CRIMINAL PROCEDURE: ADJUDICATION
WILSON
SPRING 2013
1. Constitutional Basis: 5th , 6th, 8th, 14th
2. •Other sources
a. •Fed Rules of Criminal procedure
b. •State Rules of Crim Pro
c. •Other (like state constitutions)
3. •5th
a. Double jeopardy
b. Self incrimination
c. Due Process viv a vis the Federal Government
d. Grand jury indictment
e. Applies to Federal Gov but not states (14th amendment)
4. •6th Ammendment
a. Speedy Trial
b. Public Trial (Media)
c. Right to counsel – In order to exersize rights
d. Impartial jury
e. Confrontation (
f. Information about charge
5. •8Th
a. No Exxessive bail
b. No exxessive fines
c. No Cruel or unusual Punishment
6. 14th Amendment
a. Incorporation of the bill of right against the states.
b. Due process clause:
i. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.
7. Effect of Incorporation
a. The rights specified in the bill of rights (the first ten amendments) are preserved for the citizens against the states
8. Important Incorporation Cases
a. Twining v. New Jersey (1908)
i. First case in which the Court opined that some rights in the BOR might be incorporated against the States.
ii. Allowed for the possibility that incorporation could be an option
b. Powell v. Alabama (1932)
i. The Court held that defendants were entitled to counsel. Failed to expressly incorporate the 6th Amendment. Looked to the Due Process Clause itself.
c. Palko v. Connecticut (1937) & Adamson v. California (1947)
i. Court Failed to apply Double Jeopardy and right against self incrimination to the states (Respectively)
ii. Justice Black Dissent: What is the purpose of the Bill of Rights if not to protect against the tyranny of the state?
d. Duncan v. Louisiana (1968)
i. Issue: Weather states must provide Ds with the opportunity to have a jury trial in all criminal cases. Right of the accused to a jury trial
ii. Test: Incorporation proper for right to jury trial
1. Is a right among the fundamental principles of liberty and justice which lie at the base of all out civil and political institution?
2. Is it basic in our system of jurisprudence, is it fundamental right essential to a fair trial?
iii. Holding: States must provide Ds with a jury trial, unless the defendant voluntarily waives that right.
iv. Reasoning: A jury trial is a fundamental right. It is an essential protection against the tyranny of the state. Peers provides a safeguard against corrupt or biased prosecutors and judges
v. Justice Black’s Concurrence: Language of 14th amendment logically applies all right s in the BOR to the States. Specifically rejects federalism concerns
9. Are the rights in the bill of right incorporated? YES (some caveats)
a. 2nd Amendment IS incorporated – McDonald v. Chicago
10. What does incorporation mean?
a. Sometimes means precisely the for states as it does for federal gov. Sometimes it means something different (usually less)
b. Examples:
i. Juries can be fewer than 12
ii. Juries can be non-unanimous
iii. Retroactivity – SCOTUS holdings are not retroactive.
1. Unless they are Holdings that invalidate the criminality of a type of conduct
2. UNLESS they are water shed holdings Alito TEST
a. Rule must prevent an impermissibly large risk of inaccurate convictions
b. Rule must alter our understanding of bedrock procedural elements essential to fair proceedings
The Charging Decision
A. Belongs to the Prosecutors
B. Other decision-makers:
a. Grand Jury (Indictment)
b. Police (can fail to investigate)
c. Judge (Gerstein review)
d. D can also accept a Plea Bargain
C. The Process
a. Arrest & Booking
b. Filing the Complaint / Charging the Defendant
c. Gerstein Review (can be ex parte): Within 48 hours
d. First Appearance / Bail: If the defendant is in custody, there may be an appearance at this time, sometimes called an arraignment. The true arraignment doesn’t take place until after a grand jury indictment.
e. Preliminary Hearing: To determine probable cause, within two weeks.
f. Grand Jury (all fed): Indictment / True Bill
g. Arraignment / Plea is Entered: A formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her.
i. Not typically a gulty plea here, leaves room for plea bargain
D. The Process – Continued
a. Discovery
b. Pretrial Motions
i. Motions in limine/to suppress
ii. Discovery motions
iii. Motions to sever (in case of joinder)
c. Plea Bargaining
i. Plea bargaining may take place during trial preparations. There is typically a cut-off date after which no plea is entertained.
d. Trial
E. Biases Affecting Prosecutors’ Decisions
a. Confirmation Bias
i. The tendency to selectively look for and seek out information that confirms one’s hypothesis. Devalue information that disconfirms the hypothesis.
