Advanced Crim Pro Notes

Front 1

What is a preliminatry intitial appearance?

Back 1

A PIA is purely statutory in nature, although it was partly influenced by constitutional law

Designed as a safeguard against unreasonable arrest and detention

Front 2

what is article 15.17?

Back 2

2. Art. 15.17:Duties of Arresting Officer and Magistrate→ Provides that whenever someone is arrested (whether pursuant to a warrant or in the absence of a warrant), he must be presented to a magistrate w/o unreasonable delay, and in any event not later than 48 hours after he is arrested

Front 3

What infrmation must be given to a defendant in a Preliminary Initial Appearance?

Back 3

a) At this hearing, the judge must inform the arrestee of:
(1) The accusation against him;
(2) His right to retain counsel;
(a) The arrestee is not entitled to be represented by counsel at a 15.17 hearing, but the judge communicates to him that a right to be represented by counsel will attach at a later time
(3) His right to remain silent;
(a) Reflects Miranda but does not mean that police are not required to read Miranda warnings when the arrest is carried out
(4) His right to have an attorney present when being questioned by the police or prosecutors;
(5) His right not to speak with the police or prosecutors; AND
(6) His right to have an examining trial
(a) Note: The Judge is not required to tell the arrestee what an examining trial is, just that he is entitled to one
b) The judge shall allow the arrestee to post bail if the law permits it
c) The judge gives the arrestee the opportunity to request counsel if he is indigent, and the court will appoint counsel to represent the ∆ if it has authority to do so

Front 4

What does 14.06 say?

Back 4

5. Art. 14.06: Must Take Offender Before Magistrate
a) [Applies to arrest w/o warrant] The person making the arrest of the person having custody of the person arrested shall take the person arrested or have him taken w/o unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made w/o an order, or, to provide more expeditiously to the person arrested the warnings described by Art. 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Art. 15.17 of this code

Front 5

Exceptions to 14.06

Back 5

Exceptions:
§ Person resides in the county and it’s a CLASS C or certain types of Class A or B
misdemeanor à Officer can issue a citation
§ Person resides outside the county and it’s a CLASS C misdemeanor à Officer can
issue a citation
o Citation MUST include Written Notice of
§ Time to appear
§ Place to appear
§ Name of person to be charged
§ Address of person to be charged
§ Offense Charged

Front 6

what is federal rule 5 and what does it say?

Back 6

Arrested with or without Warrant à Taken to a magistrate WITHOUT UNDUE DELAY
§ Unless a statute provides otherwise
o Arrested without a warrant à Requires prompt filing of a complaint

Front 7

what is the remedy for a violation of 15.17 or 14.06?

Back 7

Not seen a case where defendant has gotten an exclusion for violation of 15.17.
o 15.17 is about other important stuff – not 4th Amendment.
o Assuming that only possible poisonous tree is state law 15.17 (or federal rule 5) – and it’s
virtually impossible to get it excluded.

Front 8

What is one possible way to use the absence of PIA to exclude evidence?

Back 8

Not seen a case where defendant has gotten an exclusion for violation of 15.17.
o 15.17 is about other important stuff – not 4th Amendment.
o Assuming that only possible poisonous tree is state law 15.17 (or federal rule 5) – and it’s
virtually impossible to get it excluded.

Front 9

What is a gurstein hearing? when is it held?

Back 9

a gurstein hearing is a hearing to determine probable cause. it applies when there has been a warrantless arrest and is basically getting a warrant after the arrest has been made.

Gerstein probable cause determination and “initial appearance” can happen at same time (often
does). State’s have flexibility to combine the two.
o Texas typically combines both

Front 10

How soon does a gurstein hearing have to be done?

Back 10

p. 644 – “brief period of detention”
p.647 – “prompt”
Riverside: in no event longer than 48 hours, and
less than 48 hours does not mean you complied

Front 11

When does a preliminary innitail appearance need to take place? and how will it be determined?

Back 11

“Without unnecessary delay”

Ontiveros – totality of the circumstances

Front 12

What is a gurstein hearing looking to protect citizens from?

Back 12

a violaton of the 4th ammendment unreasonable seizure

unreasonable searches and seizures without probable cause

shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation

Front 13

Is there a right to an indictment?

Back 13

Δ has Constitutional right for indictment before trial for serious crimes in the FEDERAL
SYSTEM because charge alone is enough to muck up someone’s life (job, family, etc.). That
right was not brought down to the states - no automatic state right but most states require
an indictment prior to trying of a felony.

Front 14

What interests are being balanced?

Back 14

Government interest in seizing and detaining w/o neutral and detached PC
determination

vs

Magnitude of intrusion on individual’s interest in free movement

It gets more intrusive on the individual as he sits in jail.

Front 15

What rights are implicated by a gurstein hearing?

Back 15

Not critical stage – no 6th amendment rights and no DP rights. Pure 4th Amendment seizure
issue to get a prompt determination of probable cause by a neutral and detached
magistrate.
§ Point is to not bar prosecution, just 4th amendment issues. Not prerequisite of
charging someone. Only talk about Gerstein when Δ dragged off street and
arrested without a warrant– do neutral and detached magistrate thing promptly

Front 16

When is gurstein applicable?

Back 16

Arrest without Warrant (no pre-arrest neutral and detached evaluation of PC)
o Detained without Indictment (not prompt release - an extended period of time incarcerated
w/o PC hearing)
§ Reasonable arrest can become unreasonable detention

Front 17

When is gurstein not applicable?

Back 17

o Arrest with warrant
o Grand jury indictment
o Release without restrictive conditions promptly following arrest
§ if significant restrains =Gerstein

Front 18

When must a gurstein hearing be held?

Back 18

"prompt"


Riverside v McLaughlin defines what is Prompt. Overruled Sanders (which said within 24 hours in houston - non binding fed interp)
§ Under this practical compromise, a policeman’s on-the-scene assessment of
probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident
to arrest.
o 48 hours is presumptively reasonable.
§ Hearing within 48 hours may still violate Gerstein if the probable cause
determination was delayed unreasonably.
• Examples: Delays for the purpose of gathering additional evidence to
justify the arrest, delay motivated by ill will against the arrested individual,
or delay for delay’s sake.

Front 19

What if the hearing is not within 48 hours?

Back 19

If hearing is not within 48 hrs, the burden shifts to the gov’t to demonstrate the existence of
a bona fide emergency or other extraordinary circumstance.
§ It takes longer than 48 hrs to consolidate pretrial proceedings does not qualify as an
extraordinary circumstance.
§ Intervening weekends do not qualify.

Front 20

Is due process implicated in a gurstein hearing?

Back 20

Gerstein is 4th Amendment issue you do not get Due Process at this hearing.
§ Not adversarial, counsel not required
§ Don’t have to be careful of nature of evidence.
§ Do not get panoply of procedural due process at this hearing.
o Only get what you would have gotten had a warrant been required for arrest.
§ It’s usually just cop and judge.
o Too many procedures would make promptness impossible. This is the whole point of this

Front 21

Gurstein violation scenarios - when has gurstein been violated?

After being indicted by a grand jury, Pete was arrested at his home on a Tuesday and detained in jail until his “presentment” late Friday afternoon.

Back 21

Gerstein NOT violated – he was indicted. Gerstein does not apply to indictment, only information (grand jury is sufficiently neutral and detached)

Front 22

After securing a warrant, the Waco police arrested Pete at school, pulling him abruptly out
of PC – for which he profusely thanks the officers. Although the police easily could have
presented him to the magistrate that afternoon, they wanted to see the future yuppie
behind bars for at least one night, but realized that Pete’s “Bear Pa” would post bail at Pete’s initial court appearance. Thus, the police delayed the presentment until the following morning.

Back 22

NO Gerstein violation – there is a Warrant

Front 23

Police arrested Pete on Waco Drive immediately after receiving stolen car report filed by
Rogers. Pete was taken downtown, booked, fingerprinted, and released. 3 days later, he
received summons to appear before magistrate. His “appearance” date was full 10 days
subsequent to his arrest.

Back 23

NO Gerstein violation – arrested, booked, released without restrictions (just show up)

Front 24

Pete was arrested without a warrant because the police believe he fit the description of a
man reported to have been seen driving the stolen Alpha. Pete was immediately taken to a
magistrate who determined that the police had no probable cause to arrest him and ordered
him released.

Back 24

NO Gerstein violation – they did it according to Gerstein. Prompt, post-arrest neutral and detached determination (still violated 4th – no PC for arrest)

Front 25

Pete was presented to the magistrate four days after his warrantless arrest, but the police made a very strong showing of probable cause.

Back 25

Gerstein violation – Gerstein is not about presence or absence of PC, it is about judicial oversight. Arrest w/o PC may have been valid but police officers can no longer justify their seizure of Pete in the absence of exigent circumstances and judicial oversight.

Front 26

Pete was arrested without a warrant on Friday afternoon and brought before a magistrate the following Monday.

Back 26

Depends – Riverside

Front 27

Do you get an attorney for a PIA?

Back 27

No. The state doesn't even have to be there.

Front 28

Do you get an attorney for a gurstein hearing?

Back 28

no . a gerstein hearin is not a critical stage and there is no indictment, thereofre, no counse.

Front 29

What is meant by a "sufficiently prompt" Gurstein hearing?

Back 29

"without unecesary delay"

Sanders held that in houston it is not more than 24 hours, but that holding was not binding on the states.

but in RIverside, the court rejects saunders an says that under 48 hours is presumed to be ok but even within 48 hours may have an unreasonable delay.

-if you have delay for delay’s sake, or
-for ill motives towards suspect, or
-to continue building the case by gathering additional evidence to justify the arrest

⇨ Over 48 hours, presumptively unreasonable (BOP shifts to the govt. to show existence of a bona fide emergency or other extraordinary circumstance)

 The following reasons are not legitimate reasons to go over 48 hours:

(1) desire to consolidate proceedings
(2) intervening weekends

Front 30

When must a PIA happen?

Back 30

without unecessary delay` Ontiveros totality of the circs

Front 31

what does unecessary delay mean?

Back 31

Ontiveros -To determine unecessary delay, use the totality of the circumstances. the rule does not say that 48 hours is the outer lmit under which cops are oka, it jsut says that 48 hours is the absolute outer limit.

15 hours and under the cops are probably going to be ok

Front 32

What are the remedies when the police blow gurstein?

Back 32

a. Injunctive relief - let them out of jail.

b. False imprisonment tort is a possibility.

c. Internal sanctions (no judicial determination)

d. Will not bar prosecution because of delay. Dismissal is too drastic.

e. Exclusion of evidence if causal nexus between delay and confession (TX)

 Looking for a causal connection b/w failure to take before the magistrate and the confession.

4th Amendment

 If illegal arrest at inception → fruit of poisonous tree
 If legal at inception, but Gerstein violation ??

Front 33

Scenarios - what if the arrest was legal at its inception, but there is a gurstein violation?

Back 33

The failure to take an arrestee before a magistrate in a timely manner will not
invalidate a confession unless there is proof of a causal connection between the
delay and the confession.
• Further, an unreasonable delay in presenting an arrestee before a
magistrate will not vitiate an otherwise voluntary confession if the arrestee was properly advised of his or her Miranda rights.

§ The defendant has the burden to show the delay was unreasonable, and to show the causal connection between the confession and the failure to take him before
a magistrate w/o unreasonable delay

Front 34

Assume Pete confessed to the crime during a period of detention subsequent to his arrest but prior to
his first appearance before a magistrate. You are the judge at Pete’s trial; he had made a pretrial
motion to suppress the confession (i.e., exclude it from evidence). In which of the following
situations will you grant his motion? (In each case, assume the police complied with Miranda, etc.,
etc., in taking the confession.)

(a) Pete confessed 12 hours after his warrantless arrest.

Back 34

⇨ Gerstein → NO violation (under 48 hours even where there is a later Gerstein violation)

Information → OK, appears confession obtained “without unnecesary delay, but not later than 48 hours”

Front 35

(b) Pete confessed 4 days after he was arrested pursuant to a warrant.

Back 35

⇨ Gerstein → NO violation, arrested with warrant

⇨ Information → Violated state law before got confession – “unreasonably unecessary delay”

 Causal connection between delay and confession → NO, nothing happening different than what police had to do.

 Must show delay caused the connection – won’t be excluded just because violate state law. Argument is that suspect could’ve been out on bail (hard to prove)

Front 36

(c) Pete confessed 10 days after he was arrested (pursuant to a warrant); he claims that he was provided little food and water during his detention.

Back 36

⇨ Gerstein → NO violation (had warrant)

⇨ Information → OK. Torture doesn’t matter, still OK even if they beat him. Reason is that cops could’ve taken him to magistrate and then tortured him – he’d be in same position (no causal connection).

 Delay unquestionably violates state law, but unlawful delay doesn’t convert to unlawful arrest

 It’s almost impossible to show that there was causal connection

Front 37

(d) Pete confessed 1 hour subsequent to his warrantless arrest which later proved to be lacking probable cause.

Back 37

⇨ Gerstein → NO violation (one hour after arrest)

⇨ Information → Confession inadmissable – fruit of unlawful arrest—basic 4th A violation b/c the taint is not suffieciently attenuated under brown v illinois

Front 38

(e) There was an arrest. Suspect not taken to magistrate within 48 hour period. Then he confesses. Hours later, suspect taken to magistrate and magistrate say that cops had PC.

Back 38

⇨ Gerstein → Violation Not sure if evidence is excluded or not. Court hasn’t answered

 At Gerstein hearing, have one of two things:

(1) Don’t have PC to arrest, confession is out on general 4th amendment grounds
(2) Have PC, but violation to bring Gerstein hearing (4th violation)

 Key to whether evidence is excluded in (2) is whether Gerstein is PC case (lawful detention from get go so confession not fruit of poisonous tree – 4th not violated) or whether it is Warrant case (failure to get judicial determination causes seizure to be unreasonable at some point) → Serr things that it is Warrant case and the search is unreasonable

Front 39

(f) Arresting officer initially arrested Pete on PC. However, while taking Pete downtown, evidence came to officer’s attention which caused him to doubt his original conclusion of PC. Pete confessed 1 hour later. Two hours after his confession, he was “presented” to magistrate.

Back 39

⇨ Once suspect is arrested, it is magistrate and not policeman who should decide whether PC has dissipated to such an extent following arrest that the suspect should be released.

Front 40

Right to Counsel

when is the 6th amendment right to counsel implicated?

Back 40

In order for the 6th Amendment right to counsel to be implicated, it MUST be a criminal prosecution
AND it for [the defendant’s] defense


"in a criminal prosecutions..."the accused shall have"...for the assistance of counsel for his defense."

Front 41

what does "in all cimrinal prosecutions" mean?

Back 41

It meanse that there must be the initiation of adverse judicial proceedings

Initiation of adverse judicial proceedings:
§ Information
§ Indictment
§ LOOK TO STATE LAW to determine if arraignment counts
• Must be a true, formal, commitment to prosecute according to Powell v. Alabama

Front 42

In Texas, is the PIA an initiation of adversarial judicial proceedings?

Back 42

BUT there is no right to Counsel AT the hearing b/c it is NOT for his defense b/c it is not a critical stage according
to Green v. State

Front 43

is an arrest an initiation of adverse judicial proceeding?

Back 43

NO

Front 44

What does it mean for counsel to be appointed "for his defense?"

Back 44

For His Defense refers to the Critical stage of prosecution or confrontation between state
and defendant where absence of counsel would unsettle the adversarial balance intended
by the framers.

Front 45

what are typical for his defense scenarios?

Back 45

For His Defense Scenarios
§ Indicted/Information PLUS
• Police Interrogation
• Line-Up
• Plea
• Plea Negotiations
• Trial
• Sentencing
• Pretrial Motions
• Jury Selection
• Appeal
• Trial Preparation
• Time for Trial Preparation
• NOT HABEAS

Front 46

What are not for his defense scenarios?

Back 46

What is NOT “for his Defense”
§ Preliminary Initial Appearance IN TEXAS
• Look to state law to determine if arraignment/initial appearance is a
critical stage in other states

Front 47

Now that we have determined that there is an initiation of adversarial proceedings and that it is for his defense is the 6th violated?

Back 47

Counsel Appears
• No Violation of the Sixth Amendment UNLESS it is ineffective assistance of counsel

Counsel Does Not Appear
• Right VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY waived à No violation
o Waived similar to 5th Amendment Miranda right to counsel during custodial
interrogation
• Right not waived = Violation

Front 48

What is the remedy for a violation of the 6th amendment's guarantee of assistance of counsel?

Back 48

Remedy for Police Misconduct
• Exclusionary Remedy
Remedy for Prosecutorial Misconduct
• Reversal of Conviction
o Most likely to be the case in the 6th Amendment context

Front 49

Bail

where does the right to bail come from?

Back 49

FED CONST

8th Amendment
o Not a right to bail ONLY PROHIBITS EXCESSIVE BAIL
Due Process Clause of the 5th and 14th Amendments
• Protects our pretrial liberty interests

TX state law
Art. 1 § 13 – No Excessive Bail
Art. 1 § 13 – Right to Bail, Except in Capital Cases when proof is evident.

Front 50

What is the purpose of bail?

Back 50

to ensure that the defendant shows up at court.

Front 51

what is excessive bail?

Back 51

Shack - – bail higher than amount reasonably calculated to insure defendant’s appearance at trial (TX – from Shack). Traditional role of bail.

⇨ Give D financial incentive to show up (legally and morally obligated)

Front 52

What is a personal bond?

Back 52

Personal bond is an unsecured promise to appear, and in the event that you breach promise the county can enforce you pay liquidated damages.

Front 53

Why is there a presumption in favor of pretrial release?

Back 53

Presumption in favor of pre-trial release

1. Helps the defendant participate and help in their defense.

2. To prevent punishment prior to conviction.

3. Don’t let presumption of innocence lose its meaning just b/c we have indictment.

Front 54

What are the factors in setting bail? Which article?

Back 54

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. not to be used as an instrument of opression - not arbitrairily set
3. nature of offense and circs
4. ability to make bail
5. Future safety of victim and the community. -- BUT Solerno

Front 55

what does salerno say?

Back 55

the 5th factor, 5. The future safety of a victim of the alleged offense and the community shall be considered.

Based on Salerno, this is unconstitutional—but most defense atty’s aren’t bright
enough to pick up on this.
§ Cannot institute preventive detention – w/o hearing or procedural DP.
Only purpose of money bail is to ensure def shows up at trial.
§ Not requiring state to specifically demonstrate dangerousness.
§ Serr’s Thoughts à safety of community can be considered in denying bail, not in setting bail (17.15(5)) This means hey judge don’t detain the person by setting the bail too high, have a hearing and lets consider all of the factors—17.15(5) is blatantly unconstitutional. Be aware of this flaw and that in 11(a) no matter what side you are on. If you are the prosecutor and you want to avoid a constitutional challenge, or if you are a defense attorney make that challenge if the judge considers 15.15(5)

Front 56

Bail Hypos

➢ You are the magistrate setting Pete’s bail. Knowing what you do about Pete and his situation, would it be best to set his bail at $500, $5,000, $50,000? What additional facts would you like to know?

Back 56

Art. 17.15

Front 57

➢ Assume the magistrate sets bail at $500, but Pete can’t afford to pay. (He is relying solely on loans for his education.) You are his attorney. Do you have a constitutional challenge to the pretrial confinement of Pete because he cannot make bail? Equal Protection Clause? Due Process Clause? 8th Amendment? Which might work?

Back 57

⇨ Equal Protection → No violation.

 Argument is that Pete is poor person and he is denied release when wealthy person would post bail; doesn’ t work because then anyone could make this challenge. Wealth is already factored in.

