Case Name

Subject

Abbate v. US

Double Jeopardy

Ake v. Oklahoma

Right to Counsel

Alabama v. Shelton
Allen v. US

Right to Counsel
Double Jeopardy

Alleyne v. US
Almendarez Torres v. US

Trial Rights
Trial Rights

Apodaca

Trial Rights

Apprendi v. New Jersey

Argensinger v. Hamlin

Trial Rights
Right to Counsel

Arizona v. Youngblood

Trial Rights

Ashe v. Swenson

Double Jeopardy

Attica Correctional Facility v. Rockefeller Charging Decision

Baldwin v. NY
Trial Rights
Ballew

Trial Rights

Barker v. Wingo

Trial Rights

Bartkus v. Illinois

Double Jeopardy

Batson v. Kentucky

Trial Rights

Bell v. Cone
Benton v. Maryland

Right to Counsel
Double Jeopardy

Betts v. Brady

Right to Counsel

Blackledge v. Perry

Plea Bargaining

Blakely v. Washington

Trial Rights

Blanton v. Las Vegas

Trial Rights

Blockburger

Double Jeopardy

Bordenkircher v. Hayes

Plea Bargaining

Boyer

Trial Rights

Boykin v. Alabama
Bradshaw v. Stumpf

Plea Bargaining
Plea Bargaining

Brady v. Maryland

Trial Rights

Brady v. US

Plea Bargaining

Brillon

Trial Rights

Brookhart

Right to Counsel

Brooks v. Tennessee
Bruton v. US

Trial Rights
Charging Decision

Burch

Trial Rights

Burks v. US
Chapman v. US

Double Jeopardy
Appeals

Holding/Rule
Topic (Detailed)
Prosecutions under laws of separate sovereigns are prosecutions of different offenses, not reprosecutions of the
same offense. Therefore, permissible for federal government to prosecute a defendant after a state prosecution
of the same conduct, or vice-versa, regardless of the outcome of the first prosecution
Reprosecution by a Different Sovereign
When the sanity of a defendant is likely to be at issue in criminal proceedings, the Constitution requires the state to
provide the services of a psychiatrist.
Right to Appointed Counsel
The right to counsel extends to defendants that have a suspended sentence which could lead to imprisonment.
Suspended sentence is still a prison term
Right to Appointed Counsel
Approved use of jury instruction intended to prevent a hung jury by encouraging minority jurors to reconsider
Reprosecution After a Mistrial
Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory
minimum is an element of the crime that must be submitted to the jury.
Apprendi Revolution
approved increasing the maximum sentence on the basis of a judicial finding of a defendants prior conviction
Apprendi Revolution
held that state laws providing for a less-than-unanimous vote for conviction are constitutional and will be upheld--at
least in the case of a required 10-to-2 vote; The less-than-unanimous rule, according to Apodoca, does not violate
the cross-section requirement, since there is no guarantee that any particular jury would have members constituting
a cross-section of the community, and it does not unconstitutionally impair the jurys functioning.
Right to Jury Trial
Any fact (other than a prior conviction) that operates to increase the maximum punishment for an offense is an
element of the offense and must be found by a jury beyond a reasonable doubt. This includeds (1) a factor which
increases the statutorily authorized maximum sentence under a sentencing enhancement provision; (2) an
aggravating circumstance statutorily designated as a prerequisite for making a murder defendant eligible for the
death penalty; and (3) a factor designated in a basically mandatory sentencing guideline as a prerequisite for
imposing a sentence in excess of the standard guideline range
Apprendi Revolution
Counsel required if actual imprisonment (felony or misdemeanor)
Right to Appointed Counsel
The failure of a state to preserve physical evidence that could have been useful to the defendant is not a violation of
due process unless bad faith on the part of the police is shown; due process does not require the police to preserve
all evidence in a criminal case.
Brady and Missing Evidence
In both federal and state courts, when an issue of ultimate fact has been determined by a valid and final judgment,
that issue cannot again be litigated between the same parties.
Double Jeopardy & Joinder
Decision not to prosecute is NOT reviewable; Second Circuit held that courts would not order prosecutions, even if a
state investigation of inmate grievances showed strong evidence of criminal wrongdoing and even if a statute
required prosecution.
Prosecutorial Discretion
In all federal criminal cases, the right to a jury trial is guaranteed only to those charged with serious offenses. A ser Right to Jury Trial
5- person juries are unconstitutional because they would not permit effective group discussion; would diminish the
chances of drawing from a fair, representative cross-section of the community; and might impair the accuracy of
fact finding
Right to Jury Trial
Offers a 4-factor test to determine if there has been a post-arrest delay to trial in violation of speedy trial clause-- 1)
length of delay; 2) reason for delay; 3) D's assertion/demand of right; 4) prejudice to D
Right to Speedy Disposition
Because prosecution of federal and state offenses are not the "same offense," defendant can be prosecuted by the
state after being prosecuted federally for the same occurrence
Reprosecution by a Different Sovereign
held that purposeful racial discrimination in jury selection violates the defendants right to equal protection as well
as rights of the excluded group and those of the entire community; once the defendant makes a prima facie showing
of discrimination, the prosecutor must articulate a neutral explanation for why he challenges a potential juror
because the Equal Protection Clause prohibits the prosecution from excluding African Americans from the venire
and prohibits the prosecution from then striking the African American veniremen on the assumption that they will
be biased because the defendant is also African American. Three-step process for a trial court to use in adjudicating
a claim that a peremptory challenge was based on race: (1) a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race; (2) if that showing has been made, the prosecution
must offer a race-neutral basis for striking the juror in question; and (3) in light of the parties' submissions, the trial
court must determine whether the defendant has shown purposeful discrimination.
Voir Dire
High deference to attorney tactics-- fine that attorney waived final argument, preventing prosecution form
rebutting, and D was sentenced to death. Illustrates high bar to finding ineffective assistance.
Right to Effective Assistance of Counsel
Double jeopardy clause incorporated to states
Double Jeopardy Generally
Overturned by Gideon; said counsel only required for special circumstances and found not met in this case becuase
D had ordinary intelligence and was not helpless
Right to Appointed Counsel
Even if no evidence that prosecutor acted in bad faith, UNcon to bring more serious charge against D at a de novo
trial-- cannot punish D for exercising his right to new trial
Constitutional Considerations

