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Criminal Adjudication
St. Johns University School of Law
Cunningham, Larry

Cunningham_CrimPro Adjudication_Spring 2015
Criminal Procedure-Adjudication Outline
Open Book – 2 hours – ½ MC (20), ½ Essays (Issue Spotter)
       I.            INTRODUCTION
(A)  Adjudication: Criminal Justice system composed of 3 phases
                                i.      Cops-crime committed then reported/observed by police who investigate
                              ii.      Courts- Complaint, Initial Appearance, Preliminary Hearing, Grand Jury, Adjudication
                            iii.      Corrections-Sentencing
(B)  Failures & Legitimacy
                                i.      Brown v. Mississippi: state must provide a trial that’s fundamentally fair under the 14th Amendment
                              ii.      Powell v. Alabama: backward looking rule [not general rule! – court confines its holding to the facts presented.]. ∆ must have reasonable time to secure/prepare counsel in order to meet 14th Amendment due process.
(C)  Incorporation: should the states incorporate all of the Amendments? Can turn to the Bill of Rights to decide which amendments are fundamental, then apply it to case law & interpret the amendments to the states via 14th Amendment/due process clause
·         Only 2 Bill of Rights Amendments haven’t EVER been applied to states: (i) Grand Jury indictment [under 5th Amendment] & (ii) Right to Bail [under 8th Amendment]                                 i.      Duncan v. Louisiana: Right to jury trial, under the 6th Amendment, is fundamental right and applies to the states
                              ii.      Theories of Incorporation:
1.      Total Incorporation: entire Bill of Rights + baggage incorporated through 14th Amendment
2.      No Incorporation: states have the rights to choose
3.      Selective Incorporation: specific parts of BOR + baggage incorporated
4.      Fundamental Fairness: [MAIN THEORY] ALL fundamental rights/principles (in BOR, Constitution, case law, etc.) of ‘liberty & justice’ are incorporated to the states
    II.            PRETRIAL RELEASE
(A)  Initial Appearance: Magistrate judge presides without unreasonable delay (24-48 hours within arrest) to advise ∆ of his rights and make a determination as to the release/detention of ∆.
(B)  FRCrP 5: Initial Appearance
(a). In General: ∆ must be brought before judge without unnecessary delay but there are occasional exceptions where you can bypass having Initial Appearance (i.e. probation violation)
(b). Arrest WITHOUT a Warrant: In a warrantless arrest, police determine probable cause on their own and make arrest. A complaint that established probable cause MUST be filed to justify arrest.
(c).  Place of Initial Appearance: Generally, if ∆ is arrested in district where offense was allegedly committed, Initial Appearance must be in that district. If ∆ arrested in district other than where offense was committed, Initial Appearance MUST be in (i) district of arrest or (ii) adjacent district if it can occur more promptly
(d). Procedure in Felony Case: At Initial Appearance, ∆ must be advised of his rights, consult with counsel, release/detention decision, plea
(C)  Bail Reform Act of 1984 (federal level/some states incorporated)
·         Allows for detention where (i) flight risk AND (ii) necessary for safety of community. Detention hearing is required in violent cases, if ∆ has multiple convictions, flight risk, risk of tampering with witnesses/jurors
(D)  §3142: Release or Detention of a ∆ Pending Trial à presumption is release but can be detention
(a). Judge has options: ROR, Conditions, Detain
(b). Default: ROR or Unsecured unless (1) release won’t reasonably assure appearance OR (2) release will endanger safety of community
(c).  Release on Conditions [ROC] must be least restrictive (statute provides suggestions for conditions)
(d). Allows for Detention: Can make argument for detention IF previously convicted of crime listed under (f)(1), on release while doing the crime, did another crime within 5 years.
o   Presumption of Detention** (a) drug crimes punishable by more than 10 years, () use of a gun during a crime, (c) terrorism, (d) slavery, (e) crimes against children
(e).  Detention Hearing: few days after Initial Appearance
(1)   Only GOVERNMENT can propose detention under criteria: (i) crime of violence, (ii) offense for maximum sentence of life imprisonment/death, (iii) drug crime w/max term of 10 + years, (iv) 3rd strike, (v) violent crime involving minor victim or firearm possession
(2)   Government OR judge makes motion IF (i) ∆ is flight risk or (ii) risk that person will obstruct justice/injure prospective witness/juror
(f).   Factors to be Considered: (1) nature & circumstances of crime, (2) weight of evidence, (3) history/characteristics of person, (4) nature/seriousness of danger to any person
(E)   Bail & Other Release Mechanisms: people are innocent until proven guilty but it’s necessary to secure ∆ show up at next court appearance
                                i.      Unsecured Bond:  ∆ doesn’t have to put any money upfront. If he doesn’t show up, he owes government
                              ii.      Secured/Surety Bond: pay upfront by using someone you know OR bail bondsman
                            iii.      ROR: no financial conditions; judge releases ∆s on own recognizance
                            iv.      Deposit Bail: provide for money bond (or % of bond amt.)  to be posted directly with the court
                              v.      ROC: judge can release under certain conditions (curfew, periodic drug testing, stay away from victim, etc.)