Bail is not excessive simply b/c –Stack v Boyle test, is there a lesser amt that would serve the purpose of adequately assuring his appearance while allowing his pre-trial release so that he can assist in his defense. The question is whether he is being detained b/c he cant pay—8th violation, or he can’t pay and any lesser amount that he could pay would not assure his appearance—no violation.

 States are supposed to provide lesser amounts of bail if it will insure suspect showing up for trial (including TX). Personal bond exists in TX (unsecured promise to appear). Non-financial alternatives are preferred, if it will still insure them showing up at trial.

⇨ 8th Amendment → may work if lesser amount would adequately assure appearance

⇨ Due Process → 17.15(4) – this would work when someone is detained for a crime that results in detention longer than they can be detained for guilt.

Front 58

What was the purpose of the 1984 bail reform act?

Back 58

brought preventive detention out of the closet and made it okay. They decided that if it was going to be okay, then the defendant should get a hearing, the BOP should be on the govt., and there should be procedural safeguards.

1. Reason for it → before the only legitimate reason for bail was to assure appearance at trial, but it is widely believed that dangerousness of suspect was taken into account

Front 59

When can preventative detention be implimented?

Back 59

3. § 3142 (e) provides that “[if] after a hearing pursuant to subsection (f), the judicial officer finds there is no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.

4. § 3142(f) conclusion must be supported by clear and convincing evidence (the act only operates on individuals who have been arrested for a specific category of extremely serious offenses).

5. §3142 (i) judicial officer must state his findings to preventatively detain in writing

Front 60

US v. Salerno

Back 60

salerno challenged preventative detention on several grounds:

1. SDP - this is punishment prior to conviction - survives because the purpose of the detention is other than punishement = safeguard community

2. SDP is impenatrable wall, must convict before deprivation of liberty - no impnetrable wall - gov interest can outweigh liberty interest.

3.PDP- answer is that procedures are adequate

4. 8th amendment - excessive bail - excessive bail is a restriction on judges (stack v boyle) excessive in relation to assuring appearnce - here plug in safeguarding community.

Front 61

What does solerno say about the presumption of innocence?

Back 61

⇨ Presumption of innocence doesn’t come in until trial. (Brennan and Marshall, in their dissent took the presumption of innocence out of context. It doesn’t come before trial. This is why Serr ultimately agrees with Salerno)

Example: Violent rapist arrested for rape. All of the evidence points to accused, if presumption of innocence applied pre-trial, and the accused said oh no, I have ties to the community, he is bailed and goes on to commit another rape, this would essentially make it impossible for the govt. to prevent rapes.

Front 62

Hunt v Roth

Back 62

fatal flaw in Nebraska constitutional amendment is that state has created an irrebuttable presumption that every individual charged with this particular offense is incapable of assuring his appearance by conditioning it upon reasonable bail or is too dangerous to be granted release (NE law fits person into broad categories based on what you’re charged with). You cannot assume that all persons within a particular class of offense are too dangerous to be released and that no less restrictive measure can assure the safety of the public.

Front 63

Texas Constitution Section 11(a) -

Back 63

Can deny bail in 4 situations:
1. Presently accused of a felony and have 2 prior convictions. Show substantial proof of guilt. (recidivists)
(2 prior felonies must arise at two separate times, can’t occur at the same)
2. Committed felony while on bail for previous felony (Committed one felony and then made bail. Now accused of another felony.)
3. Accused of felony w/ use of deadly weapon with 1 previous conviction (You are too dangerous to be released)
4. On probation or parole and accused of a violent or sexual offense (Despite the fact that you are under supervision, you are still committing crimes
(“Substantially showing the guilt” àof the most recent accusation. Gotta
be district judge.)
*** *Remember also not bailable if capital under §11 à but state must have substantial evidence suspect committed offense

Front 64

What is the process for preventative detention?

Back 64

If state wants to hold suspect in jail, it has 7 calendar days to make 11(a) motion and get order denying bail

If it is done Δ has to be accorded speedy trial (super-speedy trial provision), has 60 days from day of “accusation”

If don’t get trial within 60 days, order denying bail is set aside and Δ is
released on bail (unless gov’t can prove Δ is a flight risk?). Or if the reason for not being within 60 days is due to a motion for continuance by the Δ

o The Δ retains the right to preferential appeal to TCCA for any oders denying bail under 11a

Front 65

Defense attorney argument that tc violates solerno

Back 65

1. Texas Constitution creates an irrebuttable presumption that you’re too dangerous to be
released.
a. Hearing only says that suspect fits into one of the four categories, doesn’t take into account whether you are dangerous or not—no substantial showing of guilt that
defendant committed the newly accused offense - Unlikely to be successful
b Texas scheme is missing the requirement that restrictive detention is the last resort a propos to the federal scheme which requires that there is no measure or combination of measures will assure the appearance of the accused for trial (and protect the safety of the public)
i. Could raise a constitutional challenge, but it would be a waste of time b/c no magistrate is going to think deeply enough and apply Salerno for fear of being overturned

2. Potential Procedural Due Process argument that the judge has not allowed you to put on all evidence at the hearing

3. Less of an individualized case by case decision like the Federal system, Texas operates on
four categories that may be denied bail, but the may operates as a shall.
a. The Salerno Rule Is: No conditions of pretrial release which will adequately
safeguard the community. There may be conditions which could be placed on release to solve this goal.
---It should not operate on categories

Front 66

Prosecutors conter argument

Back 66

1. Categories of Preventative Detainees are more narrowly drawn than in Hunt v. Roth -- Need Prior Conviction in Texas

2. Need a substantial showing of guilt - more than a preponderance of the evidence but les than beyond a reasonable doubt

3.State only has 60 days from the accusation to get the person to trial unless defense asks for a continuance (speedy trial actually means something here and the only exception is fully within the defendant’s control)

4. Although there are four categories of people which may be denied bail, judge retains discretion to grant bail.

Front 67

What decisions are at the prosecutor's discretion?

Back 67

After the arrest/complaint
1. the decision to grant a pretrial diversion of formally charge
2. to grant deferred adjudication
3. to grant probation (community supervision) or to give incarceration.

Front 68

What is a pretrial diversion?

Back 68

a. He can ignore it – don’t have to file charges; case can be diverted, community service, restitution, etc. (I’ve got goods on you, but if you do this, I won’t indict)

b. For felonies, must be charged by indictment

Front 69

what is deferred adjudication?

Back 69

3. Deferred Adjudication → Prosecutorial discretion

⇨ If stay out of trouble, then no conviction ever

Front 70

What is probation?

Back 70

4. Probation (community supervision in TX) → Prosecutorial discretion

a. There are conditions you have to meet and if you do, state won’t incarcerate you

b. Sentencer’s decision, but also part of bargaining process

Front 71

DIversion and formal charges

Back 71

⇨ Prosecutor doesn’t have to take case to the grand jury. It’s up to him. If a prosecutor wants an indictment from a grand jury, he will almost always get it.

Front 72

Why is it a bad idea for prosecutors to indict eveyone that there is PC against?

Back 72

a. PC isn’t std at trial; it’s reasonable doubt. Just because have PC doesn’t mean you should prosecute.

b. Even if reasonably certain guy is guilty, prosecutors want guilt beyond any doubt.

c. Legislation over criminalization – everything has been criminalized so need discretion. You are not achieving equality if you lump everyone together

d. DA wants to be able to make more problematic crimes the priority - limited resources.

e. If eliminate discretion, gets pushed down to a lower level decision makers (cops) where it is less visible and spread among more people

Front 73

The decision NOT to prosecute

Back 73

a. Virtually no legal limitation on prosecutorial discretion

Front 74

What are the problems with legal restrictions on prosecutorial discretion?

Back 74

i. No one has standing to complain-not victim's because prosecutor reps all state, not vic

ii. separation of powers - societies interests may be served by going after big fish.

iii. Failure to qualify for injunctive relief- pros must have duty to impose injunction no duty to prosecute

iv. impractical

v.Other limits.

Front 75

What other limits do prosecutors have in the decision not to prosecute?

Back 75

(1) Elected official – removal at poles

(2) Criminal prosecution or impeachment – doing something illegal (taking bribes)

(3) TX Code Criminal Pro. 32.03 (Fed. Rule 48(a)) – Prosecutor is almost entirely free not to prosecute at outset, but once he decides to prosecute, now there’s a case – judge has limited say as to whether prosecutor can dismiss charges.

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What must happen to dismiss charges already made?

Back 76

1) Court approval
2) Written statement for reasons why court should grant approval

Front 77

What is a primary concern with prosecutorial discretion?

Back 77

⇨ Primary concern – when prosecutor uses charging power to harass

 Prosecutor only has so long to prosecute once indict someone. What unscrupulous prosecutor will do if not have the goods on someone is charge (stop time running), uncharge, charge, etc. Hang unresolved charges for a long tome.

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Decision TO prosecute

Back 78

It is easier to challenge the decision TO prosecute

a. Have individual who has standing to complain

b. If prosecutor in violation of the law, no separation of powers issue

 Suspect only asking to dismiss prosecution

c. Suspect has mechanism to challenge prosecution → selective or discriminatory in violation of EP clause (very few meet this)

Front 79

Prosecutorial Discretion in Wayte v. Texas

Back 79

a. Facts: Prosecutor was prosecuting those persons who willfully failed to register. Couldn’t prosecute everyone so approach they used was passive enforcement of Selective Service Act. Prosecutors prosecute those that come to them: (1) by reporting themselves, or (2) by being reported by others. Once government finds out about failure to register, would write letter to that person and ask them to report (beg policy), then there would be grace period. Wayte was one of the first 13 government went after.

 Government could expect to be up against and EP argument with passive selection because more than likely, those prosecuted will be outspoken protestors saying the law sucks. Protestors claim that government is picking on those that exercise 1st Amendment rights.

b. Holding: No violation

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What is the test to show a violation or prosecutorial discretion?

Back 80

i. To show violation:

(1) Discriminatory impact or effect → others similarly situated are not being prosecuted (usually need a general scheme of non-enforcement)
AND
(2) Discriminatory Purpose → government motive for selecting D is because of arbitrary classification such as race, religion, gender, or exercise of fundamental right

EP
(1) Classification
(2) Purposefully based on either SS; Intermediate scrutiny; or rational basis review.


ii. Must show both elements. First is not enough because it could be coincidental and not intended

EP aimed at purposeful or intentional discrimination. Are you going after crack dealers that just happened to be black or black dealers?

Most discrimination is OK. Virtually every government action implicates EP clause

iii. Level of scrutiny picks who wins

(1) Strict Scrutiny (Inherently suspect- Race, Religion, 1st Amendment) → compelling government interest that justifies classification – government usually loses

(2) Intermediate Scrutiny (quasi-suspect- gender, alienage, legitimacy) → important government interest

(3) Rational Basis Review → (non-suspect classifications) government must have a rational reason – government always wins

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Gov. Arguments in Wayte

Back 81

iv. Arguments:

(1) D said that he was exercising 1st amendment rights and that why he was discriminated against (strict scrutiny)

(2) Governmental said that prosecution not purposefully aimed at protestors

(a) Government didn’t prosecute those who reported themselves and then registered

(b) Government didn’t prosecute those who wrote letters protesting unless said they weren’t registering

(3) There were 670,000 non-registrants. Government drew line that included protestors and non-protestors → just those that didn’t comply. That overlaps with those that registered and those that didn’t. Fact that group that didn’t register includes a lot of protestors doesn’t matter.

 If protestors are the class → strict scrutiny

 If class is reported/non-reported → rational basis. Government’s reason – passive enforcement is one way to get violators, don’t care if protestor or not, we care that you didn’t register.

Remedy for selective prosecution: Dismissal of prosecution with prejudice

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Prosecutorial discretion Hypos

1. Waco is 25% black. In the last 6 months the Waco police have made 67 gambling arrests and 62 of those arrestee were black. The Waco Tribute Herald has recently done an expose on the rather significant amount of gambling activities in American Legion halls and other private, and predominantly white clubs. Recently, the police raided a private home in East Waco, discovered a dice game in progress, and arrested three blacks. The prosecutor decided to charge all three, and the ∆s quickly filed a motion to dismiss the indictment, arguing discriminatory prosecution. In which situation will they be successful? What must they show?

(1) The Waco police chief directed his officers to arrest black gamblers and to “leave the white folks alone”

Back 82

(2) Analysis:
(a) The policy is pretty clearly unconstitutional b/c it discriminates based on race, a protected class
(b) The only possible argument to save the policy is arguing that this was the police chief’s misguided way of telling the officers to target gambling games where violence is more likely to occur

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b) Scenario #2:
(1) The police chief never directed his officers to racially discriminate, but after reading the Tribune-Herald, he told his officers to “leave the Legions halls and private clubs alone”

Back 83

(2) Analysis:
(a) The prosecutor could argue that the purpose of the policy was to target small-time gambling, not big=time organized gambling
(b) This distinction is not race-based, so it would only be subject to rational basis review
(c) The prosecutor’s rational reason could be that there is more violence associated with the small gambling groups

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c) Scenario #3:
(1) The expose had a positive effect on the police chief who directed his officers to arrest those gambling at the Legion halls and private clubs in addition to those who gambled at homes in small groups. The new policy was implemented shortly before the three ∆’s were arrested. The prosecutor charged all the whites and all the blacks but admitted to a colleague, “the blacks were only gambling small amounts and ordinarily I wouldn’t prosecute them, but almost all the blacks voted against me in the last election, so to heck with them”

Back 84

(2) Analysis:
(a) The relevant universe for equal protection purposes is all small amount gamblers. The prosecutor normally does not pursue convictions against people in this group, but he has drawn a distinction and decided to prosecute some small amount gamblers based on race, or the exercise of a protected fundamental right (the right to vote)
(b) B/c the classification is based on race and/or the exercise of a fundamental right, strict scrutiny applies, and the govt. Will not be able to articulate a compelling interest to justify its discriminatory policy

Front 85

What is the standard of discovery on a charge of selective prosecution?

Back 85

Defendant bears the burden of showing that:
o Others similarly situated have not been prosecuted and
o The prosecution is based on an impermissible motive.
• Thus, selective prosecution claims are evaluated to ordinary equal protection standards.
• To prove claim on the merits, Δ must present specific facts, not mere allegations, which
establish a colorable basis for the existence of both discriminatory application of law and
discriminatory intent on the part of government actors.
o Colorable basis is still a pretty high threshold.

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Bourgeois

: Black gang members were got arrested. Their complaint was that cops were going after black gangs versus all others

Back 86

⇨ Problem - too narrow of a classification. Racial discrimination came from ‘gang instituted racial discrimination,’ not from cops busting based on race. If officer targets on gang by gang basis (bust more dangerous ones first), may be made up on one race, but not racially discriminated against.

ii. Holding: Success on selective prosecution claim - D has burden of showing both “others similarly situated have not been prosecuted and prosecution is based on impermissible motive.” Discovery = colorable basis.

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Why was the holding in Bourgeois that there was no charge of selective prosecution?

Back 87

(1) Discriminatory Impact

- No evidence of discriminatory impact → two weeks is too short of a period of time to determine this

- Must show over longer time, other races activity is being ignored

(2) Prosecution is purposefully based on impermissible motive

- Not targeted because of color – targeted because often armed, drug trafficking etc.

Front 88

Armstrong

Complaint: crack/cocaine disparity - crack more serious sentencing, but basically same substance. Defense atty claimed when set up disparity, overt racial discrimination because black minorities sold crack; whites sold cocaine. Black crack dealers were all prosecuted in Federal Court – go away for a long time. All white prosecuted in state court – eligible for parole easier.

Back 88

(1) 9th circuit panel: said this is like Bourgeois. NO evidence of white crack dealers who have come to attention of Fed. prosecutors by name where they said, let state take care of → that’s discrimination

(2) En banc: even though can’t show general scheme of non-enforcement let discovery go on. It is the prosecutor that holds the information; only way to get info away from prosecutor is to get in discovery.

(3) Supreme ct: reverses and said something similar to 9th. D must produce credible evidence of 2-part test. Must show that the government had declined to charge whites under circumstances in which blacks had been charged. In the absence of evidence showing discrimination among those potential defendants who are similarly situated, the court cannot order discovery.

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Charging the Same Conduct as a Felony or Misdemeanor

Back 89

United States Supreme Court held no appreciable difference between the discretion a
prosecutor exercises when deciding whether to charge under one of two statutes w/
different elements and the discretion he exercises when choosing one of two statutes w/
identical elements.

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Restrictions on Pretrial Diversion Eligibility

Back 90

A pretrial diversion decision is not subject to judicial review (lower court holding).
• A prosecutor’s practice of refusing to admit to the informal diversion program any defendant
who chooses to litigate any issues in their case is an acceptable exercise of his discretion
(lower court holding).
o The pretrial diversion is essentially a conditional decision not to prosecute similar to
the nolle prosequi situation. It is a pretrial decision and does not divest the state attorney of the right to institute proceedings if the conditions are not met.

Front 91

Restrictions on Termination of Pretrial Diversion Supervision

Back 91

5th Circuit upheld a speedy trial waiver which was a condition to admission to a pretrial
diversion program. The prosecution argued that the court did not have the power to review the decision to terminate the def from the program because “the court would be
participating in the decision to charge.”
o This takes us too far, says the 5th. The diversion agreement is a K. The government
sought to hold Δ to his side of the K; and a court can hear evidence on whether
government lived up to its side of the K.
o Also, the court is charged w/ responsibility for safeguarding the constitutional rights of the accused. An apt analogy is the plea bargain.

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Screening Mechanisms - Examining Trial

Where does it come from and what does it say?

Back 92

Examining Trial – TX Code of Crim. P. Art. 16.01

The accused in any felony case shall have the
right to an examining trial before indictment.
o This sounds like a person has a right to examining trial before indictment. However,
it is interpreted as right to examining trial until indictment.
§ Earlier indictment extinguishes the right and later indictment renders it
void.
o This is a statutory right.
o Does NOT APPLY TO MISDEMEANORS

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What are the rules governing the examining trial?

Back 93

Examining Trial Postponed – TX Code of Crim. P. Art. 16.02
• May postpone the examination at request of either party to procure testimony.

Warning to Accused – TX Code of Crim. P. Art. 16.03
• Before examination of the witnesses, magistrate shall inform accused that it is his right to
make a statement relative to the accusation brought against him; but also inform him that
he cannot be compelled to make any statement whatever, and if he does make such statement, it may be used against him.

Voluntary Statement – TX Code of Crim. P. Art. 16.04
• If accused desires to make a voluntary statement, he may do so before the examination of
any witness, but not afterward. Statement shall be reduced to writing and shall be signed –
but shall not be sworn.

Witness Examination – TX Code of Crim. P. Art. 16.06
• The counsel for the State, and the accused or his counsel may question the witnesses on
direct or cross examination.

Rules of Evidence – TX Code of Crim. P. Art. 16.07
• The same rules of evidence shall apply to and govern a trial before an examining court that
apply to a final trial.

Presence of Accused – TX Code of Crim. P. Art. 16.08
• The examination of each witness shall be in the presence of the accused.

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What is the purpose of an examining trial?