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt.
an offense carrying a maximum sentence of six months or less may still be a serious offense if additional authorized
penalties are so severe that they clearly reflect a legislative determination that the offense is a serious one. A fine of
$10,000 in conjunction with a six-month term of imprisonment is not sufficiently serious as to entitle a defendant to
a jury trial. A restitution obligation is irrelevant because for purposes of the right to a jury trial, restitution does not
impose an additional obligation on the defendant; rather it recognizes the debt that the defendant already owes.
Only penalties resulting from state action, e.g., those mandated by statute or regulation should be considered,
because nonstatutory consequences are speculative in nature, incapable of a consistent determination of when and
if they will occur.
Test for successive prosecution (originally test for multiple punishment). Where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact which the other does not.
But in the give-and-take of plea bargaining, there is no such element of punishment or retaliation so long as the
accused is free to accept or reject the prosecutions offer. Last word by Court on plea bargaining-- immunizes plea
bargaining from constitutional scrutiny.
a state's failure to fund counsel for an indigent defendant for five years is not weighed against the state for speedy
trial purposes , as the delay due to lack of funding was nevertheless beyond the control of the state through the
D.A.s office. (Hurricane Katrina)
To waive a plea, you must have done so on the record. Trial judge must create a record to show that waiver of trial
right was in fact voluntarily and knowingly given by D.
If Ds attorney explained the elements of the charge to D, there is no requirement the judge must do so too.
Suppression by prosecution of evidence favorable to an accused upon request violates DP where evidence is
material either to guilt or to punishment, irrespective of good faith or bad faith of the prosecution. Exculpatory
evidence has to be turned over.
Plea of guilty is not invalid merely because entered to avoid possibility of a death penalty (pled guilty after finding
out co-D would plead guilty and testify against D)-- only invalid if made unfavorable plea on constitutionally
defective advice of counsel or that he could not have understood terms of bargain
Where the reason for delay is the fault of the attorney, the delay is generally attributed to the defendant, since the
attorney is the defendants agent. This is the case even where the attorney is a public defender assigned by the
court, unless it can be shown there was a systemic breakdown in the public defender system. Although a public
defender is part of the state criminal justice system, the public defender acts only in the interest of the defendant.
DP violated when state trial court accepted defense counsels agreement with prosecutor that all the state had to
prove was a prima facie case, that he would not contest it, and there would no cross-examinations of witness.
A state law that requires a criminal defendant to take the stand before any other defense witness or forfeit the right
to testify on his own behalf violates constitutional due process requirements and the privilege against selfincrimination.
Limiting instruction is not enough to protect against incriminating statements made by a co-D.
Court struck down a provision that misdemeanors punishable by more than 6 months shall be tried by a jury of 6
persons, five of whom must concur to render a verdict.
When D's conviction is reversed by appellate court on sole ground that evidence was legally insufficient to sustain
jury's verdict, DJ clause bars retrial.
First case in which SCOTUS decided that a constitutional error can be harmless beyond reasonable doubt

Apprendi Revolution

Right to Jury Trial

Multiple Punishment
Constitutional Considerations
Right to Speedy Disposition
Plea Bargaining Background
Plea Bargaining Background
Brady and Missing Evidence
Constitutional Considerations

Right to Speedy Disposition

Client Control
Right to Remain Silent and Testify
Joinder: Bruton Issues
Right to Jury Trial
Reprosecution After a Reversal of a Conviction
Appeals

Dissent:
O'Connor:
charged that, by
invalidating a
determinate
sentencing
system under
which the judge
imposes a
sentence within a
statutory range
based on
legislatively
determined
factors, the Court
was undermining
rather than
advancing
constitutional
values.

