641 Criminal Procedure: Adjudication Professor Michaels Spring 2008

A.

Defense Counsel: 1.When Will Counsel Be Provided Hamden v. Rumsfeld [2006] (handout): Questions: What rights from a normal criminal case were provided to enemy combatants in the Military Commission procedures? Right to Lawyer (Military lawyer is provided but civilian lawyer may be hired as the individuals expense.) Notice of chadrges Presumption of innocence Does provide double jeopardy (Under the CMA jeopardy attaches in the case of a finding of guilt ONLY after all your appeals are done) What rights were not provided? Right to see and hear evidence Right to presence Trial can be closed to the defendant and their lawyer. Grounds for closure include the protection of information classified or classifiable; information protected by law or rule from unauthorized disclosure; the physical safety of participants in commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. (handout pg. 2) Public is excluded Right to federal rules of evidence (hearsay is admissible that overlaps the right to confront your accuser, which the accused does not have in this context. Confrontation rights No trial by jury (Not jury of peers, its military officers) Voir dire (ask jurors questions to determine qualifications) Jury size (three in this case; military commissions act raised it to five in future cases) Unanimity (normally required in most criminal cases) Speedy trial not provided Bail What were the absent rights that appear to have been more important to the outcome? Right to be present (The one that the court made the biggest deal about) Update: Presence is now provided, but if there is a security risk then the evidence may be presented in summary form, but presence is necessary. -1-

Relaxed rules of evidence Separation of powers/independence Problem with judges (Lack of regularity of judges; not all equally educated, etc) If you were on trial for a serious crime, what right or rights would you consider most critical? Unanimity (you only need one to side with you in order to get a retrial) Presence Speedy trial Present evidence Right to counsel Independent appellate review As a member of Congress, which rights, if any, would you vote to dispense with? Would your answer differ if you were a member of the Executive Branch? If you were a prosecutor and normal criminal cases were involved? As to each of these: Why? Appointment of Counsel Is an indigent charged with robbery in state court entitled to the right to an attorney provided by the state? Yes To a textualist, is the above statement a true representation of the content of the Sixth Amendment? You have the RIGHT to counsel, but not necessarily the right to have the state provide it. How can you enjoy the right if you cannot afford it? Originalist view: is this the right result? No, the original intent is almost certainly just to entitle the defendant to the RIGHT to an attorney, not to guarantee the right to have a lawyer provided at the states expense. In many felony cases in England, defendants were not allowed the right to have counsel present for their case. This Amendment was meant to protect against that practice. Was Gideon rightly decided? Depends on who you talk tonot according to originalists. Incorporates the Sixth Amendment to the states. Why isnt this Gideon v. State of Florida? This is a habeas corpus case A civil claim that you are being held unlawfully Your conviction violated your constitutional rights Congress has significantly tightened the standard for federal habeas corpus cases. Now, under federal habeas, the federal court is directed by Congress only to vacate your state conviction if your state conviction -2-

goes against clearly established federal law (generally means a S. Ct. holding). What Florida did in incarcerating Gideon, did not violate clearly established federal law, it was actually consistent with Florida law so it would come out differently with todays standard. Why did the court conclude in Gideon that the right to counsel was fundamental and essential to due process? You cannot be assured a fair trial without a lawyer Is there a value besides fairness that supports the fundamental right of representation? Accuracy Reason for overturning: (1) Betts v. Brady didnt follow precedent, reason and reflection demand this result. Powell v. Alabama (pg. 4-5) 9 young black men, unrepresented at trial, were convicted of raping a white woman. SCOTUS overruled the convictions, finding that the accused parties were entitled to representation by an attorney. Due process right to counsel was created there but there were a lot of provisions (ie: illiterate, ignorant, incapable of putting on an independent defensereferred to as special circumstances.) The case did not provide the right without special circumstances, so this case did not provide counsel to all indigent defendants. Race is a subtext in criminal proceedings. Incorporation: The Sixth Amendment (and Bill of Rights) only applies to the federal government. The Fourteenth Amendment has its own Due Process clause directed to the states. Through a process known as selective incorporation, the court determined that a particular provision of the Bill of Rights is incorporated if its a fundamental principle of liberty and justice. In the criminal context, a right is considered incorporated if the right is fundamental and essential to a fair trial. Most of the incorporation took place during the Warren Court. Brennan thought there should be full incorporation, instead selective incorporation was implemented over the next few decades. Only three Bill of Rights provisions are not applicable to the states: The 5th Amend. right to a grand jury The 2nd Amend right to bear arms and -3-

The 7th Amendment right to a jury trial in a civil case. Bag and Baggage debate: Questions then arise, mainly: Does it have to apply to the states in exactly the same way as it applies to the federal government? By and large, the bag and baggage group won. Generally speaking, not only is the Bill of Rights applicable to the states as well as the federal court, but the same meaning is used in both contexts. Misdemeanor Cases: Should there be a right to appointed counsel in misdemeanor cases? Yes, Sixth Amendment says all criminal prosecutions. (textualist response) Yes, because a layperson cannot effectively represent a defendant. Without representation we will not know whether there was a fair trial with an accurate result. (non-textualist) No, fairness and accuracy are not as important in misdemeanor cases because misdemeanor cases are simple (the issues are usually straight-forward and the cases are usually only one day, etc). No, there are three times as many misdemeanor cases and the cost would be too great to provide representation in all of those cases. If we take the position that the 6th Amend. does not provide a right to counsel in misdemeanor cases, would that mean that there would be no right to appointed counsel in misdemeanor cases? No, there may be a due process right. In Powell v. Alabama, due process itself required appointed counsel in some cases. Rhode Island Do not want to subordinate effective prosecution of the guilty Here Defense Attorneys subordinate justice Scalia (Dissenting in Alabama v. LeReed Shelton) Over-lawyering of minor cases Is there a right to appointed counsel for misdemeanor cases? Yes, under federal law (Scott v. Illinois), you have the right to counsel in a misdemeanor case if there is imprisonment. (if, but only if, you go to jail) Most states have not required more, but have matched the SCOTUS decision. Some states just automatically appoint counsel for jailable offenses.

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In some states (like Florida), the court can issue an order of no incarceration. In that case, no counsel is needed or appointed because no jail time can be sentenced. What about Shelton? He was never imprisoned, yet the court found a right to counsel.

Nichols v. U.S.: Uncounseled misdemeanor conviction: fine Counseled felony conviction Can court enhance felony conviction by two years, based on misdemeanor? Why? Why not? o Yes. Rule: a sentencing court may consider a defendants previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense. Doesnt this seem wrong because he can be given a harsher sentence? o The sentence is actually for the new crimes o And the court can take into consideration whatever it wants when sentencing, so it doesnt really matter whether it is a conviction or not ie: employment, driving, how much youve volunteered in the community, drug problemshow is it any different to count prior misdemeanor convictions? Recitivism is always taken into account by judges Judge can determine by a preponderance of the evidence crimes the plaintiff was acquitted of. Therefore, the prosecution in Nichols should be able to try to prove the plaintiff was guilty of the previous crime BUT, the plaintiff can counter that.

Gagnon v. Scarpelli: Counseled felony conviction: probation which includes suspended sentence Probation revocation hearing: counsel required? Why? Why not? No Sixth Amend. right to counsel because no deprivation of liberty Reasoning: the punishment was not imposed because of the crime, but because of the probation violation The probation revocation hearing is NOT a criminal proceeding under the 6th so no counsel needed. Depends. Rule: counsel is not invariably required by parole or probation revocation proceedings; instead there shall be a case-by-case approach turning on the character of the issues involved. Shelton v. Alabama: Misdemeanor conviction that leads to suspended sentence. Counsel required? -5-

Yes, because he did not have counsel at the trial of the crime for which he would go to jail. How is this different from Nichols and Gagnon? How is this different from Scott or Argersinger? Why require lawyers? Reliability and fairness When is a lawyer required in Ohio? Ohio RULE 44: For a serious offense (punishable by 6months or more) D shall be appointed a lawyer; for a petty offense may be appointed a lawyer. How does this compare to the SCOTUS rule? A serious offense means any felony and misdemeanor for which the penalty is prescribed by law includes confinement for more than six months Broader than SCOTUS requires. What about expert witnesses? Sixth Amendment gives right to counsel, but not to expert witnesses. However, there is a due process right to expert witnesses where an indigent defendant makes a particularized showing of need for the assistance. When does a criminal proceeding begin? During a stop for DUI: no right to counsel Arrested and asked to take a blood test: no right to counsel o State v. Gregory Pierre [2006] (pg. 23): Defendant was arrested by warrant and gave a written statement about the crime with which he was charged. At trial, he sought to have this statement suppressed as a violation of his 6th Amendment right to counsel. HELD: The filing of the arrest warrant was not equivalent to commencement of adversarial judicial proceedings. RULE: the sixth amendment guarantees that in all criminal prosecutions, the accused shall enjoy the rightto have the Assistance of Counsel for his defense. This right attaches only at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information or arraignment. Definition of initiation of adversarial proceedings: The point at which the defendant is faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. o Bottom line: There is no answer to the question of when adversary proceedings have started in this context that is correct. The important thing is, why we care? -6-

**This is a very unusual situation, so do not be concerned about the black letter of the law in this case. Scott v. Illinois Hold that the 6th and 14th amendments require only that no indigent criminal D be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. Basically: Cant send to jail for a day without counsel, but can convict you of a crime with a potentially over a year penalty. o Pretrial Context o Critical stage is defined as follows: Those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. HYPO: Danisec is arraigned on DUI charges and is released on bail. A detective follows Danisec to a bar and after hes had a few drinks, the detective begins to ask questions about his alcohol consumption on the night of the DUI. RULE regarding Surreptitious questioning: Police cannot question you directly or through informants after the right to counsel has attached, without a waiver. o This is for 6th Amendment rights, not Miranda rights. Miranda doesnt apply here. o SCOTUS has narrowed this: The 6th Amendment right to counsel applies only to the offense to which the right attaches Applies to deliberate elicitation to the defendant. What about an appeal, is that a critical stage if youre required to proceed without counsel? No Sixth Amendment right to counsel in criminal appeals. o Because it is not a criminal prosecution, this is already over o The right to counsel here is based on both due process and equal protection principles Magic Words:

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The Sixth Amendment right to counsel applies only after the commencement of adversarial judicial proceedings. It usually means a commitment to prosecute. (when your formally charged by the state, state says we are going forward with the charges) 1) Right to counsel attached (after the commencement of adversarial judicial proceedings) 2) Assuming right to counsel attached, it applies at every critical proceeding. Need to have both and this order for counsel presence to be required.

2.Selection and Rejection of Counsel (right to waive right to counsel v. affirmative right of self-presentation. o Right to Proceed Pro Se Standard: whether you have a rationale and factual understanding of the proceedings. Pretty low standard. Basically, if youre competent to stand trial, then you are competent to represent yourself at trial. Rule rationales: Autonomy Strategy Historical evidence In colonial times, people often proceeded pro se and courts never admonished it. This is called the dog that didnt bark argument. The idea is that the absence of the raising of an alarm (hey, he cant proceed pro se) is approval of the right to proceed pro se. Black letter: In order to effectively assert the right to proceed per se Must intentionally relinquish the right to counsel Have to be aware of the right and the consequences of giving that right up. Judge will usually explain the consequences of giving up your right to proceed pro se Waiver of your right to proceed pro se can be taken away if you misbehave This right does not extend to appeals! No 6th Amend. right to counsel on appeal. (State is free to decide whether you may proceed pro se on appeal) Why? Judicial economy: it is more efficient for the court if a lawyer prepares the brief. The appellate system is more overburdened. There is a higher level of legal competence required for an appeal. -8-