Back 94

Adversarial challenge to probable cause determination for FELONY CHARGES NOT
MISDEMEANORS (called a preliminary hearing in other states)
o The earlier arrest (Probable cause determination by judge for warrant or Gerstein
hearing) is not adequate b/c it was not adversarial. It was determined by judge via
ex parte communication by the government.
o Not driven by 4th Amendment concerns (like Gerstein) – looking ahead, do we have
continuing reason to bind this person over in the criminal justice process?
§ Called the Bind Over Decision.
o Not good enough for government to just show up with an affidavit attached to an
arrest warrant to prove probable cause, need a little bit more stout showing of
probable cause
• Perez à court has a lot of control over the ET – won’t turn into a trial in and of itself
o Merely to use an adversarial process to determine probable cause
Δ’s Benefits in an Examining Trial
• Coleman à Δ doesn’t have constitutional right to have this procedure, but if you do have it,
Δ gets an attorney because it is a critical stage of the prosecution and the defendant could
be hurt by the examining trial.
o Defense gets to show up, put on evidence, and cross examine
o However, Examining trial may not be an adversarial proceeding if it is before
indictment (step I triggering mechanism for 6th à prosecution + defense. If no
prosecution/indictment, don’t get defense)
§ If it is before indictment à Probably no right to attorney
• Other Advantages of Examining trial for Δ:
o adversarial

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1. Benefits of ET→

Back 95

1. Benefits of ET→ critical stage so defense gets to show up, put on evidence, and cross examine

 Arguably ET not adversarial proceeding because it is before indictment (step I triggering mechanism for 6th → prosecution + defense. If no prosecution/indictment, don’t get defense)

Front 96

why is an examining trial not a meaningful screening device?

Back 96

⇨ If the prosecutor doesn’t want to give an ET he just has to indict (move case to top and present to GJ next time they sit. This is what most DA’s do because they don’t feel like there is much for them to gain from ET.
⇨ Handout cases show that even if there is a procedural deficiency with an examining trial, a GJ indictment cures it.

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⇨ What if a magistrate finds no PC in the ET?

Back 97

It is not a legal bar to prosecution, b/c an indictment still cures it. Sometimes a prosecutor will use an ET to see what kind of shape their case is in and may develop additional evidence for indictment.
⇨ A defendant’s success at ET really only prevents detention until a valid indictment is obtained.
⇨ A defendant’s loss at ET binds the defendant over for trial.

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When is a suspect informed of their right to an examining trial?

Back 98

⇨ Suspect doesn’t get told about examining trial until 15.17 hearing, but if have atty appointed and ask for examining trial, only get if prosecutor hasn’t had time to indict. Most defendants do not request an ET—even those with counsel early on.

Front 99

Is there a federal consitutional right to an examing trial?

Back 99

3. Have no constitutional right to ET

 Right to indictment in 5th applies only to fed in all “infamous cases” (potential for imprisonment of 1 yr or more), but hasn’t been brought down to states (1884 Hurtado –b/c CA had preliminary hearing provision) through incorporation doctrine of 14th. In Lem Woon v Oregon, court felt that if grand jury was not constitutionally required, how can preliminary hearing be (misread Hurtado).

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IS there a right to an examining trial in TX?

Back 100

Accused in any felony case shall have the right to an examining trial (16.01 CCP). But this is bogus b/c you only really get one if you aren’t indicted (none at all for misdemeanor). This is cut off by return of a true bill by GJ.

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What are the advantages of an examing trial for the defendant?

Back 101

5. Coleman → suspect doesn’t have constitutional right to have this procedure, but if you do have it, he gets atty because the defendant could be hurt by the examining trial.

⇨ Advantage of ET for defendant:

a. adversarial review of bail will occur here

b. ET can facilitate a plea negotiation

c. Prosecutors may be able to determine if good idea to indict or not

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What can the magistrate do if you do have an examing trial?

Back 102

If you do have the ET, the magistrate has 3 choices:

a. find PC and commit the guy to jail (bind over)

b. find PC and admit to or continue bail (bind over)

c. No PC and discharge w/o conditions (no bind over)

 IF there is no finding of PC in ET, it doesn’t bar the prosecution later after a grand jury indictment.

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what is a grand jury?

Back 103

1. Lay persons deciding if there is probable cause

a. PC standard is not that high

b. Grand juries are largely controlled by prosecutors - very one-sided.

2. Grand juries play two roles:

a. Investigative

i. Rules of evidence don’t apply w/ grand juries

ii. Usually only need testimony of 1 officer to get an indictment

iii. Grand juries don’t subpoena w/o prosecutor doing it. Prosecutor has subpoena power.

b. Screening process

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Can a grand jury be waived?

Back 104

Prosecutors must get GJ indictment on felony cases, right to indictment can be waived—must be in writing and in the presence of counsel

Under TX state law, cannot waive GJ indictment for capital cases where the state is seeking the death penalty. A defendant cannot consent to the death penalty it must be imposed by a jury.

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How can a grand jury be used to investigate?

Back 105

 Dionisio – state has lawfully acquired tape recordings that indicates alleged gambling activities (organized crime). State wasn’t sure who’s voice it is. Issued subpoena to all the Italians (similar to cops rounding all the blacks in Davis; illegal as fuck) Prosecutors are doing same thing with subpoenas that cops couldn’t do with arrest—this was done for judicial economy.

 Mara – state has handwritings that indicates alleged gambling activities. Prosecutors issued subpoenas to have everyone possible come down and produce evidence.

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What are the fourth ammendment issues with a subpeona to testify before a grand jury?

Back 106

i. Subpoena to testify → Court said making suspects come testify is not a seizure (Serr says it is) b/c of:

(1) Historical role of grand juries

(2) Civic obligation all citizens have tell what they know

⇨ Problem with this analysis → the court is using Step II reasoning (here’s why what gov’t did is OK) to support Step I issue.

⇨ Court doesn’t want it to be a seizure because if subpoena is seizure – gov’t must show every seizure is reasonable (case by case)

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What is a subpeona duces tecum?

Back 107

ii. Subpoena for evidence (duces tecum) → no search, no reasonable expectation of privacy with voice or handwriting

(1) Records, writings → only 4th amendment protection of subpoena is against those that are far too unreasonable for 4th amendment purposes (incredibly broad & sweeping- problem with precision & particularity aspect of reasonableness)
(2) So it depends on what is requested as to what protections, if any, the 4thA offers.

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What if a bunch of evidnce is requested?

Back 108

(2) So it depends on what is requested as to what protections, if any, the 4thA offers.

⇨ Hale v. Henkle (1904) – more concerned about unreasonableness (overly burdensome) than privacy—said that SDT can be far too sweeping/burdensome to be considered reasonable—this is the only 4th A restriction that the SC has been willing to give

(3) Clothing → if ask for all clothing, can argue Hale

(4) Blood/DNA/Semen → search for 4th amendment purposes when cops do it but not sure if search when prosecutor issues subpoena

 Don’t know if grand jury must show PC to get sample (potential 4th objection)

Front 109

What are the 5th ammendment implications of a grand jury?

grand jury target vs. run of the mill witnesses

Back 109

i. Subpoena to testify

(1) 5th significance → legal compulsion to testify. There is 5th amendment privilege at grand jury proceedings

(a) Run of the mill witness - must show up and testify - does not have 5th amendment right to not take the stand

 If just refuse to testify – held in contempt.

 If prosecutor asks about that person’s criminality – plead 5th

(b) Grand Jury target – has no 5th amendment right to not appear (because not a criminal defendant yet); 5th exists in response to specific questions, just like for run-of-mill witnesses.
 If plead 5th on grounds that it might incriminate you – GJ can still indict, but not held in contempt

(c) At trial – criminal defendant has 5th amendment right to not take stand

 Gov’t can’t compel you to take stand and can’t comment on it.

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what ifa witness pleads the 5th in a grand jury?

Back 110

(2) If witness pleads 5th – prosecution can override by going to judge and asking judge to command defendant to testify (this can be done with any trial witness)

⇨ 5th requires that if government compels D to answer, gov’t must come back with use immunity

(a) Use immunity – can’t use fruits of that testimony against [potential] defendant directly or indirectly in future criminal prosecution

 Testimony and fruits are inadmissible

 If have this, spill everything you can think of, that way it’s all fruit of government compulsion

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What is transactional immunity?

Back 111

(b) Transactional immunity – [potential] defendant can’t be prosecuted for anything that he said

 Problem – good reason to lie. “If you tell truth, what we think is the truth, we won’t prosecute,” then at trial, defense atty asks, “aren’t you testifying just to not get prosecuted”

Front 112

What type of warnings are given to people who go before the grand jury?

Back 112

(b) Fed Law - Don’t get a target warning when you go before the grand jury, don’t have to be told you are target of investigation

(c) 20.17 TX law (offers more protections) – get target warnings and Miranda type warnings

 Must give to all targets if it is a round up investigation and putting each on stand one by one.

Front 113

Subpeona for evidence

Back 113

real or physical, not testimonial (not protected by 5th)

⇨ 5th only applies to testimonial. “Put $ in the bag” for physical characteristics of voice is real/physical - same w/ clothing, blood, DNA, semen, hair, etc.

(1) Records/writings → government not compelling testimonial or communicative evidence; the contents of the writings are not compelled by the government; therefore, contents are not privileged

Front 114

Is production of writings privileged?

Back 114

 Open question – whether production of those is privileged. Argument is that government is compelling person to turn over evidence. If government is on a fishing expedition, production of records say that the records exist, and production may have implicit testimonial significance. It may be requiring the citizen to admit that the incriminating writings exist and that they are in possession of them.

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Is there a right to an indictement?

Back 115

a. Right to indictment

i. 5th amendment provides right to be indicted for infamous crimes (felony – more than one year in jail), but right to indictment was not brought down to states

ii. TX state constitution – felony defendant’s have right to be indicted by GJ before standing trial for felony (not very meaningful check—saying that a GJ would indict a ham sandwich)

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Can a suspect waive a right to an indictment?

Back 116

iii. Suspect can waive right to indictment in non-capital case (must be indicted in cap. case)

⇨ A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offence other than capital felony (would do to facilitate guilty plea)

Front 117

Grand Jury qualifications

Back 117

b. Qualifications (19.08)

i. Need 12 for grand jury panel (19.26—also provides for 2 alternates)

ii. 9 out of 12 required to concur there was PC to indict (Serr says that you have to be a pretty poor prosecutor if you can’t convince a majority that PC exists, especially since they are only hearing one side of the evidence—but see below)

Front 118

In a grand jury, the prosecutor runs the show

Back 118

c. Prosecutor initiates process (20.04)

i. Not often seriously deliberate process

ii. Prosecutor has subpoena power (20.10)

iii. Power to examine witnesses (20.04)

iv. Prosecutor is legal advisor to grand jury if GJ doesn’t understand the facts

 Grand Jury is alter ego of prosecutor

v. Defense counsel and target can only appear w/ the prosecutor’s permission (20.04)

 Prosecutor gets to put on evidence and say what gets heard (no prohibition against hearsay evidence)

 Prosecutor may want to let target get up and testify if it is a highly publicized and prosecutor doesn’t really want to prosecute (GJ may not indict if target tells his side of the story)

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What restraints are there on evidence at trial?

Back 119

vi. Grand Jury operates relatively free from restraints we have at trial. Things not admissible at trial will probably be admissible at grand jury proceedings.

Front 120

(a) Facts: D indicted on basis of hearsay. Prosecutor had lots of witnesses and evidence to prove he’s spending more money than he is reporting (this is typical way of going after mob). Government just calls three investigating officers so say, “we saw this document and talked to these witnesses.” (This wouldn’t work at trial—it would be inadmissible hearsay at trial) D argues that indictment was based on hearsay which violates the 5th.

Back 120

(1) Costello (fed prosecution so right to indictment applies

(b) Holding: 5th right to be indicted doesn’t carry along with it right to challenge nature and sufficiency of evidence before grand jury.

 Can’t challenge this b/c of historical role of grand jury → body of lay persons free of technical rule; not a lot of procedure or control over evidence in which they make their decision;
 They can even indict on their own knowledge (20.09)

 Get those protections at trial – this is just PC determination. Don’t want grand jury to be a mini-trial → not grand jury’s role. This would change the fundamental character of the GJ process

Front 121

(a) Facts: government used illegally obtained evidence before grand jury

Back 121

(2) Calandra (1974) [as important as Stone v Powell as far as changing the Court’s view]

Issue: can 4th A exclusionary evidence be used at GJ?

(a) Facts: government used illegally obtained evidence before grand jury

(b) Holding: Evidence inadmissible at trial but grand jury can still indict

 No mechanism (and won’t create one) to challenge constitutional inadmissibility of evidence at grand jury stage [these mechanisms will come at trial, so whoever benefits from the pretrial stuff—D, Society, etc., --it will come at the big show.

 Cost/benefit analysis—costly to exclude trustworthy reliable evidence. If cop not deterred by losing evidence at trial, won’t be deterred by losing it at the grand jury proceedings.

 No challenges to nature or sufficiency of evidence in front of GJ

Front 122

➢ In each of the following cases, Pete makes a pretrial motion to dismiss the grand jury’s indictment. In which cases will he be successful?

⇨ The testimony at the grand jury consisted solely of one police officer relating both what Rogers had told him about the theft of the Alpha and student reports that Pete has been seen driving it.

Back 122

Costello and Calandra are not binding on TX, but as most states, TX follows these cases

 Costello – hearsay. Ct won’t consider that type of pre-trial attack on indictmt

Front 123

⇨ The evidence before the grand jury included a taped telephone conversation in which Pete admitted stealing the car. The police tapped Pete’s phone without a warrant, a well-settled Fourth Amendment violation.

Back 123

 Within scope of Costello - Cts won’t consider that type of pre-trial attack on indictment

Front 124

⇨ Pete’s case had received much publicity in Waco Tribune-Herald as well as the local TV station. It is unquestioned that the grand jurors were aware of the publicity.

Back 124

 Can indict on own knowledge – get those precautions at trial.

Front 125

⇨ The testimony at the grand jury consisted solely of one police officer relating he had seen Pete driving the car when he did not.

Back 125

 Lower ct cases have said about anything goes but this. Can’t mislead grand jury as to hearsay evidence. Can’t turn grand jury prosecution into total sham. This type of affirmative misconduct is basically the only thing the prosecutor can’t do.

Front 126

(a) Facts: Prosecutor didn’t intend to mislead grand jury, they just didn’t volunteer evidence pointing in different direction to different suspect. (exculpatory evidence)

Back 126

Williams (1992)

(b) Holding: GJ proceedings are not adversarial – they are one-sided. Prosecutor always controlled, not adjudicatory body. Target has no right to have atty present or to testify, etc. D and atty can appear only if prosecutor allows. SCt said this was not prosecutorial misconduct, these protections will come at trial.

Front 127

INDICTEMENTS

Timeline

Back 127

i. Hard to mess up indictment – just need name and elements of crime

ii. Pre 1985 → almost any deficiency in form or substance in indictment made indictment fatally flawed; therefore, no indictment, no pleading by state, no case or controversy, court have no jd. to find guilt. Raised first time on appeal

⇨ “Hiding behind the law strategy” – see defect but don’t say anything so that if convicted, guy gets off on appeal.

iii. 1985 → Changed ability to hide behind law. Now almost no defects in form or substance make it finally flawed. (but didn’t totally eliminate it—if it doesn’t purport to be an indictment, name a person, or if it doesn’t come close to charging an offense then it isn’t an indictment)

(1) TX amended the constitution to define indictment very broadly → if it purports to be an indictment & charges/purports to charge a person with an offense, then it’s an indictment (sufficient to vest ct w/ jurisdiction)

Front 128

If a D has a problem with the form or substance of an indictment, what must he do?

Back 128

(2) If D has a problem with the form or substance of indictment, he better raise it pre-trial or else he waives it.

 If D does not object to defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives the right to object to the defect and he may not raise the objection on appeal or in any post conviction proceeding.

Front 129

What roles does an indictment serve?

Back 129

i. Vests court w/ jd (‘85 amendment)

ii. Show we’ve had grand jury screening (TX constitutional requirement)

iii. Notice - give D sufficient notice before trial (ex. notice of crime so knows what indicted against)

Front 130

Indictment cases

Back 130

 Stouter → court said indictment just has to purport to charge you
 Cook → must charge a person
 Just say name and charge. Once have indictment that purports to charge person, jurisdiction box checked.
 Duron ¬– must also purport to charge “an offense”

Front 131

What if the indictment is sufficient for jurisdiction (purports to be an indictment and charges/purports to charge a person with an offense) but there are still flaws?

Back 131

Prosecutor can either amend indictment or re-indict (Flowers)

i. Before trial starts Prosecutor can amend

ii. After trial starts, prosecutor cannot amend indictment over D’s objection to amendment – must do it over.

⇨ Concerned with grand jury screen and notice (time to prepare a defense) if charged with different offense or incident

iii. Flowers – prosecutor amended indictment over D’s objection just before trial by changing victim. Court held that it didn’t affect D’s right to screen because it is for the same crime and same incident. Notice sufficient so neither amendment was affected.
iv. If amended indictment charges a new or different offense, then we have problems with GJ screening & notice requirements.

Front 132

Speedy Trial

Charge limitations

what is the statute of limitations period to be chared with a crime?

Back 132

a. 12.01 – Limitations period for formal charge

i. Statute of limitations for any particular felony is at least 3 years.

ii. The more serious the crime, the longer the limitation (no limit for murder)

Front 133

what does 12.05 say?

Back 133

b. SOL is tolled sometimes – 12.05

i. Tolled when accused is absent from the state (clock does not tick if accused absents himself from state

ii. Tolled during pendency of indictment, information, or complaint which charge is pending

 “during tendency” → that period of time beginning with the day the indictment, information, or complaint is filed in court of competent jurisdiction, and ending with day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason

⇨ Prosecutor has so long to charge. He can charge – clock stops. If prosecutor voluntarily un-charges, clock starts. Once indict again, clock stops, etc.

Front 134

What happens if you blow the sol?

Back 134

c. Jurisdictional authority is gone after this is blown – Blow limitations period and end of story. Guy goes free because court would have no jurisdiction

Front 135

Bail/Custody → Charge (“speedy indictment”)

Back 135

a. 32.01. Speedy indictment or speedy trial provision → accused doesn’t have to be charged until end of next term of court or 180 days – whichever is later. Serr says this is ludicrous to give the state 6 months to get their act together

b. Non-jurisdictional – Remedy is dismissal without prejudice so state can re-indict. Bail is discharged.

Front 136

3. Formal Charge → Trial (“Speedy Trial”) (clock can start ticking upon arrest if there is significant restriction on freedom)

Where are they located?

Back 136

a. Speedy Trial Provisions – have them in the 6th A (speedy trial), State Constitution Art I § 10 (speedy public trial), State Legislation 32A (codification of speedy trial).

Front 137

4. Detention/custody → Trial (“Pseudo/Super Speedy Trial”)

guy is in jail and can’t make bail

Back 137

a. 17.151 – guy is in jail and can’t make bail. State, if not ready for trial:
also Art. I 8.11(a)
i. release on personal bond, or
ii. reduce amount of bail

b. Non-jurisdictional –remedy is release from custody until State is ready for trial. Cut guy loose until ready to try him.

Shorter time than speedy trial

Front 138

What is the purpose of a speedy trial?

What is it designed to protect?

Back 138

i. Prevent unnecessary pretrial deprivation of liberty
ii. Minimize anxiety
iii. Concerns about impairing Defendant’s ability to defend himself—risk grows of an erroneous conviction/acquittal (primarily concerned about D’s defense)

Front 139

Why is this consitutional right unique?