Corbitt v. New Jersey

Plea Bargaining

Costello v. US
Crist v. Bretz
Davis v. Minnesota

Charging Decision
Double Jeopardy
Trial Rights

Dennis v. US

Trial Rights

Dixon v. US

Double Jeopardy

Doggett v. US

Trial Rights

Dougherty

Trial Rights

Douglas v. California

Right to Counsel

Downum v. US
Duncan v. Louisiana

Double Jeopardy
Trial Rights

Duren v. Missouri

Trial Rights

Evans v. Michigan

Double Jeopardy

Ewing v. California

Sentencing

Faretta v. California

Right to Counsel

Fong Foo v. US

Double Jeopardy

Gagnon v. Scarpelli

Right to Counsel

Georgia v. McCollum
Gideon v. Wainwright

Trial Rights
Right to Counsel

Godinez v. Moran

Right to Counsel

Gray v. Maryland

Charging Decision

Griffin v. California

Trial Rights

Griffin v. Illinois

Right to Counsel

Griffith v. Kentucky

Appeals

Ham v. South Carolina

Harrington v. US
Harris v. Oklahoma

Trial Rights
Charging Decision
Double Jeopardy

Harris v. Washington

Double Jeopardy

Heath v. Alabama

Double Jeopardy

Henderson
Henderson v. Morgan

Appeals
Plea Bargaining

Hernandez v. New York

In re Jordan
In re the Matter of Cross
In re United States

Trial Rights
Trial Rights
Plea Bargaining
Charging Decision

In re Winship
Indiana v. Edwards
J.E.B. v. Alabama

Trial Rights
Right to Counsel
Trial Rights

Jackson v. US
Jencks v. US

Plea Bargaining
Trial Rights

Johnson v. California
Johnston v. US

Trial Rights
Charging Decision

Jones

Right to Counsel

Jones v. US

Trial Rights

Kennedy

Double Jeopardy

Klopfer v. North Carolina

Trial Rights

Kotteakos v. US

Appeals

Kyles v. Whitley

Trial Rights

LaFler v. Cooper

Plea Bargaining

D sentenced to life but could by statute receive either life or term of no more than 30 years had he entered a nolo
contendere plea-- Court says no violation because anything goes in plea bargaining. More like Hayes than Jackson. Constitutional Considerations
Hearsay evidence permissible in grand jury hearings;(Federal Rules of Evidence, other than privileges, do not apply
in grand jury proceedings). Evidence inadmissible under the Federal Rules of Evidence may be heard and considered
by grand jurors.
Grand Jury Screening
Double jeopardy attaches when the jury is empaneled and sworn
Double Jeopardy Generally
held that Batson, also barred exercising a peremptory challenge on the basis of a religious classification. Davis, howe Voir Dire
In a case where federal govt is a party, its employees are not challengeable for cause solely by reason of their
employment.
Voir Dire
New test is now Blockburger + Harris-- must disaggregate compound crimes and see if theyre in lesser/greater
relationship. If so, D cannot be re-tried. Think of contempt as order + crime. You must show both. Then, cocaine
possession w/ intent to distribute is lesser included. Its like felony murder, so theres DJ bar.
Double Jeopardy & Joinder
The 8 year delay between indictment and arrest violated his Sixth Amendment right to a speedy trial, arguing that
the Government had been negligent in pursuing him and that Doggett had remained unaware of the indictment
until his arrest.
Right to Speedy Disposition
A judge presiding in a criminal case is not required to instruct the jury on the issue of jury nullification or allow
defense counsel to argue the issue in front of the jury; forcing the court to instruct the jury on the concept of jury
nullification would put an undue burden on the jury system. Essentially, jurors would be forced to act as minilegislatures or judges.
Right to Jury Trial
Right to counsel on first appeal-- decided on equal protection grounds. Dissent (Harlan): this should really just be
decided under due process, not equal protection. EP clause does not impose on states a duty to lift handicaps
flowing from differences in economic circumstances
Right to Appointed Counsel
Prosecution is granted retrial without defendant's consent after mistrial because did not have two witnesses; giving
prosecution time to strengthen it case is problematic and not a manifest necessity
the Sixth amendment right to trial by jury was applicable to the states because trial by jury in criminal cases is fund Right to Jury Trial
statute that gave women but not men the right to refuse jury service was held unconstitutional when only 15 % of
the jury was female.
Jury Selection: the Venire
Double Jeopardy Clause bars retrial following a court-directed acquittal, even if the acquittal was erroneous.
Procedural dismissals include rulings on questions that are unrelated to factual guilt or innocence.
Reprosecution After a Mistrial
recidivist legislation (e.g., CA 3 strikes law) is constitutionally acceptable for purposes of the Eighth Amendment;
(Eighth Amendment does not require strict proportionality between crime and sentence, but forbids only extreme
sentences that are "grossly disproportionate" to crime; petitioner's sentence under three- strikes law did not violate
that limitation); court focuses on the "narrow proportionality principle" of the 8th amend
Constitutional Proportionality
Right to self-representation inherent in 6th Amendment; requires that D be given warnings by judge before
choosing to reprenset himself
Right to Self Representation
Bar on reprosecution after an acquittal even if the verdict or ruling is based upon an egregiously erroneous
foundation,such as when a judge, who lacks the authority to do so, directs a verdict of acquittal before the
prosecution has rested its case.
Reprosecution After an Acquittal
In violation of parole or probation hearings, counsel should be appointed on case by case basis. Indigent probationer
has no unqualified due process right to counsel.
Right to Appointed Counsel
Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from
exercising peremptory challenges solely because of race
Voir Dire
Overturns Betts; 6th Amendment right to counse is a fundamental right-- incorporated to states!
Right to Appointed Counsel
Waiving right to counsel-- there is a heightened standard for pleading guilty and for waiving right to counsel but not
a heightened standard of competence.
Right to Self Representation
Cannot just substitute "deleted" for name-- this type of redacation unconstitutional because encourages juries to
speculate but OK to say "I did X with another person"
Joinder: Bruton Issues
fifth Amendment, as incorporated against the states in the Fourteenth Amendment, forbids comment on the
accuseds silence as evidence of guilt.
Right to Remain Silent and Testify
14th Amendment requires that all indigent Ds be given transcripts so they can file an appeal; cannot be denied right
to appeal because cannot afford to pay for transcripts
Right to Appointed Counsel