                            vi.      Detention: deny bail altogether; ∆ remains locked up
à Stack v. Boyle: OLD LAW – Purpose of Bail is to secure ∆’s return to court/assure ∆ will stand trial (guarantee someone’s appearance in court & amount cannot be no more than necessary to achieve that purpose). Only consider if ∆ is a flight risk.
à U.S. v. Salerno: NEW RULE for FEDERAL LEVEL – bail has dual purposes; can take into account Flight Risk & Danger to Community
(A)  Case Screening
·         Police decide whether to stop suspicious personàquestion/searchàwhether any statements made/items found create sufficient indicia of serious criminal activity to justify an arrest
·         Prosecutor has immense discretion in choosing which cases to prosecute
·         Prosecutor NOT obliged to present ALL charges which evidence might support, but charges must be supported by probable cause & admissible evidence
(B)  Limits on Charging
                                i.      Disproportionate Impact [standard for Selective Prosecution=discrimination based on race, religion, gender] à U.S. v. Armstrong: ‘selective prosecution’ claim is NOT a defense against a crime but an independent assertion that the prosecutor has brought the charge for reasons forbidden by constitution. When ∆ makes an assertion, he must be prepared to prove it.
§  In order to get discovery on a selective prosecution claim, must be some evidence tending to show the existing elements of selective prosecution defense
                              ii.      Vindictiveness [∆ is being punished for exercising Constitutional right] à Blackledge v. Perry: A person convicted of an offense is entitled to pursue his statute right to a trial de novo, without apprehension that State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.
§  Due process requires ∆ be freed of apprehension of such retaliatory motivation on part of sentencing judge.
§  Prosecutor’s decision to increase charges will stand except: (i) when there’s proof of actual vindictiveness or (ii) increase occurs after ∆ has acted to reverse a conviction
(C)  FRCrP 5.1: Preliminary Hearing: Judicial Screening of Cases
·         Shortly after arrest which provides an opportunity for defense to test prosecution’s case. Judge hears both sides to determine if there is sufficient probable cause to continue with the case (this is rarely used because prosecutors favor going to grand jury to get an indictment to proceed w/case)
·         Purpose is to examine evidence to determine whether probable cause exists to proceed; (i) crime was committed & (ii) ∆ was the one who committed it
à Coleman v. Alabama: person accused of crime requires counsel at every step in proceedings & not limited to presence of counsel at trial [preliminary hearing is critical stage at which counsel is essential to protect indigent accused against a prosecution/Constitution guarantees that ∆ be afforded right to counsel].
  IV.            GRAND JURY (in lieu of Preliminary Hearing)
(A)  FRCrP 6: The Grand Jury
a.      Only hears from prosecution, ∆ can testify but cannot argue. Grand jury is composed of 23 members; 16 is a quorum, 12 juror votes needed to indict. Prosecutors prefer to get indictments over preliminary hearings.
b.      Secret proceeding; only government attorneys, witness, interpreters & court reports are allowed to be present
c.       Grand juries are not open to the public and there are limitations to recording/transcript of proceeding. Rule imposes secrecy on jurors BUT there are exceptions with court order (for good cause, the court can authorize release of some/all transcripts or information about grand jury)
(B)  FRCrP 7: Indictment & Information
a.      Need indictment for felonies unless ∆ waives his rights
b.      Indictment must be ‘plain, concise, & definite written statement of essential facts constituting the offense charge.’ Can indict on “John/Jane Doe” if you have DNA evidence to prevent the SOL from expiring
c.       Court may strike out surplusage (anything that’s ‘fluff’)
(C)  Purpose of Grand Jury:
·         Grand Juries serve 2 functions: (i) screens to determine whether probable cause exists to indict & (ii) an investigative purpose [direct indictments] where prosecutor first goes through grand jury process to get an indictment then arrest the ∆. Grand jury has independent subpoena powers
à U.S. v. Williams: government has NO authority over prosecutors’ conduct/how they handle grand jury proceedings, so long as they follow the Constitution. Prosecutors don’t have a duty to present exculpatory evidence to federal grand juries [grand jury is institution separate from courts]  
(D)  5th Amendment Privilege: Self-Incrimination- protects ∆ from being forced to disclose certain kinds of information
·         grand jury subpoenas raise 5th Amendment self-incrimination issue other than the required scope of immunity. 5th Amendment is violated ONLY if the grand jury order will: (1) Compel the witness to (2) testify (3) in a way that might incriminate herself. If all 3 elements are met, the 5th Amendment applies & the person doesn’t have to testify even though he is subpoenaed to do so.