The issues at trial involve mainly legal expertise and judges will not be swayed or sympathetic to an individual for simply proceeding pro se so the benefits of proceeding pro se at trial are not existent on appeal. Right to proceed pro se stems from the Sixth Amendment and there is no Sixth Amendment right to counsel on appeal. The right to proceed pro se was supported by historical evidence that is not present on appeal. Autonomy Argument: different after the trial is over. Is this just a right for crackpots? Fundamental liberty interest Society should not force counsel on someone Attorney may not be worth the money If there is some exculpatory evidence (like a time stamped receipt), it may be better to go ahead without counsel. Sometimes people are more sympathetic when they see a personality, you are more of a living, breathing person, it is a lot harder to send people to jail, the D is much more sympathetic and humanized in front of the jury Bonus: personality can be shown WITHOUT the ability of cross examination, could reveal past criminal acts : DUI Hypo Ohio Revised Code: Criminal Rule 44: right to counsel for serious offenses (6 months or more) Right might attach before constitutional right attaches. 2935.20 Right to counsel: Right to an attorney: permitted for obtained counsel, not appointed counsel Gives a right to call a lawyer, but does not appoint counsel for the indigent Court has not distinguished between right to use an attorney and right to appointed attorney No exclusionary remedy State v. Joseph Spencer [1994] (pg. 30): Spencer was arrested for growing marijuana and possessing firearms and cocaine. Spencer was not indigent and had hired a lawyer. The relationship broke down before trial and the defendant requested to proceed pro se. The court imposed standby counsel for Spencer. However, there was a trial and the attorney did represent Spencer. Spencer was found guilty and he appealed arguing that he was denied his right -9-

to proceed pro se. Why did the court appoint someone then? There must be a knowing and voluntary waiver of the right to have an attorney once that right has attached. Prof. Opinion: Case should have been reversed, prosecutors have a job beyond winning, it is winning correctly. If prosecutor doesnt speak up it could affect the validity of the case. Basically, increasing the chance of reversal and validity of the case. Black letter: Court can appoint standby counsel, even over the defendants objection. Defendant has two core rights Right to control organization and conduct of his own defense (means to make motions, due points of law, voie dire, etc) If the attorney does these things instead of allowing the defendant to handle them then defendant is being denied his/her right to proceed per se. Right to give the jury the perception that the defendant is representing himself Faretta: Had slowly been limited (decreased in scope) in several ways since it was decided. By (1) Stand-by Counsel, (2) Does not apply on appeal, and (3) Edwards Case Mental Illness. 3.Adequacy of Counsel **This right does not exist if you proceed pro se** o Strickland v. Washington (pg. 39) Black letter test: Convicted person must show that the counsels performance 1. is deficient AND 2. must show that the deficient performance prejudiced the defense to show that the Sixth Amendment right to counsel was violated (applies to both appointed and retained counsel). The burden is on the defendant to show both prongs. The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome In certain Sixth Amendment contexts, prejudice is presumed. Examples: Actual or constructively denied the assistance of counsel Various kinds of state interference with counsels assistance Defendant is barred from consulting with the attorney or the judge does not allow a summation or something like that. Where there is a conflict of interest on the part of counsel. -10-

Buzz words for outline: The defendant must show that the counsels representation fell below an objective standard of reasonableness. There is a presumption for the attorney that conduct that may be questionable was strategic. The court said: Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

4.Systems for Providing Counsel o Effective Assistance of Counsel Test: Must show counsels performance was deficient and Reasonable probability that the result would have been different if it were not for the ineffective counsel o Exception to second prong: Prejudice is presumed in certain circumstances, including: Actual or constructive denial of council Various kinds of state interference with counsels assistance o Defendant is barred from consulting with the attorney or the judge does not allow a summation or something like that. Where there is a conflict of interest on the part of counsel. o RULE: if the conflict is raised at trial, prejudice is presumed o If the conflict is raised after the trial the test is that the defendant must show that the conflict adversely affected performance. This is tougher than prejudice being presumed but more lax than the Strickland standard. S. Ct. goes out of its way to raise an issue that no one thought was an issue. It applies where the lawyer is actively representing conflicting interests. Its unclear now whether there will be a presumption of prejudice when the representation is not active.

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In Strickland, the rationale for these exceptions is offered: Its too hard to calibrate what difference these changes would have made, and it effects the system in such a profound way that prejudice must be presumed. Ineffectiveness of counsel under Strickland accepts as adequate the status quo of typical representation for indigents: In many jurisdictions the that level of quality is way below what a reasonably wealthy defendant could purchase, only representation well outside the norm will be considered inadequate counsel. o Michigan v. Taylor (a few years ago) Defense attorney was defending client; during that trial the client was murdered. Same lawyer was appointed as the representative of the murdered of the client. Lower court found that the judge did not actually know the conflict of the attorney at the time of trial but they said he should have known. If the judge should have known of the conflict then it goes with adversely effected performance group. Basic requirements of effective counsel: 1. Request discovery 2. Request plea bargain 3. Inquire about plea negotiation 4. Consult with client 5. Prepare for trial 6. Cross-examine states witnesses 7. Keep the client updated So is this list comprehensive? Having the list may have cause attorneys to perform worse because they will only focus on performing the tasks of the list and not go above and beyond the list.

o ABA Regulations: Standard 4-3.6 Prompt action to protect the accused. Rules against standards questions may be on the exam. Rules vs. standards is something you should know about as lawyers and something that you can apply in other classes. Rule: something precise and particular. More likely to be under or over-inclusive. Rules may give a road map to get around standards Standard: More vague and flexible. The advantage of a standard is that it potentially can apply perfectly to every case. -12-

Arbitrariness and prejudice can make their way into the decision because extraneous factors can influence the judgment since there is more discretion to make the judgment. Do we want to allow discretion? Whats the risk of providing discretion? Lower courts are determining whether the objective standard of reasonableness is met. Claims of ineffective counsel are often made, but rarely succeed. Success rate for cases raised on pre-Strickland standard is about 4%, More recent studies have stated the success rate between 6 and 10%. Recent cases (all 5 to 4 cases and all death penalty cases) The Supreme Court suddenly started finding ineffective assistance of counsel. Rompilla v. Beard: Counsel didnt follow up on leads that would have lead to sympathetic evidence that may have influenced the jury against selecting the death penalty. The clue that the attorney got that would have lead to the sympathetic evidence was very obscure. The level of investigation was held very high in this case. o Remedies What remedies can there be other than a new trial? High burden to get a new trial Civil remedymalpractice suit (N.3 p. 58) Before you can survive a motion to dismiss, some jurisdictions require you to win an ineffectiveness of counsel claim first Some require proof of actual innocence Either way, it is a high burden to overcome Trial counsel might have to show reasons for their strategy o Methods for providing counsel Three principle approaches for providing counsel for indigents Public defenders Paid by the state Best situated to implement a system-wide approach More likely to have the ethic to do that Assigned counsel Private practice on a listpaid on a case/hour basis Michaels say these are the best & worst -13-

Contract attorneys How do they compare to non-appointed counsel? Depends on the studyin aggregate, there is not much of a difference Michaels says a bigger factor is whether or not you are in jail pending trial And indigents are more likely to be in jail pending trial. Rules v. Standards Argument

B.

Bail: 1.Pretrial Release o Ohio Rule 46(c): Factors in determining the types, amounts and conditions of bail, the court shall consider all relevant information including but not limited to: 1. The nature and circumstances of the crime charges, and specifically whether the D used or had access to a weapon; 2. The weight of the evidence against D 3. The confirmation of the Ds identity; 4. The Ds family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution; 5. Whether the D is on probation, a community control sanction, parole, post-release control, bail, or under a court protection order. o Ohio Rule 46(b)(7): Any other constitutional condition considered reasonably necessary to ensure appearance or public safety. o Subsection B of Ohio rule 46 generally discusses things necessary to ensure the defendant returns for trial, not just monetary bail. o Alabama Rules of Crim Pro Lists factors to be considered in determining whether defendant should be released or not. (pg. 98) Strong cases are more likely to flee because you probably wont win Similarly with length of sentence Important factors Nature of the offense Penalty for the offense Strength of the case Vera Institute of Justice study Idea was to give judges more information about Ds in order to more accurately determine reasonable bail amounts Law student would make separate recommendation for bail amounts Prior to the 1960s2/3 held in, 1/3 released Now flip-flopped -14-

The ordinary procedure is to have a first appearance within 24 hours of arrest Judge will either release ROR, require bond Secured bondsto combat the bail bond system 2.Pretrial (aka Preventative) Detention o Why would the state not want to release everyone on his/her own recognizance? o Some people wouldnt show up for court o Why not set bail at $1 million? o Must balance the liberty interest balanced against the cost of the state to house you. o No one would be able to make bail, presumption of innocence until proven guilty, fundamental interest in not being incarcerated o Very expensive to hold people in jail, much cheaper to let people out. Money will push things the other direction. o Of the people granted release, 75% do show up for court. Of that remaining 25%, 22% are returned to the state, so only 8% of those released are outstanding each year. o What does that say about our system? Are we releasing too many people? What should the standard be? Alabama statute says bail should be set as to reasonably assure that the defendant returns for trial. o What are the consequences of detention? o Cannot build as good of a defenseharder to meet with attorney or get witnesses o Statistically, detained people receive longer sentences and have a higher conviction rate o If you are acquitted, you have suffered a real loss of liberty (loss of connection with family, job, etc; all of which are usually qualities that the court uses in considering length or severity of a conviction or sentence). o It is argued that evidence that people held in court before sentencing receive a higher conviction rate or sentence establishes a correlation, not causation. o Preliminary injunction effect: if you know youre going to be in jail for 12 months awaiting trial, then you may reach a different settlement point than if you were releasedyoure more likely to plead guilty, etc. Holding people in to get a guilty plea is not supposed to be one of the rationales for bail. o Race and gender in release and bail decisions (pg. 103 n.6) o In a study of bail practices, the price that the bail bondsmen would charge represented the risk of appearance at trial. -15-

o They found that bail bondsmen charged black defendants much less on average than they did white defendants. Their pricing indicated that it is greater than a 1 in 10 chance that a white defendant wouldnt show up, whereas black defendants were 1 in 8 to appear. The bail bondsmen think that black defendants are less likely to flee. This market is too competitive to allow for fake prejudices in price because the market was too competitive. o 1984: Congress passed Bail Reform Act allowing federal courts to detain arrestees under certain circumstances where they pose a risk to themselves or others. o Second Circuit struck it down as unconstitutional o Supreme court rejected the facial challenge to the Act. o 18 U.S.C. 3142(e) o When can a federal judge or magistrate order preventive detention? Ifthe judicial officer finds that no condition or combination of conditions will reasonable assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial. o Can detention be ordered for any offense? 3142(f) No, Judge may order detention where defendant is charged with: crime of violence; max. sentence life imprisonment or death; a drug offense with maximum penalty of at least 10 years; and any felony, if two previous convictions matching the above. o Factors to be Considered (same factors to determine if likely to show up) the nature and circumstances of the offense charged, including whether (it)is a crime of violence or involves.drugs Weight of the evidence Persons history including family ties, employment history, criminal justice status The nature and seriousness of the danger posed by the persons released. All of these factors, except for the last one are the exact things that judges were to look at to determine whether the defendant is a danger to the community. o U.S. v Salerno (pg. 113) Looked at Due Process and Eighth Amendment Due process: -16-

o Distinction between punitive and regulatory detention Punitive vs. Regulatory test: Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it and whether it appears excessive in relation to the alternative purpose assigned. o The court decided it was a regulatory detention Does not require full-on due process, regulatory only requires that it be rationally related to legitimate government objective. Utilitarian vs. Retributive purpose for punishment: o Here the purpose for holding Salerno is to prevent danger to the community o The court says, There is no doubt that preventing danger to the community is a legitimate regulatory goal. The governments regulatory interest in community safety can, in appropriate circumstances, outweigh an individuals liberty interest. Preventative detention is rationally related to the legitimate goal of protecting society. o Is preventative detention excessive? Rehnquist says no. Eighth Amendment says that bail cannot be excessive. o Court says that the meaning of the bail clause is not that there is always a right to bail, just that when bail is appropriate is cannot be excessive. Good for D: Right to counsel (appointed) Right to testify Right to present witnesses Right to cross-examine governments witnesses Burden of proof is on the government to show reasons for detention by clear and convincing evidence Bad for D: Rules of evidence do not apply (hearsay and proffer O.K.) Evidence obtained in violation of the Constitution may be considered Rebuttable presumption of dangerousness for crimes involving guns or drugs. Analogies of the court: (p. 800) o Detention before any preliminary hearing Judge hasnt had a chance to see if D shows up, so it is clearly necessary to determine whether the D is going to return for trial. The preliminary hearing must be within 24-48 hours, so it is a more limited detention. -17-

o Detention of those who threaten witnesses or flight Lack the same level of competence as adults: more of a regulatory responsibility for the state. Often no criminal matter is involved. o Detention of juveniles or mentally ill o Good legal argument (not from case): if preventive detention really fits with the traditional rule, then we dont need to have it because its going beyond normal detention. o Government has the right to make sure that there is a trial, so detention may be necessary as a means to achieve that end. Analogies of the dissent: (p. 807) o Detention of person never charged. Response, more excessive in relation to the regulatory purpose. o Detention of person acquitted of bad crime o Detention of convicted felons after completion of their sentence Problem with this argument: SCOTUS later decided that you can do this. (n. 7 pg. 124) Court allowed state to detain sexual predators after they have served their sentence in order to protect the community.