Retroactive application of Batson allowed? A new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending direct review or not yet final, with no exception for cases in which
the new rule constitutes a "clear beak" with the past.
Appeals
In voir dire, questions about racial bias must be allowed under special circumstances; court is constitutionally
required to inquire on voir dire into ethnic or racial prejudice of possible jury members only when special
circumstances are present. Special circumstances exist when the issues to be tried involve allegations of racial or
ethnic prejudice, or when the case involves a violent criminal act and the victim is of a different ethnic or racial
group than the defendant. In Ham, defense was that he was framed in retaliation for his civil rights work. Defendant
asked the trial judge to include two questions in the voir dire relating to possible racial prejudice against him.
Voir Dire
Bruton errors may be harmless if evidence proves the crime beyond reasonable doubt.
Joinder: Bruton Issues
Disaggregate the felony murder statute so that it is robbery-murder, rape-murder, etc. and then apply Blockburger.
Powerful evidence that was excluded erroneously and now in the 2nd trial, no full and fair opportunity to litigate so
collateral estoppel should apply. SCOTUS say erroneous acquittal is still an acquittal for DJ purposes. Only question
is whether this issue was decided against the state.
Double Jeopardy & Joinder
Different states can prosecute defendant for the same conduct; dual sovereignty doctrine says not the same offense
for double jeopardy purposes
Reprosecution by a Different Sovereign
Plain requirement for plain error analysis met when: 1) Unobjected-to decision of trial judge was plainly incorrect
at time made, 2) Even if trial judges decision was plainly correct at the time when it was made but subsequently
becomes incorrect based on change in law, 3) Where the law is unsettled at time of error but plain at time of review Appeals
Cant say D knowingly took the plea agreement when he didnt know the elements of the crime he was admitting to Plea Bargaining Background
prosecutor's peremptory challenges of Spanish-speaking Latino jurors based on his doubts about the ability of such
jurors to defer to the official translation of Spanish-language testimony did not violate the Equal Protection Clause. Voir Dire
disciplinary proceeding against prosecutor who wrongly suppressed Brady evidence
Brady and Missing Evidence
An Alford plea is different from a nolo contendere plea.
(Posner) Federal judges dont have power to prosecute crimes. Decision based on separation of powers.
Prosecutorial Discretion
Juvenile justice case; held that juveniles are entitled to proof beyond a reasonable doubt when charged with a
violation of a criminal law; due process mandates that all the elements of an offense be proven beyond a reasonable
doubt
Reasonable Doubt
Judge can decide that even if you are competent to stand trial, you are not competent enough to represent yourself Right to Self Representation
Extends Batson to gender; impermissible to use peremptory challenges for gender discrimination
Voir Dire
Federal kidnapping statute structured oddly such that you can only get death penalty if you go to trial found
unconstitutional because cannot penalize one for exercising his constitutional right to a jury trial.
Constitutional Considerations
The government must produce documents relied upon by government witnesses in federal criminal procedures
Statutory Discovery for the Defense
held that the state courts of California were erroneously applying Batson by requiring an objecting party to show
that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible
group bias. The Supreme Court used Johnson to explain that an objecting party need support only an inference of
discrimination in order to require the striking party to give race-neutral reasons for his strikes.
Voir Dire
Based on statute, venue was proper where work was to be perofrmed, not where D was located
Venue
OK for defense counsel to not include in appellate brief a claim that defendant desired to press-- this is a lawyer's
tactical decision
Client Control
Any fact (other than a prior conviction) that operates to increase the maximum punishment for an offense is an
element of the offense and must be found by a jury beyond a reasonable doubt. This includeds (1) a factor which
increases the statutorily authorized maximum sentence under a sentencing enhancement provision; (2) an
aggravating circumstance statutorily designated as a prerequisite for making a murder defendant eligible for the
death penalty; and (3) a factor designated in a basically mandatory sentencing guideline as a prerequisite for
imposing a sentence in excess of the standard guideline range; the rule of Apprendi v. New Jersey is limited to
sentencing for single crimes, not to the arrangement for punishing multiple offenses.
Apprendi Revolution
Held that reprosecution is barred, even when a mistrial is declared at the defendants request, if the prosecutor or
the judge intended to provoke or goad the mistrial motion. Line drawing between criminal and civil penalties: laid
out following considerations [1] Whether the sanction involves an affirmative disability or restraint; [2] whether it
has historically been regarded as a punishment; [3] whether it comes into play only on a finding of scienter; [4]
whether its operation will promote the traditional aims of punishmentretribution and deterrence; [5] whether the
behavior to which it applies is already a crime; [6 whether an alternative purpose to which it may rationally be
connected is assignable for it; and [7] whether it appears excessive in relation to the alternative purpose assigned;
there will rarely be a case in which imposition of a monetary penalty will bar a later criminal prosecution on the
basis of double jeopardy.
Reprosecution After a Mistrial
Speedy trial clause of 6th Amendment applies to the states through DP of 14th amend. Right to speedy trial is
fundamental.
Right to Speedy Disposition
Question for appellate court is what effect the error had or reasonably may be taken to have had upon jurys
decisionimpact of the thing done wrong in the minds of other men, not on ones own, in the total setting
Appeals
A defendant is entitled to a new trial under Brady v. Maryland, 373 U.S. 83 (1964), if the prosecution withheld
multiple pieces of favorable evidence that, taken together, undermine confidence in the verdict.
Brady and Missing Evidence
Strickland prejudice test applied where ineffective assistance of counse results in the rejection of a plea offer and
the defendant is convicted at the ensuing trial. Dissent: how could there be prejudice if D got a fair trial?
Plea Bargaining and Ineffective Assistance of Counsel