Back 139

because society and government also have an interest in speedy trial.

b. Society and government’s interest in speedy trial (uniqueness is this constitutional right):

i. Reduce backlog of cases
ii. Get D’s off the street
iii. Long delays are detrimental to rehabilitation
iv. D may high tail it out of town
v. May lose witnesses and reliability


ALSO SOMETIMES DEPRIVATION OF THIS RIGHT MAY HELP A DEFENDANT

(1) D’s prefer their freedom before conviction
(2) State may be harmed by witnesses dying or forgetting (State has burden of proof)

Front 140

Barker v. Wingo -

b. Facts: Barker was indicted on Sept. ’68 and trial was set for Oct. ’58, but state got a lot of continuances which Barker didn’t object to. Then in Feb. ’62 (3½ years after indictment), after State is done with Manning, Barker starts objecting to continuances (presumably to set up “speedy trial” claim). Just before trial in October, Barker makes a motion to dismiss specifying “speedy trial.”

Back 140

d. Holding: Barker right to speedy trial not violated. Court used balancing test to determine that under the following four factors, D’s right to speedy trial not violated:

Front 141

What are the Barker v Wingo factors

Back 141

Barker v Wingo speedy trial factors:

i. Length of delay (triggering factor) – until it is presumptively prejudicial, we aren’t going to look at the other three factors –the right isn’t even implicated until presumptively prejudicial.

ii. Reasons for the delay – is the delay motivated by ill will or government’s negligence or good reason?

iii. Defendant’s desire of a speedy trial – did D assert his right or object to continuances? HE DOESN'T HAVE TO SAY IT TO START THE CLOCK, but if he never says it, that is a factor

iv. Prejudice to the defendant – nature and amount of prejudice resulting from delay (oppressive incarceration, loss of evidence, inaccuracy of witness testimony, impairment of D’s defense)

Front 142

What is the remedy for a speedy trial violation?

Back 142

Remedy for speedy trial violation? Dismissal of indictment with prejudice thus erecting a bar to subsequent prosecutions for same crime. This is not curable.

How often does it happen that the govt violates the right to speedy trial? Virtually never b/c of the extremely harsh remedy. Serr says the courts will use all of their wiggle room to find no violation.

Front 143

How barker v wingo is analyzed`

Back 143

Delay is because of:

1. gov't neglgence= length becomes determinative. longer delay, longer D's burden to show prejudice

2. Intentional delay by government - defendant will not have to show any pejudice

3. if delay is because of due dilligence, then defendant must show prejudice.

Front 144

Meshell v. TX (state law case)

Back 144

⇨ Court held 32A is unconstitutional because it didn’t adequately track Barker so we can’t say it is truly implementation of the 6th amendment. [it really only implemented a speedy readiness for trial]

d. According to this court, in order for state legislature to have Speedy Trial Act, act has to exactly match Barker footprint.

Front 145

What could the leg do to adequately respond to the Meshell court’s theory of SOP? Three things legislature can do to implement vague slippery constitutional right:

Back 145

(1) Makes statutory right broader than the federal constitution.

- This doesn’t survive Meshell. This is how the act worked.

- Court said this is unconstitutional because sometimes D gets windfall (Separation of Powers violation). Serr says there is a fatal flaw in this reasoning.

(2) Make a bright line test so that when state law is violated, so is the federal constitution.

- Problem with this is that it is stupid legislation. Under this scenario, the Constitution may be violated, but the state law may not be. In other words, prosecution may follow statute, but still violate Constitution.

(3) Just say Barker v. Wingo, and redo this as state law.

- Problem is that this is meaningless and useless legislation. It doesn’t add any sharp edges, predictability or certainty to a vague constitutional right
The only way to lend meaning is to over legislate which is unconstitutional under Meshell b/c it doesn’t adequately track Meshell, so bottom line is that it would be pointless to legislatively respond to Meshell.

Front 146

So after Meshell, what is left?

Back 146

3. D’s in TX are left with 6th amendment. Dogget gives some hope that the right will not be violated (vague totality of the circumstances analysis) They also have 32.01 & 17.151- they don’t bar prosecution, but they will get your client out of jail until trial.

Front 147

Competency to Stand Trial

Incompetency v. Insanity

Back 147

1. Incompetency

a. Critical time period is time of trial

b. Finding of incompetence just delays the trial until you become competent. Get person competent, then try him. Not a defense, just a procedural bar to prosecution.

⇨ Right comes from due process clause – fundamentally unfair to try while incompetent

2. Insanity - defense

a. Critical time period is time of crime (insane when committed crime)

b. If insane, you get off, not guilty

Front 148

Incompetency to stand trial

B. 46.02 – Incompetency to stand trial

Back 148

i. sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or

 Can you assist your lawyer, can you do what you need to do during trial (make decisions you need to make, like whether you take stand or not)

ii. a rational as well as factual understanding of the proceedings against him

 You know what’s going on, like why you are being punished

Front 149

Is everyone competent to stand trial?

Back 149

b. A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

 Burden on D to prove incompetency by preponderance of the evidence

Front 150

Cooper v. OK

Back 150

the burden of proof is by preponderance of the evidence, not clear and convincing. Unfair to put burden on D of clear and convincing evidence. If heavy burden on D, that standard increases risk incompetent persons won’t be able to prove they are incompetent.

Front 151

How to raise the issue of competency to stand trial?

Back 151

a. Both the court and the defendant may raise the issue of incompetency to stand trial. Typically it is raised by D counsel, but they don’t have to b/c the court has an obligation sua sponte, to make an inquiry into the issue.

Front 152

Payte v Robinson

Back 152

➢ Payte v. Robinson → incompetency is not waivable. It is a fundamental right that cannot be waived. Constitutional obligation on the judge to inquire into the issue of competency at some point.

Front 153

When can a competency issue be raised?

Back 153

b. Such an issue may be raised before trial or during trial (out of the presence of jury)
Court may be taking evidence on insanity during trial, but it becomes evident that D may not even be competent to stand trial
c. State has a duty to disclose information concerning D’s incompetency (constitutional duty of the state to disclose favorable evidence to D)

d. If the judge found that there is bona fide doubt as to the defendant’s competency to stand trial, he must order a preliminary hearing.

Front 154

Competency to Stand Trial

Incompetency v. Insanity

Back 154

1. Incompetency

a. Critical time period is time of trial

b. Finding of incompetence just delays the trial until you become competent. Get person competent, then try him. Not a defense, just a procedural bar to prosecution.

⇨ Right comes from due process clause – fundamentally unfair to try while incompetent

2. Insanity - defense

a. Critical time period is time of crime (insane when committed crime)

b. If insane, you get off, not guilty

Front 155

Incompetency to stand trial

B. 46.02 – Incompetency to stand trial

Back 155

i. sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or

 Can you assist your lawyer, can you do what you need to do during trial (make decisions you need to make, like whether you take stand or not)

ii. a rational as well as factual understanding of the proceedings against him

 You know what’s going on, like why you are being punished

Front 156

Is everyone competent to stand trial?

Back 156

b. A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

 Burden on D to prove incompetency by preponderance of the evidence

Front 157

Cooper v. OK

Back 157

the burden of proof is by preponderance of the evidence, not clear and convincing. Unfair to put burden on D of clear and convincing evidence. If heavy burden on D, that standard increases risk incompetent persons won’t be able to prove they are incompetent.

Front 158

How to raise the issue of competency to stand trial?

Back 158

a. Both the court and the defendant may raise the issue of incompetency to stand trial. Typically it is raised by D counsel, but they don’t have to b/c the court has an obligation sua sponte, to make an inquiry into the issue.

Front 159

Payte v Robinson

Back 159

➢ Payte v. Robinson → incompetency is not waivable. It is a fundamental right that cannot be waived. Constitutional obligation on the judge to inquire into the issue of competency at some point.

Front 160

When can a competency issue be raised?

Back 160

b. Such an issue may be raised before trial or during trial (out of the presence of jury)
Court may be taking evidence on insanity during trial, but it becomes evident that D may not even be competent to stand trial
c. State has a duty to disclose information concerning D’s incompetency (constitutional duty of the state to disclose favorable evidence to D)

d. If the judge found that there is bona fide doubt as to the defendant’s competency to stand trial, he must order a preliminary hearing.

Front 161

46.02 section 2 and 4 hearings - what is the difference between a section 2 and a section 4 hearing?

Back 161

If D makes motion → §2 hearing

If judge makes sue sponte on his own → §2 hearing

If evidence of incompetency brought to attention of court (ex: insanity sometimes bleeds over)→ §2 hearing in which judge inquires into issue

-§2 hearing → At inquiry; don’t have a full blown competency hearing. Mere scintilla of evidence gets §2 inquiry – briefly look and see if there is some evidence. IF have some evidence of incompetency, now have constitutional obligation to have full-blown §4 competency hearing.

Exception – if all (prosecutor, defense, & judge) agree that he is incompetent, no need for hearing, just jump ahead as if hearing determined he was incompetent

Front 162

What is a section 3 examination?

Back 162

⇨ In preparation of §4 hearing, have §3 examination
§3 examination produces some of the critical evidence in play at §4 hearing.

a. Court has authority to order/compel examination.

b. No right to atty - not a critical confrontation and atty would get in the way

c. D does get protections of 5th amendment.

 No statement made by the D during examination or hearing on his competency to stand trial may be admitted in evidence against D on issue of guilt in any criminal proceeding.

Front 163

§ 4 incompetency hearing

Back 163

4. §4 - Incompetency Hearing (get jury unless all parties want bench trial)

a. If there is evidence to support incompetency, have a hearing – jury impaneled (unless all parties agree to bench trial) (different jury than guilt/innocence).

b. Get counsel

c. Jury determines:

i. Whether D incompetent to stand trial (§1 standard)

ii. If incompetent, must decide whether D will become competent in foreseeable future. (Jackson)

Front 164

what if the jury determines the D is incompetent?

Back 164

i. If never going to get him competent, can’t keep him in jail. If he possesses risk to society, must commit him under standard everyone else committed under (civil commitment)

⇨ Not saying can’t take away liberty, just care about how you do it.

Front 165

When must an expert be appointed by the court?

Back 165

If there is an incompetency hearing, an expert MUST have been appointed by the court.
o Not like informal inquiry where judge MAY appoint an expert.

Front 166

If there is a competency hearing, what protections is the defendant afforded?

Back 166

Δ gets counsel

Jury verdict must be unanimous

Front 167

will get competent vs. never going to get competent

Back 167

If never going to get him competent, can’t keep him in jail. If he
possesses risk to society, must commit him under standard
everyone else committed under (civil commitment)
o Not saying can’t take away liberty, just care about how
you do it.
o If incompetent and no substantial probability, ,must cut
guy loose. Institute civil commitment proceeding
(criminal court can if indictment is standing, but if no
indictment, criminal court transfers to civil court)
• If jury says he’s incompetent now but he can become competent
in foreseeable future, NOW state can hold him as long as aimed at
getting him treatment (criminal commitment). Detention must be
justified by commitment to progress.

Front 168

Jackson

A deaf mute w/ the mental level of a pre-schooler was convicted of robbery.
He was determined to be incompetent under Dusky standards. Court ordered that
he be detained until he became competent under the Dusky standard (he never will
be, effectively court committed him forever).

Back 168

Holding: Δ cannot be held more than reasonable period of time necessary to determine whether there is substantial probability that he will attain competency in the foreseeable future.

Even if determined D probably soon will be able to stand trial, his
continued commitment must be justified by progress toward that goal 120 days in TX - w poss 60 day ext

Front 169

Criminal Commitment (as opposed to civil)

Back 169

5. §5 – Criminal Commitment → In TX not more than 6 months (120 original + 60 day extension), report on D’s progress every 90 days. When facility determines not going to get him competent, notify court

Front 170

a. Harvard case → She had a roommate/lesbian partner that was killed in the bathtub by repeated stabbing. Woman was a suspect. When prosecutor went to try her, D was on anti-psychotic medication. Her lawyer advised her to quit taking it and she became a mess – incompetent under Dusky. This prevents trial from going forward. She was competent with medication, but without it, she was incompetent. Can state forcibly medicate her

Back 170

→ MD said NO, that is against constitutional right to forcibly medicate. Is outcome right?

⇨ Implicit in Jackson → if incompetent and can obtain competency state not only has right to take away liberty, but can treat you to get you competent.

Front 171

can you forcibly medicate someone?

Back 171

- In order to forcibly medicate a convicted prisoner or civilly committed person, there must be a finding of overriding justification (danger to self or others) as well as medical appropriateness. There must be a full and fair hearing to satisfy due process.
- There is a basic power to forcibly medicate in order to achieve competency to stand trial. However, in order to do this, the court must make specific findings. The preference should be to forcibly medicate for civil commitment reasons. (Danger to self or others, can’t care for self, or refusal puts person at grave risk). If the civil commitment method has been tried and failed, then the court must find by clear & convincing evidence that:
- 1) important government interests are at stake (serious crime against person or property);
- 2) the prescribed medication is medically appropriate, and in the patient’s best interest;
- 3) is substantially likely to have side effects that may undermine the fairness of the trial; and
- 4) taking account of less intrusive alternatives, is necessary to significantly further important governmental trial-related interests (must be substantially likely to render defendant competent to stand trial).

Front 172

Discovery and DIsclosure

Back 172

A. Don’t have long discovery process with criminal trial → criminal discovery largely one-way street:

1. Criminal lawyers aren’t looking to make work

Cap on what defense atty paid, prosecutor on salary

2. Most of information held by prosecutor.

State has lots of evidence to put away on indictment

3. Criminal is simpler as to body of facts than civil (more limited in temporal and factual scope)

4. Prosecutors have interest in showing other side their hand (so they will plead guilty)

Many DA’s offices maintain open file policy

Front 173

Art 39.14

Back 173

1. Defense atty has right of access (for good cause shown) to evidence of :

a. designated documents,

b. papers,

c. written statement of the D

⇨ except written statement of witnesses and

⇨ except work product of counsel in the case and their investigators and their notes or report,

d. books,

e. accounts,

f. letters,

g. photographs,

h. objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of State or any of its agencies.

2. D’s atty cannot take any of the evidence he gets from DA with him. Art. 39.14 is for inspection, not removal - evidence stays in possession of state

Front 174

➢ Pretrial, Pete requests discovery of the following items:

(a) Police photographs of the location in which the Alpha was found

Back 174

YES, tangible evidence

Front 175

(b) Written statement Pete made shortly after his arrest

Back 175

YES

Front 176

(c) Written statement of the law student who claims to have seen Pete driving Rogers’ Alpha

Back 176

NO, work product.

If law student has bias, Brady material; or if it is Jenks material

Front 177

(d) All police reports filed in connection with the investigation of the case

Back 177

→ NO, work product under 39.14

If someone else did it, Brady

Front 178

(e) Laboratory tests conducted on hair samples found in the car

Back 178

NO, work product
If show not belong to D, under Brady, D has constitutional right to evidence

Front 179

(f) Legal research generated by the District Attorney’s clerks

Back 179

NO, work product

If D missed main case, ethical obligation to call court attention to it

Front 180

(g) Any interoffice memoranda concerning the case

Back 180

NO, work product

Front 181

(h) Names of any adverse witnesses

Back 181

YES, under TX case law, D has right to have access to adverse witnesses state plans to call to testify

Front 182

Texas definition of work product:

Back 182

C. TX has a relatively broad view of work product:

1. Memos,

2. Legal theories of the case,

3. Police reports (may have constitutional obligation),

4. Scientific tests or chemical analysis

Exception → not intoxication tests - not work product because they are not meaningfully reproducible by defense

5. Witnesses’ written statements after they testify – Crim. R. Evid. 614

6. NOT court appointed experts to look into competency issue (not work product)

Front 183

What is the remedy for failure to comply with discovery order?

Back 183

exclusion of that evidence or testimony

Front 184

➢ Taylor – D called a witness and didn’t tell the state he was going to call him; tried to hide it.

Back 184

Court said, witness is excluded. Sanction violation against D.

Front 185

➢ In what two situations will the written statement of law student claiming he seen Pete driving Rogers’ Alpha be discoverable?

Back 185

(1) When it’s Jenks material or governed by rule of procedure 615.

or

(2) Under Brady (materially favorable to defendant)

Front 186

What does the Jenks Act do?

Back 186

⇨ Jenks Act → was 1 way street for D. Jenks gave D access to statements of witnesses and inspect statement after witness took stand. State is putting credibility of witnesses on stand so we give statement to D to facilitate cross examination.

⇨ Now under Rule 615 this applies to state and the defendant witnesses, other than the defendant (more likely to still apply to state).

- In TX, judge has authority to take care of pre-trial (usually doesn’t happen). Once State says they have evidence and D says he wants:

(a) Turn over
(b) Material outside scope of what testify to (still protected work product). Judge examines in camera and deletes portions not rzbly related and useful for impeachment purposes

Front 187

What is brady?

Back 187

a motion to turn over evidence that is materially favorable to the defendant.

Front 188

E. Rule 615. Production of Statements of Witnesses

Back 188

1. Written statements made by witnesses must be turned over to the other side before cross-examination, but in TX, not available until witness testifies

2. This is a two-way street, except for the defendant’s testimony.

⇨ Defendant’s testimony is not available in TX until after he testifies – atty/client communication

3. If whole statement is not useful, judge can delete portions not related to direct examinations

Front 189

What is the remedy if the other side does not produce the witnesses' statment?

Back 189

4. Remedy if other side doesn’t produce witnesses statements (violate 614) → strike testimony

⇨ “Statement” is narrow definition. Don’t want person impeached with words that are not his own.

Front 190

Brady--->materiality

1. McBride v. State →

Back 190

defendant has absolute right to an independent inspection of evidence “indispensable to the State’s case” (ex. Drugs in drug possession case.) {elements that state must prove to prevail}
[is evidence material to the D’s defense, or is it indispensable to the state’s case? These are not the same thing. Serr thinks that the court is saying that if evidence is indispensable to the state’s case, then it necessarily must be material to the defendant’s defense strategy. So the standard is still materiality, and indispensable is simply a subset of that. The court also held that the state must pay for an indigent defendant to have an expert evaluate such evidence.]
⇨ Defendant does not have absolute right to evaluate tape recording to determine authenticity because not legally indispensable because exclusion from evidence would not affect essential proof that appellant committed offense.

Front 191

2. US v. Bagley

➢ Brady v. Maryland

Back 191

Prosecutor has duty to disclose evidence that is favorable to defendant when defendant requests it if evidence is material either to guilt or punishment (if deprived D of fair trial) [it doesn’t have to be exculpatory—just material] this is true even if the police had the evidence but the prosecutor didn’t. (we can’t allow police to withhold favorable evidence from prosecutor and circumvent Brady)

Front 192

bagley facts

Back 192

a. Facts: information government had was information that undercut credibility of witness (prosecution paid witness)

b. Issue: whether conviction should be reversed because prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses
Here we are really asking whether every failure to disclose, no matter its importance, will that be automatic reversible error? The court said no.
c. Holding: Due process requirement by constitutional obligation for prosecution to disclose favorable evidence, regardless of defendant making a request for it. Doesn’t have to be directly exculpatory or show that own witness had motive to lie for defendant’s atty to have access to it – prosecutor doesn’t decided if witnesses tell truth, factfinder does

Front 193

what is the standard for reversal?

Back 193

i. Standard for reversal, same in all cases (whether no request, general request, or specific request cases) → only reversible error if evidence is “material”

⇨ Reversible error if prosecution suppresses evidence that is so favorable to defendant that it affects outcome of trial

Front 194

what is material evidence?

Back 194

ii. Court held that evidence is material only if there is a reasonable probability that, had evidence been disclosed to defense, the result of the proceeding would’ve been different. → intentionally failing to disclose exculpatory evidence does not make it “material”. ex. failing to disclose a shaky witness testimony (wouldn't have changed the outcome)

Front 195

what about the ⇨ Knowing use of perjured testimony

Back 195

= Prosecution must show beyond a reasonable doubt that it was harmless

Front 196

What does a reasonable probability that the outcome would have been different mean?