C.

Charging: 1.Police and Prosecutorial Screening o Anti-declination policy points: Having too defined standards may be ineffective because it will make it easier for criminals to evade the law. It doesnt allow prosecutors to choose cases based on the weight of evidence. However, you could create a policy that balances factors like evidence. o Declination policy points: Resource allocation Justice Proof No deterrent affect if no prosecution 2.Encouraging and Mandating Charges o Prosecutorial screening and must-charge policiesmainly for domestic violence. o In the reading there are examples of different state statutes encouraging prosecutors to prosecute these offenses. o Not mandatory, but suggested. -18-

o Legislative method of coercing prosecutors that has had a bigger effect than must-charge policies are mandatory sentencing rules. o Federal law has many mandatory sentencing rules. These rules mandate a specific sentence for certain offenses. o Mandatory way of limiting prosecutorial discretion Problem: its very difficult to say that you should charge in every case. Problem: prosecutor can manipulate a way around the system by charging a lesser offense, etc 3.Selection of Charges o Selection of Charges: Up to prosecutor when to bring charges and which charges to bring. Often the alleged conduct could be punished under multiple statutes. How should the prosecutor decide which charges to bring? o Federal rule: to charge the most serious offense consistent with the defendants conduct that is likely to result in a sustainable conviction. o Minnesota: Does not require charging in every case, each attorney shall adopt written guidelines governing the attorneys charging policies and practices. o People v. Wilkinson [2004] (pg. 175): Woman apparently drove drunk, but she alleges that she was under the influence of the date rape drug. She offered polygraph evidence to support her claim. California excludes polygraph evidence and she was challenging the constitutionality of that policy. She lost After being stopped by police, she committed a battery against an officer, creating a welt on his arm. She argues violation of equal protection: Penal Code section 243.1, which required that a defendant who battered an officer (whether it resulted in injury or not) be charged with a felony. There was an additional statute section 243 that made battery punishable as a wobbler offense. Wobbler (judge gets to decide whether its a misdemeanor or felony). If we were in federal court, would we charge under the wobbler statute or the other? The other because the wobbler includes additional requirements. By ignoring the injury and charging the defendant under the other statute, the prosecutor is spared the burden of proving -19-

injury and the trial court is precluded from treating the offense as a misdemeanor. What if we were in Minnesota? Which statute would they use? Lawyers are allowed more discretion, so they could choose either one. Has to pass rational basis test. The court decides there is a rational basis for the distinction b/c The court decides that there could be a battery that happened not to cause injury and yet it deserves higher punishment than a lesser battery so both statutes are needed. The legislature had a purpose in creating two distinct sections because when 243.1 was the only existing statute, these offenses were not being prosecuted often enough. In this case, the prosecutor offered to dismiss the felony charge if defendant would plead guilty to a misdemeanor battery, which would be further reduced to an infraction if she successfully completed probation. Defense refused. Then the prosecutor offered to dismiss the battery charge if defendant would plead guilty to the misdemeanor of DUI. Defense refused. Many observers claim that prosecutors routinely overcharge cases in anticipation of plea bargaining negotiations. o Should this practice be allowed under ABA rules? ABA standards advise prosecutors against bringing charges greater than necessary to reflect the gravity of the offense or charges where there is insufficient evidence to support a conviction. o When is it appropriate for a prosecutor to use a greater charge to induce a plea to a lower charge? It is clearly WRONG to charge a felony if you dont have sufficient evidence to prove it, just to pressure the defendant into a plea agreement to a lesser charge. The more questionable situation is: where there is clearly sufficient evidence to convict for the felony, but the prosecutor would be satisfied with something less. o In that circumstance, should you charge the felony? 4.Grand Jury Screening o Grand jury is a very low hurdle to get over. -20-

Main argument in favor of ham sandwich view of grand juries is the high percentage of cases (high 90s) that the grand jury indicts when asked. o The fact that there is a high indictment rate does not necessarily mean that the jury is loose with indictments; it may mean that prosecutors only bring cases with sufficient evidence, etc. o Maybe the strongest evidence that prosecution is not doing its job is the disparate amount of indictments from grand juries vs. preliminary hearings. This is in contrast to preliminary hearings, where there is a much lower percentage of indictment. Whether its an indictment or information jurisdiction the more important issue is what the law is in regard to three issues: Does the D have a right to testify? Can hearsay be admitted? Whether the grand jury minutes will be reviewed for sufficiency of the evidence for probable cause? Majority and federal approach is not pro-defendant. No right to testify, no judicial review of evidence and hearsay is admissible. Preliminary hearings have a right to testify and judicial review, however hearsay is also allowed. Success of indictments goes down where the defendant has a right to testify, hearsay is not allowed and there is judicial review for sufficiency of evidence.

o Overview: Most common kind of case, adjudication begins after a suspect has been arrested for commission of an offense. The person is taken to a police station or jail where the person is booked. Following the arrest, a complaint is prepared and filed with the court, outlining the essential facts charged. The complaint is meant to give the court probable cause. The standard is equivalent to that required for a court to issue an arrest warrantprobable cause to support arrest. 24-48 hours later there is an initial arraignment, initial appearance, or first appearance.depending on the jurisdiction. At this point counsel can be provided for the defendant if necessary. An initial determination is made as to whether the D should be released, either on recognizance or bail, or kept in jail. Date is set for trial between 1 and 3 weeks later. What happens next depends on the jurisdiction:

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Information jurisdiction: No indictment or grand jury is required if the prosecutor provides an information (quite similar to the complaint). o 31 states o Prosecution calls witness to establish probable cause (mini trial) o Preliminary hearing: right to counsel, present witnesses, cross examine, Hearsay and illegally obtained evidence is admissible Indictment jurisdiction: All or some felony cases must be prosecuted with a grand jury indictment unless the D waives the G.J. indictment. o About 19 states and Federal government o 5th Amendment requires this of felonies. This is NOT incorporated to the states, so it is up to them whether they want to require indictment or not.

o Wilcox (Mass. 2002) Grand jury heard the evidence (over a few days where some jurors were absent) and 12 voted to indict D argued that all 12 must have heard all of the evidence, since some was exculpatory. The court disagreed. HELD: The GJ might have missed some non-incriminating evidence, but would have also missed some incriminating evidence Remember, the issue for the GJ is whether there is enough evidence to warrant a trial RULE: Under the Federal Constitution, the prosecutor is not obligated to turn over exculpatory evidence in the GJ hearing. How is this justifiable? No liberty rights are yet at stakeonly determining whether there is enough evidence to go to trial. If everybody has to be there, it would have to happen in one day and one police officer would have to give all the statements Efficiency is more important in the GJ stage than at the trial, when you look at the standard Why would the defense counsel seek the attendance records? Most GJs do not even allow for defense attorneys to be present What is the justification for this? Efficiency? Michaels says its not the only thing going onsecrecy too GJs two roles Swordinvestigating crime

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Shieldprotect defendants from baseless prosecution Given all the advantages for the prosecution Secret Only state witnesses No defense counsel So why would any prosecutor instead proceed with an information? Michaels did not seem to answergiving reasons for GJ In political casespolice shootingsmight want to proceed with a GJ Chance to impress the defendant with the strength of the prosecutions caseto perhaps try to force a plea Efficiency/volume issuealthough some big cities have GJs Traditionpreliminary hearings instead of GJs Cheaper to do a preliminary hearing Preserving testimonyat a prelim hearing, the witnesses for the state will be subject to cross, if they are later unavailable, their testimony will be admissible in most jurisdictions GJs are sworn in, but their testimony cannot be used later Chance to get another ID while fresh Chance to sum upnot allowed in GJs D. Jeopardy and Joinder: 1.Multiple Sovereigns o Federal and state governments have overlapping responsibilities for enforcing criminal laws. Many economic and other activities cross state lines, and the criminal codes of most states and the federal government now reach much of the same conduct. o U.S. v. Lanza: Lanza was prosecuted under state and federal laws for the same conduct and argued that the state and federal laws were punishing the same offense and therefore violated double jeopardy. o HELD: There are two sovereignties that can each, without interference by the other, enact laws to punish offenses against peace and dignity by exercising their own sovereignty, not that of one another. o Dual Sovereignties Rule: As a Federal Constitutional matter, double jeopardy does not apply between a state and federal prosecution. It also doesnt apply to different states. -23-

Majority rule, but some states have certain exceptions in narrow categories like certain narcotics offenses, etc. Rationale: each sovereign has its right to see that justice is served in its jurisdiction. The other sovereignties doing so does not vindicate or take that right away. Double jeopardy does apply within different jurisdictions within the same state. The rationale is that the right to prosecute originates from the same sovereign. o A few states have rejected the dual sovereignty rule. A few states have statutory bars on dual sovereignty/double jeopardy. Many of these statutes are broader in their understanding of double jeopardy than the federal Constitution. Many of the state statutory bars, bar re-prosecution for the same acts or transactions o Most states have ISD (interstate detainer agreements): states will hold or transfer a defendant from their state to another state for criminal prosecution or vindication of that states policies and criminal law. o Petite policy: Federal prosecution for the same transaction will be authorized only if the prior prosecution left substantial federal interests demonstrably unvindicated. o Justice department internal rule that cannot be enforced by courts. 2.Double Jeopardy o Constitutional bar of double jeopardy only prohibits prosecution for the same offense. o Federal constitutional double jeopardy bar does not prohibit two prosecutions for the same offense in a single case if the legislature intends it, what the double jeopardy bar prohibits successive prosecutions for the same offense. o Ex: Crime A and Crime B are the same offense, the government could charge a defendant with Crimes A and B and charge him/her with both crimes if the court determines that the legislature wanted to permit that. o Reasons against multiple prosecutions for the same offense: Judicial efficiency Best case argument: Government must have sufficient evidence and are not allow to repeatedly try cases until they get the desired result. Finality of decisions Undermining sanctity of verdict Innocence: having multiple trials creates too great a risk that innocent people will be convicted. Guilt: we dont want to prosecute for the same offense again after weve determined guilt and punishment. You should only be punished once for a single wrong. o Problem 4.1: Rodney Kings Attackers

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California State Court acquitted all the officers of the excessive force and assault charges. o What constitutes the same offense? Robert Taylor v. Commonwealth [1999] (pg. 237) Facts: Taylor took advantage of a man that stopped to help Taylor with his car. He struck the man in the head with a gun and stole his car. Taylor was convicted of assault in second degree, robbery in first degree, and possession of handgun by a minor. Analysis: Robbery contains an element that assault does not (BUT to pass the test, the separate element must run both ways) and robbery contained an element that assault did not. Robbery required proof of theft (NOT required by assault) Assault required proof of physical injury (NOT required by robbery) Taylors double jeopardy claim should have failed right out of the box. Why? They were in the same prosecution Blockburger test: Does each offense contain an element that the other offense does not? If each offense does contain an element that the other offense does NOT they are NOT the same offense for double jeopardy purposes. Only bars successive prosecutions, it does not bar multiple prosecutions within the same proceeding. Courts look to the legislatures intent. If two offenses come out as the same offense under test, federal court will determine whether the legislature wanted to punish the offender for both. Probably Congress doesnt want offenders to get two sentences for one crime, but it is NOT constitutionally mandated, so in a state case, its up to the state to decide whether the legislature intended to punish the offenses with separate convictions and punishments. Federal constitution does not bar multiple prosecutions within the same proceeding. EXCEPTIONS: If the definition of crime X involves committing a crime, and Crime Y is the crime to be used for Crime X, then X and Y are the same offense for DJ purposes.
Stamp: Ds robbed a store, causing the death of a store attendant by heart attack. Suppose the offenders are tried

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and convicted for robbery and then the state brings a prosecution for felony murder. Is this allowable under double jeopardy? No, here, Crime A (the robbery) is the crime being used to prove Crime B (felony murder) so they ARE the same offense for double jeopardy purposes.

