Cjaii outline: Goldwasser




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CJAII OUTLINE: Goldwasser
INTRODUCTION

  1. Stages Of The Process………………………………………………………………...1

  2. Relevant Constitutional Provisions


CASE SCREENING

  1. Prosecutorial Screening – The Charging Decisions…………………………………...2

    1. Type of Charge Prosecutor Brings is First Step in Case Screening

    2. Decision to Not Charge in the Face of What Appears to Be Criminal Conduct

    3. Decision to Charge – Selection of What Charges to Bring

  2. Judicial Screening……………………………………………………………………..3

    1. Preliminary Hearing

    2. Requirement of a Preliminary Hearing……………………………………………4

  3. Grand Jury Screening

    1. GJ Functions

    2. 5th A. Requires GJ Indictment for All Felony Charges

    3. Major Differences b/t GJ Proceeding and Preliminary Hearing


PRETRIAL RELEASE

  1. Interests At Stake……………………………………………………………………...5

    1. D’s Interests

    2. Society’s Interests

  2. Governing Rules in Determining Bail

    1. Bails Clause of 8th A. – “No Excessive Bails”

    2. Federal Bail Reform Act of 1984 – Preventative Detention Introduced


PREPARING FOR TRIAL

  1. Pretrial Motions……………………………………………………………………….7

    1. Generally

    2. Motions for Change of Venue

  2. Discovery

    1. Discovery by Defense

    2. Discovery by Prosecution

  3. Joinder & Severance………………………………………………………………..…9

    1. Joinder

    2. Severance

    3. Standards of Review and Remedy…………………………………………….…10

  4. Speedy Trial

    1. 6th A. Grants Right to “Speedy Trial”

    2. DP Right to Speedy Trial……………………………………………………...…11

    3. Remedy for Violation


PLEA BARGAINING & GUILTY PLEAS

  1. Requirements For Valid Guilty Plea (whether bargained for or not)………………..12

    1. Waiver of Right to Trial Must be: “Voluntary, Knowing, and Intelligent”

    2. Must be a “Factual Basis” for the Plea……………………………………..……13

  2. Plea Bargaining

    1. Permissive Inducements Prosecutor May Employ

    2. Broken Plea Bargains


THE TRIAL PROCESS

  1. 6th A. Right To Trial By Impartial Jury……………..……………………………….15

    1. Attaches in ALL Criminal Offenses, Other than Petty Offenses

    2. Jury Requirements

  2. 6th A. Right To Confront Prosecution’s Witnesses……...…………………………...19

    1. Definition of “Witness Against the Accused” – Threshold Issue

    2. Confrontation Clause Grants 2 Protections

    3. Face to Face Requirement is not Absolute………………………………………20

    4. Opportunity to Cross Requirement is not Absolute

  3. 6th A. Compulsory Process Right For Obtaining Witnesses In D’s Favor

    1. Any D can Compel the Attendance of Any Witness or Any Documents

    2. Limits – When Witnesses/Docs can be Excluded

  4. 5TH A. Right To NOT Testify……………..………………………………………....21

    1. D has Right to Silence

    2. Right to Silence Violated by Prosecutor/Judge Commenting on D’s Silence


SENTENCING

  1. 2 Schemes For Sentencing…………...………………………………………...…….22

    1. Determinate

    2. Indeterminate

  2. Constitutional Rules On Indeterminate Sentencing

    1. Gen’l Rule: Judges may Consider ALL Evidence During Sentencing

    2. Constitutional Limits on Sentencing Factors

    3. Fact Finding Still Allowed by Judge………………………………………….....23

  3. Judicial Vindictiveness

    1. Violates DP for Judge to Retaliate Against D for Exercising Right to Appeal

    2. How to Prove Judicial Vindictiveness


DOUBLE JEAPORDY

  1. 5th A. Prohibits D from Being “Put in Jeopardy” Twice For The “Same Offense”….24

    1. Interests of DJ Clause

    2. Protections of DJ Clause/Context they Arise

  2. What Constitutes “Same Offense”

    1. Context

    2. 2 Questions must be Answered

    3. Mode of Analysis…………………………………………………………...……25

  3. Former Acquittal

    1. Once D is Acquitted, He can’t be Retried for the Same Offense

    2. Once D is Acquitted, He can’t be Tried for a Separate Offense that Involves the Same Factual Issue as the First Trial

    3. Former Convictions that Act as Former Acquittals……………………………..26

  4. Mistrial

    1. A Mistrial Bars a Retrial for the Same Offense in 2 Situations:

    2. When a Mistrial has no DJ Consequences

  5. Dual Sovereignty Exception to DJ Rules


INTRODUCTION


  1. Stages Of The Process

    1. Arrest – Entry into the system and booking

    2. Prosecutorial Charging Decision – Prosecutor decides whether to bring charges based upon evidence given by law enforcement agencies.