Back 196

[rzbl probability is a probability sufficient to undermine confidence in the outcome.- Serr says this a harmful error standard]

- Serr says it sounds like it’s that there must be a reasonable probability of acquittal, but it is not

- Court said that it means that it wasn’t fair, not probability that it was wrong. Concerned about fundamentally unfair trials. Conviction reversed if evidence is material in sense that its suppression undermines confidence in outcome of the trial

Front 197

Brady analysis:

Back 197

Prosecutor has duty to disclose evidence that is favorable to defendant when defendant
requests it if evidence is material either to guilt or punishment (if deprived D of fair trial)
o it doesn’t have to be exculpatory—just material

government knowingly uses perjured testimony à standard for reversal is any
reasonable likelihood the testimony could have affected judgment of jury
(government must prove harmless beyond reasonable doubt)
o no specific request for evidence, government doesn’t turn anything over à
standard is reasonable possibility that had information been disclosed, outcome
would have been different. “reasonable probability” = enough to cast doubt on jury
(defendant has burden of showing probable harm – that it wasn’t fair)

Front 198

Three ways to invoke Brady:

Back 198

Δ doesn’t ask – state still has to turn over (constitutional obligation)
o General request for Brady material (Δ’s atty should do this as matter of course)
o Specific request for specific piece of information

Front 199

Timing of Brady Disclosure

Back 199

Nothing in Brady requires disclosures to be made before trial. The
appropriate standard to be applied in these cases is w

Front 200

U.S. v. Bagley

Back 200

information government had was information that undercut credibility of witness
(prosecution paid witness)
• Issue: whether conviction should be reversed because prosecutor failed to disclose
requested evidence that could have been used to impeach Government witnesses
o Here we are really asking whether every failure to disclose, no matter its
importance, will that be automatic reversible error? The court said no.
• Holding: Due process requirement by constitutional obligation for prosecution to disclose
favorable evidence, regardless of defendant making a request for it. Doesn’t have to be
directly exculpatory or show that own witness had motive to lie for defendant’s atty to have
access to it – prosecutor doesn’t decided if witnesses tell truth, factfinder does.

Front 201

Kyles v. Whitley

Back 201

The question is not def would more likely than not have received a
different verdict; but whether in the absence of the undisclosed evidence
he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.
• Reasonable probability of a different result is accordingly shown
when the gov’t evidentiary suppression undermines confidence in the outcome of the trial.

Front 202

Brady violation

Back 202

One does not show a Brady violation by demonstrating that some of the
inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Test is not once discounting evidence government didn’t disclose, look at
evidence left and ask if sufficient to convict à has to go to jury to decided

Front 203

when do you have to show Brady evidence?

Back 203

Constitutionally à don’t have to disclose Brady evidence until “material”

BUT, Ethically under ABA standards à disclose it

Front 204

Requirements to be met to require disclosure under Brady:

Back 204

Evidence is favorable to accused; and
§ Includes exculpatory evidence (obviously);
§ Includes impeachment evidence.
o Material either to guilt or punishment.
§ Materiality – a reasonable probability that, had the evidence been
disclosed to the def, result of the proceeding would have been different.
• The court in Bagley emphasizes that this Constitutional obligation (even before Bagley) that does not turn on discovery request by the defendant.

Front 205

Difference between Brady & Bagley

Back 205

For Brady Violations Materiality – The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.
o A reasonable probability is a probability sufficient to undermine confidence in the
outcome.
o This is a procedural DP violation – if material – move to step III and reverse.
o So if meets standard of materiality – automatic reverse.

Front 206

Ranges of Reversal from most favorable to the gov’t to most favorable to Δ

Back 206

Legal insufficiency:
§ Look at evidence in a way that is most favorable to the government; if any reasonable fact-finder could have reached the same decision, then keep jury decision.
o Probable acquittal:
If new evidence comes up before the trial court case is over, court
considers it based on whether there is a reasonable probability of
acquittal.
o Habeas corpus- substantial injurious effect:
§ Standard of review – error had substantial injurious and harmful effect on
the jury’s verdict – if new evidence came up after trial, this would be the
appropriate place to bring it up.
o Harmful error: (BRADY)
§ Must show harm at trial
§ Presumption – AFFIRM UNLESS defendant persuades court outcome would
have been Different
§ Used for ineffective assistance of counsel and Brady claims
o Harmless error beyond a reasonable doubt (BRD): - on direct appeal
§ General rule for constitutional errors that are missed at the trial level.
§ Presumption – REVERSE UNLESS state can show harmless BRD
• Used for intentional government use of perjury
• Usual standard for a constitutional violation at trial
o Automatic reversal:
§ Structural constitutional errors – don’t have to prove harm
§ Examples: denied counsel, denied right to jury trial, denied speedy trial,
double jeopardy

Front 207

Government Failure to Preserve Evidence

Arizona v. Youngblood

Prosecution failed to preserve evidence – didn’t refrigerate clothing or perform semen
tests. Don’t know if it was good or bad for Δ (not case of prosecution withholding favorable
evidence from D)

Back 207

Can’t do Bagley materiality thing because we don’t know if the evidence would’ve
been favorable to accused [Brady analysis requires knowing if evidence was
favorable or not]
• Test: Unless show bad faith, due process is not violated (if bad faith, suggests evidence is
not favorable to state)

o Bad faith is more than negligence.
o Bad faith not required under Bagley and Brady

Holding: Court said that the failure to refrigerate clothing and perform semen tests was at worst negligent (Serr said reckless); therefore, due process not violated

Front 208

Pretrial, Pete requests discovery of the following items:

Back 208

Police photographs of the location in which the Alpha was found
§ YES, tangible thing
o Written statement Pete made shortly after his arrest
§ YES, statement by Δ

Front 209

Written statement of the law student who claims to have seen Pete driving Rogers’
Alpha

Back 209

§ NO, work product and Δ has no right to this
• If law student has bias, Brady material
o All police reports filed in connection with the investigation of the case
§ NO, work product under 39.14
§ If someone else did it, Brady
o Laboratory tests conducted on hair samples found in the car
§ NO, work product
• If show not belong to D, under Brady, D has constitutional right to
evidence
o Legal research generated by the District Attorney’s clerks
§ NO, work product
• If Δ missed main case, ethical obligation to call court attention to
it
o Any interoffice memoranda concerning the case
§ NO, work product
o Names of any adverse witnesses
§ YES, under TX case law, Δ has right to have right to know of any adverse
witnesses state plans to call to testify

Front 210

In what two situations will the written statement of law student claiming he seen Pete driving Rogers’ Alpha be discoverable?

Back 210

When it’s Jenks material or governed by rule of procedure 615.
§ Jenks Act à was 1 way street for Δ. Jenks gave Δ access to statements of
witnesses and inspect statement after witness took stand. State is putting
credibility of witnesses on stand so we give statement to Δ to facilitate
cross examination.
§ Now under Rule 615 this applies to state and the Δ witnesses (more likely
to still apply to state).
• In TX, judge has authority to take care of pre-trial (usually not
happen). Once State says they have evidence and Δ says he
wants:
o Turn over
o Material outside scope of what testify to (still protected
work product). Judge deletes portions not reasonably
related and useful for impeachment purposes
o Under Brady

Front 211

Impartial trial

Jurisdiction over the person

Back 211

General rule à kidnapping defendant or other illegality isn’t unconstitutional for
jurisdiction over person
o Doesn’t divest court of jurisdiction
o No due process violation
o Exception à “govt conduct that shocks the conscious.” Ex. beating and torturing.
• Supreme Court held no due process limit in state exercising jurisdiction over its citizen
even if illegality happened wholly in different state

Front 212

Limit on due process clause:

If do bad thing out of state

Back 212

OK for the state which you are a citizen of
to come get you (doesn’t have to)
• Most do not
§ If victimized out of state by out of state persons à Your state has no
jurisdiction over non-citizen persons or subject matter

Front 213

Subject matter jurisdiciton

Back 213

Texas courts have Territorial Jurisdiction
o TX has jurisdiction over an offense that a person commits if:
§ Either the conduct or a result that is an element of the offense occurs
inside this state;
§ The conduct outside this state constitutes an attempt to commit an
offense inside this state;
§ The conduct outside this state constitutes a conspiracy to commit an
offense inside this state, and an act in furtherance of the conspiracy occurs
inside this state; or
§ The conduct inside this state constitutes an attempt, solicitation, or
conspiracy to commit, or establishes criminal responsibility for the
commission of, an offense in another jurisdiction that is also an offense
under the laws of this state.

Front 214

Jurisdiction over subject matter (territorial in TX – §1.04)

Back 214

If conduct or result occurs in TX, TX has jurisdiction, but not exclusive.
o If there is conduct by a non-citizen occurring wholly outside the state, TX has no
jurisdiction, even if a TX citizen is injured.
o Due Process would permit state to exercise jurisdiction over a citizen who commits
a crime wholly outside his home state.

Front 215

Venue

Back 215

Assures there will be venue somewhere if have jurisdiction
• Need to allege venue if want particular venue.
• Indictment must allege venue but it’s not a fatal defect.
o If wrong venue, Δ must raise it or waive it

Front 216

Determining proper venue for offenses commited outside of Texas

Back 216

Any county in which defendant is found or any county in which an element of the offense occurs.

Front 217

For offenses committed within the state of Texas

Back 217

If venue is not specifically stated within the penal statute, the proper county for the
prosecution of offenses is that in which the offense was committed.
o This is the general rule.
o The other sections are trying to define this for each crime.

Front 218

Where venue cannot be determined what happens?

Back 218

If an offense has been committed w/i the state and it cannot be determined w/i
which county or counties it took place, trial may be held
§ in the county in which the Δ resides
§ the county in which Δ is apprehended,
§ or in the county to which Δ is extradited.
o Ensures that anytime the state of TX has subject matter jurisdiction there will be
some county of appropriate jurisdiction.

Front 219

what is the standard of proof needed to prove proper venue?

Back 219

Proof of Venue
o Procedural Rules: State must allege venue and prosecution must prove this by preponderance of evidence.

Front 220

Fair Trial Constitutional Concerns

Back 220

6th Amendment provides for fair and impartial jury.
• 14th/5th Amendment Due Process provide for fair and impartial jury
• TX Const provides for fair and impartial trial.
o If failure to change venue, would deprive you of your TX constitutional right,
remedy is reversal.
o Usually occurs when there is significant pretrial publicity

Front 221

Murphy v Florida - Murph the surf

Professional surfer / Δ stole some expensive jewels from museum.
Attention focused on him and his friends because they had been to museum many
times and it wasn’t a professional job. Δ and friends said that if cops would cut them a deal, they’d get the stuff back. Lots of publicity.

Back 221

Holding: Refusal to change venue violated constitutional right – conviction reversed. Court held that that is an impossible standard and Marshall was not pretrial change of venue. Marshall dealt with jury already selected and things couldn’t
be fixed – only way to cure was mistrial or dismissal. Here voir dire is a way to ensure impartial jury.
§ Voir dire allows education of the jurors, preemptory strikes, and
questioning

Front 222

Distinction b/t Murphy and Marshall

Back 222

Marshall is where jurors are exposed to highly prejudicial info
after voir dire and during trial then remedy is dismissal or mistrial,
and Murphy deals with pretrial exposure and this alone is not,
given the process of vior dire, enough to cause automatic
dismissal or mistrial.

Standard: The Constitutional standard of fairness requires that a defendant have a
panel of impartial, indifferent jurors.
§ Qualified jurors need not be totally ignorant of the facts and issues
involved. DP does not require that jurors know nothing of the case or of
the Δ.

Front 223

Sheppard (Presumed Prejudice)

Back 223

Supreme Court held this proceeding lacked solemnity inherent in notion
of Due Process. Reverse conviction after being in prison for 10 years. Second time
– acquitted

Front 224

Estes (Presumed Prejudice)

Back 224

Prosecution in East TX – one of first televised trials.
o Televised trials not absolutely precluded. But it does cause problems and these problems but be accounted for.

Front 225

Rideau (Presumed Prejudice)

Back 225

Δ Confessed; 20 minute film of his confession shown 3 times on television – in a
Waco-sized town
o Court said presumed prejudice. Although it’s not actually in the record – but
inferences drawn. Conviction reversed.

Front 226

Irvin (Actual Prejudice)

Back 226

It was a rural community

Court considers

Whether Objective reporting – or inflammatory
§ Timing of publicity – the closer to trial the more prejudicial
§ Inclusion of prior convictions in publicity – this is inadmissible at trial.
o Court said actual prejudice.

Front 227

Proper Analysis for Unconstitutional Prejudice

When is there unconstitutional partiality?

Back 227

Can show that a juror was in fact prejudice.

OR

Even if no actual prejudice on part of jury, if there is evidence that the
community is so inflamed by the barrage of publicity, prejudice will be
presumed:

Front 228

Can juror lay aside their prejudices?

Back 228

Publicity immediately prior to trial was very bad for Δ. Δ
convicted, confessed to 6 murders and case at hand, but won’t
plead guilty to avoid death. 8 out of 10 jurors said they had seen
the publicity and formed an opinion of guilty. Jurors were asked if
they could lay that aside and said YES. This is retarded according
to Serr…you can’t set that aside
o Words do not ALWAYS overcome prejudice (“I can be fair”)
§ Factors
• Nature and time of publicity
• Size of community
• Ability to empanel jury
• Δ’s atty wants jurors kicked off “for cause.” Prosecution wants
these people on jury so they try to clean up and show persons not
influenced. Jurors said that it would take evidence that D was
innocent for them to let him off. D must prove his innocence to
them. (Wrong – D should be presumed innocent)

Front 229

It is difficult to overturn for
refusal to grant motion for change of venue.

Back 229

Today, and for the past 27 years, the lower courts analyze by saying it isn’t an Irvin,
it isn’t a Rideau, it isn’t a Sheppard, conviction aff’d. It is difficult to overturn for
refusal to grant motion for change of venue. Most prosecutor’s usually don’t fight a
change of venue when the case is close b/c they would rather remove the issue and
get a conviction that can withstand scrutiny on appeal.
§ Estes and Sheppard were extreme cases – hard to argue
§ Irvin and Rideau are the target cases for a Δ attorney
§ Murphy is really unworkable

Front 230

Options to Deal with Pre-Trial Publicity

Back 230

o Judge can change venue

o Voir Dire process designed to alleviate potential problems caused by exposure of jury pool to pre-trial publicity
§ Find jurors actually biased and let them go “for cause”
§ Preemptory strikes – don’t trust them so use preemptory strike to knock them out
§Use Voir Dire to teach the jury

oPost voir dire change of venue

o How the judge handles the jury (sequestration, careful instructions, etc. – insulating
jury from media and publicity)

Front 231

Closure of the Trial Proceedings

Back 231

o If close proceedings, can prevent media access
o Two ways to handle media (constitutionally questionable)
§ Gag order on press – telling them not print what they know (won’t fly).
§ Restricting press access to information – still close to the line, but easier to justify than gag order.

Front 232

o If judge orders closure of proceedings:

Back 232

§ Δ could complain on 6th amendment grounds (right to public trial – keeps judge and jury honest, promotes fairness, candor, honesty, etc)
§ press could complain on 1st amendment grounds and
• Most of the time, media is one who complains, D want’s closed
sometimes.
• Media – first amendment right to access implicit in freedom of the
press (no greater than our right)

Front 233

Gannett

Back 233

motion to close suppression hearing is constitutional. Δ wanted evidence excluded at trial. If suppression hearing is not closed, then everyone will know about the evidence that was excluded. Ct closed hearings but then allowed public transcripts and stuff to be public once jury selected.

Front 234

Globe Newspapers

Back 234

can’t close trial for just any sexual
assault on minor. Has to be more of case-by-case
approach.

Front 235

Constitutional Analysis for Closure of Proceedings

Back 235

Criminal trials have “presumption of openness”

Front 236

Press Enterprise Co I --State wanted to close jury selection proceeding
because they were going to ask questions about rapes and murders -
wanted jurors to be open and honest.

Back 236

Court said that there has been
historical presumption of openness follows to jury selection - to overcome presumption must be narrowly tailored to serve that interest.

•Test is Strict Scrutiny – 1st Amendment / Fundamental Right
• It’s hard to close any part of the trial, but it is much easier if it is just pre-trial hearings
That test is the same whether or the press ask for an open trial

Front 237

Press Enterprise Co II à Δ wants closed trial. Court said, “only if specific
findings are made demonstrating that (1) there is substantial probability
that Δ’s right to fair trial will be prejudiced by publicity that closure would
prevent, and (2) reasonable alternatives to closure cannot adequately
protect Δ’s fair trial rights (narrowly tailored)
§ Almost always going to be reasonable alternatives
§ Virtually impossible to close out press and public

Back 237

When D and press are opposed (D wants closed trial), test is still the same

Front 238

Gagging the Lawyer

Back 238

Easier to gag atty than press. Atty’s have 1st amendment right, but they are officers of the court.

Front 239

Gentile v. State Bar of NV

bar brought disciplinary proceedings against criminal defense atty for holding a press conference to talk about his client.

Back 239

Supreme court held the statute was void for vagueness – “right to
explain the general nature of the defense without ‘elaboration’ provides insufficient guidance because ‘general’ and ‘elaboration’ are both classic terms of degree.

Front 240

Serr’s Response to vagueness ==>

Back 240

judge, tell atty not to talk to press until jury is selected. This would probably withstand scrutiny because 5 justices on the court said that attys can be held to lesser 1st amendment standard when they are an officer of the court.

Front 241

What is the standard when gagging lawyers?

Back 241

“Substantial likelihood of material prejudice” is the standard when gagging lawyers
§ This constitutes a permissible balance between the First Amendment rights
of attorneys in pending cases and state interest in fair trials.

Front 242

Double Jeopardy


Where does double jeopardy protection come from?

Back 242

5th Amendment: …nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb…

o Incorporated to the States by the 14th Amendment in Benton v. Maryland.

Front 243

What are the three protections covered by double jeopardy?

Back 243

3 Protections:
o (1) Core Protection – res judicata – claim preclusion (same offense – offense if it’s a gov’t CoA).

o (2) Collateral Estoppel protection – issue preclusion (same issue over and over).
§ EX: Someone robs 6 people at same time – that’s 6 robberies. It is a
different offense. This does not mean gov’t gets 6 chances to convict.
• Innocent people get convicted when gov’t has multiple
opportunities.

o (3) Double Jeopardy protection when gov’t takes care of all business in one trial.
§ Single prosecution, duplicitous punishment.
§ Tactics which are unfairly duplicitous and result in too much punish.

Front 244

What is the mechanism to litigate the issue of double jeopardy pre-trial?

Back 244

That mechanism is interlocutory appeal in federal system and most states.
o It goes to very power of court to hear the case.

• In TX – the remedy is habeas corpus. – Go to app court and ask for habeas corpus and ask
that court to stay trial court while the appellate courts review the trial court’s denial on this issue.

Front 245

What is double jeopardy's core protection?

Back 245

Res Judicada - double jeopardy bars a second prosecution of the defendant for the same offense.

Front 246

The Res Judicada protection bars the trial itself.

Back 246

It bars a second prosecution if there has been an earlier "jeopardy" and that "jeopardy" terminates in a "jeopardy terminating event"

Front 247

When is something considered a "jeopardy?"

Back 247

o Jeopardy attaches in a jury trial when the jury is impaneled and sworn.
o Jeopardy attaches in a bench trial at least by time first witness is sworn.
§ When the court begins to hear evidence.

Front 248

What are examples of Jeopardy terminating events?