Concurring opinio Dissenting: Breyer, Stevens, Souter, Ginsburg; no difference between Ewing and Solem v. Helm so the court should reach the same conclusion here

Lee v. US

Double Jeopardy

Lewis v. US

Trial Rights

Lockett v. Ohio

Trial Rights

Lockhart v. Nelson

Double Jeopardy

Martinez v. Ct of Appeals of California

Right to Counsel

Martinez v. Illinois

Double Jeopardy

Mayer v. Chicago

Right to Counsel

McCullough v. Texas

Plea Bargaining

McKane v. Durston

Appeals

McKaskle v. Wiggens
McMillan v. Pennsylvania

Right to Counsel
Trial Rights

Michigan v. Lucas

Trial Rights

Miller-El v. Dretke

Trial Rights

Missouri v. Frye

Plea Bargaining

Missouri v. Hunter
Mitchell v. US

Double Jeopardy
Trial Rights

Neder v. US

Appeals

Nichols v. US

Right to Counsel

North Carolina v. Alford

Plea Bargaining

North Carolina v. Pearce

Plea Bargaining; Sentencing

Oyler v. Boles

Charging Decision

Padilla v. Kentucky
Padilla v. Kentucky

Plea Bargaining
Right to Counsel

Palko v. Connecticut

Introduction

Pereira v. Rhode Island

Perez v. US

Charging Decision
Double Jeopardy

Portuondo v. Agard

Trial Rights

Powell v. Alabama
Powers v. Ohio

Introduction
Trial Rights

Purkett v. Elem
Trial Rights
Rangel-Reyes v. US (Thomas dissenting fr Trial Rights
Ricardo v. New York