b. Tunnel Vision
i. Suggests that there is an exclusion of other information
ii. Selective focusing on a particular theory, inability or unwillingness to look outside of the “tunnel.”
c. Belief Perseverance
i. Continuing to believe hypo despite overwhelming evidence
ii. Beliefs are “sticky”, even in the face of strong contrary evidence
1. Experience – with so many case going to plea bargain, Prosecutors belief is that everyone is guilty.
2. Cognitive Dissonance: Discrepancy between our self-concept and our beliefs makes us uncomfortable.
F. Prosecutor De-biasing Strategies
a. Education: Training on the possible cognitive traps
i. Drawback: cognitive biases are fairly stubborn.
b. Cavern Vision: Forcing ones self to look outside the tunnel
i. Devil’s Advocacy –
1. Habitually argue the countervailing viewpoint.
2. Look for contradictory evidence
3. Ask whether the incriminating evidence is sufficient, in light of the exculpatory evidence
4. Argue the countervailing point
5. Drawback: Takes time and Effort
6. articulate arguments that contradict their existing beliefs. Accordingly, individual prosecutors could attempt to neutralize their decision making by regularly “switching sides” on their files and reviewing cases from the perspective of defense counsel.46 Applied to lawyers, the practice of counterargument not only serves as a debiasing strategy, but also amounts to the good lawyering skill of acting as one’s own Devil’s Advocate. To neutralize confirmation bias, a prosecutor reviewing a file should not only look for evidence supporting the defendant’s guilt, but also scrutinize the case with the eye of a defense attorney searching for reasonable doubt.
ii. Internal Reviews
1. Fresh look by attorneys unassociated with case for a fresh look
2. Challenge: Time and Effort and requires the involvement of another attorney
iii. External Transparency
1. Outside review
a. Public information office
b. Judges, defense attorneys, etc.
c. Challenge: It may not be widely accepted by prosecutors
G. The GRAND JURY
a. A majority of the states use a grand jury to return and indictment (or
ght of Confrontation Problem (Bruton Problem)
d. Zafiro v. United States
i. Issue: Whether Rule 14 requires severance as a matter of law when codefendants present “mutually antagonistic defenses”.
ii. Relevant Facts: 2 suspected of drug offenses
iii. Are mutually antagonistic claims sufficient to merit severance?
1. NO
iv. What is required? Prejudice. Serious risk that joinder will compromise a fair trial or outcome.
v. Stevens’ Concurrence: Even a claim of lack of knowledge is not necessarily mutually exclusive – the jury could have concluded that none of them knew of the contents of the box.
e. Bruton v. United States, 1968
i. Issue?
1. When defendants have been joined and one defendant has confessed to the crime, is it sufficient to instruct a jury to disregard a co-defendant’s confession?
2. Or, in the alternative, must the defendants be tried separately or the confession quashed?
ii. Which amendments are implicated
1. 6th amendment: Confrontation Clause – D not able to X examine confessing D
2. 5th amendment: self incrimination – Cannot be compelled to witness against yourself
iii. Holding?
1. Delli Poli is overruled
2. Use of the confession of a CO-Defendant to implicate a D at trial violates the right of confrontations
iv. Options available to prosecutors after Bruton:
1. Separate trial
2. Forget confession
3. Redact the confession so as to remove all references of the CO-D
f. HOW MUST A CONFESSION BE REDACTED?
i. Richardson
1. Issue: Do you still have a Briton problem when a confession is redacted by nevertheless is tied to a Co-d through other (properly admitted) evidence?
2. What was the nature of the confession the jury received?
a. Redacted
b. Any mention of the D was omitted
c. Jury instructed not to use the confession against the CO-D
3. Holding:
a. Complete redaction that in no way implicates the CO-D solves the Briton Problem.
ii. Gray v. Maryland
1. Issue: Is there a Bruton problem when the name of the Co-D is redacted so that there is a space where the name was with [DELATED] in it
2. Holding: This type of redaction is not sufficient to avoid a Bruton problem. The clear implication is that the codefendant’s name was part of the confession.
iii. After Zafiro, Bruton, Richardson, and Gray:
1. Antagonistic defenses do not necessary require severance. Defendant must be substantially prejudiced in some way by joinder.
2. A confession that implicates a codefendant may not be used unless steps are taken to protect the non-confessing codefendant.
3. A completely redacted confession may be used, even if other evidence admitted at trial may tie the non-confessing codefendant to the confession.
4. It is not sufficient to simply redact the name of a codefendant without taking other steps to remove the suggestion that the codefendant was implicated. A simple deletion still leads to the inference that the confession named the codefendant, and poses a Bruton problem.