DICTA exception: A person CAN be prosecuted for Crime B after being convicted for Crime A IF the prosecution could not have brought Crime B with due diligence (usually because the second crime hasnt yet come to fruition) Grady v. Corbin expands double jeopardy protection and U.S. v. Dixon then overruled the expansion and reinstated Blockburger as the exclusive test for Grady: established same conduct test. Rule: You cannot be prosecuted for different offenses where they arise from the same conduct for which the offender was convicted. Is there a way that there could have been a robbery (when threatening with gun to steal truck) prosecution of Taylor that would NOT preclude a subsequent prosecution for the assault (when he hit him with the gun)? Yes, to prove the robbery it can be tried without adding the fact that Taylor hit the man with the gun. If the government included mention of that conduct (hitting with gun) as a part of the trial, then there would be a bar to a subsequent conviction for assault. Dissent: the dissent is importing the same conduct test into the Blockburger test. NY test (pg. 245): same transaction test (broadest of the three tests) Provides broader protections from double jeopardy than constitutionally required. Under this test, any subsequent prosecution of Taylor would fail. Also this test bars prosecution in a state where the offense was prosecuted in another state. ***KNOW THE THREE TESTS FOR THE EXAM** 3.Collateral Estoppel and Compulsory Joinder o Ex Parte Philip Taylor [2002] (pg. 251) Facts: Driving while intoxicated, as a result he caused the death of his friends, Michelle and Kyla. State charged him with DWI, intoxication manslaughter and reckless manslaughter. He was acquitted of all counts of manslaughter. -26-

Later, the state learned that appellant, sometime after the trial, allegedly told Kylas mother that he and the girls were smoking marijuana on the afternoon of the accident. The State now brings a charge for manslaughter for Kyla. o Is this permissible under double jeopardy? For double jeopardy purposes, the unlawful killing of each victim is a separate offense. o So what does he base his double jeopardy claim on? Collateral estoppel TEST: to determine whether collateral estoppel bars a subsequent prosecution courts employ a two step analysis: (1) exactly what facts were necessarily decided in the first proceeding; and (2) whether those necessarily decided facts constitute essential elements of the offense in the second trial. 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 (pg. 253). Sub-rule: should look at the whole record when deciding collateral estoppel. Key point here: the prosecution knew that appellants blood tested positive for marijuana, but there wasnt enough evidence to show he was high at the time of the accident so they did not oppose appellants motion in limine barring any mention of marijuana during the trial. Dissent: Says first jury determined he wasnt intoxicated by alcohol, but they didnt hear this evidence concerning marijuana so they didnt decide the intoxication by drugs issue. Argues that the jury instruction itself, the jury was given the words intoxicated by alcohol so we cant be sure that the jury thought he wasnt guilty of manslaughter by drug intoxication.

4.Joinder and Severance o Joinder (two types): 1. Mandatory joinder: Operates to restrict what the state can do, mainly by restricting the prosecution. MAJORITY RULE (and federal rule): there is NO mandatory joinder. 2. Permissive joinder Generally operate to the benefit of the state and the detriment of the defendant. -27-

Whenever a defendant is charged with more than one crime, the prosecution has the choice of joining the crime in a single indictment and single prosecution or of trying the offenses separately. Defendant has opportunity to challenge the prosecutions choice. Misjoinder: when prosecution violates the joinder rule Severance: when the joinder did not violate the joinder rules, but was inappropriate anyway because of prejudice. Questions for Monday: Why would the prosecution like joinder? Why would the defense dislike joinder? What about when these two are switched? o Differences between joinder and double jeopardy: Decisions about joinder will be much more in the trial courts discretion than decisions about double jeopardy. o Problem 4-3 Compulsory Joinder (pg. 268) Facts: Hensley gets into bar fight and was charged with misdemeanors. A few days after the fight, a victim comes forward regarding injuries she suffered during the fight (eye was shattered by a cue ball thrown by Hensley). Two years later, an incident report of her injuries was given to the prosecution. The prosecution charged Hensley with malicious assault. Hensley moved to have it dismissed because the assault was not joined with the prior charge. Fails double jeopardy because there are separate elements to prove each offense. ON THE EXAM: make sure to note the differences in offenses and specify the different elements on the exam. What about collateral estoppel? (NOTE: In criminal procedure, this is a type of double jeopardy) Not essential elements of the second offense Destroying property and being drunk are probably not elements of the assault Rule 8(a) of West Virginia Rules of Criminal Procedure (pg. 269). Does this rule operate like any of the three double jeopardy tests (same elements, same conduct, and same transaction)? Yes, under the same transaction test. Getting drunk and assaulting someone is not the same conduct, but it arises from the same transaction. So here, they must be tried together if they arise from the same transaction. -28-

BUT, there is an exception where, if the prosecuting attorney doesnt know about the offense and has no reason to know about all of the offenses then they dont need to join the transactions. So, is Hensley the clear winner here? No, o Long v. United States (1996) o Long wants severance for armed robbery in one location and murder in another o What are the advantages and disadvantages of joinder & severance? Why would the prosecutor want joinder? Easier use of evidence Efficiency argumenteasier to have witnesses testify once Jury may infer evidence of crime one for guilt of crime two More likely to look at Long as a criminal But you cannot make that argumentagainst the rules of evidence But still helpful to the prosecution Jury may accumulate evidence of different crimes to infer guilt Two borderline convictions may add up In some cases, joinder would avoid DJ issues o But that is not at risk here o Why would the prosecutor want severance? Test casetrial runmake adjustments To limit the effect of a terrible witness To wear down the Ds resources More chances of conviction If there is a conviction on the first charge, the D may plea for the second o Why the D would want severance? Can adjust their strategy in the second case But if D loses either case, they lose, tie goes to the prosecutor Facilitate inconsistent defenses Why would the D prefer joinder? Cheaperbut D does not care if people have to testify multiple times Increase the likelihood of concurrent sentencing o Black letter Almost all jurisdictions allow joinder for all charges to arise out of a single transaction or from multiple transactions involving a common scheme or plan, or that are similarly connected together -29-

Majority allow for joinder of charges that are of the same or similar character Significant minority do not include the same or similar character What about Ohio? o OR Crim Pro 8(a) follows the federal approachincluding same or similar character What about compulsory joinder? o No mandatory joinder in Ohio o 7 states including Vermont allow automatic severance at the Ds request, if the joinder is based on the same character ground Is the fact that cases were improperly joined misjoinderis that the only way to get severance? o No o Michaels compares joinder to relevance and misjoinder to irrelevance Cannot be joined unless proper Even something is relevant, it may not be admitted if it is prejudicial Like FRE 403? Whatever the trial judge decides is likely to stand updifficult to overrule o Joinder & Severance of Ds Similar to j & s of multiple charges Rules permit joinder in multiple cases but the Ds can obtain severance if the joinder is prejudicial Even if joinder is allowed, it may still be prejudicial FRCrimPro 8(b) Not quite the same as joinder for charges because there is no same or similar character provision o Michaelss Case o 16 Counts of Murderactually 4 deaths o Old Burglar 50s, former hotel burglar, sophisticated o Young Tough Lived together, sexual relationship Uneducated, tough, 20s, supported by the older guy Looked up people selling stuff in want ads and killed them Or posed as an antiques dealer and killed more people o Stole then left town

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o Made their way to Reno, fought with each other, got caught, and blamed each other for murders Intentional murder & felony murder for each victim (16 total counts) o Defense Counsel Boyd Wants to severe the two Ds Defenses are mutually exclusiveblaming each other And one blaming the other would possible leave them liable for felony murder Going second could be an advantageknowing the witnesses, maybe one will be convicted or acquitted already o Prosecutor Burns Wants to join Tom points to FRCrimPro 8(b) o May charge Ds if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions o If we try them separately, they might both be acquitted, but together one will probably be found guilty o Why do Fed Courts encourage joinder? o Efficiencylong trial and lots of witnesses o Bruten problem (from evidence) o Without a Bruten problem, severance of Ds is very hard to obtain o About half states used to permit severance on demand, now almost no states do o The Supreme Court stated in 1993 that Ds are not entitled to severance just because they might have a better chance of o Only appropriate if it would confuse jurybut not necessary if there is proper jury instructions o Def. A says Def. B and I did this together. Confession to police. Admissible against him at trial. But not admissible against B because it is hearsayno chance to cross A under oath. o In Bruten, the S. Ct. says you cannot have a jury instruction that says the statement cannot be admitted or else it is an auto mistrial because there is no way jury instructions would help the jury keep the hearsay straight Also could use dual juries But a ton of the evidence is actually the sameso when some evidence against one D is being presented, the other jurors would be removed o 404 Prior Bad Acts -31-

RULE: The key question in severance of offenses is whether offense A will be admissible in offense B and vice versaeven if they were severed. Therefore the efficiency argument wins the day

E.

o Multiplicity: Same charge in more than one count o Can prejudice the defendant because it allows consecutive sentences for one robbery (involving a knife and gun). o Might look worse to the jury that there are two crimes. o If the D objects in a timely manner, the court will usually consolidate it into one count. If the objection is after the conviction, the remedy is usually limited to resentencing. If, however the D raised the issue and the court ignores it, then the appellate court can go back and consolidate into one count. o Duplicity: Having two charges in a single count o Charged with robbing A & B in a single count o Unanimous verdict requirement: evidence is weaker. Undermines the requirement of unanimous view, because the jury does not have to believe that you robbed A & B so long as all of them believe you robbed someone, you can be charged. o If the D objects in a timely manner, the remedy is to force the prosecution to choose one charge and eliminate the other or the prosecution can reindict where prosecution goes back and fixes it. If the objection is after the conviction, it is waived. Usually in conspiracy cases (conspiracy law is very vague) Discovery: Prior to 1970, only a small minority of states had significant provisions allowing the prosecution to discover information from the defense. Much of this centered around the concern that the defense would be giving information that would facilitate their conviction and would therefore violate the 5th Amendment In 1970 (Williams v. Fl): Privilege against self-incrimination Kicked off the two-way street movement Now all but a few states have these provisions. Some states have provisions where there is slightly more of a requirement on the prosecution than the defense to provide discovery. (So its a two-way street with a few more lanes in one direction than the other.) Three main reasons why it doesnt violate the 5th Amendment right against selfincrimination 5th Amendment only protects against compelled testimonial selfincrimination

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Acceleration doctrine: the issue in Williams was an alibi defense (In Florida, the D had to give notice both of the nature of the alibi and of the names of witnesses that the D would call in support of the alibi), the court responded by acceleration doctrine. The court said forcing the D to tell ahead of trial what hes planning to tell at trial, is not the kind of compulsion that the 5th Amendment protects against. Even though the statements were testimonial, there was no compulsion element; it was simply an acceleration of when the D revealed the defense he planned to reveal at trial. The waiver rationale: The defenses right to discovery from the prosecution only becomes effective when the defense agrees to provide the prosecution discovery of the defenses case. About half the states and the federal discovery rules have this contingency rule where the defense doesnt have to give discovery for the most part, but where they request discovery then they must first give up theirs. What is discoverable? Defenses: Almost all jurisdictions require the defendant to provide notice (and some explanation of the nature of the defense) if the defense is alibi or insanity. If its an insanity defense, most jurisdictions require the defendant to submit to a psychological evaluation. A minority of jurisdictions require disclosure of other defenses as well (self-defense, etc) Other things (exhibits, expert reports, police reports, witness lists, etc) Prosecution is only entitled to get these other things from the defense if the defense is entitled to get them from the prosecution The S. Ct. has indicated that discovery cant be unbalanced against the defense (so the defense cant be required to give more than the prosecution is required to give) The ABA doesnt have a contingency like this. The argument against it is that the reality is that the defense need this information so badly that this is a choice in name only. Ohio follows this approach with regard to witness lists and scientific reports 1. Constitutional Discovery Brady Material (See Discovery from the Prosecution) Guilty Pleas (FN 4 pg. 297): Can take guilty plea without turning over Brady material.

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o The rule extends to impeachment material but not to exculpatory material 2. Statutory Discovery The discovery debate in the 20th century lead to a review of discovery in all cases. o Issue went from whether there should be discovery to how much discovery there should be o Steadily broadening the scope of discovery Federal rule is at the restrictive end of the spectrum (of how much discovery the defense gets in criminal cases) About 15 states have rules similar to the federal rule. ABA proposed significantly broader rules for discovery 3. Discovery from the Prosecution Brady material: o Materiality rule: prosecutor is only required to disclose if the evidence creates a reasonable probability that the outcome would have been different if the evidence was available. Cant be material if it isnt exculpatory Brady is an affirmative duty on the prosecutionthe prosecution must disclose Brady material even if the defense doesnt request it. Prosecution is responsible for any evidence in the possession of the state. Even if there is no negligence on either side in preventing the defendant from obtaining some material in possession of the state, the prosecution is still responsible. o Strict liability offense Hypo: D has stabbed A to death. D is charged with murder and his defense is self-defense or in the alternative that the killing was in the heat of passion. D claims A attacked him first and only then did he retaliate. State relies on the fact that A had no weapon on him, along with evidence from a neighbor that heard D say he was going to get A, and evidence from the autopsy that indicated the stabbing was in a downward motion (as if the attacker was standing over A). Introducing new character: Dr. K (testifying as to the stab wound evidence) What if Dr. K had a previous conviction for perjury? Does this count as Brady material? o Yes, impeachment material counts as Brady material o It counts as exculpatory even if it doesnt show that D isnt guilty. It doesnt directly exculpate the defendant. This distinction does not make a difference under BRADY. Clearly material but does it count as

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exculpatory? Fairness and Accuracy concerns are still present and very important in this type of scenario. o Same standard as materiality: reasonable probability of different outcome Adams had two prior convictions for assault, the defense wanted to use them, can they? o Would the materiality inquiry be affected by whether or not the defense specifically requested prior criminal convictions? As record can be exculpatory for D because it supports his claim that he was acting in self-defense Same standard either way: you must disclose if there is a reasonable probability that it would affect the outcome. A strong minority of states have granted defendants a more favorable materiality standard in cases where the defense makes specific requests for the information. o Asking by the defense may help defendant because if the prosecution does not respond to a specific request the evidence is more likely to be material. o o In criminal cases (in comparison to civil cases) there is almost no discovery. o This IS discovery in criminal cases and can be a very important part of the case o Hypo: State relies on the fact that A had no weapon on him, along with evidence from a neighbor that heard D say he was going to get A, and evidence from the autopsy that indicated the stabbing was in a downward motion (as if the attacker was standing over A). After the conviction, a statement was revealed that showed that a witness saw A attack D first. What should happen? Conviction set aside and new trial ordered (S. Ct. established this in Brady v. Maryland) based on prosecutions failure to provide exculpatory evidence (also often call Brady material). What if Ds attorney didnt ask for all the exculpatory evidence? Irrelevant because the prosecution has an affirmative duty to provide ALL exculpatory evidence. Suppose the prosecution wasnt aware of the report? Irrelevant, no difference between willful and intentional withholding of evidence. What if the prosecutor asked the police for all files and then went through all of the police files and still didnt find the report? Would still be a Brady violation In effect this is a strict liability rule. Is this appropriate? Yes, we want to create the greatest incentives possible for the state to use maximum care in giving exculpatory evidence. -35-

Difference between negligence and strict liability standard are unlikely to alter police behavior Strict liability standard is easier to litigate (negligence is a difficult standard to apply). We want to be sure that the D has a fair trial, so we are not concerned with fault (Prosecutors fault because he didnt give evidence, etc.). Suppose the state responds that the police turned over the witnesses statements after discovery was completed so the prosecution wasnt required to turn it over? All discovery obligations are continuing duties until the trial is over. What if the evidence comes up at the start of the trial? Defense would be entitled to a continuance, constitution requires that defense is given sufficient time to make use of the exculpatory evidence. Second option is that there is a mistrial if there isnt sufficient time. What if Mr. Adams has two prior convictions for assault? Evidence not turned over is that the deceased had a criminal record for assault. Exculpatory Standard: You can always slime the victim, but it may not be persuasive. Rules of Evidence and propensity go to the defendant not the victim. Exculpatory means could help the defendant. This evidence is exculpatory, but is it material? (These are SEPARATE questions) All Brady violations share a uniform materiality standard: the D must show a reasonable probability that the result of the proceedings would have been different if the prosecution had disclosed the exculpatory evidence. Similar to standard for ineffective counsel (Strickland v. Washington quoting from Brady line (Agers)) This test is easier on the prosecution than beyond reasonable doubt, however it is harder on the prosecution than a standard of more likely than not. Its on the line whether the evidence is material or not. Did to ask what the other evidence is in this case? The totality of the circumstances is very important in determining whether the evidence is material. What makes it quite plausibly material is that the evidence against D is pretty weak. Also, there is no other evidence of As habit of aggressive behavior.

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F.

4. Discovery from the Defense o Pros and cons of allowing the defense to discover the prosecutions evidence: o Pros: Defense can prepare a better defense if they know what the prosecutor is arguing (fairness argumentlevels the playing field) Lends to accuracy in trials because the defense will be prepared for the prosecution (also it narrows the issues so it may aid settlements (or pleas) to avoid trial or focus trial only on issues that are in dispute. o Cons: Discovery is not reciprocal; unlike the civil side rights are not reciprocal (the counter-argument is that the prosecution also has a lot more resources and other advantages that the defendant does not.) Disclosing this information may endanger witnesses (were assuming that because they are criminals so they will do illegal things, but this contradicts the presumption that the criminal defendant is innocent until proven guilty) It is easy for the defense to win in a criminal case (burden of proof for prosecution is proof beyond a reasonable doubt) so they dont need additional help by requiring the prosecution to disclose everything. The more you know about a prosecutions case, the easier it is to frame a case. You may not be intimidating witnesses, but the defendant can be prepared to lie or fabricate evidence. So it is more likely than civil discovery to lead to perjury. o Why is this more so in criminal than civil cases? Higher stakes in criminal cases, etc o Some say that in a criminal case, criminal defendants already have many rights that the prosecution doesnt have. In a civil case, there is a more even playing field. Since the playing field in criminal cases is already tilted toward the defendant if the discovery rules are not reciprocal then the balance is tilted too much in favor of the defendant. Response: prosecution also has advantages that the defendant does not. Speedy Trial: Video (Superman episode: when Michaels fell in love with criminal procedure) A murderer walled himself in a mysterious cube and he would stay inside the cube until the statute of limitations had run. Superman set the clock ahead, so the criminal came out a few minutes too early and his plan was foiled. Questions: -37-

If Superman had not tricked the criminal, would the man have had a defense through the statute of limitations? No He could still have been indicted while in the cube Most states do not have statutes of limitations apply to murder If you are not reasonably available, most states will not apply the statute of limitations 1.Pre-accusation Delay o Statutes of limitations cover pre-accusation delay. The statute runs from the time the crime is completed until the start of proceedings. o If the defendant is unavailable then the statute will not toll, the time will not count. o When does the statute of limitations start? o It will not begin until the course of conduct ends or until the crime is complete. A crime is complete when all the elements necessary to prove the crime have occurred. o When does it end? o At the start of proceedings o An indictment is sufficient to start the proceedings. o In some jurisdictions, an arrest warrant or police report would be sufficient o Many states have added an additional exception for child sexual offenses. o There is no consensus among the states about the proper technique for doing so Some states will toll the statute until the victim is an adult Some will extend the statute for many years (10-20 or more) Some states require that the evidence be from recovered memory, while other states bar claims that exceed the statute of limitations if they are based on recovered memory. o o What if a statute of limitation is 10 years and in year 12 the legislature extends the statute to 20 years, would it be constitutional to revive expired claims in that way? o Ex post facto law and is unconstitutional: cannot revive a dead claim. o The court did not determine whether you might extend the statute during the current SOL. o Why do states have statutes of limitations? o Accuracy: witnesses will forget things over time and evidence will no longer be fresh so the trial may be less reliable o Repose: the charged defendant deserves a chance to put the case or crime behind them. Sense that it is over, continue with Ds life. o Deterrent purpose of criminal law: deterrence is more effective if the punishment is swift. -38-

o Retributive purpose: the demand for retribution may lessen over time. The value of the punishment can diminish over time. Retributive impulse may linger longer for more egregious offenses o Prosecutorial abuse (Michaels favored reason): cases that have run up to the SOL have generally been passed over by earlier prosecution. This raises the probability of improper motive (on the part of the government to now prosecute, or on the part of witnesses to now expose to liability after waiting (blackmail situations, etc)). o What if the man in the cube has no statutory claim for pre-charging delay, is there a constitutional one? o 6th Amendment (due process) right to speedy trial? No, the speedy trial right only attaches after you are accused, not relevant to pre-trial delay o Pg. 328 note 1: Due process S. Ct. has said that pre-accusation delay can violate D.P. if: (1) the Defendant is actually prejudiced by the delay and (2) the delay is unreasonablethe unreasonableness is a combination of the length of the delay and reason for the delay. S. Ct. said delay is unreasonable if it is solely to gain a tactical advantage. o If part of the reason for the delay was due to continued investigation, it is not unconstitutional. Police need not actually find additional evidence, so long as theyre looking. This is an opinion by Marshall: surprising, but his reasoning was that if there was not S. Ct. said claims should only be found unconstitutional If it violates fundamental conceptions of justice o S. Ct. has never seen a case where preaccusation delay was unconstitutional Constitutional Aspect of Pre-Accusation Delay: o Two Components: o Defendant must ACTUALLY be prejudiced o If prejudiced, then was the pre-accusation delay unreasonable Reasonableness is a product of the length of the delay and the reason for the delay. o Should the burden be on the state of showing whether the burden was reasonable or should it be on the Defendant to show it is causing prejudice? o Prosecution: The burden should be on the prosecution because they are in the best position to know the cause of the delay. -39-

o Defendant: If the burden is on the prosecution, then they will be pressured to rush the prosecution. o This question goes back to the prosecutorial discretion discussion. It is up to the prosecution as to who should be charged, when they should be charged, with what they should be charged, etc. These are not so much should be arguments as they are arguments. Some of the reasons for prosecutorial discretion would apply here, as well. 2.Speedy Trial after Accusation o Constitutional Aspect of Post-Accusation Delay: Sixth Amendment guarantees the accused the right to a speedy and public trial. The statutory aspect comes up in more cases than the constitutional approach. Why does not the constitutional right to a speedy trial count toward the preaccusation stage? The Sixth Amendment guarantees the right to the accused, so the right does not attach until either the arrest or commencement of normal charges begins because until that point there is no accused. Speedy trial right may start once you are arrested because it is designed to protect liberty, but right to counsel does not attach upon arrest. Most states mandate the Barker balancing test: 1. The length of the delay In Barker the court discussed certain periods of delay as being presumptively prejudicial, is this a conclusive presumption? No, generally presumed prejudice means that the delay is enough to require the court to go through the rest of the Barker test. If there is no presumption of prejudice, then the court will not exam the remaining factors. The book says 1 year is enough, the Supreme Court has declined to set a clear length for presumptive prejudice. Lower courts have found it sufficient where it approaches a year. According to Michaels, 8 month is long enough delay to do Barker inquiry. 2. The reason for the delay (3 categories) Those that weigh heavily against the state Purposely delaying to assist prosecution, hurt defense -40-