Charging Decision

Richardson v. US

Trial Rights

Ring v. Arizona

Trial Rights

Ristaino v. Ross
Ross v. Moffitt

Trial Rights
Right to Counsel

Ross v. Oklahoma

Trial Rights

Russell v. US

Charging Decision

Sanabria v. US

Double Jeopardy

Sanford v. US

Double Jeopardy

Santobello v. New York

Schad v. Arizona

Plea Bargaining
Trial Rights

Scott v. Illinois

Right to Counsel

Scott v. US

Double Jeopardy

Serfass v. US
Singer

Double Jeopardy
Trial Rights

Smith v. Alabama

Plea Bargaining

SmithKline v. Abbott

Trial Rights

Dismissal is functional equivalent of declaring mistrial so no DJ bar. Here, jduge noted D's guilt but dismissed
information as insufficient.
Reprosecution After an Acquittal
Multiple petty offenses joined in a single prosecution cannot be aggregated in calculating 6 months for a right to
jury trial. Determine whether an offense is serious by looking at the crime with maximum sentence and jury right
flows from that. We dont look at aggregated sentence; no jury trial right exists where a defendant is prosecuted for
multiple petty offenses.
Right to Jury Trial
prosecutors repeated remarks in closing that the state's evidence was "unrefuted" and "uncontradicted" do not
violate the defendant's 5th Amendment rights as constituting comments on her failure to testify
Right to Remain Silent and Testify
Distinguished from Burks-- when evidence submitted and admitted, whether erroneously or not, would hav ebeen
sufficient to sustain a guilty verdict, DJ clause does not bar retrial.
Reprosecution After a Reversal of a Conviction
6th Amendment right to self-representation is for criminal trials, NOT for appeals. Right to self-representation is not
absolute.
Right to Self Representation
After jury selected and sworn, prosecution was unable to produce 2 witnesses; prosecution declared it was not
participating in trial and would produce no evidence, defendant moved for directed verdict of acquittal, which trial
court granted.
Reprosecution After an Acquittal
A state may not limit the provision of free transcripts only to felony defendants unless the state can show that a
defendant will not be denied an effective appeal by the provision of some alternative to a transcript.
Right to Appointed Counsel
OK that judge upped the sentence upon new trial because there is no requirement that the conduct occur after as
long as there is objective information justifying the increased sentence. With new sentencers, the presumption of
vindictiveness does not apply.
Constitutional Considerations
Dictum: "A review by an appellate court of the final judgment in criminal case, however grave the offense of which
accused is convicted, ... is not now a necessary element of due process"-- note: written at a time when appellate
review had recently been introduced but this dictum has never been questioned
Appeals
A pro se defendants Sixth Amendment rights are not violated when a judge appoints a standby counsel but 2
restrictions: 1) D gets to control case over which he presents to jury and 2) counsel shouldn't destroy jury's
perception of D representing himself
Right to Self Representation
held that a sentencing system requiring the state to prove facts for sentencing only by a preponderance of the evide Apprendi Revolution
rape shield statute, which authorized preclusion of evidence as a remedy for defendants failure to comply with the
notice and hearing requirement, did not constitute a per se Sixth Amendment violation in all cases
Discovery for the Prosecution
held that a court must consider all the circumstances that bear upon the issue of racial animosity when ruling on a
Batson objection, or in reviewing a ruling claimed to be Batson error.
Voir Dire
Defense counsel has duty to communicate formal offers from prosecution to accept a plea. Failing to communicate
plea offer is ineffective assistance.
Plea Bargaining and Ineffective Assistance of Counsel
Legislative intent, not Blockburger, is test for DJ in multiple punishment. For multiple prosecutions, DJ prevents
imposing more punishment than legislature intended.
Multiple Punishment
A defendants right to remain silent and the accompanying right not to have that silence used against her apply at se Right to Remain Silent and Testify
Jury not being told an element of the offense can be harmless; Dissent (Scalia): depriving criminal D of right to have
a jury determine his guilty, which necessarily means every element of crime charged, can never be harmless; this is a
slippery slope because what if it was more than 1 element that was left off?
Appeals
An uncounseled misdemeanor conviction can still be used to enhance a prison sentence when, after being given
counsel, a defendant is convicted of a second crime.
Right to Appointed Counsel
Alford plea-- can plead guilty but maintain innocence. D can voluntarily, knowingly and understandingly consent to
the imposition of a prison sentence, even if he testifies that he did not in fact commit the crime, if he intelligently
concludes that a guilty plea is in his best interest and the record contains strong evidence of actual guilt.
Plea Bargaining Background
DP clause prohibits judge from imposing heavier sentence on retrial after D successfully appealed new trial absent
new conduct. If there is a higher sentence on retrial, the presumption is that it was vindictive. To rebut, the reasons
must affirmatively appear and must be based on objective information concerning identifiable conduct on the part
of the D occurring after the time of the sentencing.
Constitutional Considerations
Unless exercise of discretion is based on impermissible ground (race, gender, other suspect classification),
prosecutor has broad discretion
Prosecutorial Discretion
Counsel has duty to advise non-citizen client on immigration consequences (risk of deportation) on entry of guilty
plea
Plea Bargaining and Ineffective Assistance of Counsel
Attorney has to warn about immigration consequences in plea bargaining
Right to Effective Assistance of Counsel
DP permits state to retry defendant who has been acquitted at first trial where state has gained appellate reversal
on the basis of trial error. CTs procedure is not so shocking that it is not consistent with civilized society. Rejects
total incorporation theory and sets out fundamental fairness standard; overruled by Benton v. Maryland
Rule 8(a) permitting state to charge D with multiple offenses in a single indictment met in this case despite the
considerable length of time between offenes because they were "of the same or similar character"
Joinder of Charges and Defendants
Can retry after a hung jury mistrial as long as there is "manifest necessity"
A criminal defendants constitutional rights are not violated by a prosecutorial comment to the jury indicating that
the defendant may have gained an advantage by choosing to testify last during trial. Griffin is not analagous
Right to Remain Silent and Testify
In a capital case, where D is unable to employ counsel, and is incapable of adequately making his own defense
because of ignorance, feeble-mindedness, illiteracy or the like, it is the duty of the court, whether requested or not,
to assign him counsel and a necessary requisite of due process
prosecutor could not exclude prospective jurors whose race was different from that of defendant, if the exclusions were based Voir Dire
held that the exercise of a peremptory challenge is permissible if the prosecutor can establish a race-neutral
explanation of the challenge. According to Purkett, this explanation does not have to be persuasive, or even
plausible.
Voir Dire
Almendez Torres should be overruled
Apprendi Revolution
Use of multiple juries, whether statutorily authorized or not, does not deny Ds their constitutional right to a jury trial
or, in the absence of identified prejudice, to due process. However, multiple juries are exception, not the rule.
Joinder: Bruton Issues
"continued series of violations" creates several elements, namely, the several violations of the drug laws, rather
than only one element. Constitution required that the jury must agree unanimously and separately as to each of
those elements
Unanimity and Inconsistent Verdicts
applied Apprendi to state death penalty law; no death sentence could follow a jury's decision to convict a first
degree murderer without the further finding of an aggravating circumstance
Apprendi Revolution
Court distinguished Ham and held that a black defendant charged with crimes against a white security guard had no
right to question jurors about racial bias absent a showing of special circumstances (fact that victim and defendant
were different races was not enough). Court found no DP right to ask the jurors about their racial bias. Under Ross
cant ask potential jurors about their racial bias every time a defendant is of a different race than the victim. (There
is a more lenient rule in capital cases regarding ability to question about racial bias.); "substantial implications" of
the likelihood of racial or ethnic prejudice affecting the jurors in a particular case are not necessarily present when
the alleged criminal confrontation occurred between a black assailant and a white victim; Court stressed
that Ham did not announce a rule of general applicability. "Rather, it reflected an assessment of whether under all
of the circumstances presented, there was a constitutionally significant likelihood that, absent questioning about
racial prejudice, the jurors would not be as 'indifferent as [they stand] unsworne.'
Voir Dire
No right to counsel on discretionary review-- trial and appeal are different
Right to Appointed Counsel
held that a petitioner's sixth and fourteenth amendment rights to an impartial jury were not violated when he was
required to exercise a peremptory challenge to remove a juror who should have been removed for cause. Court
further stated that Ross' loss of a peremptory challenge to cure the trial court's error did not violate his right to an
impartial jury. Logic: defendant's constitutional right to an impartial jury was not violated because the jury that
actually sat was impartial. The Court also held that the defendant's constitutional right to due process was not
violated because peremptory challenges are statutory rights, and, therefore, a state can define the manner of their
exercise.
Voir Dire
Factual specificity: Indictments must provide the acused with a sufficient description of the acts he is alleged to have
committed to enable him to defend himself adequately
Charging Instrument
When D has been acquitted, he may not be retried for the same offense, even if the legal rulings underlying the
acquittal were erroneous.
Reprosecution After an Acquittal
Court held that govt could appeal pretrial ruling dismissing unlawful hunting charge on the basis that govt agents
had consented to Ds conduct, a pretrial order similar to that issued in Serfass.
Reprosecution After an Acquittal
Plea bargain is a contract, governing by contract law principles and prosecutor breached K when D plead to lesser
count on prosecutors word that he would make no recommendation and prosecutor then recommended the max,
and judge imposed it.
Broken Promises
Due process does not require that a jury unanimously agree on one of several alternative statutory means of commi Unanimity and Inconsistent Verdicts
The Sixth and Fourteenth Amendments require that no indigent defendant be sentenced to a term of imprisonment
unless the state has afforded him the right to the assistance of appointed counsel.
Right to Appointed Counsel
Government can appeal, as long as there has been no acquittal. This is dismissal ruling of pre-indictment delay, not
an acquittal, because an acquittal is when a jury finds that an element of the offense was unproven.
Reprosecution After an Acquittal
Double jeopardy purposes, a person is not in jeopardy of life or limb until the jury is empaneled and sworn or, in a
bench trial, until the first witness is sworn. As such, it's cool if prosecution appeals a pretrial dismissal or recharges
defendant following a pretrial dismissal
Reprosecution After an Acquittal
No constitutional right to waive a trial by jury
Right to Jury Trial
Vindictiveness presumption does not apply to a higher sentence imposed following a vacated guilty plea and a
subsequent conviction after trial. No presumption of vindictiveness.
Constitutional Considerations
held that a party's peremptory strike against a potential juror based on the juror's sexual orientation was
impermissible under Batson; equal protection prohibited peremptory strikes based on sexual orientation
Voir Dire

