Tuesday, August 10, 2010

6:27 PM

Ch 7- ID procedures

Two different ways IDs are obtained and used

When it is done pretrial as part of the investigation and
when a witness is in the witness box and making an import identification.
The witnesses level of security is always a consideration (Pretty sure, sure,
maybe, etc)

There are three basic ways IDs in the investigation stage are conducted

1. Physical Line Up-Line up-5-6 ppl put in a room where witness views them
through a window, police officer is in the room with witness and multiple
witnesses are given separate chances to identify to ensure there is no
prejudice. When a person is in a line up they may be asked to turn, move, talk
or other identifying features. If he police put together the lineup, they must use
similar people.
When ID is a huge issue, you waive your client's presence so the witness can't
see him in an orange jumpsuit.
2. Show Up- One person is exhibited to the witness. These are typically done
immediately after a crime occurs and a suspect is located. Another type is done
in an exigent situation. These are "frowned upon" and are viewed as subjective.
3. Photo Array- The most prevalent practice. The reason is that there is no right
to counsel in the photo array. The witness is shown 6 photos and asked if they
see the assailant. Metro uses the "six pack", feds use a series of sequential
photos, one at a time. Theory says that in a six pack, witnesses will assume that
the guilty party IS in the picture and will pick the one that's closest instead of a
good analysis of the pics.

Eye witness testimony is the faultiest due to the shifting perceptions and
memories of witnesses.
People have no right to refuse being in a line up. There is no 5th amendment
violation to be fingerprinted, give blood, physical features or stats.

Two ways to challenge IDs

6th amend right to counsel
5th amend due process clause, and the 5th can be used to challenge ANY
identification and is the only way to challenge a photo array

Wade-Gilbert Identification rule.

Tuesday, August 17, 2010

6:28 PM

Rules of criminal procedure-TN admin office of courts

 1. Apply in all criminal procedures in TN courts of record (trial, appellate courts,
but not Gen Sessions) There is no court reporter in a Gen Sessions
Trial Level=Circuit/Criminal Court
Lowest level=General Sessions, handling civil and criminal cases under $25000
for civil and limited jurisdiction for criminal. 3 poss. charges-citation, criminal
arrest warrant, criminal summons
Rules 1- 5.1, 41, 43, 44, 45 apply to Gen Sessions
18(venue) 43 authorizes audio video instead of having person standing
physically in the court
2. Are continually revised to provide just determination

At Gen sessions- Initial appearance

Trial-arraignment

If guilty of a small offense ($50), can appeal

If misdemeanor you will not be pleading at initial appearance
A person charged with a mis, may lead guilty with DA approval

DE novo hearing- brand new, no presumptions about what happened in lower courts
If def has waived jury trial and sentenced, when he files appeal he must make a jury
trial request or the waiver will stay and he'd only be eligible for another bench trial

If def asks for a prelim hearing-def has right to counsel, can waive counsel. Purpose
of prelim is an adversarial challenge to probable cause. Heresy is not admissible
except-----"""ON TEST"""""
--------------------on test--------------------
Documentary proof of ownership and written report of expert witness

Med examiner isn't brought to a prelim charge.

If a judge finds cause at prelim hearing, the case is held over for a grand jury

Prelim hearing will not be waived by def unless the witness is unlikely to be found
later since their prelim testimony could be used later even if they can't be found

Prelim is about educating atty and client about strengths of witnesses, defendant
and their weaknesses

---MUST KNOW---
Rules 1-5
Gerstein rule

First adversarial hearing within 10 days

How a case gets to criminal court
Gen sessions verdict is appealed, case goes to criminal court.
Grand jury indictment.
Gen sessions case is bound over for grand jury (summons, citations)

Charging docs-citation, summons, true bill, criminal information

Grand jury returns indictment
Direct presentment-did not have a gen sessions doc that went with it. It is the
first time the charges are being heard. Same as an indictment, but has only
been in a GJ. Used by DA when secret investigations (drug dealers, politicians)
12 people on a grand jury PLUS foreman. TO return a true bill there must be 12
affirmative votes.
Grand juries also have power to bring up any known crimes, inspections of
public buildings, municipalities treasury,
-Criminal Information. GJ do not hear or return criminal information. The GJ has
no involvement. The def waives 5th amendment right to be charged only with
GJ review. With Crim Info, counsels agree on crime charged.

To save time, the def may agree to a criminal info. The def would want to save
time if already in jail.

When the grand jury has indicted or a CI is passed, the arraignment happens.
Arraignment- judge finds if def has counsel (indigence based on Fed poverty
guidelines-less than $220/week
Counsel will get a copy of charging document, has right to have it read but
usually won't.

Def would waive reading of indictment and trial if there is already a deal
worked out, or if evidence that came out in trial would exonerate them

Rule 12
When you are the trial after the arraignment the parties will get another court
date. By that date, discovery will have been done by the parties. And the
parties will be required to file any pretrial motions. Pretrial motions may
included, that charging doc is defective, motion to suppress evidence, or
confessions, motion that rule 16 wasn't complied with and to compel
discovery, motions for mental eval, motions for joinder or severance of defs, if
these motions are not filed then the issue is deemed to be waived.
If def att believes art 1 sec 7 in seizure of evidence, and the def doesn't file a
motion to suppress then the evidence will be admitted and can never be
suppressed again even on appeal.
Motions that require witnesses (motions that require evidentiary hearing)
those have to be filed in a timely manner and failure to do so will cause the
issue to be waived.

Under rule 12.1-Alibi rule

If the DA files a written notice asking def for notice of alibi then the def must
give DA the information or most likely they will not be allowed to use the alibi
in the case.
12.2 The attempt to use the affirmative def of insanity must give pretrial
notice and the docs written report and the DA may seek their own analysis.
 12.3 DA notice of intent to seek punishment (extreme, or higher than as
charged by). The def faces range of sentencing by the level of felony and the
def record. If the DA wants to get higher than the level of crime by using def
record, they must provide NOTICE OF INTENT TO SEEK ENHANCED
PUNISHMENT within ten days. If it is a death penalty, there must be thirty days
notice. If the DA waits and gives notice too late, the remedy is a continuance
to allow def to check out reference DA is citing.

13. Venue--venue is in constitution, jurisdiction is not.

21-change of venue-small town (high publicity cases) Only def can ask for a
change of venue

Pick jurors---in a normal felony (not death penalty) the state has 8 preemptory
challenges, and each def has 8. For preemptory there doesn't have to be a
specific reason. In a death penalty, the state and each def have 15 challenges
each. (Petit Jury)
"Voir Dire" Jury selection

For a normal felony, the judge will bring in about 35 ppl then begin asking
them if they can be a juror.

CH 5
Gideon v. Wainwright
(Gideon's Trumpet book)
Was indigent, asked for atty but didn't get one since they were only appointed for
capital crime. Supreme Court ruled that the 6th amend applies to the states through
the 14th amend and he ad right to counsel. Held that right to counsel was
fundamental to a fair trial and that it is the interest of the accused and society.
Per Se (across the board in every circumstance) was applied to all people charged
in felonies in all states.

Alabama v. Shelton
There is a right to counsel to petty offenses that result in prison
30 day suspended sentence and 2 yrs unsup probation

Rockgerry v. gillespie county

Civil rights to probable cause applies to initial appearance at bond hearing

Griffin v. Illinois
Indigent def are entitled to a free transcript to their trial for their first tier appellate
review
Circuit/criminal--Court of Criminal Appeals (applicable for free transcript)--TN SCt

Douglas v. California
Says there is no free transcript in the secondary appeals to higher court

Custody and release pending trial

8th amendment for bond (TN Art 1 Sec 16, 15)--when writing motions the law goes
in the beginning starting with the biggest law down (Con, stat, rules)
Art 1 sec 16 is exact as 8th amendment

Bail-#1 valid reason for bail is so the def will show for trial.
In the fed system bail setting IS adversarial, in state it is not
-----------Fed is controlled by bail reform act of 1984---------
Someone may be given a no bond if no bond factors can be imposed to ensure def
will show or if too dangerous to the community-a regulation and not a punishment
Also a 70 day speedy trial right in fed court
In TN this can't be asserted until a 9 month delay
Only 1st degree def where a death penalty notice has been filed can be held
without bond

TN bail bond statue

40-11-101 et sec

40-11-118(bail bond factors)

One is a likelihood of conviction

ASSIGNMENT--"MOTION TO REDUCE BOND"

Ask to reduce by citing law and using our real life factors
Will not sign name use student number

Kinds of bonds allowed--

Cash bond-def pays entire amt to clerk and receives a full refund upon case
completion and can use credit card.
Property bond--if a person has equity in real property that is valued at 1 1/2 times
the amt of bond they may give a deed of trust to the clerk. At the end of the case it
is conveyed back.
Most popular is the surety bond---Bonding company acts as surety holder by paying
them 10% and admin fees and get two cosigners.
ROR-Release on own recognizance--released on def promise to show for court.
Pre trial release--for certain types of crimes (non violent, low level)-with proper
contacts in community you are released without bon and are monitored by Sheriff's
Dept

There are some crimes where you have a writing period before you may get bond--
domestic violence DUI, PI
If bond is greater than 75k, you can't make it until you have a source hearing
(Davidson County)

40-11-118 factors of bond or changing bond amt (pg 20 in crim handbook)

If the clerk sets the bond, there is a statue that list amt that can be set. Mis 1k,
prop, 2k fel person etc (40-11-105)
Person's length of residence in community, a person's employment-history of and
status, family ties and relationships, character and mental condition, prior criminal
record and court proceedings, previous flights from justice, nature of offense and
apparent probable of conviction and length of sentences, prior record a danger to
community, identity of members of the community that will vouch for them, any
other factor that bears on def ties to community or willful risk to not appear

5th amendment part of due process--"nor be deprived of life, liberty or

pursuit.without due process of law"
TN Art 1 sec 8, and --it is broader than the fed 5th amend due process clause
giving greater protection
It is for fairness in the process and in the outcomes.
This is where there is a duty to disclose. There is rule 16 of the TN rules of crim
pro that is "discovery and inspection" it is more specific than the due process
clause

Rule 16
Does not apply in Gen Sessions since it is not a court of record. It applies in
circuit/superior court.
Then the def may file a request for discovery. It is a strategy to force the
reciprocal duty of discovery. If there is evidence the def would like to blindside
the DA with at trial, they won't file for discovery. Usually the discovery motion is
too important to not file.

Govt MUST give list of case in chief witnesses, but defense has to give none
except alibi witnesses.

If govt doesn't give all, a motion to compel may be filled. Or to suppress related
items.

Rule 26.2-"jencks rule"-requires either side to give after a witness' testimony

and before cross examination.must give any recorded or written statement
from the witness-only before cross not in discovery
In TN a lawyer can call someone and interview them over the phone and record
without telling witness it is recorded. Only one person in a call needs to be
informed of the recording.caller or attorney

Williams v. Florida…criminal procedure and alibi.

Brady v. Maryland…USSCt..exculpatory material "Brady Material" defined
exculpatory materials--whether the failure to turn over statement affected the
death penalty.5th amend requires prosecutors to provide info in favorable of
accuse and material to guilt or punishment. Impeachment evidence can be
exculpatory evidence.

PA v. Richie…failure to provide file might have violated 6th amend right to

compulsory process. Court ordered that future issues should be turned over to
court to review en camera (in private) and court decides if there is exculpatory
info and if so provide that part to the defense

State v. ferguson--def was slumped over wheel of care, cop smelled alcohol and
asked def out of car. Def failed and was arrested. Def was taped in sobriety test
at jail but was taped over. Were his art 1 sec 8 rights infringed when the tape
was destroyed.
1. there must be duty to preserve evidence if it is exculpatory,
2. def can't obtain by any other means then there is a duty.

Then it looks at 3 factors if due process violation

3. Free of negligence involvement-if only neg.ok
4. Significance of lost evidence.if not equal to comparable available evidence
5. Sufficiency of other evidence to support conviction

Statute of limitations--amt of time govt has to prosecute the crime.

Felonies-
Class A-15 yrs
Class b-8 yrs
C or D- 4 yrs
E- 2 yrs
Misdemeanor - 12mos

Statute can be tolled:

Embezzlement- time period the crime is concealed does not count in statute
If a threat of violence against a child to cover a crime, the period between the
act and the crime being told doesn't count

See 40-2-104 Commencement of prosecution

Commencement is begun by an indictment, obtaining an arrest warrant

If a person ends up being charged with a lesser crime in court, then the statute
of the lesser crime must be met also (meaning less time for the limitation)
Def would motion to set aside verdict and dismiss due to passing the statute of
limitations

Due Process
Amendment 5 sec 10, 14

Direct Presentment---means straight to the grand jury

Motion to dismiss with prejudice--dismissed and can NEVER be brought back

Due Process tests

1. Length of delay
2. Govt caused delay or tactical advantage or to harass def
3. Actual prejudice

Then the speedy trial must be fulfilled. ===HOW LONG IS THE LIMIT

1. Length of delay
2. Reason for delay
3. Assertion of 6th amendment rights
4. Prejudice to defendant

In federal law there is a 70 day threshold, but def always seeks continuance
TN does not have a speedy trial statute.
Prejudice to def--Aggressive pre-trial interrogations, loss of evidence, loss of
memory, loss of possibility of concurrent jail sentences
Reasons for delay--deliberate delay by government, defendant delay, negligent
delay (most common, by the govt), valid delay (mental evals, illness)

Assertion of the 6th amend right--weighs heavily in his favor, failure to do so

weighs against him but does not constitute waiver of the issue.

Duncan v. louisana
A six person jury must be unanimous. Six is the least the SCt approved so the
minority isn't ganged up on

6th amendment confrontation clause:

Right to confront --hearsay was admissible if it was made in a state of passion.

Long sentence accomplishes deterrents by incapacitation of the offender.

General deterrents let people know what the punishment is
40-35-102 incapacitation is in 3b

Ex post facto, principle of legality

All restitution must be actionable without consideration f race, religion or

gender---due process clause

40-35-103-guidelins to apply principles

Sentencing should be based on those factors

Tenn Felonies
A-E(a-15-60,
The worst crime in the state is above A, first degree murder. Three poss.
punishments: death, life
B felonies: agg robbery, agg kidnapping
C-voluntary manslaughter, agg assault, agg burglary, theft over 60k
D-burg of business, forgery, theft over 1k, reckless hom
E-any forgery up to 1000, neg homicide
Agg burglary crimes do not merge

Juvenile convictions will act as a prior conviction

Plea bargains:
Taken, denied and recommendation by DA

3-35-112 mitigating factors for sentencing

Community corrections-to alleviate overcrowding

40-15-105-pretrial diversion
If no record, your atty should ask DA to screen for diversion that will never be
used against him. The da then decides is diversion is offered. If he is offered a
 contract is drafted for the terms for mental health treatment, education, drug
treatment etc. The court is then asked to approve it. It can count for up to two
years. If he completes his obligations, the record can be expunged.

40-35-313\
Person enters a guilty plea. With conditions…if completed case will be
dismissed. If def doesn't meet obligations, he has already pleaded guilty and
will have a criminal conviction and judge will determine punishment

Appeals
Tn rule of appellate procedure c
Automatic appeal.
Def may appeal jury verdict, sentence, court finding of probation violation, DA
denial of pretrial diversion, amt of bond, certified question of law
Rule 9
Interlocutory appeal where court agrees
10 interlocutory where trial court disagrees
11-APPEALING FROM 1ST APPEAL TO SUPREME

Tuesday, September 21, 2010

6:22 PM
Plea bargains and pleas
Most cases are resolved through plea bargaining

Poss. Ways outside of rue 11 a case can be plea bargained

In most counties a retirement is available. It is a legal fiction not in the rule. It

means a person is not found guilty or innocent, but the case isn't going to be
prosecuted for a period of time. At the end of that time, if the def has met the pre
agreed conditions, then the case will convert to a recognized dismissal and can be
expunged.

There are three pleas in the rule

Guilty, not guilty and no lo contendre
Before a person can plea nolo, the court must agree. Court enters a guilty verdict.
Also, NC v. Athort?--the "best interest plea" the def says I am pleading guilty not
because of the facts but because it is my best interest.

Before the court ay accept a guilty or nc plea, the curt addresses the def in open
court and inform them of the issues. "Plea Colloquy" the def must understand the
nature of the charge, the max penalty and any mandatory minimum penalty.
The def must be informed of his right to attorney again at a trial, knows he has the
right to plead not guilty and to persist in a previous not guilty plea, to cross
examine any witnesses, freedom from compelled self incrimination. The def is under
oath during this talk. The court has to determine that the plea is voluntary and
assure that the plea is not the result of coercion.
The court has to know that there is a factual basis for the plea. After the colloquy,
the DA will read a statement of fact into the record

3 types of plea agreements--

DA can offer a plea where def pleads guilty and in exchange other charges are
dismissed. If the court determines that it is too harsh, the def is informed he can
withdraw
-the DA agrees to recommend or not oppose def motion for a particular sentence,
-The DA plea bargains and def accepts a specific sentence.

A guilty plea during a plea bargain can't be used if def withdraws the plea

JOINDER AND Severance

Joinder is the process of joining two or more people or crimes in an indictment
Severance is the process of undoing joinder so that the crimes or people are tried
separately

They require a balance.DA are often --judicial effeciency is prime concern

Fairness is the competing interest
Defs usually want severance because if joindered then the jury will believe that if all
the charges are there then they must be guilty of a pattern

5th amend right to due process Art 1 sec 8 of TN cont

These are usually a strategy decision. Either for efficiency or to prejudice jury

Rule8-joinder
8.a. is mandatory joinder rule
8.b. is permissive joinder--can the offenses be put together.
8.c. joinder of defendants--when they can be joined--if each is charged with
accountability in each offense, if each is charged with conspiracy, even if conspiracy
isn't charged and all aren't charged in each acct, if all charges are part of a
combined scheme or plan or were so closely connected that it would be difficult to
separate them

Rule 14-severence of defendants and offenses

a-waiver. The motion to sever must be made before trial……………….