      1. If charge → initial appearance b/f judge or magistrate so D can be informed of charges

      2. If not charge → D must be released

    3. Preliminary Hearing – Hearing before judge to determine whether probable cause to support the charges

      1. This is the first adversarial proceeding

      2. Not every jurisdiction requires this. Some jurisdictions allow to go straight to GJ and some states allow to go straight to trial

      3. In jurisdictions to do require this, D can waive this right and proceed straight to GJ

    4. Grand Jury Proceeding – GJ hears evidence and decides whether sufficient to initiate a trial

      1. GJ is required in all federal felony cases, and some states require it.

      2. GJ returns an “indictment” – written statements of essential facts that support the charges against D

      3. Information - In misdemeanor cases or where D waives right to GJ, prosecutor can submit an “information” to the judge instead of having a GJ proceeding

        1. Information contains same info as an indictment, but prosecutor and not the GJ draft it.

    5. Arraignment – D enters his plea

      1. If plead not guilty → go to trial

      2. If plead not guilty or not contest, or enter plea bargain → judge must accept first

    6. Pretrial Detention (Bail Decision) – Determine whether to release on bail or not, and what bail amount should be

    7. Pretrial Motions

    8. Trial

    9. Appeal

  2. Relevant Constitutional Provisions

    1. 5th A. → Primary purpose is to ensure fairness in the criminal process

      1. EP clause

      2. DP clause

      3. Priv. against self incrimination

      4. Double Jeopardy

      5. Compulsory Process

    2. 6th A. → Primary purpose is to ensure accuracy of convictions

      1. Speedy trial

      2. Jury trial

      3. Confrontation


CASE SCREENING


  1. Prosecutorial Screening - The Charging Decision

    1. Type of Charge Prosecutor Brings is First Step in Case Screening

      1. Could charge w/ felony, misdemeanor, or not charge at all

    2. Decision to Not to Charge in the Face of What Appears to Be Criminal Conduct

      1. Prosecutor has total discretion to not charge, unless required by statute to charge with a crime.

      2. No judicially enforceable limits on that discretion (Attica – Prisoner’s couldn’t sue gov’t for not charging prison officials)

        1. Separation of powers prevents ct. from reviewing pros. non-charging decision

          1. Ct. in no better place to determine charging decision that prosecutors

          2. Congress had delegated charging discretion to executive branch

        2. Private citizens don’t have standing in criminal cases unless they are the ones being prosecuted (long standing rule that ct. willing to deter from)

      3. Reasons not to charge

        1. US Atty’s Manual

          1. No substantial federal interest (or no evid. of criminal condut)

          2. D is subject to effective prosecution in another jurisdiction (e.g., state)

          3. There is an adequate non-criminal alternative

        2. ABA Model Rules

          1. When prosecution MAY be declined

            1. Circumstances in which the crime took place

            2. Motive or pressures on the D

            3. Mitigating factors

          2. When prosecution MUST be declined

            1. Charges not supported by probable cause

            2. Insufficient evidence to obtain a conviction

    3. Decision to Charge – Selection of what charges to bring

      1. Prosecutors entitled to broad discretion and a presumption of propriety in charging decision

        1. This is a STRONG presumption

        2. Same reasons as ct. won’t review decision not to bring charges (Attica)

      2. Judicial Limits

        1. Selective Prosecution – Violates EP for prosecutor to making charging decision based on membership in a protected class (e.g., race)

          1. But not all classes are protected (e.g., Hollywood stars)

          2. How D must prove selective prosecution (2 prongs)

            1. Prosecution had a discriminatory effect

              1. Must show that others similarly situation were not prosecuted

            2. Prosecution motivated by a discriminatory purpose

              1. This can’t be inferred based on jury conviction rates alone (McClesky – Jury sentencing more ppl. to death is not prosecutorial discriminatory purpose)

