26-10). Can Apprendi be squared with Walton? Supp. 2632. The Court overturned Walton, holding, in the words of the supplement that “death-penalty
aggravating circumstances must be determined, beyond a reasonable doubt, by a jury.” Ring v.
Arizona (2002) (Supp. 26-32) (Ginsburg, joined by Stevens, Scalia, Souter, Thomas, Kennedy)
(Breyer concurred separately) (O’Connor dissented, joined by Rehnquist). On the same day as
Ring, the Court reaffirmed McMillan’s holding that a state can allow a trial judge to determine
by a preponderance of the evidence the facts that support a mandatory minimum prison sentence.
The conclusion did not violate Apprendi, the court reasoned, because it did not increase the
maximum sentence. Harris v. United States (2002) (Supp. 26-34) (plurality: Kennedy, joined by
Rehnquist, O’Connor, and Scalia) (Breyer concurred in the judgment) (Thomas dissented, joined
34
by Stevens, Souter, and Ginsburg—the Apprendi majority minus Scalia—arguing that Apprendi
addresses anything that increases a sentencing range). Ring and Harris appear irreconcilable.
Seven justices—all but Kennedy and Scalia—agreed that they should have had the same result
under Apprendi, though they disagreed on what that result should be. (Supp. 26-38). It is possible
that Apprendi invalidates the federal sentencing guidelines. (Supp. 26-39). Bibas argues that
Apprendi hurts defendants because it shifts decision-making from sentencing hearings to trials in
a world where very few defendants go to trial. Supp 26-40. Note also that keeping sentencing
factors out of trial helps defendants because it allows them first to argue innocence and then,
separately, to argue that the crimes wasn’t so bad. Class notes 26.
Double Jeopardy
Double Jeopardy Clause of the Fifth Amendment protects the finality of (1) jury selection
(Oregon v. Kentucky), (2) jury acquittal (Fong Foo, Ashe v. Swenson), (3) judicial acquittal
(Fong Foo), (4) conviction.
Judicial acquittal: A trial judge may interrupt the prosecution’s case very early on and direct a
jury to acquit, and this acquittal cannot be reviewed on appeal. Fong Foo v. United States (1962)
(Supp. 27-3). Where a defendant is convicted by a jury and the trial judge then grants a defense
motion to dismiss the charges based on preindictment delay by the government, the government
can appeal the decision on the motion, because reversing the decision would not require a second
trial, and that is what is barred by double jeopardy. [Apparently the conviction would stand.]
Wilson v. United States (1975) (Supp. 27-7). Where a jury deadlocks and a judge grants a motion
for judgment of acquittal, the government cannot appeal. United States v. Martin Linen Supply
Co. (1977) (Supp. 27-8). Where a judge dismisses a charge at the close of the evidence for
preindictment delay, the government can appeal. United States v. Scott (1978) (Supp. 27-11).
Jury acquittal: “Where a previous judgment of acquittal was based upon a general verdict, as is
usually the case, … a court [must] examine the record of a prior proceeding, taking into account
the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that which the defendant seeks to
foreclose from consideration.” (internal quotation marks omitted). Where a jury acquits a
defendant of taking part in a robbery, the defendant cannot subsequently be tried for robbing one
of the victims of the robbery. Ashe v. Swenson (Supp. 27-13). In general, though some cases
have found otherwise, the government cannot rely on collateral estoppel in proving its case.
(Supp. 27-18).
Mistrial: Where a defendant successfully moves for mistrial, double jeopardy does not bar
usually the government from prosecuting him again. Double jeopardy does apply, however, if the
prosecutor “intends to subvert the protections afforded by the Double Jeopardy Clause,” that is,
if he deliberately prompts the mistrial in order to obtain another trial—if it did not the
government could always start over if a trial were going badly. Oregon v. Kennedy (1982) (Supp.
27-19).
Jeopardy attaches when the jury is empanelled and sworn. Crist v. Betz (1978) (Supp. 27-9).