Back 248

2 main events:

1. Acquittal and

2. Final, Unreversed Conviction
§ “When W’s and L’s have finally been registered.”

Front 249

What are not jeopardy terminating events?

Back 249

Trials that end prior to a victory

How do we treat a trial that ends prior to verdict?
§ Hung Jury – concern is if you hold them too long their desire to go home
will outweigh their desire to seek justice.
§ Mistrial – terminate proceedings b/c of concern about ability to get a fair
verdict, i.e. Prosecutor makes prejudicial error/argument/evidence
o S. Ct. used to make distinction between mistrials and dismissals – this distinction does not make sense.

Front 250

Somerville

fatally flawed indictment and will be rev’d on appeal. Prosecutor
realizes that this would be a waste of time. So he wants to voluntary dismiss. Judge
grants this. For second trial, def argues DJ.

Back 250

§ S. Ct.: Jeopardy had attached – but it had not terminated.
§ Relied on 1824 Perez case –
• If trial terminates b/c of a manifest necessity – when the interests
of justice require – this is continuation of first jeopardy and not a
constitutionally prohibited double jeopardy.
o Sommerville: If it had not been declared a mistrial, it would have been rev’d on appeal and there would be a second trial anyway.

Front 251

again, what is an example of when a trial ends and it is not a jeopardy terminating event?

Back 251

If trial terminates b/c of a manifest necessity – when the interests
of justice require – this is continuation of first jeopardy and not a constitutionally prohibited double jeopardy.

Front 252

What if the trial is terminated for reasons easily manipulate by the prosecutor's actions --i.e. they want a non-jeopardy terminating event to end the trial so they can start over?

Back 252

Those will still be jeopardy
terminating events
• EX: Key witness was not there after lunch and they voluntarily
dismissed. They knew witness was going to be absent. This looks
like gov’t was unhappy w/ jury.
• Too easily subject to prosecutorial manipulation and this is more
like dismissal as opposed to mistrial.
• Prosecution – knows they are going to lose – and start referring to
stuff not in record – and defense jumps up and asks for mistrial –
then jeopardy terminates erecting DJ bar.

Front 253

What happens when the defense makes a motion for a mistrial for somthing the defendant did?

Back 253

When Δ asks for termination it is jeopardy continuing unless
prosecutor has goaded defense into asking for the dismissal.

§ When Δ makes motion for mistrial or ask for trial to be terminated – after jeopardy has attached – then jeopardy does not terminate.

Front 254

What is a prosecution?

Back 254

Prosecution – Criminal proceedings and proceedings criminal in nature.

Front 255

What about juvenile proceedings?

Back 255

Juvenile Proceedings à Criminal in Nature
• A juvenile court adjudication is technically not a criminal
proceeding. But the S. Ct. has said – criminal in nature.
• Technically juvenile prosecutions are considered civil – but they
are criminal in nature.
• State does not get 2 bites at the apple: cannot prosecute as
juvenile and then after they take their punishment the state
cannot decide that was not severe enough and go back and try them as an adult.

Front 256

What about Probation Revocation?

Back 256

§ Probation Revocation – Administrative; Not criminal in nature.
• Δ on probation for burglary. He commits another burglary. State
moves to revoke probation – so that he does hard time on first
burglary. During this proceeding they prove up second offense
(committed while on probation).
o Now the state is prosecuting for the second offense –
this is not double jeopardy.
o They are proving it up in second proceeding again – but
b/c the probation revocation proceeding is considered to
be administrative proceeding and not criminal in nature.
o Violation of probation does not have to be proven beyond reasonable doubt; all due process protections do not apply.

Front 257

Driver’s License Revocation?

Back 257

Driver’s License Revocation – similar to Probation Revocation.
• Prove up same DWI in driver’s license revocation proceeding and
again in the DWI trial.

Front 258

In Rem Forfeiture Proceedings?

Back 258

§ In Rem Forfeiture Proceedings – property is instrumentality of illegal
activity. Same result as Probation Revocation and Driver’s License
Revocation.
• Someone dealing drugs from their boat in Lake Waco. Police can
take drugs and boat.
• In rem proceeding – it will US v. One boat of …description.
• The gov’t must prove up the offense in both times.
• Normally, the in rem forfeiture proceeding is not criminal in
nature.
o US S. Ct.: says this is like admin proceeding; hazy line –
regulatory goals vs. punitive goals (like Salerno).
o Sometimes, possibly, in a particular case, someone may
be getting tagged so hard – it’s punitive.
§ Scalia says this is not a prosecution – it’s against
the boat not a defendant. But majority says this is not criminal in nature.

Front 259

When do Appeals Count as a Second Prosecution?

Back 259

Appeal is not a second prosecution if a win on appeal would not result in a
reprosecution (unless for trial error). If all the appeals court has to do is look over the reocrd then there is not re-prosecution.

Front 260

Can the government appeal an acquital?

Back 260

Gov’t is however barred from appeal in a acquittal.
§ Rationale: If government can appeal acquittal –
• If they cannot re-prosecute it will be an advisory opinion;
• Re-prosecution would undermine finality.

Front 261

Restrictions on ability of gov’t to appeal vs. reprosecute –

§ Trial Court – there is an acquittal.

Back 261

• Double jeopardy clause forbids appeal (Wilson Rule).
• S. Ct. in Wilson: “The DJ bar against gov’t appeals applies only
when there is a danger of subjecting the def to a second trial for
the same offense.”
o Gov’t cannot win the case w/o a second trial.
• “A Δ has no legitimate claim to benefit from an error of law when
that error could be corrected w/o subjecting him to a second trial
before a second trier of fact.”
o Where the gov’t could, on appeal, be granted relief w/o
subjecting the def to a second trial, Double Jeopardy is not violated by appeal.

Front 262

Trial Court – Directed verdict of acquittal

Back 262

• Gov’t cannot appeal an acquittal – whether jury verdict or
judicially directed verdict of acquittal.

Front 263

Trial Court – Conviction – Δ makes J.N.O.V. motion and it is granted.

Back 263

This cannot happen in TX; must move for directed verdict at close of
state’s case. But is possible in most states and the federal system.
o Gov’t can appeal – if judge was wrong in granting the J.N.O.V. – the
appellate court can reverse the wrong and not subject def to second
trial.
§ Gov’t may appeal under Wilson.
§ S. Ct. has not made this determination directly – but it
appears that this would be the rule.
• There is a conviction that can be reinstated – Δ does not have to run gauntlet again.

Front 264

Trial Court – Conviction – and defendant appeals. Intermediate appellate court reverses the conviction on grounds of LEGAL INSUFFICIENCY.

Back 264

Standard for Insufficiency: A conviction rests upon insufficient
evidence when, even after viewing the evidence in light most favorable to prosecution, no rational factfinder could have found the def guilty beyond a reasonable doubt.
o Gov’t can appeal this to next highest level (highest app ct).
§ Gov’t can reverse this decision w/o requiring def to run gauntlet again.

Front 265

Trial Court – Conviction – and defendant appeals. Intermediate appellate court
reverses the conviction on grounds of legal insufficiency and Highest appellate court – affirms reversal of conviction based on legal insufficiency

Back 265

o Gov’t cannot reprosecute – That is a jeopardy terminating event under
the Burks Rule.
o Wilson rule controls gov’t desire to appeal; Burks rule controls gov’t
desire to reprosecute when conviction has been rev’d on appeal.
o Rationale: Reversal based on legal insufficiency grounds says the only
rational result was acquittal.
§ This is a Jeopardy terminating event which terminates first
jeopardy and erects a bar from reprosecution.

Front 266

Trial Court – Conviction – Intermediate appellate court reverses on grounds of
trial error – or anything other than based on legal insufficiency.

Back 266

o Gov’t can appeal that.
o Error was not the government’s fault so they should be permitted to
reprosecute.

Front 267

Trial Court – Conviction – Intermediate appellate court reverses on grounds of
trial error and highest court affirms reversal of conviction – trial error.

Back 267

o Gov’t can reprosecute.
o Reversal of conviction based on anything other than insufficiency of
evidence can be reprosecuted.
o Reasoning: Δ is asking for reversal here.
§ From Burks: It would be a high price for society to pay were every accused granted immunity from punishment b/c of any trial defect sufficient to constitute reversible error in the proceedings leading to conviction.

Front 268

Why does this seem fair?

Back 268

o In the long run – this advantages defendants.
§ Appellate courts would be more reluctant to grant reversal if
they knew there could be no reprosecution.

Front 269

One caveat: the nature of trial error can prohibit reprosecution.

Back 269

ex.

§ Reversal on Speedy Trial grounds – Speedy Trial Clause bars
prosecution.

Front 270

• TC – Conviction – Intermediate app. court affirms conviction. Δ appeals and
highest app. court affirms conviction. At end of app. trial – outcome is
conviction aff’d.

Back 270

o State cannot reprosecute. This is a jeopardy terminating event.

Front 271

Double Jeopardy Same Offense Protection

what does "same offense" mean?

Back 271

“Same Offense” - Does not mean exactly the same thing; includes that but not limited to
that.
• “Same Offense” - Also includes lesser included offenses.
o EX: Serr hits Bates in head w/ baseball bat. That is an assault and aggravated assault.
§ Sometimes ppl commit multiple crimes w/ one bad action.

Front 272

lesser included offenses also have implications on res judicada protection

Back 272

assault and agg assault example

2 provisions of penal code that are violated – agg assault and assault – these count as successive prosecutions for the same offense. So long as first prosecution ended in jeopardy terminating event – then it is barred.

Front 273

What is the Blockburger Test?

Back 273

2 offenses are not the same for double jeopardy purposes if each
requires proof of a fact that the other does not.

Front 274

Examples of collateral estoppel:

simple assault and agg assault:

Back 274

Simple assault contains nothing unique from agg assault; although agg assault
has a special fact that simple assault does not.
o So these offenses are the same for double jeopardy purposes.

Front 275

Murder and Robbery

Back 275

Murder and Robbery – not same offense for DJ purposes.
o Murder requires proof of homicide.
o Robbery requires proof of theft or attempted theft.
o Each require something unique to them that must be proven. Not
lesser included offense.

Front 276

However --

Separate Sovereignties Doctrine

Back 276

One act is a crime under both State and Federal law
– the Δ can be prosecuted by both authorities.
• Rationale: Each sovereign has law enforcement interest against Δ.
o One sovereign should not be able to cut off the law enforcement
interest of another.
• This is an old doctrine and has never been rejected.
• But things have changed:
o Double Jeopardy has been incorporated to the States.
o State and federal law enforcement work together more closely now.
§ They decide on the best way to go after someone.
o Greater overlap under state and federal crime.
• Allows one sovereign to treat the other sovereign’s trial as a practice run.

Front 277

Pettit Policy –

Back 277

DOJ policy to not to do this, except for in extraordinary
circumstances and only w/ approval of assistant AG and he must have
consulted w/ AG.
o Reasoning: It’s unfair.
o EX: Cops who beat Rodney King were prosecuted by state and feds.
§ Acquitted in state court. Convicted later in federal court.

Front 278

Case Law Example of same offense

Brown – Trial 1: Plead guilty to joy riding – 30 day fine. Trial 2: Auto theft. Guilty plea;
judgment of conviction entered on.

Back 278

Jeopardy attaches with plea of guilty when the plea is accepted in court and that is very quickly followed by judgment of conviction; if that conviction is not appealed – the time runs.

o The plea will be a final conviction – which is a jeopardy terminating
event erecting a DJ bar.
• Jurisdictional problem with Trial 2 – b/c double jeopardy violated.
o Do not have to raise it – goes to power of ct to hear this.
• S. Ct.: This is violation of double jeopardy. They applied the Blockburger Test. Trial 2 is barred.
o Every auto theft is joyriding. Only thing different w/ auto theft is intent
to deprive owner of the property.
§ Auto theft requires proof of a fact that joy riding does not;
but joy riding does require proof of a fact that auto theft does
not.
§ Every auto theft will also be a joy ride.
o Need to try them both at the same time or try the more serious one
first if you want the harsher punishment.

Front 279

COLLATERAL ESTOPPEL PROTECTION

Back 279

• Double Jeopardy Guarantee has collateral estoppel component. Ashe v. Swenson (1970) -- ISSUE PRECLUSION

Front 280

Collateral Estoppel Rule

Back 280

• When an issue of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future lawsuit.
o Not mutual; it’s a one way street; only protects defendant.
o If gov’t keeps getting convictions – then no problem.
§ Once a defendant wins – then collateral estoppel applies.

Front 281

Collateral Estoppel Test/Analysis

Back 281

“Where a previous judgment of acquittal was based upon a general verdict, as is usually the
case, this approach requires a court to 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 Δ seeks
to foreclose from consideration.”

o Examine whole record, pleadings, charge, evidence – and ask why was this person
acquitted/defense victory?
§ Need something that looks like a defense victory.
§ Remember Doctrine of Implied Acquittal

Front 282

Case Law Examples

Ashe v. Swenson – Poker game robbery w/ 6 victims. Witnesses do not know if there were 3
or 4 robbers. The police picked up 3 of them together. They picked up Ashe a little ways
away.

o Trial 1 – witnesses could not tell if there were 3 or 4. Could not identify him. Ashe is
acquitted.

o Trial 2 – Witnesses positively identify defendant and he is convicted.
§ No res judicata problem – different victim.

Back 282

They were going to try him 6 different times. They admitted the first trial was a dry run.
§ Technically not violation of core guarantee (res judicata) but gov’t strategy obliterates the value framers trying to protect.
§ This would give the gov’t, in any situation in which there are multiple
victims, multiple opportunities to convict.
o Collateral Estoppel Not Res Judicata protections of Double Jeopardy prohibit this
tactic.

Front 283

De la Rosa v. Lynaugh – Δ attempted to murder A instead killed B (little kid) then murdered
A. Old way of voluntary manslaughter – raise heat of passion evidence at trial (before
sentencing), whereas today the Δ must show this at sentencing.
o Trial 1 – for murder of 8 yr old – on theory of transferred intent: Convicted of voluntary slaughter. Implied acquittal of greater offense when later attempting to
try for murder of A.
(• Δ Victory: Not convicted of murder.
o Works the same way today.)

Back 283

o Trial 2 – for murder of man he intended to kill –
• No res judicata problem – 2 different offenses.
• Can be prosecuted – but cannot be prosecuted for anything more than
voluntary manslaughter.
• Cannot force him to run the gauntlet on this issue again.
o He can only be prosecuted for voluntary manslaughter.

Front 284

Green v. US – Doctrine of Implied Acquittal

Back 284

A def convicted of lesser offense when jury could have convicted of greater offense – rational view of that is gov’t failed to carry burden of greater offense.

Front 285

Graff case – capital murder of 2 boys. Theory of murder for remuneration. There were proof problems and the prosecutor decided to prosecute the cases one at a time.

Back 285

o No res judicata problem.
o Δ Convicted in first trial. At sentencing – must prove it is deliberate and BRD life or
death that def will impose a continuing threat to society.
§ He was sentenced to life.
§ “Whimsical Doubt” or “Lingering Doubt” – Jury convicts even though they have some doubt. When this happens, jury is more reluctant to impose such a harsh sentence.
• Make “rational judgment” as to why jury acted the way they did –
not assumptions. Ashe.
o They decided not to pursue the second case after a change in DA.
§ Could they have gone after death penalty in second case?
• There must be a defense victory. The victory is life in prison as
opposed to capital punishment.
• This has collateral estoppel effect and bars gov’t in trial two from
making def run the gauntlet again on this issue.
So nothing was accomplished by prosecuting this way. Serr says they did this b/c DA did not know DJ law well.

Front 286

Double Jeopardy and Multiple Punishments

Back 286

In addition to protecting against a second prosecution for the same offense after acquittal/conviction (res judicata) – The Double Jeopardy Clause protects against: multiple
punishments for the same offense.

Front 287

• Prohibited multiple punishments

Back 287

Rule: Even when gov’t conducts all bus in one trial – DJ clause protects against multiple punishments for same offense, unless the Legislature clearly intended multiple punishments.

Front 288

The controlling test for multiple punishments

Back 288

Controlling Test: Blockburger – look at elements of crime and if one is a lesser
included in the first, the presumption is that the Legislature did not intend the
absurdity of punishing the person twice.
• That presumption can be overcome by a clear legislative intent to contrary.

Front 289

DJ Constitutional Protection Follows Legislative Intent

Back 289

• DJ Constitutional Protection Follows Legislative Intent
o If two offenses are not the same (each have some unique element) then there are two unique wrongs and this warrants two punishments.
o But even if the elements are the same, the Double Jeopardy protection does not mean the Legislature cannot prescribe multiple offenses/punishment. It means that
there is a presumption that Legislature only intended one punishment but that presumption can be overcome by a clear Legis intent to the contrary.
§ It is a protection against double punishment for one wrong contrary to
legislative intent.
§ This is a protection against overly piecemeal pleading/prosecuting by the
gov’t.
o Determine Legislative Intent: Looking at elements in abstract – are the crimes the
same.

Front 290

What if legislature intends to impose multiple punishments?

Back 290

§ But just b/c they are the same does not mean only one punishment; that
presumption can be overcome by clear Legislative intent to the contrary.
o Punishment is for the Legislature – only real protection is the 8th
Amendment. The legislature could give multiple punishments anyway
§ Agg Rape – 10-40 yrs and rape 2-15 yrs
• Legis could change these punishments to any range
(from 50 to 100 yrs).
• Legis – could simply say that agg rape punishment is
in addition to rape punishment (so 12-55 yrs)
§ Cruel and Unusual is difficult to meet if non-capital.

Front 291

Multiple successive punishments -

Ill v. Vitale – Vitale kills two kids with automobile.
o Trial 1 – convicted for failure to reduce speed. $15 fine.
§ Successive prosecution barred

Trial 2 – Manslaughter/Reckless homicide
§ There are many ways to commit reckless homicide w/o failure to reduce
speed; failure to reduce speed requires proof of fact that will not always
come up in reckless homicide.

Back 291

• Sometimes, in a specific case, will not be able to prove reckless
homicide w/o proving up failure to reduce speed.
• When this is the case – it is a lesser included offense as a matter
of fact (not a matter of law).
§ Message to gov’t when minor traffic violations result in death – go after
the larger offense and do not worry about the lesser offense. Sometimes
police officers are told in this situation to not write the traffic ticket.
§ Serr’s problem w/ Vitale is that it does not a significant enough of an
ordeal. Non-capital sentencing is not enough

Front 292

Harris v. OK

Trial 1: Convicted of felony-murder (F-M so need to prove murderous mental state)
o Trial 2: Robbery – this was the felony needed for felony murder.

Back 292

§ Can raise res judicata before trial.
o US S. Ct. – the trial for the robbery conviction is invalid.
§ F-M and robbery – F-M requires proof of a fact that robbery does not
(homicide) and robbery requires proof of a fact that F-M does not (theft or attempted theft).

But sometimes these two overlap in the facts of a particular case
such that the only way gov’t can prove felony-murder is to prove
robbery.

So there is a jeopardy bar on the facts of this case.

Front 293

How should gov’t respond to this if we want 2 convictions and 2
punishments?

Back 293

Consider the other activity in enhancing the sentence. Push to
give the defendant the max.
o Does not help in Brown – but it will help in Vitale and
Harris.
• Do not use felony murder – do murder instead.
o F-M is short-cut – allows gov’t to get murder conviction
w/o proving murderous mental state. Prove intent to kill.
§ If need to use f-m – then find another underlying felony.

Front 294

Sekou – trial 1 – armed robbery; trial 2 – felony murder and the other felony is kidnapping.

Back 294

o Gov’t does not have to prove underlying robbery – they can prove the kidnapping.