Snyder v. Louisiana

Trial Rights

Somerville v. Illinois

Double Jeopardy

Southern Union

Trial Rights

Stack v. Boyle

Bail and Preventive Detention

State v. Furgal

Bail and Preventive Detention

State v. Morales

Trial Rights

State v. Tune

Trial Rights

Strickland v. Washington

Right to Counsel

Strickler v. Greene (Souter dissent)

Trial Rights

Sullivan v. US

Appeals

Swain v. Alabama

Trial Rights

Taylor v. Illinois

Trial Rights

Taylor v. Louisiana

Trial Rights

Travis v. US

Charging Decision

US v. Adelson

Sentencing

US v. Antrobus

Sentencing

US v. Armstrong

Charging Decision

US v. Bagley
US v. Batchelder

Trial Rights
Charging Decision

US v. Bell

Charging Decision

US v. Benchimol

Plea Bargaining

US v. Booker

Sentencing

US v. Cabrales

Charging Decision

US v. Calandra

Charging Decision

US v. Cox

Charging Decision

US v. Cronic

Right to Counsel

US v. Dreier

Bail and Preventive Detention

US v. Ferreira (Dissent)

Trial Rights

US v. Gonzalez
US v. Gonzalez-Lopez

Right to Counsel
Right to Counsel

US v. Hall (Posner concurring)

Trial Rights

US v. Hart-Williams

Charging Decision

US v. Johnson

Charging Decision

US v. Lombardo

Charging Decision

clear-error standard of appellate review added to Batson test; standard of appellate review of the trial courts ruling
is clearly erroneous, but the Court also made clear that an appealing defendant wins if he can show just one racebased challenge that should have been upheld under Batson. In determining if the challenge should be sustained, a
trial judge considers the demeanor and credibility of the prosecutor, and an appellate court looks to the record to
determine if the prosecutors excuse is supported.
Voir Dire
DJ doesn't trump procedural rules-- trial judge given discretion to declare a mistrial if an impartial verdict cannot be
reached, or if a verdict of conviction could be reached, but would have to be reversed on appeal due to an obvious
procedural error in the trial. Here, indictment found deficient because forgot an element
Reprosecution After a Mistrial
Apprendi applies to facts that raise the maximum criminal fine level, not just to rise in maximum imprisonment
penalties; Apprendi applies to the imposition of a fine. Thus, the amount of the fine cannot be increased above the
statutory maximum for the count of conviction unless the jury makes specific findings that trigger another statutory
fine range
Apprendi Revolution
Bail set at an amount higher than that necessary to assure that the defendant will stand trial and submit to sentence
if found guilty, is excessive under the Eighth Amendment; The fixing of bail must be based upon standards relevant
to the purpose of assuring the presence of the defendant (the nature and circumstances of the offense charged; the
weight of the evidence against the accused; the accuseds character; and the financial ability of the defendant to
meet the bail requirements)
Traditional Considerations
pretrial detention laws which mandate detention for defendants charged with crimes punishable by life
imprisonment, and the government must only show that proof is evident or the presumption is great that the
defendant will be convicted, do not violate due process concerns simply because they do not also require individual
evaluations of the defendants dangerousness and risk of flight; Court found that Salerno did not stand for the
proposition that all statutory bail schemes must include an individualized inquiryinto a defendants dangerousness
in order to pass constitutional muster.
Bail Reform Act of 1984
rejected Youngbloods bad faith test as a matter of state constitutional law; defendant moved to dismiss the charges
against him because of the police's failure to preserve evidence. Defendant did not argue that the police had acted
in bad faith, but argued that his ability to defend himself was irreparably harmed. Ct said no: the federal
constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and
does not inhibit state governments from affording higher levels of protection for such rights.
Brady and Missing Evidence
early discovery case; defendant denied access to evidence held by the prosecution because of fear it would facilitate
perjury and lead to intimidation of witnesses
Statutory Discovery for the Defense
To establish the ineffective assistance of counsel, a convicted defendant must show that: 1) his counsels
performance was deficient because the lawyer did not act as a reasonably competent attorney and 2) he was
prejudiced by the deficiency because there is a reasonable probability that, but for his attorneys unprofessional
errors, the result of the proceeding would have been different.
Right to Effective Assistance of Counsel
suggests that the reasonable probability standard (established in Bagley) as to the materiality of suppressed
evidence is misleading and should be replaced with inquiry as to the "significant possibility" of a different result
Brady and Missing Evidence
Defective reasonable doubt instruction cannot be harmless error because if when you dont have good reasonable
doubt instruction, you dont have a guilty verdict bc they havent found it beyond a reasonable doubt (formalist
argument made by Scalia).
Appeals
Overruled by Batson; Court concluded that the presumption in any particular case must be that the prosecutor is
using his peremptories for proper reasons. Moreover, the Court held that this presumption cannot be overcome in
an individual case by allegations that all Negroes were removed from the jury or that they were removed because
they were Negroes. In other words, the Court insulated from inquiry the prosecutions use of peremptory
challenges to remove African-Americans in a particular case.
Voir Dire
Where the defendants discovery violation is sufficiently serious, the Compulsory Process Clause does not prohibit a
trial judge from refusing to allow an undisclosed witness to testify.
Discovery for the Prosecution
requirement that a jury be selected from a representative cross-section of the community also extends to sexual
discrimination; Court overturned the conviction of a male by an all-male jury which was selected under a Louisiana
statute that allowed women but not men to exempt themselves from jury duty. The Court held that a jury panel
from which women were systematically excluded was invalidly constituted
Jury Selection: the Venire
Verb test for venue; union official in CO charged with making false statement within the jurisdiction of any
department or agency of the US," via documents executed and mailed in CO to DC. Because offense required that
the false statements be made within the jurisdiction of the Board, cannot be prosecuted in CO.
Venue
"This is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently
unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence
that comports with federal law." Sentencing memo; judge imposed way less time than the guidelines suggested.
Guideline Sentencing
Defendant illegally sold a gun to some kid (dead) who then murdered the victim. Victim's parents sought to have the
victim declared a victim of the defendant's crime so that they could assert certain rights provided by the Crime
Victim's Rights Act (right to be heard at sentencing, right to restitution). CVRA defines a crime victim as being a
person "directly and proximately harmed as a result of the commission of a Federal offense". Trial ct determined
that the victim was not a "crime victim" of the offenses the defendant plead guilty to, as defendant's crime and the
kid murdering the girl were too "factually and temporally attenuated." Standard for seeking CVRA mandamus
petition is petitioner must show a clear and indisputable right to relief. Here, Ct of Appeals found that the Atrobuses
met that standard. Concurrence: Agrees that standard hasn't been met but argues that the trial ct and govt erred in
failing to permit the Atrobuses access to evidence which could support their claim. Govt's cooperation is mandated
by CVRA.
Victim's Rights
For a selective prosecution claim (valid EP claim), Ds must show discriminatory effect motivated by discriminatory
purpose (i.e., must show that similarly situated individuals of different race were not prosecuted and it was
intentional) Ds didnt show this, so no claim. Sets a very high bar
Prosecutorial Discretion
Under Brady, the prosecutions failure to turn over favorable evidence only requires a new trial if a reasonable
probability exists that the outcome would have been different if the evidence was turned over; Failure to disclose
Brady evidence could lead to appellate reversal if the defendant is convicted.
Brady and Missing Evidence
Proseuctorial discretion to choose charge with heavier sentence
Prosecutorial Discretion
Unit of prosecution important to determine for questions of duplicity and multiplicity; D brought 2 woman across
state lines for prostitution, is this one crime or two crimes? Court holds that unit of prosecution is the transportation
and not the woman, so should only get one count and one sentence.
Charging Instrument
K between prosecutor and D not broken when prosecutor holds up his end of the bargain (though apathetically and
not helpful) because made no expressions of reservation about the plea, and didnt say that he would make the
recommendation enthusiastically or state reasons for it.
Broken Promises
(1) the Sixth Amendment right to trial by jury applies to sentencing under the mandatory U.S. Sentencing
Guidelines, so that a sentence imposed thereunder is subject to the principle that any fact (other than a prior
conviction) that is necessary to support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt;
and
(2) that provision of the Sentencing Reform Act of 1984 (SRA) that makes the U.S.
Sentencing Guidelines mandatory is incompatible with the Court's Sixth Amendment jury-trial holding and
therefore had to be severed and excised from the SRA with the result that the SRA now makes
the Guidelines effectively advisory, requiring a sentencing court to consider the
Sentencing Guidelines sentencing ranges but permitting it to tailor a sentence in light of other statutory concerns. Guideline Sentencing
D charged for money laundering and following verb of statute, proper venue is where the laundering actually took
place. Congress revises statute after this case so that D can be prosecuted in any district where the unlawful activity
took place.
Venue
Unconstitutionally seized evidence is permissible in grand jury hearing. Grand jury isnt subject to evidentiary
restrictions because not about finding guilt or innocence, and allowing this would lead to protracted interruptions of
grand jury proceedings
Grand Jury Screening
Grand jury is entitled to legal assistance of USAO, so has to draft, but cant be forced to initiate legal proceedings,
which signing would do
Prosecutorial Discretion
Not ineffective assistance unless some effect on reliability of trial process; there is a presumption of competence so
burden on D to show otherwise
Right to Effective Assistance of Counsel
Preventive detention not appropriate in case in which defendant being charged with various white collar crimes
agrees to $10million unsecured bail, electronic monitoring, and security guards tasked with preventing his flight (all
paid for by def). House arrest is OK
Bail Reform Act of 1984
complaining about the arbitrariness of constitutional speedy trial law; "presumptive prejudice" as defined in Doggett
is meaningless; Doggett provides no guidance
Right to Speedy Disposition
Defense consent needed by statute to allow a federal magistrate to conduct voir dire and jury selection is satisfied
by express consent of counsel alone because acceptance of magistrate judge at jury selection phase is a tactical
decision well-suited for attorneys own decision
Client Control
No harmless error for being denied counsel of your choice-- no need to show prejudice
Right to Counsel of One's Choice (Conflicted Counsel)
Posner thinks that judges should NOT attempt to define "reasonable doubt" to the jury, due to the definition often
creating more confusion, if judges don't tell juries to attach a numerical percentage to proof beyond a reasonable
doubt and if attempts at verbal elaboration of reasonable doubt are likely to yield barren tautologies.
Reasonable Doubt
2nd Circuit; agrees with 4th and 9th that venue is not an element of a crime so does not need to be decided by jury.
A mistake in laying venue is a harmless error because it is an error of the most technical kind that does not affect
substantial rights of the accused.
Venue
Defendant charge of using the mails for purpose of sending dentures into another state. Ct. looks at verb in
statute. Venue could only lie in the state from which they were sent since crucial test was sending and that had
been completed there.
Venue
Followed verb of statute ("filing") to mean that filing is complete when document is delivered and received, such
that proper venue was where the document would have been received
Venue