35
Where a conviction is reversed, double jeopardy does not bar retrial. Ball v. United States (1896)
(Supp. 27-10). In the words of the supplement, an “appellate holding that the evidence was
insufficient to convict does bar retrial.” Burks v. United States (1978) (Supp. 27-10).
Double jeopardy in a single set of charges: The Blockburger test holds that “where the same act
or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” Blockburger v. United States (1932) (Supp. 28-4). Where a
defendant is charged with failing to reduce speed to avoid an accident and is convicted, and he is
later charged with involuntary manslaughter on the same set of facts, even though failing to
reduce speed could be a lesser-included offense of involuntary manslaughter, there are in fact
other ways to prove involuntary manslaughter, so double jeopardy does not bar the second
prosecution. “The mere possibility that the State will seek to rely on all of the ingredients
necessarily included in the traffic offense to establish an element of its manslaughter case would
not be sufficient to bar the latter prosecution.” If the state actually does so rely, the defendant
might have a claim. Illinois v. Vitale (1980) (Supp. 28-4). Ordinary double jeopardy principles
do not apply to RICO and CCE prosecutions. Garrett v. United States (1985) (Supp. 28-9).
Where, after a defendant pleads guilty to one set of charges, the state files new charges and a bill
of particulars demonstrating that it will in fact use a theory to prosecute the second case “in
which the government, to establish an essential element of an offense charged in that
prosecution, will prove conduct that constitutes an offense for which the defendant has already
been prosecuted,” double jeopardy will bar the second prosecution. Grady v. Corbin (1990)
(Supp. 28-10). Where defendants “were tried for criminal contempt of court for violating court
orders that prohibited them from engaging in conduct that was later the subject of a criminal
prosecution,” the subsequent prosecutions will be barred by double jeopardy where they violate
the Blockburger test, but not otherwise. No majority, however, reached a conclusion on how to
evaluate the contempt orders. Scalia says the contempt order is really a whole lot of orders, one
for every other criminal statute; on this theory the substantive crime is a lesser-included of the
contempt violation. (But note that the government will charge whichever one carries a higher
sentence. Note that felony murder and willful violation of constitutional rights work the same
way. Class notes 29.) This decision overruled Grady. United States v. Dixon (1993) (Supp. 2813). All intent standards (malice aforethought, recklessness, etc.) technically create different
crimes under Blockburger, but courts assume that there is in fact a hierarchy of intent, with the
ones lower on the list being effectively lesser-included offenses. On the other hand, “with intent
to…” is called a collateral motive and is deemed a separate element.
Statutory regulation: Fed. R. Crim. P. 8: “(a) Joinder of Offenses. The indictment or information
may charge a defendant in separate counts 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. (b) Joinder of Defendants. The indictment or information may 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. The defendants may have charged in one or
more counts together or separately. All defendants need not be charged in each count.” (Supp.
28-32). Fed. R. Crim. P. 14: “Relief. If the joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to prejudice a defendant or the government, the
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court may order separate trials of counts, sever the defendants’ trials, or provide any other relief
that justice requires. (b) Defendants Statements. Before ruling on a defendant’s motion to sever,
the court may order an attorney for the government to deliver to the court for in camera
inspection any defendant’s statement that the government intends to use as evidence.” (Supp. 2833).
Dual sovereignty: One state may try a defendant for murder after another has convicted him of
murder based on the same homicide, because under the doctrine of dual sovereignty, one state is
not presumed to protect the interests of another. [The real problem the Court is considering here
is ensuring that the feds can go after a defendant after a state “prosecutes” and acquits him. See
Rodney King.] Heath v. Alabama (1985) (Supp. 29-1).
Appellate Review and Harmless Error
Right to counsel: A defendant has a right to appointed counsel for his first appeal as of right.
Douglas v. California (1963) (1261). A defendant does not have a right to appointed counsel on
discretionary direct appeal. Ross v. Moffitt (1974) (1261). A defendant has a right to effective
assistance of counsel on the first appeal as of right, Evitts v. Lucey (1985) (1263), but not on
discretionary direct appeal. Wainwright v. Torna (1982) (1264).