Front 295

DJ and sentencing

Traditional Range Sentencing
• Traditional range sentencing – such as 5 to 99, and sentencer chooses figure.
o If the sentencer chooses 40 yrs – how do you determine a Δ victory in there? Is this an implied acquittal of 42 or 45 yrs?

Back 295

S. Ct. says no. Traditional criminal broad range sentencing – it’s difficult to pick a
sentence and say gov’t has failed to prove up more.
o Broad Range Sentencing – No DJ Implications.

Front 296

Death Sentencing

Back 296

Death Sentencing – this is different. Death penalty sentencing is highly structured.
o Anything less than death penalty is a defense victory.
§ In addition, there is evidence that gov’t failed to prove its case. Gov’t did not prove up its case for death penalty.

Front 297

AZ v. Rumsey

Back 297

A life sentence operates like an acquittal of death penalty.
o Whether decision made by judge or jury; even if result of judicial error.

Front 298

Poland v. AZ

Back 298

sentenced to death and complained about trial issue. The conviction is rev’d and remanded for a new trial. The individual did not win – the gov’t won. This is like a rev’d conviction. Individual can be made to run the gauntlet again on death penalty issue.
o It is a continuous jeopardy and not a second placing of def in jeopardy.

Front 299

Hung jury situation

Back 299

jury hung on life or death, even if there is a default setting (jury hung
on life or death means def gets life) – the S. Ct. said the individual did not win in this situation b/c the jury did not find gov’t failed to carry burden on this.
o The gov’t can come at def again on the life-death decision.

Front 300

Highly Structured Non-Capital Sentencing

What about highly structured non-capital sentencing (as opposed to broad range
sentencing)?
o Such as special habitual offender sentencing

Back 300

It looks like if gov’t loses this is implied acquittal of the lesser sentence.
o But the S. Ct. has drawn a hard line on capital sentencing.
§ Double jeopardy ONLY applies in capital sentencing

Front 301

Other Double Jeopardy Issues

Acquittal of the Principal Actor and Conviction of the Accessory

Back 301

Acquittal of the Principal and Conviction of the Accessory – The court has assumed that the
collateral estoppel aspect of double jeopardy has noo application if the second prosecution
involves a different defendant than the first.
o Standefer v. US – Charged w/ aiding and abetting a revenue official in accepting
bribe. The revenue official was acquitted. Nevertheless, Standefer was convicted.
§ DJ Clause does not prevent this. [Neither does Due Process.]

Front 302

Inconsistent Verdicts

US v. Powell – Charged w/ certain drug offenses and w/ facilitating through communication
facilities those drugs. The jury acquitted her of predicate drug offenses but found her guilty
of the compound facilitating offenses.

Back 302

S. Ct.: This is permissible.
o “It is possible that the jury, convinced of guilt, properly reached its conclusion on
compound offense, and then through mistake, lenity, or compromise, arrived at an
inconsistent conclusion on the other offense.”

Front 303

Use of Evidence from an Acquitted Offense

Dowling v. US – Acquitted of robbery charge. Later, charged w/ bank robbery and gov’t brought in victim of earlier robbery to testify about that earlier robbery.

Back 303

o S. Ct: Collateral estoppel is not applicable b/c a lower burden of proof is available to the gov’t in showing in the second trial that the offense was committed (which def
was earlier acquitted of).
o Did not have to show guilt of first crime BRD; the prosecution only had to introduce evidence from which the jury could reasonably conclude that the act occurred and that the def was the actor.

Front 304

RJ Protection

Back 304

Rule:
• (1) No successive/second/later prosecution when the first/earlier ends in acquittal,
unrev’d conviction, or other “jeopardy terminating event.” and
• (2) Later successive prosecution is for the same offense.
o Same Offense Test = Blockburger as enlarged by Vitale and Harris.
o Focus – Is one a necessarily included in fact?
• Concern: Unnecessary, piecemeal litigation requiring def to run gauntlet again and again.
• Result If the same: Absolute bar to prosecution.

Front 305

Corollary to RJ Protection – Collateral Estoppel Protection

Back 305

No successive prosecution on the same issue if the jury’s acquittal or implied acquittal
in the earlier prosecution could rationally have been based only on a decision that that issue was decided in def’s favor.

Front 306

Funky protection for multiple punishments in one trial

Back 306

§ Rule: No cumulative punishment (whether successive or concurrent) for same offense, unless
Legislative directive.
§ Same Offense Test: Blockburger, unadulterated – unenlarged.
§ Focus is on elements of statutorily described crimes.
§ Concern is imposition of punishment greater than what the Legislature intended.
§ Result if same: Not absolute bar to punishment – only a presumption of one punishment
(caveat: presumption can be overcome, as it was in Harris, by clear legislative directive to the
contrary).
• Clear legislative intent to impose multiple, duplicitous functions.

Front 307

• 2 different versions of Blockburger:

Back 307

(1) The original – focused only on the elements of the crime
§ Cumulative punishments in one trial; successive prosecutions
§ Controls for multiple punishments (I think res judicata as well).
o (2) The second – (third funky protection) – focused on facts of particular case.
§ Distinctive in theory – but sufficient sameness for double jeopardy purposes.
§ Controls for res judicata
§ Helps gov’t to take care of bus all in one trial. Not the same if gov’t takes care of all business in
one trial.
• Prevents gov’t from trying cases one at a time against same def for what is essentially
the same act.

Front 308

What does Vitale/Harris test?

Back 308

it is res judicata based on facts?

one has to be proved up because of the facts of the case.

Front 309

What is blockburger?

Back 309

when the elements need to be proved up because they are part of the legislative scheme.

Front 310

Why does grady suck?

Back 310

grady attempted to explain vitale harris but lost sight of the fact that the state did not HAVE to prove up one offense to get a conviction for the other one. In vitale and harris, they HAD to prove one to get to the other and therefore DJ is implicated.


Scalia says grady went beyond vitale and harris.

Front 311

Holding in Sekou:

Back 311

The DJ clause does not bar successive prosecutions for
felony-murder and an underlying felony (regardless of which prosecution is
first), so long as the specific underlying felony which is the subject of the earlier (or later) prosecution does not form the sole basis for the felony murder prosecution.

Also: The DJ Clause is not implicated by a prosecution for a crime
previously considered as an aggravating circumstance during
sentencing for a different crime.

Front 312

Right to Jury Trial

where does it come from?

Back 312

Sixth Amendment – Right to trial by jury in all criminal prosecutions.

o Historical practice – not “all” criminal prosecutions.
§ Some are sufficiently petty that do not require this.
o Right to trial by jury case in a felony case – when felony case is defined as punishment available to more than 6 months.
§ This effects how states define crimes as felonies or misdemeanors.
§ If punishment is at 6 months or less – then up to state whether to give trial by jury.

Front 313

Duncan v. Louisiana – black guy broke up fight. Hit white guy on elbow.

Back 313

o 6th Amendment Right to Trial by Jury – Incorporated to the States through the 14th
Amendment.
§ Implicit in the concept of ordered liberty; deeply rooted in the history and
conscious of English speaking ppl;
§ A safeguard against corrupt or overzealous prosecutor and compliant, biased or eccentric judge.

Front 314

Prosecutions to Which the Right Applies

Back 314

Any crime punishable by more than 6 months in prison is not a petty offense, so you have the
right to jury trial.
o Key is the length of sentence available – not the punishment imposed.

Front 315

Exceptions to right to jury trial

Blanton v. City of North Las Vegas – Δ argued that even w/ punishment of 6 months
or less in prison there can be other aspects of the penalty that can make it a serious crime.

Back 315

§ A Δ is entitled to a jury trial in such circumstances only if he can
demonstrate that:
• any additional statutory penalties, viewed in conjunction w/ the
maximum authorized period of incarceration, are so severe that
they clearly reflect a legislative determination that the offense in
question is a “serious” one.

Applied in US v. Nachtigal – DUI and sentenced to 6 months in prison and a $5000
fine.
§ The maximum term of imprisonment – six months – creates a presumption
that the offense is a petty one.
§ In this case, the additional penalties were not sufficiently severe enough to
overcome that presumption.

Front 316

other exception

Lewis v. US

Back 316

2 counts of a “petty” offense which, when combined, breach 6 month threshold: not a violation of right to jury trial

US S. Ct. Approve – O’Connor: The nature of the offense is determined by each offense, not by the possible consecutive sentences that could be imposed. The gov’t could have charged each count in a separate charging instrument and cumulative sentences following separate non-jury trials could have been imposed.
§ Since there was no deprivation of the right to a jury trial, the effect of the magistrate’s statement limiting liability to 6 months total punishment was not reached.
o Concurrence – Kennedy & Breyer – concurred in the judgment on the ground that ordinarily a jury trial right should attach in this circumstance but that since the magistrate voluntarily limited petitioner’s liability to a term not to exceed six months, the 6th was not violated in this particular case.

Front 317

Waiving the Right to Jury Trial

Back 317

Must be done in Person, In Writing, In Open Court, With Permission of Court and Prosecutor.
o You have a Constitutional right to trial by jury
§ You DO NOT have a constitutional right to bench trial. Will only get bench trial if prosecutor and judge agree.
o Gov’t also has interest in trial by jury.

Front 318

Felony Case right to jury trial

Back 318

Must be represented by attorney before waiver of jury trial.

Front 319

Capital Cases in which state is seeking death penalty –

Back 319

cannot waive the right.
§ Juries must impose sentence of death.
§ Constitutional right under 8th and Due Process Clause to jury sentencing in
a capital case.

Front 320

Other ways to waive the right

Back 320

o Might waive pursuant to plea bargain.
o Might agree to bench trial (no plea of guilty).

Front 321

What is the remedy to an invalid waiver of right to trial by jury?

Back 321

Then remedy is reversal of conviction.
Double Jeopardy bar?

Front 322

Jury Size & Level of Agreement Required to Convict

Williams v. FL – Defendant convicted by 6 person jury.

Back 322

o Ct said essential feature of jury is not 12 persons – it is to act as buffer between
gov’t seeking to punish an individual.
o That buffer is not a function of number (6 can do that as well as 12).
§ Later on – the court said that 5 is too small.
§ When right to jury applies – there must be 6 jurors.

Front 323

Apodaca v. Oregon – Jury anonymity

Defendants convicted on 11-1 and 10-2 verdicts.

Back 323

The essential role played by jury – of buffer – this is also not a function of
unanimity.

Odd opinion: There were 5 votes on the court that interpreted the 6th Amendment
and read it to require unanimity. 1 of those 5 does not think that it is such an
important aspect of 6th Amendment to incorporate.
§ So required in the federal system – but not required on the States.
§ Almost every state, as a matter of state law, requires unanimity.
• TX requires unanimity.

Front 324

So long as States require a “substantial majority” then the Constitution is OK with it.

Back 324

§ 11-1; 10-2; 9-3; are OK
§ There are no cases of 8-4.

Front 325

Ballew v. GA

Back 325

5-0 does not work. Must be 6 jurors.

Another case – 5-1 does not work in a 6 person jury. Must be unanimous.

Front 326

Required Jury Size in Texas – TX Code of Crim. P. Art. 33.01

Back 326

o (a) Except as provided by Subsection (b), in the district court, the jury shall consist of twelve qualified jurors. In the county court and inferior courts, the jury shall consist of six qualified jurors.
o In a trial involving a misdemeanor offense, a district court jury shall consist of six qualified jurors.

Front 327

Notes

Back 327

§ Jury size = 12 – in district courts (where felonies are tried)
§ Jury size = 6 – in county courts – where misdemeanors are held.
• 6 for misdemeanor in district courts too (serious misdemeanors)
§ Up to 4 alternate jurors.

Front 328

alternate jurors

Back 328

§ Up to 4 alternate jurors.
• An alternate juror who does not replace a juror – is discharged
after verdict.
• Used to be once jury begins deliberating.
• Alt Jurors go back in deliberation room and are available until jury
has rendered a verdict.

Front 329

3. Jury Trial v. Bench Trial

a. Advantage of jury trial

Back 329

i. State must convince more people that D is guilty. With bench trial, state just needs to convince one.

ii. D gets to be a part of selecting the jury

 creates more opportunities for the State to screw up

iii. Consider who the judge is – if you know he will be biased, definitely want jury

iv. Take into consideration D’s defenses – if self-defense, want jury trial

Front 330

b. Advantage of Bench Trial

Back 330

i. If crime is really heinous, but there is a question of who did it, it may be better to do a bench trial.

 Some crimes are so offensive that jury is prejudice from the get-go. Judge will probably not be as prejudice by shocking facts.

ii. If witnesses are kinda trashy, might be better to have bench trial because he may be able to set aside the appearance

Front 331

4. Jury Size and Unanimity Requirements –depends on fed. or state court

Back 331

a. Fed Court → 12 person jury is required and jury verdict must be unanimous

b. State Court → because Sup. Ct. considers 12 person jury as accident, Ct has not imposed requirement on state

i. 6-person minimum – five is not enough

⇨ Primary feature of jury is to buffer gov’t and individual, D. Buffer feature essential to jury. Not function of size – 6 can be buffer and 12 can be buffer (but 5 can’t be)

Front 332

ii. Unanimity not absolute right

Back 332

right to unanimous jury verdict depends on size of jury

(1) Six person jury – jury verdict must be unanimous

(2) Twelve person jury – Sup. Ct. approved use of non-unanimous verdicts in state criminal cases, upholding 10-2 and 11-1 verdicts (not 9-3)

⇨ TX requires it to be unanimous

Front 333

c. §33.01

Back 333

c. §33.01 → in district court felony cases, jury shall consist of 12 qualified jurors; in district ct misdemeanor cases, county court and inferior courts, jury shall consist of 6 qualified jurors

Front 334

d. §33.011 → Alternate jurors

Back 334

i. In district court → can have 4 alternate jurors

ii. In lower courts → can have 2 alternate jurors

iii. Alternate jurors replace any that are sick or die during trial. Alternates are dismissed when jury is charged and begins to deliberate

iv. Number of jurors required with alternates

(1) For felonies → 11-0 is ok if the jury is out of alternates.

⇨ If go into deliberations with 12 but one dies, that is OK, if prosecution and defendant consent to it

(2) For misdemeanors in dist. ct. → after jury deliberates, can go as low as 9, but must be 9-0.

Front 335

5. Jury Selection

Back 335

a. Selection – same for criminal and civil

b. Pool summoned – big pool venire. Then work down to the petit jury (12 or 6).

c. Voir Dire – question the jurors

Front 336

i. 2 ways to get exclude potential jurors:

Back 336

(1) Preemptory strikes: Limited # (also limited by Batson & progeny)

(2) For cause: Unlimited #

Front 337

What does it mean to strike someone for cause?


(1) Challenge can be made for cause by D or the state if person:

Back 337

(a) not qualified voter in state and country (but failure to register shall not disqualify)
(b) has been convicted of theft or any felony
(c) is under indictment or other legal accusation of theft or any felony
(d) is insane
(e) has physical/mental defect rendering unfit for jury service
(f) is witness in the case
(g) served on grand jury which found indictment
(h) served on petit jury in former trial of same case
(i) has bias or prejudice in favor of or against D (Most often used /person impartial)
⇨ If can say the magic words, “I can lay bias aside,” not challengable for cause, but if he says he can’t, then challengable for cause
(j) cannot set aside prior conclusion of D’s guilty or innocence
(k) cannot read or write
* b,c,d -Automatic disqualification.

Front 338

(2) Challenge can be made for cause by the state if juror:

Back 338

(a) Has conscientious scruples in regard to infliction of punishment of death for crime, in capital case, where State is seeking death penalty (Unconstitutional – Witherspoon v. Illinois)

⇨ Just because you have scruples regarding death penalty then can’t kick you off, BUT if you can’t lay scruples aside regarding infliction of death penalty so that it impairs your ability to fairly apply the law to the facts, OK to kick you off

(b) related within 3rd degree of consanguinity/affinity to D

(c) has bias or prejudice against any law applicable to the case

➢ If D convicted for stealing cow and juror says, “they still put people in jail for that?”

Front 339

iii. Preemptory strikes

Back 339

can be exercised for any reason (35.14)

Exception → cannot exclude jurors in way that it violates equal protection

Front 340

How many preemptory strikes do you get?

Back 340

(1) Challenge for cause – unlimited in #

(2) Preemptory – Limited in #, the more serious case, greater the # (35.15)

(a) capital case in which State seeks death penalty → 15/side

 multiple D’s → State – 8/D; D’s – 8 each

(b) noncapital cases, capital cases in state does not seek death penalty → 10/side

 multiple D’s → state – 6/D; D’s – 6 each

(c) misdemeanors → 5/side

 multiple D’s → state – 3/D; D’s – 3 each

Front 341

Where must a jury come from?

Back 341

6. Fair Cross-section of community→ Poses no limitation on how state uses preemptory strikes (that’s EP)—this applies only to venire, strikes come after venire

a. Requirement comes from the 6th amendment - “right to trial by impartial jury.” Implicit in the term jury as used in the 6th amendment

Front 342

what does it mean to have a right to an impartial jury.

Back 342

⇨ Jury must be drawn from a fair cross section of the community. The jury doesn’t have to be a fair cross section, the VENIRE has to be a fair cross section and the jury is drawn from it.

Front 343

b. Who has standing?

Back 343

Any criminal defendant (complaining about exclusion of any so called identifiable class from the venire (the pool)) can make a fair cross section challenge

Front 344

c. Don’t have to share racial/gender identity to complain

Back 344

I as white person have interest in having minorities on the jury.

Front 345

Prima facie case

Back 345

i. Identifiable class (Not limited to suspect classifications)

(1) race/gender/ethnic group (Also suspect classes for equal protection)

(2) employment status- persons that have particular shared job - postmen, teachers, doctors, lawyers, etc

⇨ If don’t include lawyers – not community anymore

(3) Non-Identifiable Class (Others that can fairly represent their Views)

ex.
(a) Primary caregiver of child under certain age

⇨ Reason → because women w/ kid under 10 have a unique view, that can be adequately represented by women w/ kids 11 or 12.

(b) College students (identifiable group)

⇨ Their view can be adequately represented by those that have just gotten out of college.

⇨ Can exempt college students

 Key → are there groups in community that could adequately represent unique views!!

Front 346

Taylor: Taylor was convicted of crime. He had 175 persons on his venire → no women (175 person venire when Taylor was tried; 0 women). Community was 53% women. Less than 10% were women that could be in jury pool. Women not per se excluded. Any woman that wanted to be could but they had to opt in.

Back 346

➢ Doesn’t have to specific intent – it can’t interfere w/ right to have jury pulled from fair cross of the community.

➢ Taylor could object to exclusion of women – he has interest in having jury drawn form a fair cross section of community.

⇨ Can’t take important part of community out (women) and get fair cross section. Materially changing community
⇨ “Prevents state from staking the deck: Fair Cross Section” Scalia

Front 347

Prima facia case again

Back 347

i. Identifiable class (Not limited to suspect classifications)
ii. Substantial degree of under representation -compare venire to community (percentages)

iii. Then the burden shifts: state must show that either
1) under-representation or exclusion is not intentional or systematic; or 2) there are legitimate neutral criteria that produced the disproportionate amounts.

⇨ Doesn’t matter if intentional – opt in if it works to substantial under-representation due to systematic exclusion.

Front 348

Once a prima facie case is established, then what?

Back 348

e. Burden shifts to the state - Is there a legitimate reason?

Front 349

i. Holland →

Back 349

i. Holland → preemptory challenges system may result in under representation but jury doesn’t have to be fair cross section, just drawn from a pool w/ a fair cross section (Scalia came closer than anyone to saying preemptory strike is part of constitutional right)
The n the EP Clause picks up where the Fair Cross Section leaves off.

ii. TX → picks potential jurors by voter registration and drivers license. This way it is very difficult to show intentional or systematic.

