Crim Adj Gilchrist Attack OL

DUE PROCESS

5th,
14th
Am

We should limit harm without severely limiting goal, punish fairly. Ensure accurate
procedures/

Winship

Every element of a crim offense must be proven beyond reas doubt.

Hamdi

Cant hold someone indefinitely without meaningful opport to contest factual basis
.
Prosecutor has almost unlimited discretion what to charge, who to charge.
Part of executive, crts cant compel- have own internal rules.
Gov can choose which to prosecute so long as they do not discriminate against
a class of people. If D complains discrimination- need clear evid.

PROSECUTORIAL
DISCRETION

CHARGING
DECISION

Prelims, Grand Juries (for felonies)

Prelim

Replaced later by indictment for felony, adversarial, decision by judge if prob cause.

Grand Jury

RIGHT TO
COUNSEL

Secret, no crt supervision, jury decides prob cause, D sometimes doesnt know.
Prosecutor cant mislead, but no duty to prevent evid to negate Ds guilt. No
FRE
States dont need grand jury if they have some other similar process to ensure
not arbitrary decision to charge.

6th Am D needs advocate who knows intricacies legal sys.

Triggered when risk of actual imprisonment, critical stages adversarial proceeding.

Effective Assis
Counsel

1. Performance of Ds counsel deficient under prevailing norms.

2. Prejudicde to case via specific errors.
3. Reasonable probability, but for counsels errors, results different.

IAC threshold

BAIL

SPEEDY TRIAL

Must point specific errors, presumption it was sufficient.

Mere errors dont warrant setting aside judgment.
Reas effort to review evid prosecutor plans to use- required.

8th Am No excessive bail.

Not punitive, regulatory.
1. Is there a stated purpose?
2. Is it rationally related to the stated purpose?
3. Is it not too excessive in light of the interest?
Gov can detain if shows clear convincing evid no condition ensure public safety, or that
D is flight risk.
Unjust, prejudicial delay violates DP. Consider:
1.
2.
3.
4.

Length of delay (presumptive if more than 1 year)

Govs reas for delay (if valid reason- appropriate).
Whether D asserted right to speedy trial
Whether D was prejudiced by delay. (limit defense- most serious.)

Before arrest investigative delay- less likely so. SOL usually takes care of prearrest.

Crim Adj Gilchrist Attack OL

VENUE

D tried in district where crime occurred (state is victim.)

Continuous crimes in different juris- any state where portion occurred can
prosecute. (conspiracy advantage).

Change Venue

Upon Ds motion:
Crt must change for prejudice- cant obtain fair and impartial trial there.
Crt may change for convenience of parties / witnesses/ int of justice.

Venue Prejudice

High standard. Must show circum such that presumption prejudice, voir dire shows
cant seat impartial jury.

JOINDER

Need separate trials when joint trial will compromise specific trial right, joining more
than D will prevent jury making reliable judgment.

Joinder of Offenses

Same or similar character, based on some act or transaction, parts of common scheme
/ plan.

Joinder of
Defendants
Severance

Same act or transaction, or same series of acts or transaction.

Misjoinder
Reversal

Steps taken to mitigate? Evid admiss anyway? Guilt evid substan?

(Harmless error doctrine)

DISCLOSURE

Both sides must disclose info.

Prejudicial joinder (severance. )

Ds Disclosure

Alibi WN, evid D intends to use, reports, insanity etc.

Cant intentionally hide WN- sanction could be exclude evid.

Pros Disclosure

Jencks Material- usually evid relied upon by gov WN. Upod Ds motion, must
hand over- failure to produce, remedy is mistrial (Jencks Act.)
Brady- DP requires prosecution turn over material evid relates to Ds guilt or
innocence or sentencing. Bad faith irrelevant.
ABA- ethical violation, must disclose evid to negate guilt mitigate offense
including sentencing. Material rule missing.
Must disclose evid to impeach WN- even if acted in good faith & failed.
Bagley- failure to turn over favorable evid- only new trial if reas prob outcome
different & result confidence undermined.
All suppressed evid must be taken & considd together.