          3. Must show some evid. of both prongs b/f D entitled to discovery in his selective prosecution claim (Armstrong – D no entitled to discovery simply by showing prosecutor only charged black people for the crime b/c no evid. that white people commit the crime in an equal percentage)

            1. Prof – This is almost impossible standard to meet

            2. Rat – Don’t want to delay criminal cases; chill law enforcement by scrutinizing motives w/out proof; keep gov’t enforcement policies secret

        2. Vindictive Prosecution – Violates DP for prosecutor to retaliate against D for exercising his constitutional/statutory rights

          1. How D must prove retaliatory prosecution (2 prongs)

            1. Vindictiveness presumed where D appeals a conviction and prosecutor re-charges D w/ more serious crime for the same conduct (Blacklege – Vindictiveness presumed where D appealed misdemeanor and prosecutor re-charged w/ felony)

              1. D does not need to prove actual vindictiveness

              2. Rat – The mere appearance of vindictiveness (whether actual or not) may discourage D from exercising rights

          2. Presumption can only be overcome if prosecutor didn’t have opportunity to bring the more serious charges to begin with

          3. Point – Prosecutor needs to bring most serious charges at first opportunity, then can always reduce, but can’t bring lesser charges, then increase later b/c vindictiveness will be presumed

      3. ABA Model Rules

        1. Only bring charges that prosecutor reasonably believes can be supported by the evid. at trial

        2. Only bring charges necessary to fairly reflect the gravity of the offense

  2. Judicial Screening

    1. Preliminary Hearing – Judge determines if enough evidence to proceed to trial (or at least proceed to GJ) → probable cause standard (could reasonable person believe there is evidence of a crime)

      1. D entitled to counsel at the hearing b/c it is a “critical stage” (Coleman)

        1. Purpose of D’s counsel in preliminary hearing:

          1. Scrutinize the evid. prosecutor puts on and poke holes in it.

            1. Impt. b/c if pros. witness not available at trial, their preliminary hearing testimony can be used.

          2. May or may not want to put on defense

            1. Pro – Judge may decide to kick the case or pros. may want to plea bargain b/c strong defense

            2. Con – Pros. gets a sneak peak at your trial strategy

      2. Remedy for lack of counsel at preliminary hearing – Harmless error review

        1. Presumption that case remanded for new preliminary hearing w/ counsel

        2. Pros. can overcome presumption by showing D wasn’t harmed (prejudiced) by not having counsel present

    2. Requirement of a Preliminary Hearing

      1. Preliminary hearings are not required by the constitution.

        1. Fed. – Must either have a preliminary hearing OR a GJ hearing (see below)

        2. State – Not required to have either a preliminary hearing or a GJ hearing. Can go straight to trail after prosecutor brings charges.

      2. But where preliminary hearings are had, the above constitutional rules attach

  3. Grand Jury Screening

    1. GJ Functions

      1. Sword – Investigates crimes by subpoenaing witnesses and documents

        1. Returns indictment if probable cause of crime

      2. Shield – Prosecutor has to seek an indictment from the GJ (this is the screening function) based on:

        1. Returns indictment if probable cause of crime

    2. 5th A. Requires GJ Indictment for All Felony Charges

      1. Obtaining a GJ Indictment – Pros. must present evid. of probable cause for every element of the crime charged (reasonable jury could find crime)

        1. FRE do not apply to pros. presentation of the evid. (e.g., hearsay admitted)

        2. Pros. not required to present exculpatory evid. (Williams)

          1. But may want to present it anyway to test it out on the jury

        3. Justification for the relaxed rules

          1. Ct. has no supervisory authority over GJ (independent body)

          2. GJ is an investigatory body, not adjudicatory

          3. All evid. will be admitted at trail anyway

      2. Once Facial Valid Indictment is Issued

        1. Case proceeds to trial

          1. Even if prosecutor didn’t present ANY evidence to GJ, Ct. won’t inquire into GJ proceedings

        2. Conviction at trial holds harmless any errors in GJ proceedings

          1. One Exception: Discrimination in selecting members of the GJ

    3. Major differences b/t GJ proceeding and preliminary proceeding

      1. 5th A. requires GJ indictment for felonies; Preliminary hearings are not required by the constit.