Front 350

7. Equal Protection Challenge

a. Strauder (1880) – can’t exclude blacks as a matter of law from jury pool

i. Facts: In West Virginia, had statute that said blacks were excluded from venire, basically had to be a white male to serve on a jury

Back 350

ii. Holding: Court said that is an EP violation - concern was the defendant. White defendant gets jury of his peers while blacks don’t.

Front 351

b. Swain (1965)—required looking at case after case in a jx. This isn’t saying that an all white jury is not impartial, it just gives the appearance of partiality

i. Facts: Prosecutor used preemptory strikes to kick all blacks out of the pool, since they couldn’t exclude from venire.

Back 351

ii. Holding: court said can’t do what you couldn’t do w/ a statute through the use of preemptory strikes.

Front 352

What was the test in swain?

Back 352

⇨ Test → D must show in case after case the prosecutor use of preemptory strikes is to wholly keep blacks off the jury.

- Implicit – in a case in which all blacks are kicked off jury for black defendant, that’s OK, but if D can show that case after case, blacks were being kicked off, not OK. You are depriving an entire class of people of a jury of their peers.
- The concern was that jurors were being discriminately excluded from jury service.

- Over next 20 yrs, no D ever made out EP violation. All prosecutors had to do was make sure over 2-3 yrs 1 or 2 blacks got on jury. Everyone knew that this case was a joke

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c. Batson (1986)– overruled Swain burden of proving that in case after case . . .

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i. Criminal D’s can make out prima facie case of EP determination based solely on prosecutor’s use of preemptory strikes in D’s particular case. The EPC prohibits even one invidious act of discrimination.

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What is the rationale of Batson?

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(1) Rationale

(a) Defendant’s interest in jury of his peers

(b) An individual juror’s interest in not being discriminatorily excluded from important civic opportunity.

(c) Society’s interest in promoting confidence in the jury system--appearance of fairness/propriety in criminal justice system

 It looks bad when prosecutor strikes all the blacks. EP violation.

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(3) Steps to determine if EP violation

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I. Batson Prima Facie Case

(1) Defendant must raise inference of purposeful racial discrimination ****

⇨ Look at numbers, preemptory strikes and voir dire

➢ 6 blacks in venire. Prosecutor had 8 strikes. 6 of strikes used on D.

➢ Are you trying to get blacks off for cause? What is your behavior in voir dire?

II. Burden shifts to prosecutor to show a race neutral explanation

⇨ P must come forward with evidence to show that he stuck juror for any reason but race. (look at race neutral reasons—Marshall c/o the fact that these explanations are too easily made and will this really prevent racial discrimination)

➢ P can’t say, I’m the prosecutor and I’m just trying to root out jurors who will identify with D. Must question black jurors and get statements that show juror has inclination to view things from D’s prospective → prosecutor can get juror stricken if prove it to a necessary degree

III. Has defendant (the batson movant), under totality of circumstances, ultimately proven purposeful racial discrimination by a preponderance of the evidence?

 Ultimate burden of persuasion remains on defendant

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Fair Cross section challenge

Back 356

Who? Any criminal defendant.

Exclusion of? Any identifiable class.

From? Venire

Prima facie case?

1. Identifiable class
2. Substantially under represented
3. Intentional & systematic

Burden Shifts to State
1. Legitimate rationale for exclusion
2. Neither intentional or systematic

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Equal Protection Challenge

Back 357

I. Batson Prima Facie Case


1. Defendant must raise inference of purposeful racial discrimination—this is typically about numbers, what is make-up of venire, how many strikes, how many used against minority jurors, what was the ultimate result (looking at voir dire behavior of the prosecutor)

II. Burden shifts to prosecutor to show a race neutral explanation—cannot just point to racial affinity b/w potential juror and defendant. Cannot generally deny discriminatory motive—must articulate neutral explanation specific to the case. Once the neutral explanation given the first step is moot (Prima facie Case)

III. Totality of circumstances → has defendant, ultimately proven purposeful racial discrimination by a preponderance of the evidence —the ultimate burden of persuasion ultimately remains with the defendant movant.

Remedy: Reseat the juror, or Preferred: Unseat the jury and start over again.

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What is the remedy for a batson finding of discrimination?

Back 358

Remedy: Reseat the juror, or Preferred: Unseat the jury and start over again.

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How Batson has been expanded

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i. Powers → court said any criminal defendant can complain about racially discriminatory use of preemptory strikes. White criminal defendant has sufficient identity of interest to c/o prosecutorial discrimination (3P standing).

 Serr said that it is odd that the court is willing to show identity of interest b/w white defendant and black jury (Powers) but not b/w black defendant and black jury (Batson)

ii. Edminson →Civil case—where is the state action? Court stretches again and held that the state action is when judge tells the juror he’s been stricken

 Scalia Dissent – just b/c state provides a ring/stage, doesn’t mean there is state action, calls it a side show

iii. McCallum → prosecutor has standing to complain about (racially discriminatory) preemptory strikes. This means that criminal defendants will be limited in their exercise of preemptory strikes

iv. J.E.B. → paternity action. Court extended to include gender discrimination. Defense atty struck women and prosecutor struck all the men

 In all of these cases, court could’ve drawn the line anywhere but instead, D can complain about any form of heightened scrutiny discrimination


 Standing → any litigant has standing to complain

 What type of discrimination → any form of decision that is entitled to any form of heightened scrutiny under the EP clause (illegitimate, aleinage, gender—suspect/quasi-suspect classification)

 By whom → any other litigant’s exercise of preemptory strikes

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d. Two reasons why there is always an explanation on record of preemptory strikes:

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i. If atty accused of racial discrimination, they don’t wait for “I”, they jump forward and w/ explanation before court

⇨ Once explanation on record, doesn’t matter if prima facie case is met

 Don’t have to worry about #1 as much

ii. Judge asks right away, doesn’t wait till prima facia case is met

⇨ Judge doesn’t want to get reversed. He won’t get reversed on “I” if explanation is on record

 Worry about this one a lot!!

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e. What courts find to be an OK “race neutral” explanation:

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i. Juror had close relative recently charged w/ a crime
ii. Juror past legal problems w/ gov’t
iii. Juror around the same age as defendant
iv. Juror has a really technical occupation
v. Young, single, poor, unemployed
vi. Language, poor attitude
vii. avoided eye contact nervous
viii. have trouble getting along with other jurors

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Brown

i. Facts: Prosecutor used preemptory strikes to knock off all the blacks. I – there was a Batson objection. II – prosecuting atty’s reasoning was that he has tried cases against this black defense atty many times before and defense atty specially appeals to blacks. Prosecutor gave ex. of open and shut case he tried against black atty, six blacks on jury, hung jury – all six blacks wanted to acquit.

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ii. Holding: Ct said that prosecutor’s reason was legitimate reason - if you believe black juror are biased, that is legitimate reason to strike someone. BUT problem here is that prosecutor assumed blacks were biased by color of their skin.

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g. Hernandez
i. Facts: Bilingual Latinos were getting kicked off by the prosecutor. Prosecutor said he struck them b/c of their answers – they were hesitant to accept official translators version of the testimony. He needed to know what translator says is binding and that everyone (all jurors) was on the same page. Didn’t want the Spanish speaking jurors going with a different translation. Prosecutor pointed to their conduct during voir dire and that was okay.

Back 363

⇨ Upheld Brown – can kick off black juror if can show racial bias of juror.

ii. Holding: Discrimination does have an impact on Latinos, but it’s not discriminatory in purpose. It is sufficiently ethnic neutral – prosecutor didn’t strike because bilingual or because they were Latino [EP is about purposeful discrimination, not discriminatory impact) Race-neutral under Batson does not mean that it can have nothing to do with race or ethnicity. The fact that is corresponds to a “for cause” strike will demonstrate its race neutral character.

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⇨ Test –

Back 364

⇨ Test – if reason for striking is reason that could be challenged “for cause” but can’t show to the degree necessary, that is sufficient to show gender neutral. Race neutral does not have to be totally not about race at all.

While the prosecutor need not rise to the level of a for cause challenge, it is sufficient to show that it is race neutral.

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h. Hill – T X case totally confused by race neutral thing

i. Facts: Prosecutor struck person because he felt like juror would identify w/ D. Reasoning – juror was a black male and by the way he responded to questions.

Back 365

(1) Juror was a data technician – that’s race neutral. Prosecutor could’ve given that as a reason, but he didn’t. But even if he did, it doesn’t matter b/c already 2 bad reasons (black and male).

(2) If have bad reason and good one, its OK. WRONG – if bad reason and good one, still violates EP. Race can’t be part of explanation if there’s no race related reason


(3) Race can be no part of explanation. WRONG – inconsistent with Hernandez. Must have race related reason. Reason was that a couple of guys had facial hair (race neutral so shouldn’t need legitimate reason) – court screwed up. Prosecutor should’ve gotten past “II” and then judge could’ve used “III” to make his determination. Also, look to see if any white guys with facial hair were kick off.


All differ in how they define race-neutral. The first 4 said Batson only prohibits discrimination on race only—they said that race plus X is okay. Or in other words it only prohibits a solely improper motive. WRONG

The other 4 said that race can be no part of the reason- WRONG- Race neutrality does not mean race cannot be part of the reason.

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Purkett v Elam:

Prosecutor struck juror b/c he had long, curly, unkempt hair, and facial hair. Another was struck for facial hair. He felt it looked suspicious.

Back 366

8th circuit said hair and beards has nothing to do with being proper jurors—this made hippies a protected class. USSC said no. Long hairs are not protected. This is race neutral. 8th circuit should not have made determination at step II because this unwittingly made hippies a protected class. The Court said this means we go to step III and place it all into the TOC hopper and determine whether the Batson movant has proved purposeful discrimination. At step III the judge can essentially say “I don’t believe you, your explanation is race neutral all right, but I think you strike was racially motivated.”

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Death qualifications for jurors

Back 367

35.16(b) that the juror has conscientious objection in regard to the infliction of the punishment of death for crime, in a capital case, where the state is seeking the death penalty; this is unconstitutional since 1968 b/c it stacks the deck. It is constitutional to strike a juror for cause whose views on the death penalty are such that would prevent them from ever imposing the death penalty b/c that juror is constitutionally impartial. See Wainwright. The State is also entitled to an impartial jury. The D is only entitled to an impartial jury. Courts in the know apply the Wainwright language and disregard the 35.16 (b)1 statutory provision.

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a. Wainwright v. Witt →

Back 368

→ try to get a death qualified jury. Can’t excuse someone because they have scruples, but can excuse “for cause” if the juror would automatically vote against the state

Front 369

New test for death qualifying jury

Back 369

Now: Are your views on capitol punishment so firmly and rigidly held that those views would substantially impair your ability to follow the judge’s instructions and fairly apply the law to the facts.

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c. Lockhart v. McCree – capital murder defendant made two constitutional objections to death qualifications.

Back 370

i. This makes jury partial to death penalty. Court said NO – D gets impartial jury, not one partially predisposed in D’s favor. Don’t have right to jury that’s least likely to give death.

ii. Fair Cross Section violation. Challenges for cause arguably is implicate fair cross concern. Court said people who admit impartiality is NOT identifiable class that we want represented on jury (not a class that brings certain value or perspective that we want).

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Confrontation Clause

Back 371

B. Confrontation Clause—the clause is a bundle of rights that operates to protect the defendant’s right to defend himself. 1)Physical 2) presence 3) under oath, 4) observable by the trier of fact in order to make credibility assessments and 5) contemporaneous cross examination, 6) reliability. Read MD v Craig—scalia says the big stick is face to face confrontation, but the majority says it is cross examination.

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1. Two situations where Confrontation Clause issue arises at trial:

Back 372

a. Hearsay - out of court statement testified to in court and offered for the truth of the matter asserted

b. Funky Trial Procedures (designed to protect witness – putting screen up between witness and D, video recorded testimony—(see Coy v IA where the teenage girls were placed behind a screen) Will only be done where necessary 1056-1057—this only takes away face to face, the jurors can observe, the defendant can observe, the only thing taken away is the right to have the witness testify in front of the defendant. Must show case specific necessity plus sufficient indicators of reliability-that the underlying guarantees of the 6th are not being undermined.

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what does serr think about this?

Back 373

Serr says that to remove one of the procedures that the state has to get through to give us confidence in the outcome, in order to prevent trauma to child who has to testify in front of the defendant assumes that the defendant did the act he is accused of. This subtly or not so subtly communicates to the jury that the guy did it. But most people don’t give a rip about defendants. The framers didn’t trust us—and probably rightfully so. The stuff about not putting the victim on trial—there is only one person on trial, only one person who may not be going home. Yes some of those people are scum bags and did it, but we don’t take away their protections.

Front 374

2. Hearsay cases– inherently raises Confrontation Clause issues

a. Dutton v. Evans

i. Facts: Williams is sitting in jail and out of court he tells Shaw, “if not for that SOB Evans, I wouldn’t be in trouble.” Prosecution called Shaw to stand at Evan’s trial and he (Shaw) testifies in court, “Williams told me, ‘if not for that SOB Evans, I wouldn’t be in trouble.”

Back 374

⇨ Concern is not that Shaw is unreliable in his he said-she said. Shaw is there, he is under oath, demeanor is being observed by judge and jury etc. We are concerned about Williams – he is not present or subject to cross, demeanor is not observable, not subject to perjury. He is actually the one offering the testimony and he is not subject to indicators of reliability. Williams is making the statement out of court and he is not subject to contemporaneously observable. Williams is the declarant. Hearsay shields declarants from the usual tests to insure trustworthiness.

ii. Holding: Ct held that the hearsay evidence is so reliable we don’t care he wasn’t in court – statement reliable because Williams also implicated himself.

Front 375

Ohio v. Roberts:

Says that necessity (unavailability )
Plus reliability (a. deeply rooted in exceptions to hearsay and b. other particularized guarantees of trustworthiness)

c. 2 part test:

Back 375

c. 2 part test:

i. Necessity (no longer required)
Here Declarant (maker of the statement) is physically unavailable —she runs away prior to trial

ii. Reliability (if not going to subject to stringent tests, it better be reliable)

(1) Deeply rooted hearsay exception – inherent reliability; or

(2) Other particularized guarantees of trustworthiness

➢ Witnesses former testimony could be admitted as hearsay – under oath, opportunity to cross. This is firmly rooted exception.

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d. U.S. v. Inadi(p1071) & White v. Illinois

Back 376

ct dispenses w/ unavailability requirement (neccesity) in Roberts. Only thing relevant is having “adequate indicia of reliability.” - Rules of evidence in the 800’s


e. General Rule: Do not have to show the declarant is unavailable.

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ii. Inadi → co-conspitor exception: Underwood and Serr conspire to rob bank. Ser tries to elcit Trilas to help. On the stand Trail says underwood is invoved. Serr said out of court .

Back 377

Considered realibale hersay. Co-conspiratiors are viewed as a unit. If point the finger at the co-conspiritor it is a relaiable statement brfore the conspiracty is dsocvered by law enforcement authorites. Once the law enforcement catches the suspects the tesitomony is no longer reliable. (After arrest unreliable). “Cannot fall within the deeply rooted exception.”

Front 378

Don’t need to show co-conspirator was unavailable to admit testimony.

Back 378

Sometimes we trust out of court statements more than in court statements. Do not have to show case specifc neccessity. Just need to show realiablity exception. In this case (deeply rooted ) Confession while commiting before police catch.

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iii. White v. IL → the child was being shielded from taking the stand. Made statements to the Babysitter, mother, & Dr. State says you have not made the case of declarant unavailability (necessity).

Back 379

Holding: Statement fell under two firmly rooted exceptions: (1) excited
utterances, (2) statements made to medical professional in expectation of
treatment. Unavailability of witness doesn’t matter. (CCP 803)
In the end, we are concerned about reliability.

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Testimonial hearsay test is

Back 380

1) unavailability and 2) prior opportunity for cross-examination. – see Crawford in Bobby’s outline.
testimonial hearsay includes: affidavits, depositions, former testimony, police interrogations (CCP 804) – necessity plus unavailability and prior opportunity to cross examine???

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Non-testimonial

Back 381

non-testimonial hearsay is CCP 803 (includes statements made to police DURING crime or crisis- think 911 call) – reliability “excetions” Roberts.???

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3. Funky Trial Procedure

– Roberts “necessity (psychological or emotional unavailability) plus reliability

a. In MD v. Craig, the court takes Roberts test and transports it to funky trial procedure

Back 382

a. In MD v. Craig, the court takes Roberts test and transports it to funky trial procedure

i. Case Specific Necessity (witness unavailability)

 Doesn’t have to mean physically unavailable
 Just needs to be emotionally/psychologically unavailable.
 Must be a Case specific showing of necessity.

ii. Reliability

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b. Coy → Iowa’s screen procedure didn’t include a case by case determination that this particular witness needs extraordinary procedure

Back 383

Can’t use funky procedure every time. Must be case-by-case determination. Government may have compelling interest to use it but not OK across the board.

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 Confrontation Clause bundle:

Back 384

- Physical presence, demeanor, observation
- Oath
- Contemporaneous Cross examination
- Physical face to face

Front 385

c. MD v. Craig →

state has particularized case specific showing of witness emotional availability. As far as reliability, the Court said what state did was OK because defendant still gets everything in C.C. bundle except face to face – thus there are sufficient indicia of reliability.

Back 385

Serr’s problem with this is that the use of the “funky procedure” itself is presuming guilt. By placing a screen b/w the defendant and witness (or closed circuit tv etc) we are indicating to the jury that we believe the defendant did it.

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d. Child Victims

Long → three problems with Art. 38.071 – struck down.

Back 386

i. Long → three problems with Art. 38.071 – struck down.

(1) Coy – no case by case specific showing of necessity

(2) More of the bundle of sticks missing – there was no opportunity for contemporaneous cross examination (most effective when it flows from testimony).

(3) Reliability problem – if D wants to cross, he must call accuser to the stand which undermines state’s compelling interest argument (if compelling interest is to protect child, undermines it if state lets D’s call accuser)

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ii. Current Art. 38.071 – the legislature’s response -

Back 387

(1) §8(a) – addresses Long problem—must make case specific showing of unavailability (needs to be case by case analysis) b/c of emotional or physical unavailability b/c of confrontation w/ defendant (also includes emotional unavailability b/c of pressures associated with the courtroom generally- but Serr says this is unconstitutional).

⇨ Problem with this- Sup. Court – if take away face to face confrontation, it must be caused by face to face confrontation with defendant, not by nervousness of courtroom (in light of Craig)

Front 388

(2) §2 – witness gets crossed by “neutral individual that works w/ abused kids” still have problems with reliability. People that deal with abused kids are not neutral.

Back 388

Serr says this is blatantly unconstitutional b/c this is not a cross-examination. A cross examination requires an advocate, and what is important is the follow-up questions. Section 5 also.???

Front 389

(3) §3 – live closed circuit testimony. Provides for cross-examination – the one predominantly being used.

Back 389

live closed circuit testimony. Provides for cross-examination – the one predominantly being used.

⇨ This is OK under MD v Craig because all we are taking away is face to face, there is specific reference to cross examination.

Front 390

(4) §4 – live videotaped testimony

Back 390

(a) §(b) - no specific reference to cross, but if provided and done during trial, it would be OK (then only take away face to face).

(b) §(c) – unconstitutional b/c it is trial by deposition

Front 391

iii. Gonzales

Back 391

involved Craig issue. This case says 38.071 closed proceedings are OK.