o   (1) Compelled: subpoena can compel attendance, to create a document [the contents] OR to produce a document [existence, possession & authentication of evidence] o   (2) Testimony: testimonial evidence requires a communicative act (with a thought process involved)’ doesn’t include compelling someone to take a blood test, stand in lineup, etc.
o   (3) Incriminating: witness may have to explain to the supervising judge of grand jury for the court to determine whethe

on discovery requests
2.      Criminals ∆s are a class more likely to attempt to influence witnesses to change testimony/not testify than civil litigants
o   FRCrP 26.2/Jenk’s Act: if statement made of a witness in parties’ control, must be exchanged during the trial. Witness, not the ∆, after testifying under oath on direct (mid-trial disclosure rule), the party who called the witness has to turn over any statements the witness made if the other side requests [i.e. police reports/notes ONLY if person who wrote report testified but it’s of limited use because you get it mid-trial] (C)  Constitutional Discovery à Government cannot sit on exculpatory evidence
o   Brady Material: prosecutor has duty to disclose material evidence that’s exculpatory to ∆ (favorable to ∆/shows he didn’t commit the crime). 3 types: (1) prosecutor knows of perjure testimony, (2) defense asks prosecution for specific exculpatory evidence, (3) ∆ either makes a general request OR no request at all
à U.S. v. Agurs: Brady obligation of prosecutor applies regardless of whether a request was made or not. Prosecutor always has an obligation to provide exculpatory evidence. There should be a new trial if withheld evidence actually creates a reasonable doubt as to guilt in judge’s mind
·         Brady violation triggers a new trial if there is a reasonable probability that had the information been turned over, it would’ve resulted in a different outcome
à Smith v. Cain: here, witness’s undisclosed statements alone were sufficient to undermine confidence in the inmate’s conviction because they were plainly material to determination of inmate’s guilt since witness’s testimony was the only evidence linking inmate to the crime, and witness’s undisclosed statements directly contradicted Witness’s testimony.
à Arizona v. Youngblood: Not Brady case because prosecutor did not withhold evidence, but rather prosecutor didn’t properly preserve evidence so defense didn’t have an opportunity to review it BUT unless a criminal ∆ can show bad faith [i.e. lack of duty & not knowing whether evidence would likely exonerate ∆ or not] on the part of the police, failure to preserve potentially useful evidence does NOT constitute a denial of due process
VIII.            SPEEDY TRIAL [both constitutional rule & statutory] (A)  Constitutional è 6th Amendment contains a series of rights that attend the trial process [right to counsel, right to jury trial, speedy trial, to confront witnesses, subpoena a witness]                                 i.      Remedy for Failure of Speedy Trial = DISMISSAL
                              ii.      Barker factors to determine whether there was a speedy trial violation:
1.      Length of Delay à dependent upon peculiar circumstances on case
2.      Reason for Delay à different weights assigned to different reasons
3.      ∆’s Assertion of Right
4.      Prejudice to ∆ à should be assessed in light of interests of ∆s which speedy trial right was designed to protect [prevent oppressive pretrial incarceration, minimize accused’s concerns, limit possibility defense will be impaired] — In addition to these factors, prosecution must still show that claimed waiver was knowingly, intelligently & voluntarily made
(B)  Statutory è Speedy Trial Act of 1974: Congress set bright-line rules as to the federal criminal justice system; specific and more stringent time limits than 6th Amendment.
                                i.      3161 Time Limits & Exclusions: indictment must be presented within 30 days of arrest/summons and trial must occur within 70 days from indictment/appearance before a judge but there are exclusions to the time periods
                              ii.      3162: violations don’t require dismissal with prejudice but judges have wide discretion to dismiss w/o prejudice if government fails to provide a trial in time
  IX.            RIGHT TO COUNSEL
§  6th Amendment: “In all criminal prosecutions, accused shall enjoy the right to have Assistance of Counsel for his defense” [requires inquiry whether attorney’s conduct was reasonably effective; strong presumption that conduct fell within range of reasonable professional assistance] §  State must provide transcript free of charge to indigent ∆s when necessary for them to obtain adequate appellate review of alleged trial errors.
§  Competency to Waive Counsel: ∆ who is competent to stand trial is competent to waive counsel or enter into a place. Heightened standard (waiver = knowing & voluntary) but NOT heightened standard of competence
§  Who Makes Decisions: