Due Process - Indiana University Bloomington



Table of Contents TOC \o "1-3" \h \z \u I.Due Process PAGEREF _Toc154047607 \h 1II.The Right of Counsel PAGEREF _Toc154047608 \h 2III.Charging Decisions PAGEREF _Toc154047609 \h 4IV.Pretrial Detention PAGEREF _Toc154047610 \h 5V.Guilty Pleas PAGEREF _Toc154047611 \h 7VI.Discovery PAGEREF _Toc154047612 \h 8VII.The Criminal Trial PAGEREF _Toc154047613 \h 9VIII.Sentencing PAGEREF _Toc154047614 \h 10IX.Double Jeopardy PAGEREF _Toc154047615 \h 11X.Appellate and Collateral Review PAGEREF _Toc154047616 \h 13Due ProcessDue Process & IncorporationThe 14th Amendment’s guarantee of “due process of law” does not necessarily require a grand jury indictment in a prosecution by the state for murder. (Hurtado)The 14th Amendment guarantees a right of jury trial in all criminal cases which – were they to be tried in federal court – would come within the 6th Amendment’s guarantee. Any crime punishable by two years in prison triggers the right to a jury. (Duncan)Due Process Theories:Rule of LawBill of RightsAccuracyFundamental FairnessDue Process in Criminal ProcedureStates may place the burden of proof in an incompetency hearing on the defendant without violating the Due Process Clause. (Medina)Due process requires that a citizen held in the United States as an enemy combatant must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. (Hamdi)Mathews 3-part test for due processPrivate interest at stake and injury threatenedRisk of error and probable value of procedural safeguardsCosts and benefits are weighedThe Right of CounselScope of the RightIn the adversary system of criminal justice, any person hauled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is appointed for him. (Gideon) [felony!]Misdemeanors with actual imprisonment triggers right to counsel at trial (Scott)A suspended sentence that may result in incarceration may not be imposed if the defendant did not have counsel at trial. (Shelton)Counsel on Appeal, Indigency, and “Critical Stages”States, after appointing counsel for an indigent’s first appeal as of right from a conviction, are not required to provide counsel for the defendant’s subsequent discretionary state appeals and for his applications for review in the U.S. Supreme Court. (Moffit)Having to pay for a trial transcript (which is required for an appeal) is not constitutional unless there is some method of waiving the fee for indigent defendants (Griffin)State must provide appointed counsel for the first direct appeal as of right (Douglas)Equal Protection v. Due ProcessNO requirement of absolute equality, the purposes of discretionary review are differentDefendant initiates appeals process, just because appeal exists doesn’t mean that not appointing counsel is unfair, defendant is using the appellate process as a sword NOT a shieldRight to jury trial does not attach to petty crimes. (> 6 months imprisonment) (Douglas/Baldwin)Ineffective AssistanceTo obtain relief due to ineffective assistance of counsel, a criminal defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding would have been different. (Strickland)Deficient Performance“Unreasonable under the totality of circumstances”Deferential standard (strong presumption of reasonable performance)Hindsight bias must be avoidedStrategic decisions are “virtually unchallengeable”PrejudiceReasonable probability that results of the proceedings would have been differentTotality of circumstances Assumes “law-abiding” judges and juriesPresumed prejudice:Actual constructive denial of counselConflict of interests (Cuyler)State interferenceComplete breakdown (Cronic)Performance and PrejudiceIn a capital case, counsel has a duty to make all reasonable efforts to learn what they can about the offense, including obtaining the prior conviction file to discover any mitigating evidence and to anticipate the aggravating details. (Rompilla)Performance[Terry] Williams v. Taylor (2000)Failed to conduct investigation into childhood/backgroundTotal failure to investigate constitutes deficient performanceWiggins (2003)Inadequate investigation (PSI/social services records) = deficient performancePrejudiceNix v. Whiteside (1986)Threatening to reveal perjury ≠ prejudicialKimmelman (1986)Failing to file motion to suppress (with an illegal search) can be prejudicial if there is a reasonable possibility that admitting evidence changed the outcomeLockhart (1993)Failing to secure windfall ≠ prejudicial (result of sentencing ≠ unfair or unreliable)Glover (2001)Change in amount of actual jail time = prejudicialMultiple RepresentationIn order to establish a violation of the 6th Amendment concerning multiple representation, a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. (Cuyler)CaseObjectionNoticeAffects Performance?ResultGlasserYes, by ?YesYesIneffectiveHollowayYes, by counselYesYesIneffectiveCuylerNoNoMaybe?Vacated/remanded?MickensNoNoNoEffectivePerformancePrejudiceStricklandObjectively unreasonable errorsReasonable probabilitySullivan“Actual conflict” affected performanceNO (presumed)Mickens“Significantly” affected performanceWaiverThe state cannot constitutionally force a lawyer upon a defendant who it literate, competent, and understanding, and voluntarily exercised his informed free will in waiving his right to the assistance of counsel. (Faretta) NO ineffective assistance when representing pro seNO serious or obstructionist conduct, or self-representation can be terminatedStandby counsel is not required to remain silent, but must only act in accordance with how the defendant wishes to present his own defense. (Wiggins)Two requirements:? = actual control over case presenting to juryStandby counsel should not be allowed to destroy the jury’s perception that ? is representing himselfA defendant does not have a right of self-representation on appeal. (Martinez v. Court of Appeals of California)Counsel of ChoiceA trial court erroneously depriving a criminal defendant’s choice of counsel (when the defendant has the means to hire an attorney) entitles him to reversal of his conviction. (Gonzalez-Lopez)A defendant who is able to stand trial but is unable to represent himself may proceed pro se or may appoint them counsel. (Indiana v. Edwards)Charging DecisionsProsecutorial DiscretionCourts are not permitted to make discretionary decisions about the possible prosecution of individuals, that is the responsibility of the prosecutor. (Inmates of Attica)Intent (purpose) to discriminate is required (McCleskey)To establish a selective-prosecution case, the defendant must show that the government declined to prosecute similarly situated suspects of other races. (Armstrong) To get discovery, ? must get something fairly sophisticated, “Similarly situated” is unclear exactly what this means (probably a substantial #)Strategic ProsecutionA passive enforcement policy under which the Government prosecutes only those who report themselves as having violated the law or who are reported by others is constitutional. (Wayte)The plain language of §1001 admits no exception for an “exculpatory no”. (Brogan)Grand Juries and Screening ProceduresHearsay evidence may be presented to a grand jury. (Costello)The prosecutor is not obligated to present exculpatory evidence to the grand jury. (Williams)Joinder and SeveranceThe government may not charge in the same indictment different persons with committing offenses of “similar character”. (Velasquez)When defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or risk the jury from making a reliable judgment about guilt or innocence. (Zafiro)Rule 8 = formal (look at the text of the indictment)Rule 14 = discretionaryPretrial DetentionExcessive Bail and the Bail Reform ActBail set at a figure higher than an amount reasonably calculated to assure the presence of the accused individuals was excessive under the 8th Amendment. If a higher bail is required, there must be a hearing where evidence is presented to justify the heightened amount of bail. (Stack v. Boyle)The Bail Reform Act of 1984, which allows a federal court to detain an arrestee pending trial if the government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions “will reasonably assure…the safety of any other person and the community”, is not facially invalid given the Act’s legitimate and compelling regulatory purpose and the procedural protections it offers. (Salerno)29089350001765935000 Bail Reform Act of 1984 = YES = NODoes the case 840105000fit (f)(1) 611505000or (f)(2)?17030706286500 Are both (d)(1) 175450534290000 and (d)(2) true?14173204057650015316206286500Are conditions needed to ensure appearance and community safety?(b) Release on recognizance, unsecured bail(c) Detention hearing1068705000(e) Rebuttable presumption may arise725805-635000 (d) Temporary detention up to 10 days(c) Conditional release18173705969000Under (g), is there clear and convincing evidence that no conditions can ensure appearance and community safety? Pretrial detentionSpeedy TrialThe appropriate standard for the speedy trial right is a balancing test in which the prosecution and defendant’s interests should be weighed. The four primary factors are: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. (Barker v. Wingo)To prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time. (Lovasco)An extraordinary length of delay between indictment and arrest violates the 6th Amendment right to a speedy trial as long as (1) the government was negligent in pursuing the defendant and (2) the defendant was unaware of the indictment until his arrest. (Doggett)Basis for ChallengePrejudiceLibertyCloudResultBarkerSpeedy trial clause (6th Amendment)No10 mos. Jail then free on bailYesOkLovascoDue Process clauseYes (2 witnesses died)NoYes (a little)OkDoggettSpeedy trial clause (6th Amendment)MaybeNoNoNOT Ok(Unconstitutional)Due Process (SoL) Speedy Trial Lovasco BarkerOffense-------Indictment-------Trial DoggettIndictment-------ArrestGuilty PleasSubstitutes for TrialAfter a guilty plea is entered and a defendant is effectively judged and convicted, he may not raise a double jeopardy claim. (Broce)A plea made by a defendant claiming innocence can still be valid; the court must look at the evidence and whether it was voluntarily and intelligently given. (Alford)Three Parts to Rule 11BAdvising and questioning the defendant (a litany of things the defendant should be informed of)Voluntariness of the PleaDetermining the factual basis of the plea (basically just an admission)Lawyers and Plea BargainingThe test applied to challenges to guilty pleas based on ineffective assistance of counsel is similar to the Strickland test: (1) whether counsel’s performance was deficient, and (2) whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. (Hill)Mandatory sentencing miscalculation (6-21 mos. too high) Strickland standard: (1) Ineffective assistance? YES (2) Prejudicial? YES (Glover)Hill = more of a guessing gameGlover = concrete amount of time would be smaller, specific and predictableVoluntarinessThe threat of the death penalty is not coercive if the guilty plea was entered intelligently and willingly. (Brady)A prosecutor may carry out a threat to reindict the defendant on more serious charges if he does not plead guilty, as long as the serious charges are justified. (Bordenkircher)Subject Matter LimitationsPlea wiring does not violate the Constitution, because it simply is not enough to overcome the will of some innocent persons and cause them to plead guilty. Almost anything lawfully within the power of a prosecutor acting in good faith can be offered in exchange for guilty pleas. (Pollard)There is no per se rule against release-dismissal agreements. (Rumery)O’Connor’s multi-factor balancing test: *Presumption = agreements are invalidKnowledge/experience of defendant (especially counsel)Nature of charges (more serious = more coercive)Legitimate criminal justice objectiveJudicial supervisionAbsent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable. (Mezzanatto)Enforcement of Plea AgreementsThe state courts must decide whether the State’s failure to keep a commitment concerning the sentence recommendation on a guilty plea requires a new trial. (Santobello)The defendant’s acceptance of the prosecutor’s proposed plea bargain does not create a constitutional right to have the bargain specifically enforced. (Mabry)A defendant may be retried after his sentencing and imprisonment for failing to comply with the terms of his plea agreement. (Adamson)DiscoveryThe Brady ObligationThe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady)**Material and exculpatory evidence in the government’s control (material if but for the disclosure the outcome would have been different)The prosecution has an affirmative duty to disclose evidence that would be favorable to the defendant. (Kyles)The Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. (Ruiz)Defense ObligationsThe privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses. (Williams)Due Process: Balanced test, legitimate truth-seeking purposeSelf-incrimination: Accelerated disclosure, not “compelled”, continuance = same effectA judge’s decision to exclude the testimony of undisclosed witnesses is permitted and does not violate the Compulsory Process Clause. (Taylor)The Criminal TrialJury Size and CompositionA five-member jury does not satisfy the jury trial guarantee of the 6th and 14th Amendments. (Ballew)In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. (Duren) **Venire ONLY!Peremptory ChallengesThe State’s privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause, if the defendant objects then the State must provide a racially neutral explanation for their challenges. (Batson) **Petit jury ONLY!Prima facie case: (totality of circumstances test), distinct group, single instance is enough (pattern is not necessary, but is relevant), statements and motions by prosecutor matterBurden shifts to state, race-neutral explanation requiredTrial court decides whether purposeful discriminationIn making a case for purposeful discrimination in jury selection, a defendant may rely on all relevant circumstances, including statistical analysis of the venire, side-by-side comparison of struck and empaneled jurors, disparate questioning, and evidence of historical discrimination. (Miller-El)Hernandez (1991): bilingual jurors = race neutralPurkett (1995): hair length/facial hair = race neutral (not that it’s a GOOD reason, but it must be genuine)J.E.B. (1994): gender is an impermissible basis for peremptory challengePowers (1991): white ? has standing to raise Batson claim for black jurors (race of defendant = immaterial)McCollum (1992): defense can make peremptories subject to Batson that prosecutors may questionWainwright v. Witt: prospective juror lacks impartiality only if he/she has views strong enough to prevent or substantially impair performance on the juror in accordance with lawPublicityThere are two types of possible prejudice due to publicity: (1) presumed and (2) actual. (Skilling)Prosecutorial MisconductIf a prosecutor’s closing argument misstates or manipulates the evidence or implicates other specific rights of the accused, then it deprives the defendant of a fair trial, but the weight of evidence and jury instructions also matter. (Darden)Trial Testimony and InferencesA prosecutor may, in summation, call the jury’s attention to the fact that the defendant had the opportunity to hear all other witnesses testify and tailor his testimony accordingly. (Agard)SentencingProportionalityThree strikes laws do not violate the 8th Amendment’s prohibition against cruel and unusual punishment. (Ewing)The 8th and 14th Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. (Simmons)Discretion and Rules at SentencingDiscretion & Rules at Sentencing Judge finding (hate crime)24517350002223135000Stat. Stat. Stat. Stat.13087350003594735000165735000336613500022231350001080135000-62865000 GL max3366135000 Judge3366135000 GL minAdd’l Stat.1080135000 Judge finding (firearm)Stat. Stat. Stat. Stat.3366135000-6286500022231350001080135000Williams (1949)Judge selecting sentence from rangeMcMillan (1986)Increase in floor of sentencingApprendi (2000)Increase in ceiling of sentencingBlakely (2004)Booker (2005)A judge may use information inadmissible at trial in making a sentencing decision for the death penalty. (Williams)Blakely applies to the Federal Sentencing Guidelines and requires that all facts that increase the defendant’s punishment beyond the high end of the Guidelines range applicable to the offense of conviction be proved before a jury beyond a reasonable doubt. As a result, the provision of the federal sentencing statute that makes the Guidelines mandatory is stricken, requiring district courts to instead focus on a broader range of factors in imposing sentences and appellate courts to review sentences for “reasonableness”. (Booker)The federal appeals courts may not presume that a sentence falling outside the range recommended by the Federal Sentencing Guidelines is unreasonable. (Gall)Double Jeopardy“Jeopardy”Dismissal: grounds relating to guilt/innocence = no retrial-5778522352000 NOT above = retrial ok (Scott) Acquittal: (Fong Foo) no retrial or appeal by gov’t2223135000 2451735000851535000Trial begins Verdict Conviction: (? appeal)222821522352000-5778522352000 (Bell) retrial ok, original jeopardy resumed (Burkes) except if sufficiency of evidence Mistrial Conviction but j. nov.: (Wilson) appeal ok, retrial ok gov’t request: manifest necessity? (ex: hung jury) retrial ok (reinstates guilty verdict)? request: prosecutor’s intent to provoke/goad = no retrial (Kennedy)A verdict of acquittal is final and cannot be reviewed without putting the defendants twice in jeopardy in violation of the Fifth Amendment’s double jeopardy clause. (Fong Foo)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. (Ashe)The circumstances under which a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. (Kennedy)Unless a state has a rule of non-finality of midtrial judicial acquittals, the Double Jeopardy clause prohibits the judge from reconsidering that acquittal. (Smith)“Same Offense”Blockburger (1932): whether each provision requires proof of a fact which the other does notA B C & B C = same offenseA B C & B C D ≠ same offenseBOTH WAYS! (offense 1 <--> offense 2)The Double Jeopardy clause bars the prosecution of a defendant on substantive criminal charges based upon the same conduct for which he has previously been held in contempt of court. (Dixon)Brown (1977): double jeopardy cannot be avoided by prosecutors who simply divide a single crime into a series of spatial/temporal unitsHarris (1977): when conviction of a greater crime cannot be had without conviction of the lesser crime, double jeopardy bars prosecution of lesser after conviction of the greaterGarrett (1985): Harris does not apply to enterprise crimesGrady (1990): functionally overrules BlockburgerDixon (1993): reverses course and overrules GradyAppellate and Collateral ReviewAppeals and Harmless ErrorHabeas Corpus ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download