Those that weigh against the state, but to a lesser degree (more control, waiting on DNA results) Court congestion, state negligence, Those that weigh against the defendant, valid reasons (least control) Trying to locate witness 3. Whether the defendant has asserted his right to a speedy trial; and Failure to assert the right does not mean that you automatically lose because its a four part balancing test, but it is very hard to win if the right is not asserted. The frequency and force of objections is to be taken into account in the speedy trial context (A few good man and Demi Moore fervently rejecting after Tom Cruise). The reason for this is the special nature of speedy trial where the defendant is in a position to encourage delay or want to put off the case. If the defendant does not know he is charged or is not represented, then he/she gets a pass on this factor. 4. Whether the defendant was prejudiced by the delay Prejudice, length, and reason are three aspects of preaccusation delay and were part of the Barker test. The only thing that is in this test and not in the pre-accusation test is: whether the defendant asserted his right to a speedy trial. Anxiety and delay Loss of liberty Witnesses fading memories and preparing defense Why is prejudice a threshold issue for pre-trial, but only a factor in post-trial? Textualists: Sixth Amendment speedy trial right has textual basis so it might make sense that it is easier for the defendant to invoke that right. It doesnt say you have a right to a speedy trial unless you are prejudiced. Textual basis for the right maybe makes it stronger. When you are an accused, youre always prejudiced. Being arrested or subject to indictment is prejudice so we dont need to make it a threshold. State v. David Magnusen [1994] (pg. 331) Delay in trial exceeding six months. Prosecution was waiting for lab results of tested evidence. This information could have been exculpatory, so this sounds more like trying to locate a witness, what is the difference? The state lab is responsible for funding the crime lab so the state is to blame. It is not necessary that the blame be on -41-

the prosecutor, so long as it is an organ of the state that causes the delay. HYPO: A and D are indicted for conspiracy to obstruct justice for As attempts to bribe a juror in the D case. The P wants to charge A and D together, but learns that A has traveled to South America so the P did nothing. In reality, A came back from South America six months after the indictment. She lived under her real name and got law degree. She was tracked down 3 years later. When she was arrested this was the first A had heard of the charges against her. A and D move to get the indictment dismissed on speedy trial ground. Length of the delay: 3 years because speedy trial clock started at time of indictment so presumptively prejudicial Reason for the delay

o Barker Factors Length of delay Reason for the delay Whether the defendant has asserted his right to a speedy trial In A & D hypo from yesterday, failure to assert right cant count against A because she was out of the country and unaware of the suit. Why is how and when you make the demand important? The court has determined that this is a right that Ds may want to assert in some cases, but may also want to ignore when it benefits their case, so the burden is on the defendant to assert the right in a timely manner or forfeit the right. Whether the defendant was prejudiced by the jury (prejudiced by prison time, lost witnesses, memory fading, anxiety and concern) D was in jail anyway on other charges and A wasnt held in jail at all so can there be any prejudice Yes, there can be prejudice if the case was weakened during this time (memory loss of witnesses, etc) Between A and D, who is likely to have a stronger claim of prejudice on this ground? A because she did not know of the charge so she could not recruit witnesses, etc. D is probably more prejudiced by the anxiety and concern factors because A was blissfully unaware. No magic formula for balancing these factors **EXAM QUESTION: you could have a question requiring you to balance these factors regarding different defendants, -42-

etc.** As with pre-indictment delay, the gap has been filled somewhat by statutory provisions o Statutory speedy trial is where most of the litigation is. o Must be aware of the statutes in your jurisdiction when practicing Motivating force for federal speedy trial act is fear for defendants out on release while pending trial. The purpose was to increase the trial turn-around time so that criminals werent on the streets for an excessive amount of time. Variety in speedy trial statutes o Most important issues the jurisdictions are split on that categorize speedy trial statutes: 1. Some statutes require a certain amount of days 70 days for federal statute (on the short end for jurisdictions providing statutory time (long end up to a year)). o Federal and majority rule Many jurisdictions using this add extensions for good cause Alternative approach is to be less precise with the days, going with a standard like reasonable time 2. Tolling of speedy trial clock List specific reasons for tolling o Federal statute Determine when the clock has tolled by common law development within their jurisdiction NOTE: delays at the defendants request are not charged to the government o If neither side says on the record whose side is to be charged the time, then it is hard to go back and determine. 3. Remedy Dismissal with prejudice (cant bring charge again) o Majority rule o Problems: Courts will do everything they can to extend the time because the remedy is so disproportionate to the perceived harm. We dont want criminals on the street by default. Dismissal without prejudice (can bring case again but must reindict and start over)

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o Federal rule leaves it very much in the trial judges hands. o Problems: Doesnt provide any kind of incentive defendant is in same place he was in before (amount of prejudice is not lessened) Most prosecutors G. Guilty Pleas: 1.Subjects of Bargains 2.Limits on Plea Bargains 3.Validity of Pleas 4.Enforcement of Pleas H. Juries: 1.The Right to a Jury Trial o Juries lack expertise and maybe even intelligence. o Jury outcomes are unpredictable o Expense, they slow trials down Why not just dispose of jury trials altogether? Disposing of jury trial could lead to oppressive state power: judge, jury and executioner is the state with no public power Public input necessary, because it is the public who is being protected by these laws or punishment of criminals Increases legitimacy and public confidence in the courts The verdict may be more generally acceptable to the public if done by jury Community involvement lends legitimacy Community lends its own expertise in a way so the verdicts may be better or more fair Will the case be tried by judge or jury? Sixth Amendment: accused shall have right to speedy and public trial by an impartial jury Does this apply to the states? Yes incorporated through 14th Amendment (In Duncan v. Louisiana) This right only applies to serious offenses Federal rule: punishable by more than 6 months imprisonment -44-

Must they actually get the punishment? Punishable is what is controlling, gives the right to trial by jury Less than six months, trial court has the right to deny jury trial Presumed petty if less than 6 months, but additional penalties can make it more serious, however the 6 month presumption is pretty strong (according to Michaels) In a recent state case, designation as a sex offender made it serious, not petty so this is still a changing area of law. If EXACTLY six months it is still presumed petty Many states have stricter trial by jury rules than the constitution requires. Court moved to rule like approach instead of multi-factor test: Big factor was prison term Some states look to the actual crime involved (this is exemplified by the dissent in Bowers) Right to appointed counsel Goes not just to punishable, but to actual jail time receivedcannot get one day in jail if you do not have counsel appointed for you But for crimes punishable for a year (not six months as in jury trial) State v. Kent Bowers (pg. 455) Facts: Bowers was one of many protestors arrested outside of an abortion clinic All were convicted of class 2 misdemeanors punishable by fine and maximum of 30 days in jail Trial court refused trial by jury and then imposed suspended jail sentences Analysis: Court struck down suspended jail sentences because the trial judge had promised no jail time. Dissent: Says always gives trial by jury in petty theft cases because nobody wants to be a thief so in his mind he is applying a version of the older approach by looking at the offense to determine whether it is serious. Questions: Suppose the protestors protested for a week now facing 210 days of incarcerationdoes federal right to trial by jury apply now? o Nolook at note 3 pg. 460, its the nature of the offense Suppose denying them a jury trial is the reason for giving them a lesser offense? Knowing the constitutional rules is not sufficient in an area, as here, where the constitution provides so little guidance. -45-

o Therefore, you must examine the state and local statutes to find approaches to effectuate the constitutional rule. Whose right is it to have a trial by jury? o Common law did not allow (or did not easily allow) waiver of trial by jury o Supreme Court has said that there is no constitutional right to a bench trial You can waive your right to a trial by jury (thats what we call pleading guilty) Waving a jury entitles you only to a trial by judge. How are bench trials handled? o Most jurisdictions allow the defendant to waive a jury and have a bench trial, but they differ in their approaches: 1. Need approval of court and prosecutor 2. Need approval of court 3. Defendant has unilateral right to bench trial Clearly the minority approach, but still a sizeable group

2.Voir Dire and Dismissal for Cause o Selection of Jurors Historically, racial issues have dominated the discussion of trial by jury of ones peers. o Until the 1960s the main concern was that influential and important people be considered, not a representative of the community (ex: key man system, etc) o Only in 1968 was this requirement incorporated against the states. Today, an originalism perspective influences our expansion of trial by jury. Current Process of Jury Selection First step is to have a pool for jury selection o This group is the venire (to come) Under the Sixth Amendment right to jury trial, the venire must be drawn from a source that is fairly representative of the communityfair cross-section requirement The fair cross-section requirement provides greater protection than even the Equal Protection Clause o Challenges under EPC were based on racism o The party challenging venires under EPC must establish intentional discrimination Under Sixth Amendment (only in the past 40 years has this been applicable to the states in its application to venires) venires can be challenged -46-

by other groups and intentional discrimination need not be shown. This does not mean that the D has a right to a particular make-up of the jury Only a systematic exclusion violates the Constitution o Current test for challenging Venire: Group allegedly excluded is a distinctive group (Race, sex, not age, political viewpoint, etc) in the community D must show that the groups representation in the venire is unreasonable in comparison to the community from which it is drawn D must show the under-representation results from systematic exclusion of a group (not necessarily intentional or invidious discrimination). At that point, the burden of proof shifts to the government to show a significant state interest that justifies use of the method that systematically excludes a group Significant state interest that is primarily and manifestly obvious is less than strict scrutiny, but more than rationale basis Voir (to see) dire (to speak) o One you have a pool, the parties determine who actually gets to be on the jury Some judges do all the voir dire, some allow attorney to do most of the questioning; federal judges are split In state courts, it is more common for the attorneys to have free reign Andrew Hill v. State (pg. 470) Facts: White police officer was states only witness Officer was responding to a call on a particular city block looking for a man in certain clothes who was allegedly carrying a gun The officer found the defendant who fit the description, while he did not find a gun, he did find a domino box filled with cocaine The defendant requested a question during the voir dire examination of the venire to determine potential racial prejudice (pg. 470-mid-page). Trial judge gave a very different kind of instruction Analysis: Defendant won on appeal, the judge should have inquired about racial bias Maryland constitutional law controlled this case, but there is some federal constitutional law about this. -47-

The federal standard is only when special circumstances arise It must be something more than mere interracial confrontation What is the governments argument for the other side? That the defendants requested instruction would have injected a racial element that did not otherwise exist. Government would assert that they are helping the d, but to make the injection argument powerful, you must assert that it is hurting someone else other than the d. The answer will be that society is affected negatively because by injecting race were undermining the legitimacy of the criminal justice system. Were suggesting there is racism, etc. If the government isnt primarily concerned with injecting race, why does the government care? What are they afraid of? What is the defense trying to get from asking this?

Injecting Race Michaels says this could hurt legitimacy. What would the state argue to keep from injecting race? Prosecution: The race of the parties is not one of the facts of the crime so it should not factor into the decision. Will confuse or upset jurors Racial questions may not really screen jurors because people may be embarrassed to answer truthfully Defense: Race is an issue in our culture so it should be addressed appropriately. Commonwealth v. Brian Glaspy (pg. 472) Facts: Two black men convicted of raping a white woman. The Ds defense was consent. PA has rule that something more than interracial crime was needed before venire could include questions about racial bias. o However in many jurisdictions, violent crime is enough to allow the injection of race into the jury selection process One juror admitted he was bias to the point of being unable to make a fair judgment in the case. Analysis: Michaels thinks the court did not address the issue very convincingly. -48-

The court noted a prior case in PA where the bare fact that the victim of the rape was white and the perpetrator was black was not D won on a weird

Problem 7.1 (pg. 475) White man admits to killing a black woman. In his admission to people he used racial and sexually charged epitaphs that were exceptionally crude. The defense counsel requested specific voir dire to ascertain racial bias on the part of the jury, but the trial judge only asked a general question as to bias or prejudice. Conviction was affirmed and the defendant lost, but the reason that the court gave was that race is not a part of this case at allthe evidence of his crude language will be offered to show the malice of the killing, etc.

Dismissals for Cause o Both prosecution and the defense may challenge an unlimited number of jurors for cause What constitutes cause is determined by the rules of the jurisdiction Ex: Cannot read or write Shown bias Cannot speak English o The key issue is whether the bias is actually present. o Judges have wide discretion on this because the judge can see and hear the juror so the judge is in a better position to judge whether in fact they would be bias. o One aspect of the Texas statute that is not quite right (pg. 479) is (b)(1). The Supreme Court has said that you cant exclude for clause that the juror merely has scruples for or against the death penalty.

3.Preemptory Challenges and Batson All jurisdictions allow preemptory challenges in addition to challenges for cause o P & D usually get the same number of challenges, but in some cases the D gets more.it depends on jurisdiction These are exercised after the challenges for cause How many challenges does each side get? o It depends on the severity of the crime o It can be as few as 2 to 20 preemptory challenges Federal rule for capital offense each side gets 20 For a misdemeanor both sides get 3 each State approaches (n. 1, pg. 499) -49-

Why have preemptory challenges? o It provides a margin of protection for challenges for cause because in the case where a party is unsuccessful in meeting the burden to show cause, they can still remove the juror. This can also work in the inverse and allow a fuller for-cause approach. Preemptory challenges allow you to pry deeply into a challenge for cause in some cases because if you piss them off this way you can still remove them from the jury. o To provide parties with an opportunity to participate in the construction of the decision-making body, thereby enlisting their confidence in its decision. This reason has nothing to do with bias, it lends legitimacy to the jury as a whole because the party has had a role in selecting the jurors o The preemptory made without giving any reason avoids trafficking in the core of truth in the most common stereotypes. (Burgers dissent pg. 490) James Batson v. Kentucky (pg. 485) Facts: Petitioner, a black man, was convicted in a Kentucky state court, and he appealed. The Kentucky Supreme Court affirmed, and petitioner sought review. T Analysis: The Supreme Court, Justice Powell, held that: (1) Equal Protection Clause forbids prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State's case against a black defendant, and (2) to establish a prima facie case of purposeful discrimination in selection of the petit jury defendant must first show that he is a member of a cognizable racial group, that prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race and that the facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. The state may not strike black veniremen on the assumption that they will be biased in a particular case, simply because they are black. 1880-Strauder held a law that blacks cannot serve as veniremen as unconstitutional, so why is this case controversial? In Stauder, there was a whole class considered unfit for jury service Here they are stating that there may be a juror that is unfit for their specific case.