US v. Loud Hawk

Trial Rights

US v. Lovasco

Trial Rights

US v. MacDonald

Trial Rights

US v. Martinez-Salazar

Trial Rights

US v. Mechanik
US v. Miller

Charging Decision
Charging Decision

US v. Olano

Appeals

US v. Powell
US v. Ramirez-Amaya

Trial Rights
Charging Decision

US v. Resendiz-Ponce
US v. Robinson

Charging Decision
Trial Rights

US v. Rodriguez-Moreno

Charging Decision

US v. Ruiz

Plea Bargaining

US v. Salerno

Bail and Preventive Detention

US v. Sherburne

Charging Decision

US v. Stirone
US v. Strunk

Charging Decision
Trial Rights

US v. Williams

Charging Decision

Victor v. Nebraska

Trial Rights

Wardius v. Oregon

Trial Rights

Washington v. Arizona

Double Jeopardy

Wayte v. US

Charging Decision

Wheat v. US

Right to Counsel

Williams v. Florida

Trial Rights

Williams v. Florida

Trial Rights

Williams v. New York

Sentencing

Williams v. New York (Murphy, J.)(dissenti Sentencing

Wilson v. US

Double Jeopardy

Witherspoon v. Illinois

Trial Rights

Wood v. Bartholomew

Trial Rights

Yarborough v. Gentry

Right to Counsel

Yeager
Yick Wo v. Hopkins

Double Jeopardy
Charging Decision

Zafiro v. US

Charging Decision

Zedner v. US

Trial Rights

Speedy Trial Clause of the Sixth Amendment did not apply to the time during which defendants were neither under
indictment nor subjected to any official restraint. Therefore, defendants' indictments were improperly dismissed.
Speedy trial clock doesnt run during appeal process. Speedy trial clause's core concern is impairment of liberty; it
does not shield a suspect or a D from every expense or inconvenience associated with criminal defense.
Right to Speedy Disposition
pre-indictment delay was violation of the Due Process Clause. Standard: defendant mustnhave suffered substantial
prejudice as a result, and show that the delay was an intentional device to gain tactical advantage over the
accused.
Right to Speedy Disposition
held that the time between dismissal of military charges and the subsequent indictment on civilian charges may not
be considered in determining whether the delay in bringing defendant to trial violated his Sixth Amendment right to
a speedy trial.
Right to Speedy Disposition
Peremptory challenges are not constitutionally required. Therefore, if the trial court refuses to exclude a juror for
cause who should have been excluded, and the defendant uses a peremptory challenge to remove that juror, there
is no constitutional violation
Voir Dire
Indictment basically can't be brought up on appeal. Logic: the purpose of a grand jury is to determine whether there
exists probable cause to prosecute. The standard to convict is much higher, thereby making the probable cause
determination irrelevant. I.e., if there is enough to convict, there is obviously probable cause. "The moving finger
writes; and having writ, moves on."
Grand Jury Screening
Narrowing of allegations doesn't make the indictment void
Charging Instrument
Plain error doctrine requires that a defendant has the burden to show that 1) there was an error, 2) it was plain, 3)
affected the outcome, 4) resulting in a miscarriage of justice
Appeals
Inconsistent verdicts are okay. Cannot be reviewed because it could be not that they thought there wasnt evidence
to convict on the felony, but just that they didnt want to (leniency) and we shouldnt judge the jurys votes.
Unanimity and Inconsistent Verdicts
Venue appropriate in SDNY/EDNY when drug plane flew over East River
Venue
Court concluded that the indictment need not identify the specific overt acts that constituted the requisite
substantial step in an attempted reentry into the country. The different actions taken by the defendant in an
attempted border crossing were all part of single cause of conduct and there was not need to do more than
characterize that course of conduct as an attempt.
Charging Instrument
Prosecutor's comments in closing about D's opportunity to testify is fair as a response to D counsel's comments.
Right to Remain Silent and Testify
Because of continuing crime (kidnapping), D could be charged in any place where continuing crime took place even
though element for second crime (using and carrying firearm) only took place in one location. Two step inquiry:
identify the conduct constituting the offense, and then discern the location of the commission of the criminal acts. Venue
Constitution does not require pre-guilty plea disclosure of impeachment information. Prosecutor has no duty to turn
over impeachment material prior to plea. D pre-plea does not have right to impeachment materialnot a question
of waiver because there is no right.
Plea Bargaining and Brady
An arrestee may be detained prior to trial if the governments regulatory interest in public safety is legitimate and
compelling, provided there are procedural protections in place to safeguard the arrestees liberty interests.
Bail Reform Act of 1984
Attorney's fees inappropriate under Hyde Amendment where D fails to show that prosecution's position was
vexatious, frivolous, or in bad faith. Vexatious standard met when prosecution was 1) unwarranted because it was
intended to harass (subjective) and 2) without sufficient foundation (objective element). High standard!
Prosecutorial Discretion
Broadening the indictment is not harmless error. 5th Amendment requires that basis of conviction be contained in
the indictment
Charging Instrument
Remedy for denial of speed trial is dismissal.
Right to Speedy Disposition
Courts have a supervisory power that allows them to control their own procedures but not those of the grand jury;
held that a prosecutor had no duty to provide the grand jury with exculpatory statements about the alleged crime.
The Court noted that the grand jurys responsibility is not to determine guilt or innocence, but rather to assess
whether the evidence provides an adequate basis to bring criminal charges. Neither the grand jury guarantee of the
Fifth Amendment nor the Supreme Courts supervisory power mandates that prosecutors must disclose exculpatory
evidence to the grand jury.
Grand Jury Screening
Defining "reasonable doubt" is tricky; court finds jury instruction, including the words moral certainty and that
reasonable doubt is not a mere possible doubt" was sufficient.
Reasonable Doubt
Oregon statute requires alibi-notice provision but gives no reciprocal discovery rights to D. Due process forbids
enforcement of alibi rules unless reciprocal discovery rights are given to criminal Ds. Discovery must be a two-way
street
Discovery for the Prosecution
Judge does not explicitly need to state manifest necessity as basis for granting mistrial. Dilutes the manifest
necessity rule to finding if a judge acted irrationally or irresponsibly. Here, defense counsel in opening statement
talks about previous prosecutorial misconduct that led to a new trial and alternative is limiting instruction, which is
not good enough
Reprosecution After a Mistrial
Discriminatory purpose to bring claim of selective prosecution implies more than intent as awareness of
consequences. Implies that decision maker selected a particular course at least in part because of not merely in
spite of its adverse effects on an identifiable group.
Prosecutorial Discretion
Broad discretion of trial court in joint representation cases to conflict out counsel-- presumption in favor of D's
choice to counsel but can be rebutted by 1) actual conflict OR 2) showing of serious potential for conflict
Right to Counsel of One's Choice (Conflicted Counsel)
5th Amendment privilege of self-incrimination is not violated by a requirement that D give notice of an alibi defense
and disclose his alibi witness.
Discovery for the Prosecution
Defendants Sixth Amendment right to a jury trial does not guarantee a twelve-member jury in state court. Court
has approved the use of a jury as small as six-members in Williams
Right to Jury Trial
Due Process Clause of the Fourteenth Amendment does not require that a person convicted after a fair trial be
confronted with (Confrontation Clause does not apply at sentencing) and permitted to cross-examine witnesses as
to his prior criminal record considered by the judge in accordance with a state statute in determining what sentence
to impose pursuant to broad discretion vested in him under state law -- even when the jury recommends life
imprisonment and the judge imposes a death sentence.
The Court regularly cites Williams when it concludes that an adjudication right does not apply at sentencing
Sentencing
Dissenting--Due process of law includes at least the idea that a person accused of crime shall be accorded a fair
hearing through all the stages of hte proceeding against him. The "high demands" of due process were not met
because: (1) capital case (2) against the unanimous recommendation of the jury (3) judical discretion relied on a
probation report that would not have been admissible at the trial (4) probation report was not subject to
examination by the defendant
Sentencing
Not barred from re prosecution; if a jury returns a guilty verdict, after which the judge grants Ds motion for a
judgment of acquittal notwithstanding the verdict, the government may appeal the judicial acquittal. Logic: DJC does
not prohibit the government from appealing an acquittal if the defendant would not be exposed to a second trial if
the appeal were successful.
Reprosecution After an Acquittal
State cannot exclude jurors for cause if all they did was express general opposition to the death penalty; note:
would be different if they said they would automatically acquit if death penalty an option.
Voir Dire
Since polygraph tests would not have been admissible in evidence, prosecutor had no Brady obligation to disclose
them
Brady and Missing Evidence
6th Amendment guarantees reasonable competence, not perfect advocacy-- very very low bar for what constitutes
competence
Right to Effective Assistance of Counsel
Jury acquitted D on 2 counts but hung on counts of insider trading and money laundering and gov't tries to
prosecute again. SCOTUS says consideration of hung counts ahs no place in issue-preclusion analysis
Double Jeopardy & Joinder
Not a selective prosecution decision but a selective enforcement decision
Prosecutorial Discretion
Mutually antagonistic defenses do not require severance because not automatically prejudicial just because you
would have a better chance of acquittal if it were severed; Burden is on the defendant to show prejudice. Most
courts require that she show a serious or substantial risk that a joint trial would compromise a specific trial right or
would prevent the jury from making a reliable judgment of guilt or innocence.
Joinder of Charges and Defendants
Speedy trial constitutional violations are not harmless, given the language of the statute (if trial not commenced
within proscribed tribeshall be dismissed).
Right to Speedy Disposition