Material =

Reas probability outcome different.

Pros has affirmative duty to hand over evid which might be favorable to D. If has to
question if material, err on safe side.

Waiving Rights

Plea deal waives rights to receiving impeachment info.

GUILTY PLEA

Not an dmission, waiver of rights- to be presumed innocent. Confront WNs, compel

process.

Crim Adj Gilchrist Attack OL

Conditional Plea

Guilty / nolo but D can reserve right for appeal.

Plea Procedural
Elements

1. Under oath
2. Confirm knows rights being given up
3. Confirm its voluntary
1. Must be voluntary
2. Informed
3. Have factual Basis

Plea Substantive
Elements
Alford Plea

If D voluntarily, knowingly pleas guilty but says didnt commit, can consent to
punishment if record has strong evid of actual guilt.

Plea Bargaining

Like K law. Pros can charge what he wants- discretion. Withdrawal ok if doesnt affect
voluntariness, if D breaches- pros can charge again without X2 jeop.

Pleas & IAC

Guilty plea involuntary if D can show actual prejudice (but for errors, result diff)
Bad advice from atty can undermine voluntary and knowing, 6th Am right EAC during
plea bargaining.

JURIES

6 or less- need unaminmous but 10 -2 ok. Less than 6- unconst.

Need rep comm.- be impartial, seated non discriminatory way.
Death qualified jurors.

Prima Facie- Jury

Discrimination

1. Distinctive group
2. Selection not fair & reas
3. Happening systematic
Compared to significant state interest.

Peremptory
Strikes- Race

If D makes prima facie showing discrim, burden on pros must articulate neutral
explanation- cant violate Equal Prot.
White D can raise, prosecutor, anyone can raise.

TRIAL RIGHTS

Removing disruptive D doesnt violate confrontation,

D has right to testify.

Pross Improper
Comments

To inflame jury or give opinion- no new trial if didnt misstate evid or facts, defense
chance to rebut, didnt deprive fair result.

Dynamite

Many cases no absolute certainty, survived const challenge, some states prohib.

SENTENCING

No cruel & unusual 8th Am, const doesnt have proportionality or punishment theory.
Disproportional ok- deference to states, but grossly disprop- not okay.

Apprendi

Other than prior conviction, any fact to increase penalty for crime must be submitted
to jury- proved beyond reas doubt. (D can waive Apprendi w/ guilty plea).

Guidelines

If within range, presumed reasonable. 100% variance down ok, no math in decision.

Crim Adj Gilchrist Attack OL

DOUBLE
JEOPARDY

5th Am 1. 2nd prosecution after acquittal (must be final verdict)

2. 2nd prosecution after conviction
3. Multiple punishments for same offense.

Jeopardy starts

When jury is sworn, or at crt trial- 1st WN testifies.

Dual Sovereignty

Fed gov and states separate, can prosecute for same crime.

Mistrial

No double jeop violation if brought again if there is manifest necessity. Ie

hung jury, can be retried.
If prosecutor compelled D to request mistrial- no new trial. (intent controls)

Collateral Estoppel

Issue of ultimate fact cant be retried after valid and final jury judgment.

Contempt of Crt

Can punish on substantive crim charges same conduct which D previously held.

APPEAL

Continue crim case- have higher crt review.

Not const right- statutory.
Still has harmless error doc.
New rules apply to case appealed because not over- must be fundamental
right, state crt ruling must be plainly unreas, hard to meet, 1 year to file, must
exhaust state crts before fed crt).

Collateral Review

Habeus- whole new case, new shot.

Can do after whole case done- last final chance appeal.

Pros Appeal

Interlocutory, appeal from dismissal, sentence.

Burdens

To show prejudice, to show harmless (substantive error).