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J. Burger and Rehnquist pointed out that this case did not apply only to blacks, but to everyone because anyone can be stricken on the basis of race or bias. Since the challenge in this case could potentially be applied to all races then it is not as suspect as the practice in Strauder. Strauder is a categorical restriction, not just the particular case in front of the court as it is here. Swain v. Alabama (pg. 487): created a presumption that preemptory challenges were properly exercised, and an inference of prejudice would be found only after case after case the state used their preemptory challenges on blacks There is a deep disagreement among the majority and the dissent about what Swain means. Did Batson fundamentally change the rules (was the majority or the dissent correct)? Michaels believes the opinion was unclear Does the race of the juror affect their view of the defendant? Yes, oftentimes it does Usually, it is not determinative but is does make a difference Should a juror be excluded Batson said that it is not ok, even if you can get away with it, to strike a juror based on race More Ohio Rules Ohio allows a unilateral right to a bench trial Peremptory challengeseach D gets 4 in capital cases Back to Batson Just having a rule should create some change, regardless of enforcement. The Batson process? 1. Establish a prima facie case showing enough to raise an inference that the prosecution used its peremptories to exclude jurors on the basis of their race or other forbidden categories. 2. Once the D makes the prima facie showing, the burden shifts to the state to come up with neutral explanations for striking the jurors 3. The trial court then has the duty to determine if the D has established purposeful discrimination Tie goes to the state What if the P strikes all the black jurors and your attorney does nothing? 1. Make an ineffective assistance of counsel claim Usually it is a pattern that raises an inference Pattern is unusual because the prosecution usually has discretion but has to explain itself here The Supreme Court has not offered guidance on what -51-

constitutes a pattern Some courts compare ultimate jury to venire Lingo (1993) About 2/3 of Batson claims establish a prima facie cas Once you establish a prima facie case, the court then reviews the prosecutor's stated reasons to determine whether they overcome the defendant's prima facie case of discrimination RULE: The trial court's Batson determination will only be overturned if they are clearly erroneousvery deferential standard. RULE: It is unconstitutional to challenge someone for cause because they are against the death penalty as long as they are willing to follow the law. SUB: It can be used as a basis for peremptories. Some jurors here knew a witness or had some kind of potential bias Prosecution would want to strike someone with a criminal record Most common answer for a strike Dissent strategies 1. Stop treating like cases differently based on race 2. Rationales applied to black jurors not applied to white jurors 3. Also, the hearing problem was not supported by the record o The reason wasn't there o Recent Batson case o Case turned on one juror 1. Looked at demeanor, was a student 2. Split court, weird configuration 3. Majoritydemeanor is appropriate, but the trial judge did not make a specific finding as to why they ruled the way they did 4. Deference is not available if you do not make a specific findinga surprising level of scrutiny

Batson Leftovers Remedy At trial levelusually stricken jurors will be reseated or a new jury will be seated On appealconviction reversed, new trial Batson applies regardless of whether the race of the defendant and the jurors being stricken are the same or different. Applies equally to cases where Based on 14th Amendment so state action is required so if the defendant is doing it, then the action is not -52-

obviously state action. However, the court decided the prosecutor may make a Batson challenge in a case like this. What about striking on the basis of sex? The court concluded Batson applies in those cases as well. Batson also applies in civil cases. So far, Batson has not expanded to the all areas covered by the 14th Amendment. Marital status, political viewpoints, etc are all unclear at this time 4.Deadlocks and Verdict Issues o Jury Size In 1898, it was constitutionally mandated that 12 jurors make up a jury. In the 1970s Federal 12 is required for felonies and misdemeanors States Majority rule is 12 jurors For misdemeanors, the majority is 6 jurors The remaining states are on a continuum from 6-12 jurors For felonies, 6 is the constitutional minimum Unanimous Verdicts Do verdicts have to be unanimous? o Unanimous juries are the rule o Only a few states allow non-unanimous jury verdicts in felony cases o N. 3 pg. 517 One case 9-3 was ok One case 5-1 was not ok Non-unanimous verdicts help the prosecution Jury Deadlock Vote will not come out, the jury will simply report that they are deadlocked At that point the judge will make some kind of recommendation to the jury to try to come to consensus o Interests must be balanced in order to keep from pushing a juror to the point where they relinquish their honestly held view of the case in order to reach a consensus Allen Charge o Instead of the actual instruction that the court approved, the instruction was the courts interpretation of the actual instruction Meant to be much more coercive

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It encourages the minority to rethink their position and join the majority

ABA standard o The jurors have a duty to consult with one another and deliberate if it can be done without assaulting independent judgment

Inconsistent Verdicts Mr. D is charged with armed robbery and with using a gun in the commission of the same robbery. He is acquitted of the armed robbery, but the jury hangs on the use of a gun charge. What happens now? o Prosecution wants to retry, can they do that? NO, retrial on gun charge barred by collateral estoppel Mr. D is charged with armed robbery and with using a gun in the commission of the same robbery. He is acquitted of the armed robbery, but, instead of hanging, the jury convicted him on the use of a gun charge. What happens? o Conviction stands! Why? There is inconsistent treatment with inconsistent outcomes N. 6 pg. 519 Majority decision: If there are inconsistent decisions, the court doesnt want to investigate behind the curtain so they will let matters lie. Minority state rule, Not majority rule U.S. v. Powell: when a jury has returned verdicts convicting a defendant of two or more crimes, and the existences of an element of one of the crimes negates the existence of a necessary element of the other crime, courts generally say that the verdicts should not be sustained. o Why not retry both? Govt wins if there is one conviction Multi-Theory Verdicts Mr. D. is convicted of robbery by use of a weapon capable of causing death. There was evidence that D menaced his victims with a switchblade, while other witnesses said it was a regular knife, albeit a potentially lethal one. D challenges his conviction on the ground that the jury might not have been unanimous about the kind of weapon he had. What result? Conviction stands Type of knife is means of committing crime, not element. Jury MUST be unanimous on the elements of the offense, but that is not required of the means of the crime. Court says whether something is an element or a means is the legislative intent. If the legislature meant it to be a means, there is -54-

a statutory limit on how far the legislature can go in making things means. Mr. D. is convicted of 1st degree murder under a statute defining murder as a murder committed with premeditation OR during a robbery. D challenges his conviction on the ground that the jury might not have been unanimous about premeditation or the during a robbery. What result? Conviction standsShad v. Arizona (n. 4 pg. 518) 5.Nullification o Definition: A jury decision to acquit, even though the evidence convinces them beyond a reasonable doubt that the defendant is guilty under the law There is no question that the jury has this power and the decision is FINAL! The jurors cannot be punished for exercising the right to nullify Is there any check on the inverse power (convicting even though they are not guilty under the law in the jurors minds)? Yes: o D can appeal and if the appellate court finds that no reasonable jury could have found guilt beyond a reasonable doubt they will overturn the conviction. o Judge can also order a new trial or convict of a lower offense, all dictated by the interests of justice. Most juries are not instructed on their nullification powers Burden of Proof (No questions on BOF on the exam) Supreme Court has had a few cases on this and there are at least three levels of law. What is proof beyond a reasonable doubt? o Constitutional level: part of due process but the constitution does not mandate a particular definition of reasonable doubt. o Discretion for individual trial judges: Varies from court to court Lots of reliance from past cases Problematic language Can saymust find To what issues must the burden of proof apply?

I.

Confrontation Clause: 1.Shielding Witnesses o Part of the 6th Amendment that provides that in all criminal prosecutions, the accused shall enjoy the rightto be confronted with the witnesses against him. -55-

What aspects of a prosecution witnesss testimony might a D have a vested interest in? 1. D or counsel may question witness (cross-examine) 2. Jury can observe witnesss demeanor 3. D has interest in seeing and hearing the testimony Both to determine whether it is genuine and to provide his counsel with insights to help cross-examination of the witness. 4. In court testifying/under oath 5. In the courtroom (splits 4 up) 6. Live 7. Witness can see the jury 8. Witness can see the defendant All of these interests are protected by the confrontation clause, therefore the state cannot arbitrarily or without justification eliminate any of these without violating the constitution. He has weighted them as to the force they have had. State needs to trump the right to get over it. However, NONE are so powerful that they cannot be overcome in some cases.

Romero v. State (pg. 567) Facts: Witness testified in a hat, glasses and coat with the collar up to cover his mouth and nose. Witness said he feared retaliation from the defendant This case implicated # 2, 3, 6 and 7 of the aspects of the confrontation clause above Problem 8-5 pg. 576 o Pretrial hearing to determine competency of four year old witness prior to allowing her to testify. o What constitutional claims might the D have since they are not able to be present at the competency hearing? There is a right to presence originating from Due Process If the Ds presence necessary to advance the fairness of the proceeding then they need to be there. In addition to the Constitutional right to presence there are statutory rights to presence. Always recall that statutory and constitutional rights are different in the way the D can waive them. o Constitutional right: D must give a knowing and intelligent waiver

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o Statutory right: Much easier for counsel to waive rights on Ds behalf Easier to create error by not having a proper waiver Right to confrontation Sixth Amendment.applies to all states of the trial but only to SOME pretrial proceedings. o Critical question asked by court: Was there opportunity for full and effective crossexamination? Most courts have held yes, however if there is something that the D could contribute to discount the childs competency then a problem may arise. o Court decided to limit confrontation interests, so to overcome the right guaranteed by the confrontation clause in cases like these you must show: That testifying outside of the courtroom and the presence of the D is necessary to further an important public policy AND You have to show the reliability of the testimony is otherwise assured. Ensuring reliability by providing opportunity for contemporary cross examination (since D can watch and communicate with the attorney). And allowing D and jury to examine the demeanor of the witness o In the context of child abuse cases, to satisfy the important public policy prong you must do a case-specific inquiry on whether the child is likely to suffer trauma from testifying in the presence of the court and the D. N. 3 pg. 578 o Federal rule: some witnesses may testify outside the courtroom and outside the presence of the D if the D is able to monitor the testimony and communicate with the defense attorney conducting the cross. o State constitutions tend to say that the D has the right to meet the witnesses face-to-face.

2.Hearsay Testimony o Out-of-court statement, made to someone other than the witness, offered to prove the truth of the matter asserted. o Ex: W testifies that X said D killed V. -57-

o Rejected extreme results (courts have long rejected and continue to reject these approached) o Using the example above these are two extreme positions that would make analysis of these problems, but the court has never followed either of these approaches: Always excluded by confrontation clause: X is a witness who D has a right to be confronted with by Xs being subject to cross-x Never excluded under confrontation clause: W is the witness. X is not. The court chooses a middle ground: the confrontation clause requires in-court testimony except in certain cases. For a century, the court would determine whether the testimony was allowed on a case-by-case basis. Summarizing the case history the court created a test: Since cross-x is meant to ensure that testimony is reliable, then the statement by W that X said D killed V must bear adequate indicia of reliability to be allowed (Ohio v. Roberts test) Can be shown by proving Firmly rooted in a hearsay exception OR Particularized guarantee of trustworthiness. Is this a rule or a standard? Partly Rule and Partly Standard Standard because parts A and B are not strictly defined and are hard to apply. When you have a standard, usually theres a background principle thats animating how you interpret the standard Whats the background principle of this standard? Reliability (evidence used against the D is reliable) Crawford v. Washington (pg 581) Facts: Crawford and his wife confront a man who allegedly tried to rape her and Crawford killed him Crawford claimed it was self-defense, but her statements to the police undermined his self-defense claim Crawford invokes spousal privilege so that wife cannot testify at trial Analysis: Crawfords wifes testimony: Her whole statement was against penal interest because she could have been prosecuted for her involvement in the crime o This exception wasnt fairly rooted under Roberts so the question came down to whether there were adequate indicia of reliability Trial court said Yes Appellate court said no, it was NOT reliable Wash. S. Ct. reinstated trial courts conviction The S. Ct. would have just overturned and left Ohio v. Roberts alone, but they went a different route. -58-

o Originalism: They examined the history of the confrontation clause and asked what kind of evidence the framers intended to exclude with this clause. Framers would not have allowed admission of testimonial statements of a witness who does not appear at trial (unless unavailable and already cross-xed) This is no longer a standard, it is a RULE o A rule is a much more effective way of enforcing a constitutional principle Part of the courts hope is that this would eliminate the abuses under Roberts by courts who wanted to allow unreliable testimony for whatever reasons o Follow up questions: What is the definition of testimonial? The court in Crawford doesnt define testimonial but they tell us that answers to police interrogation are testimonial Does the confrontation clause cover non-testimonial statements? The court answers this in two consolidated cases (Davis and Hammond). Domestic violence cases (pg. 593 n. 2 and 3) o In one case the victim talked to a 911 operator o In the other case the victim spoke to the police who responded to a 911 call. What is the definition of testimonial? o Ongoing emergency and primary purpose to enable assistance: not testimonial o No ongoing emergency and primary purpose to establish past events: testimonial Viewed objectively: what an outside observer would think was the primary purpose Do other aspects of the confrontation right receive similar blanket protection? Are there exceptions in testimonial context? Comments: o Effort at originalism is questionable at best in Crawford.