      2. D not entitled to counsel in GJ proceedings; D is entitled to counsel at preliminary hearing

      3. Conviction at trial holds harmless errors in GJ proceedings; Errors in preliminary hearing are reviewed for harmless error even if D was subsequently convicted


PRETRIAL RELEASE


  1. Interests At Stake

    1. D’s Interests

      1. Loss of liberty – This is the major interest protected by the Constitution

      2. Impedes ability to prepare defense

      3. Financial - Loss of job/opportunity to seek employment

      4. Harms personal relationships

      5. Increases pressure to plead guilty

        1. Provides incentive to plead guilty if prosecutor will let off w/ time serve

      6. Increases conviction rate and length of sentence

    2. Society’s Interests

      1. In favor of release

        1. Opens up more jail space

      2. Against release

        1. Decreases change of plea bargain, which leads to greater strain on judicial resources b/c more trials

        2. Danger that D might flee (traditional interest recognized)

        3. Danger that might commit more crimes while on bail (modern interest recognized)

  2. Governing Rules in Determining Bail

    1. Bails Clause of 8th A. – “No excessive bails”

      1. Always start with a presumption that D should be released w/out bail

        1. Right to freedom prohibits punishment before conviction

      2. Presumption of release only overcome if risk that D will flee (then set bail)

        1. Where risk is shown that D will flee, Judge can’t set a bail amount w/out looking at D’s individual circumstances (Stack v. Boyle – Violation to set uniform bail for all D’s charged w/ same crime w/out looking at circumstances of each D)

        2. D’s individual circumstances to consider:

          1. Ties to community

          2. Nature of crime charged with

          3. Evidence in favor of conviction

          4. Prior history of showing up in court

          5. D’s character

      3. NOTE – This clause has not been incorporated to the states, but every state constitution has a similar provision

    2. Federal Bail Reform Act of 1984 – Preventative Detention Introduced

      1. Still start w/ presumption that D should be released

      2. Presumption of release overcome by:

        1. Showing risk that D will flee OR (same as Stack v. Boyle)

        2. D posses danger to society while pending trial (this is new interest protected that wasn’t in effect during Stack v. Boyle)

          1. U.S v. Salerno – Preventative detention doesn’t violate constit. b/c:

            1. Substantive DP: Purpose is not to impose punishment, but to prevent harm which is compelling gov’t interest and conditions make it the least restrictive

            2. Procedural DP: Enough procedural safeguards in bail hearings to ensure accuracy of pretrial detention decision

            3. Bails Clause: 8th A. doesn’t limit bail considerations only to questions of flight/integrity of trial

      3. Even when presumption of release overcome, still must impose least restrictive conditions possible and can’t impose a financial condition so high that release will not be possible.

        1. Ex. of conditions: bail money, remain in custody of parents, maintain job

        2. Pretrial detention allowed only when no conditions will ensure D shows up from trial or doesn’t harm the public.

      4. Outcome: Judge must consider same individual characteristics as outlined in Stack v. Boyle AND whether D posses danger to anybody in the community before decides to impose conditions on release or detain until trial


PREPARING FOR TRIAL


  1. Pretrial Motions

    1. Generally

      1. Lots of different kids of motions to you can make for admission/exclusion of evidence (e.g., motions to suppress, motions in limine)

        1. D’s testimony during suppression hearings not admissible at trial

      2. But motions rarely granted

    2. Motions for Change of Venue – change physical location of trial

      1. Interests at Stake

        1. D’s interests – 6th A. right to impartial jury

        2. Society interests – Local community has a right to judge the character of those who live within it (includes D’s character and character of the witnesses)

      2. Prosecutor’s Choice of Venue – Can bring charge in any state in which underlying conduct of the crime occurred (Rodrguez-Moreno – Pros. could bring gun charge in NJ, where kidnapping spanned many states, but gun only used in MD)

      3. D’s Change of Venue – Must show that ANY jury drawn from the community will be prejudiced against him

        1. 2 Prong test (Murphy)

          1. Setting of the trial is inherently prejudicial OR

            1. This is basically a circus atmosphere (McVeigh)

            2. Can show through lots of media coverage, public opinion surveys, etc.

          2. Jury selection process permits an inference of actual prejudice

            1. Must show that jurors empanelled unable to lay aside their preconceived impressions and render a verdict based on the evidence presented in court.

            2. Note – Even if juror admits prejudice, they can still stand if say that they can ignore prejudice and just decide on the evidence.

