Forster_ConCrimProII_Spring_2012
EXAM
– 10 MC
– 20 SHORT ANSWER
– 2 ESSAYS (IRAC – ISSUE SPOTTING AND ANALYSIS)
–
Not looking at investigation in this class, we’re looking at adjudication, i.e. bail to jail
I. Criminal Procedure: Adjudication Introduction
→ Victims have right to give victim impact statement during sentencing proceeding, and judge is required to take this into consideration when imposing a sentence
→ Victims must be notified when sentencing occurs, must be notified if defendant trying to get sentence modified, parole hearings, and whether someone released on parole
A. Stages in a Criminal Process
Pre-arrest investigation by police – witness interviews, searches and seizures, interrogation, etc.
Arrest – Must be supported by probable cause, whether with or without warrant (does not have to arrest someone that commits a crime, its discretionary – can also give a citation). Officer will then draft a Statement of Charges, i.e. an Affidavit of facts that led officer to conclude this person neeeded to be arrested.
Initial Appearance – Defendant brought before a commissioner to put someone neutral b/n state and defendant. Will look at statement of facts to look at whether it amounts to probable cause. Must promptly present to commissioner within 24 hours (MD Rule). Non-adversarial. New COA holding reads right of indigent clients to representation at this proceeding into public defender statute. Commissioner will determine whether to release before trial, not release, or grant bail by looking at likelihood to appear for trial, whether threat to society or victim, criminal history.
Preliminary Hearing – Adversarial hearing in district court. Can have lawyer there but D can’t put on any evidence. Purpose is for judge to determine whether there is probable cause to believe charges should stick. Important b/c (1) gives D chance to see portion of state’s case (will show just enough that there is probable cause, usually a cop testifying) and D can cross examine state’s witnesses (so you can lock them into their testimony), (2) state can also use testimony later if person unavailable/dead
Filing of Charges – Must be match b/n charging docs and court that can hear those docs.
Initial Appearance in Circuit Court – Arraignment. Starts speedy trial clock. Starts discovery process. Starts clock on motions.
Discovery – Each side can see evidence other side will use at trial. Two way exchange of information. D also has constitutional right to all exculpatory and impeaching evidence the state may have.
Pretrial Motions – To suppress statements, etc., motion to dismiss, motion that speedy trial rights violated, motions in limine (threshold motion asking judge to make ruling in advance of trial whether or not a piece of evidence can be used).
Plea Bargaining – More than 90% of criminal cases never go to trial. If D decides to plead guilty, it’s a formal hearing on the record in front of a judge. Must give up rights voluntarily and intelligently (judge has to inform D about collateral consequences). Also has Alford Plea (i.e. pleading guilty but not admitting guilt).
Trial – Bench or jury. D selects. Feds give right to jury trial for anything that could possibly result in 6 month sentence, MD allows for anything over 90 days. During jury selection, D and P have unlimited strikes for cause and limited peremptory strikes. MD requires juries be unanimous. Right to a public trial.
Sentencing – Court alone sentences. D has right to aloqution(?) (the right to address the court and ask for mercy/leniency). Post sentencing motions (3-judge panel). Motion to modify sentence. Motion for new trial (rarely granted and maybe not wise to file).
Appeals – Right of appeal from Circuit to COSA, then right to file petition for certiorari to COA. Can appeal to USSC if federal question. Right to Collateral Review.
B. Purpose and Importance of Procedural Rules
Powell v. Alabama, 287 U.S. 45 (1932)
ENTITLED TO effective assistance of Counsel
Procedural rules during adjudicatory phase
→ Black men allegedly raped white woman
→ 6th Amendment – right to counsel (but at time of this case, 6th had not been incorporated to the states through the 14th DP)
→ Alabama gives the guys lawyers (in appearance only) but only 5 days before case with no time to prepare, etc.
→ Entitled to EFFECTIVE ASSISTANCE OF COUNSEL
→ Assistance of counsel is a fundamental principle of liberty and justice
→ Defense counsel MUST represent client zealously at all times – D counsel role is to get the person found not guilty!!!
Patterson v. Burge, 328 F.Supp. 2d 878 (N.D. Ill. 2004)
PROSECUTORS HAVE DISCRETION TO CHARGE ANY CRIME – THEY HAVE IMMUNITY FROM PROSECUTION FOR “OVER”CHARGING
Procedural rules during investigatory phase
→ Guy claims malicious prosecution and says it must be dismissed
→ Prosecutors don’t have to run their charging decisions by anyone (discretionary) – you can’t challenge the
ROSECUTION
1. FEDERAL DISCOVERY RULE 16 DOES NOT ALLOW DEFENSE TO GATHER EVIDENCE TO PROVE SELECTIVE PROSECUTION UNDER THAT RULE (ONLY APPLIES TO GATHERING EVIDENCE THAT WILL BE USED AGAINST YOU IN THAT TRIAL)
2. TO PROVE, DEFENSE MUST ESTABLISH THAT SIMILARLY SITUATED PEOPLE WERE NOT IN FACT PROSECUTED, AND MUST SHOW DISCRIMINATORY MOTIVE ON PART OF PROSECUTOR
Blackledge v. Perry, 417 U.S. 21 (1974) (vindictive prosecution)
→ Cannot be punished for winning on appeal
→ If appeal to circuit court and are found guilty of lesser charge, can’t be punished and get greater sentence than you got in district court (i.e. if remanded to lower court for retrial)
→ Due Process forbids vindictiveness in the prosecution of a defendant
→ In MD, if judge wants to give greater sentence, must put on record evidence of additional wrongdoing since successful appeal
→ Anything that demonstrates vindictiveness for exercising statutory or constitutional right is forbidden and sentence imposed will be no good!
→ Bottom Line: If you can show either the prosecutor in bringing greater charges was motivated by vindictiveness b/c the defendant exercised a statutory or constitutinal right then you have a good argument; but when talking about a judge giving greater sentence, ok as long as judge can point to and put on record evidence of wrongdoing/reasons D deserves a greater sentence b/n appeal and new trial
ABA Standards Prosecutors Face (ethical concerns)
→ Cannot prosecute w/o probable cause
→ Must disclose exculpatory evidence
→ Must make reasonable efforts to tell D of right to counsel
→ Can’t have D waive important rights if not represented
→ Can’t talk to media (make extra-judicial comments) if comments have substantial likelihood of inciting condemnation from the public (will bias any potential jury). Prosecutor owes a special duty to his office and court as officer of court not to offer these statements that make it difficult to get unbiased jury. Can’t try case in press.