J.

Privilege Against Self-Incrimination: 1.Comments on the Defendants Silence o Its unconstitutional for a judge or for the prosecutor to suggest that an inference of guilt can be drawn from the Ds exercise of his constitutional right to remain silent. o Why is it unconstitutional? -59-

The 5th amendment bars commenting on a Ds right to remain silent What counts as commenting on Ds silence? o Standard is generally any comments manifestly intended or reasonably likely to draw a jurys attention to the fact that the D did not testify D has constitutional entitlement to demand that the judge tell the jury that they should draw no inference from his/her exercising his/her right to remain silent. Because it compels you to testify in order to avoid the negative repercussions of the judge or prosecutor allowing the jury to infer guilt from silence. o Why else would a D remain silent? D has prior convictions As a general rule, Ds prior criminal record will not be available at trial HOWEVER if the D testifies some part of his/her criminal record will be available on cross-x to impeach the Ds credibility. o As early as 1892 the Supreme Court said that you cannot compel someone to be a witness in a civil case and then use that info. to help further the criminal case. As long as what you say can be used against you in a future case, then you have a right to remain silent o Provides no protection from being the source of physical evidence against yourself. Therefore, you can be compelled to give hair, blood, dna, etc. The court justified this by stating that this is not testimonial.

As a general rule, criminal record is not admissible in a criminal trial If they testify, that record may be admissible on cross for impeachment purposes It is unconstitutional for a judge or for the prosecutor to suggest that an inference of guilt can be drawn from the D's exercise of his constitutional right to remain silent o Why else would D remain silent? D has priors As early as 1892, the S. Ct. said that you cannot compel someone to be a witness in a civil case and then use that info to help further a criminal case 1. As long as what you say can be used against you in a future case, then you have the right to remain silent 2. Provides no protection for being the source of physical -60-

evidencedcan still compel hair, blood, DNA, etc. a. Considered non-testimonial v. Griffin v. California

1. Judge says think about why the D didn't testifyexactly the kind of inference that might force him to testify 2. Whatever the justification for the Fifth Amendment, it does bar commenting on a D's right to remain silent a. 3. Neither judge nor prosecutor can do it

What counts as commenting on silent? a. N. 1manifestly intended line

b. D has a constitutional right to a proper jury instruction to draw no inference from the exercise of the right o Self-Incrimination Privilege at Trial Test to determine whether a statement violated the Ds 5th amendment right to remain silent: Was it manifestly intended as a comment on the defendants silence. When does the rule apply? General rule: Adverse inferences may not be drawn in criminal proceedings but can be drawn in civil proceedings. Rationale: Inferences being used against you in criminal proceedings amounts to a greater amount of compulsion than in civil proceedings because the penalties associated with criminal proceedings are so much higher. Can be drawn in clemency proceedings, deportation proceedings, civil forfeiture proceedings Adverse inferences cannot be drawn in sentencing proceedings Opening the door (EXCEPTION to Griffin rule): If D testifies that he attacked in self-defense: Prosecutor can then cross on that testimony for inconsistencies Questioning on pre=arrest silence does not violate privilege against self-defense. Exception to the exception: if the D is given Miranda warnings, his silence cannot be used against him EVEN for purposes of impeachment. -61-

K.

Appeals: 1.Harmless Error Very important o History o 19th Century: American courts largely followed exchecquer rule (doover if there was an error in the trial) o Most jurisdictions in the 1920s (and now all jurisdictions): Most states adopted some form of harmless error statute (where rules can be violated but D is guilty anyway). o Prior to 1960s whenever the S.Ct. found that the trial contained constitutional error it ALWAYS reversed and ordered new trial. Thus is was presumed that constitutional errors could not be harmless errors. Chapman held that assumption was wrong o Some constitutional errors could be harmless o Others could not o Long list in each category o Gave examples in dicta o Arizona v. Fulminante: Distinguished between structural and trial defects Trial errors were like erroneous admission of evidencecould be subject to harmless error analysis. o Three categories of structural error Errors that render the proceedings just fundamentally unfair Ex: judge married to prosecutor Situations in which the effect of the error would be too difficult to assess Ex: D wants counsel A but gets counsel B.dont know what counsel As defense would have been so cant do harmless error analysis Irrelevance of harm to the right Ex: Right to proceed pro se o How do you decide whether the error was harmless? Constitutional errors test: the govt must demonstrate beyond a reasonable doubt that the error was harmless Non-constitutional errors test: No uniform standard Federal standard: errors that affect substantial rights are not harmless Some states use reasonable doubt test for nonconstitutional errors too. (No the majority by far)

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The Double Jeopardy Clause protects the finality of judgments. In a prosecution that ends with a hung jury, there is no judgment. Resumption of such a prosecution does not expose the defendant to a new jeopardy. The trial before a new jury is simply a continuation of the original trial before the first jury. If a mistrial due to a hung jury were sufficient to terminate a prosecution altogether, then the jury's indecision would be tantamount to acquittal, when in fact the jury has not resolved the question of guilt or innocence. Indeed, without any possibility of a retrial due to indecision, a jury might feel undue pressure to convict, lest the jury's uncertainty bar any possibility of future prosecution.

This lesson has analyzed the Double Jeopardy Clause, which prohibits multiple prosecutions and punishments for the same offense. You have learned a six-step methodology. First, consider whether the instant proceeding falls in the categories of proceedings to which the Double Jeopardy Clause applies. Second, consider whether the instant proceeding involves the "same offense" as an earlier proceeding. Third, consider whether jeopardy attached in the prior proceeding. Fourth, if jeopardy did attach, consider whether the prior jeopardy terminated and the instant proceeding is a new, different jeopardy. Fifth, assuming that jeopardy arose in the first prosecution and that the second prosecution involves a different offense, consider whether the rule of issue preclusion might apply. Finally, consider whether the Dual Sovereignty Doctrine trumps the Double Jeopardy Clause in the instant case.

Right to Counsel There is a simple answer to the first question: you are not required to grant Sky Blue's request to be represented by Indigo. Unlike non-indigent defendants, who can retain counsel of their own choosing (that they can afford), indigent defendants do not have the right to insist on being represented by a particular attorney. See Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure 612-613 (4th ed., 2009). On the contrary, the choice of counsel rests in the trial court's sound discretion. Id. As a result, if you wish, you can decline the request. The more difficult question is whether you should appoint Indigo to represent Sky Blue. As noted, Sky Blue is distrustful of the judicial system, and not inclined to repose confidence in an attorney appointed through ordinary channels (be it the public defender channel or judicial appointment). Since he has confidence in Sky Blue, that confidence counts for something. In addition, Sky Blue is a very peculiar soul with very militant beliefs. Indigo shares those beliefs, and therefore Sky Blue is likely to repose a great deal of confidence in Indigo Blue (even if he is ultimately convicted). So, an argument can be made for appointing Indigo. On the other hand, as a judge, you must be committed to the fairness and integrity of the criminal justice system. As a result, if you really feel that Indigo is incompetent, and would not provide quality representation, it would probably be inappropriate to appoint him to represent Sky Blue. -63-

But, if you felt that Indigo is competent (if a little off-beat), you can grant Sky Blue's request to be represented by Indigo (assuming that Indigo is willing to accept the representation). Id. A minority view suggests that courts should be considerate of a defendant's request to be represented by a particular attorney. Id. Of course, the attorney must be available and willing to undertake the representation. Id.

Conclusion of Right to Counsel Under the Sixth Amendment to the United States Constitution, criminal defendants have a constitutional (but waivable) right to the assistance of counsel in criminal proceedings. See Gideon v. Wainwright, 372 U.S. 335 (1963); see also R. Weaver, L. Abramson, J. Burkoff & C. Hancock, Principles of Criminal Procedure 239-248 (2d ed. 2007). This right to counsel applies, not only to federal court proceedings, but to state court proceedings as well. Id. While the Sixth Amendment is not directly applicable to the states, the Court has interpreted the Fourteenth Amendment due process clause as requiring its application. Id. The Sixth Amendment right to counsel is absolute only in the sense that a defendant can retain any attorney who is duly licensed in the state. See Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure 614-615 (4th ed., 2009). However, a defendant's choice of counsel cannot be denied simply because the judge believes that another attorney would provide better representation. See United States v. GonzalezLopez, 548 U.S. 140, 148 (2006) ("Deprivation of the right [to counsel] is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants regardless of the quality of the representation he received"); see also Wayne R. LaFave, Jerold H. Israel & Nancy J. King, supra, at 614-615. Judges can only override a defendant's choice of counsel in limited situations such as when serious ethical issues are raised by the representation, see Wheat v. United States, 486 U.S. 153 (1988) (upholding a trial court order precluding an attorney from representing multiple co-defendants in a single criminal case), or when defendant chooses an attorney whose schedule precludes prosecution of the case in a manner consistent with the "prompt and efficient administration of justice. " See Ungar v. Sarafite, 376 U.S. 575 (1964). Although judges must try to accommodate attorney schedules, circumstances may sometimes prevent a judge from doing so. Id. For many years, there was debate about whether indigent defendants were entitled to counsel at state expense. In Betts v. Brady, 316 U.S. 455 (1942), the Court held that there was no automatic right on the part of indigents to state appointed counsel. Counsel must be provided only when the appointment is fundamental and necessary to due process, and determinations regarding the need for counsel should be made on a
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case-by-case basis. Id. In Betts, the Court emphasized a variety of factors in concluding that Betts was not entitled to state appointed counsel: the fact that Betts had previously been exposed to the criminal justice process; the fact that the case against him was not overly complex; and the fact that he was reasonably intelligent. Id. Gideon v. Wainwright, 372 U.S. 335, 342-343 (1963), overruled Betts and held that the right to counsel is fundamental and necessary to due process, and that counsel must be provided if a defendant is to receive a fair trial. In doing so, the Court noted that most defendants, who have ample means to do so, choose to retain counsel when they are charged with serious crimes.Id., at 344. Further, most criminal defendants have little or no legal training. Id., at 344-345. The right to appointed counsel automatically applies only when there is a possibility of imprisonment, and does not automatically apply when there is only the possibility of a fine. See Argersinger v. Hamlin, 407 U.S. 25 (1972). Indeed, the United States Supreme Court has held that a defendant must actually be imprisoned before the denial of counsel runs afoul of the Sixth Amendment. See Scott v. Illinois, 440 U.S. 367 (1979). In Nichols v. United States, 511 U.S. 738 (1994), the Court held that a trial court could enhance a conviction (for a charge for which counsel had been provided) based on a prior uncounseled conviction (for which an attorney was not required because there was no imprisonment). The right to appointed counsel applies both to trial court proceedings and to some appellate proceedings. See Ross v. Moffitt, 417 U.S. 600 (1974); Douglas v. California, 372 U.S. 353 (1963). In particular, the right to counsel applies to all first appeals (the appeal as of right). Douglas v. California, 372 U.S. 353 (1963). However, inRoss v. Moffitt, 417 U.S. 600 (1974), the Court held that there is no right to appointed counsel for discretionary appeals. Unlike non-indigent defendants, indigent defendants do not have the right to insist on being represented by a particular attorney. SeeWayne R. LaFave, Jerold H. Israel & Nancy J. King, supra, at 612-613. The choice of counsel rests in the trial court's sound discretion. Id.However, a judge can appoint any licensed attorney who he believes is competent and will provide adequate representation, and therefore can grant a defendant's request to be represented by a particular attorney (provided that the attorney is willing and able to undertake the representation). Id. A minority view suggests that courts should be considerate of a defendant's request to be represented by a particular attorney. Id. Of course, the attorney must be available and willing to undertake the representation. Id.

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