Litigation decisions: In the words of the casebook, “appointed counsel who determines that an
appeal is frivolous is not permitted simply to refuse to brief and argue the case.” Anders v.
California (1967) (1264). Appointed counsel need not present all claims sought by defendant,
however. Jones v. Barnes (1983) (1264). The Anders rule applies only to direct appeal, not
collateral appeal. Pennsylvania v. Finley (1987) (1266). A state may require appellate counsel
who believes an appeal lacks merit to include in briefs an explanation of why. McCoy v. Court of
Appeals of Wisconsin (1988) (1265).
The defendant can appeal “final collateral orders” by interlocutory appeal. Such orders (1) “must
conclusively determine the disputed question,” (2) “resolve an important issue completely
separate from the merits of the action,” and (3) must “be effectively unreviewable on appeal
from a final judgment.” A pretrial order disqualifying defense counsel is not such an order and
thus can not be challenged with interlocutory appeal. Flanagan v. United States (1984) (Supp.
30-2).
All new constitutional rules apply retroactively to all cases still pending on appeal. Griffith v.
Kentucky (1987) (Supp. 30-3).
Harmless error: “[T]here may be some constitutional errors which in the setting of a particular
case are so unimportant and insignificant that they may, consistent with the Federal Constitution,
be deemed harmless, not requiring the automatic reversal of the conviction. … [B]efore a federal
constitutional error can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Permitting a prosecutor to comment extensively on the
defendant’s failure to testify was not harmless. Chapman v. California (1967) (Supp. 30-4). The
following errors are not subject to harmless error review: “unlawful exclusion of members of the
defendant’s race from a grand jury, Vasquez v. Hillery (1986), the right to self-representation at
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trial, McKaskle v. Wiggins (1984), and the right to a public trial, Waller v. Georgia (1984).”
Harmless error review applies to “trial error,” but not to “structural error.” The admission of an
involuntary confession is the former and therefore is subject to harmless error review. Arizona v.
Fulminante (1991) (Supp. 30-8). An incorrect instruction on reasonable doubt cannot be held
harmless. Sullivan v. Louisiana (1993) (Supp. 30-12). An instruction that omits an element of the
crime can be harmless error. Neder v. United States (1999) (Supp. 30-13). See the chart of
standards of review for different types of claims at Class notes 30.
The government can appeal in three ways, in the words of the supplement: “(1) interlocutory
appeals from certain pretrial orders, such as suppression orders or orders dismissing an
indictment; (2) appeals from post-trial rulings that set aside a guilty verdict rendered by the factfinder (in such situations, reinstatement of the guilty verdict, on appeal, does not violate double
jeopardy); and (3) sentencing appeals” under guideline systems. (Supp 30-1).
Habeas: Defendant may not re-litigate Fourth Amendment challenge on habeas if provided
adequate opportunity to present it at trial. Stone v. Powell (1976) (Supp. 9-2). Defendant may not
raise claims on habeas that were procedurally defaulted in state court, without demonstration of
cause and prejudice. Wainwright v. Sykes (1977) (Supp. 9-2). “[T]he standard for determining
whether habeas relief must be granted is whether [the prosecution’s use of the defendant’s postMiranda silence] ‘had substantial and injurious effect or influence in determining the jury’s
verdict,” and not the Chapman standard. Brecht v. Abrahamson (1993) (Supp. 30-19). Under
AEDPA, habeas shall not be granted unless a state court decision “was contrary to, or involved
an unreasonable interpretation of, clearly established Federal law, as determined by the Supreme
Court of the United States.” Williams v. Taylor (2000) (Supp. 30-15).
Insanity defense
“[W]hen there is sufficient question as to a defendant’s mental responsibility at the time of the
crime, that issue must become part of the case. … [I]n the pursuit of justice, a trial judge must
have the discretion to impose an unwanted [insanity] defense on a defendant.” Whalem v. United
States (D.C. Cir. 1965) (Supp. 20-4).
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