        2. Point – VERY difficult to make proper showing to get venue changed

          1. But in can be done in some cases (McVeigh)

  2. Discovery

    1. Discovery by the Defense

      1. Limited b/c concern that will misuse witness information

      2. Discoverable information

        1. Preliminary Hearing – Cross examination of prosecution’s witnesses

        2. Fed. R. Crim. Pro. 16 – Various items of evidence

          1. D’s statements made to a gov’t agent in response to interrogation

          2. D’s property in possession of the gov’t

          3. Reports, examinations, and tests of D that are material to the case

        3. Due Process – Upon request, all material exculpatory evidence in the hands of the prosecutor (Brady v. MD)

          1. Definitions

            1. Exculpatory = evidence favorable to the accused on the issue of guilt or punishment

              1. Could point to D’s innocence OR

              2. Could cast doubt on pros. evid/witnesses

            2. Material = reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different (Baggley)

              1. Reasonable probability = probability sufficient to undermine confidence in the outcome

              2. Consider the undisclosed evid. in context of the entire trial, not in isolation (Argurs – No violation where prosecutor didn’t disclose victims violent crimes conviction b/c other evid. which was admitted indicated victim’s violent tendencies)

            3. Upon request = Pros. has duty to turn over all “obviously exculpatory” evidence, even absent a request (Argurs)

              1. Obviously exculpatory = same test that Baggley ct. adopts for materiality

              2. Bagley + Argurs = D doesn’t have to request the info.

            4. In the hands of the prosecutor = anybody in the entire criminal justice system (all viewed as on entity)

              1. But other executive branch agencies (e.g., IRS) are not viewed as part of the same agency

          2. Burden on D to prove prejudice from non-disclosure (i.e, constit. violation) → opposite of harmless error test where prejudice is presumed after constit. violation is show

        4. Remedy for violation of Brady Rule → Mistrial or new sentencing (redo whichever procedure the evid. would have been admissible at)

      3. Prosecutor is under no duty to preserve discoverable evidence, but DP violation to destroy discoverable evidence in bad faith (Youngblood – No DP violation by police failure to refrigerate clothing which caused destruction of the DNA evid.)

        1. Bad faith – Gov’t was on notice that D wanted the evid., but gov’t destroyed anyway

          1. D probably has to actually serve a request for the evid. BEFORE the gov’t destroyed it to prove bad faith

        2. Justification

          1. Can’t stop police from destroying evid. if they aren’t doing it on purpose

          2. Exculpatory nature of the evid. can be inferred from bad faith, but nothing can be inferred from negligent destruction

        3. Remedy for violation of Youngblood Rule → Jury can infer the fact which D claims the destroyed evid. proved

    2. Discovery by the Prosecution

      1. Limited b/c D’s 5th A. priv. against self incrimination

      2. Discoverable information

        1. Constitution imposes NO discovery obligations on D

          1. Only obligations are imposed by statutes

        2. Constitution does limit the type of discovery that statutes can impose

      3. Constitutional limits on statutorily mandated discovery obligations of D

        1. Disclosure of alibi defense (Williams – D had to tell prosecutor pretrial if he was going to present an alibi and who his alibi witnesses were)

          1. Doesn’t violation DP if reciprocal discovery obligations are imposed on prosecutor:

            1. Pros. has reciprocal discovery obligations (disclose his witnesses)

            2. Advances truth finding function of trial b/c gives pros. time to investigate alibis, which can be easily fabricated

          2. Doesn’t violate D’s 5th A. against self incrimination b/c D would be required to disclose the information at trial anyway

            1. No compulsion, just accelerated timing

        2. Other defenses or evidence in D’s possession

          1. William’s rational likely to apply if following conditions are met:

            1. Reciprocal discovery obligations are imposed on prosecutor (b/c the complies w/ DP)

            2. D would have to introduce the evidence at trial anyway (b/c then no 5th A. “compulsion”)

          2. Ct. has held DP violation where prosecutor doesn’t have reciprocal disclosure obligations

          3. Likely 5th A. self incrimination violation if D isn’t planning on presenting the evid. at trial OR withdraws the defense before trial (b/c then the accelerated timing rationale disappears)

      4. Remedy if D doesn’t comply w/ constitutionally permissible discovery obligations → exclusion of D’s evidence (see Compulsory process section of outline)

  3. Joinder & Severance

    1. Joinder

      1. Joinder by Prosecutor - 2 Types Authorized by Fed. Rule Crim. Pro. 8

        1. Joinder of offenses – Indictment charges single D w/ multiple crimes

          1. Whenever the crimes are:

            1. of similar character; OR

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