Anderson Con Crim Pro 1 Fall 2013
I. Initiating Prosecution
a. Charging Process
i. Warrantless arrest
1. D arrested w/o warrant, PC review normally done within 48 hours
ii. GJ Indictment or Criminal Information (Use varies with jurisdiction)
1. Crim Info / indictment
a. Sufficient if plain, concise and definite written statement of essential facts charge
b. Need only inform D of charge that must defend against and provide enough details allowing D to raise double jeopardy objection for future
c. D can request bill of particulars to ascertain more details regarding offense charged (Cts discretion)
2. Grand Jury (fed and some states)
a. 5A requires fed felony charges be brought via GJ indictment, not incorporated against states
b. GJ powers
i. Subpoena witness and docs
ii. Conduct investigations
iii. Prosecutor needs PC for GJ indictment in MD and Fed
1. GJ refuses to indict, can re-present to no GJ
2. Indict = true bill, no indict = no bill
iv. GJ cant bring charge w/o state agreeing, if state disagrees, prosecutor doesn’t sign indictment
c. Operation of GJ
i. GJ violation not grounds for dismissing indictment (need showing of prejudice)
ii. State doesn’t have to show exculpatory evidence (Williams)
iii. Proceedings secret, D has no rights there
1. No right to counsel (witness has limited right to leave IOT contact lawyer)
a. Not critical stage
2. No right to appear
3. No right to confront (or discovery, or present other evidence)
a. Can do so at trial
iv. Purpose of GJ = protect people from unsubstantiated charges (shield people from malicious prosecution)
v. Relaxed evidentiary standards
1. Indictment can be based on hearsay (Costello)
2. Can use inadmissible evidence
3. Can invoke 5th
3. Criminal Info
a. Used by Md
b. Provides statement of charges against D
4. Crim info/indictment alleges crime committed at certain date/time and D did it
iii. Arraignment
1. D appears and enters plea
2. Presented with written charges detailing facts of crime and D’s involvement
3. Advised of right to counsel / public defender
iv. Bail review
v. Trial
1. D gets jury if facing more than 6 months
2. Some states, D has absolute right to jury trial
3. Some states, need consent of judge and state for bench trial
vi. Post-trial and appeal process
1. If convicted, D files appeal, process begins to review conviction
2. Local Ct rules require D and lawyer to ask court reporter to transcribe or create record of trial
a. If D cant afford fee to pay for record, must be free
vii. Post appeal process
1. May attack conviction based on new evidence, bad counsel, some other serious breach of justice
2. Successful cases usually only involve new DNA evidence
3. Rare for relief
a. Only 1 in 10 discretionary reviews are accepted
b. Only 1 in 10 of those accepted get some form of relief.
b. Decision to charge / no charge
i. Prosecutor has absolute discretion
1. Can decide charge, counts and deals
2. Judge cant order state to investigate or charge D (separation of powers)
ii. Constitutional limits
1. Cant use unconstitutional motive to charge
2. When reviewing charging decision, Ct presumes state exercised discretion on good faith
3. Selective prosecution (judged under EP standard)
a. Not defense to merits of crime itself but independent assertion that P brought charge for reasons not allowed by constitution
b. Presumption of goof faith in charging decisions
c. To make prima facie case for selective prosecution, D must show by C and C evidence prosecutors policy had
i. Discriminatory effect
ii. Motivated by discriminatory purpose (race, religion, exercise of constitutional right)
iii. Requires showing particular charge at least partially and not merely in spite of adverse effect on identifiable group
d. To get discovery from state, D must show that other similar Ds (race, situation) were not prosecuted (Armstrong)
4. Vindictive prosecution
a. D prosecuted or charges enhanced b/c exercised constitutional right (DP violation b/c punishing someone for doing what law says can do)
i. Person convicted of offense entitled to pursue statutory right to trial de-novo w/o fear state will retaliate by substituting more serious charge for original this putting him in more harm (Blackledge)
b. Pretrial decisions generally not vindictive (increasing charge for not taking plea, adding new charge)
i. State can re-assess case before trial
c. Presumed vindictiveness
i. State cant re-indict D convicted of misdemeanor of felony after D invoked appellate remedy (real likelihood of vindictiveness)
ii. Post-trial presumption rebuttable if state shows re-evaluation or new evidence to justify imposition of new charge
iii. Ethical standard in charging (framework)
1. Cant bring charge not supported by PC
2. Cant continue case in absence of sufficient admissible evidence
3. Reasonable things to consider
a. Reasonable doubt D guilty / strength of Gov’t case
b. Extent of harm caused by offense
c. Deterrent value of prosecution
d. Possible improper motive of victim
e. Reluctance of victim to testify
f. Cooperat
permissible factor in granting / denying bail b/c Govt interest in community safety necessary interest to justify infringement on D’s liberty
2. Govt must prove by C an C evidence that D presents an identified and articulable threat to an individual / community
iii. DP argument why bail should be granted
1. D being punished w/o trial and violation of presumption of innocence
2. Continued detention prevents adequate trial prep and could result in ineffective counsel
iv. Bail pending appeal
1. Doesn’t raise same DP issue b/c no longer presumption of innocence
2. Standard = Ct must find by C an C evidence that
a. D not likely to flee / pose danger to safety of others / community
b. Appeal not for purpose of delay and raises substantial question of law or fact
c. It’s likely to result in reversal / new trial
e. Other types of preventative detention – If D locked up via other mechanism think about how person categorized B/C it affects if they can constitutionally be held
i. Material witness can be detained / held (Awadallah)
1. Material witness = individual with infor regarding criminal proceeding whose appearance may become impracticable to secure via subpoena
2. Witness for what of proceeding?
a. Authorized detention for GJ witness
b. Authorizes detention for trial witness
ii. Enemy combatants may be detained (Hamdi)
1. Fed Cts have jurisdiction to review detention of enemy combatants
2. DP demands citizen held in US as enemy combatant be given meaningful opportunity to contest factual basis for their categorization before a neutral decision maker
iii. Illegal immigrants in US may be detained by Govt even if not charged / convicted with specific crime (Zadvydas)
iv. Preventative detention of sex predators constitutional (Hendrick)
1. Seen as civil commitment designed to protect public
2. Nothing on face of civil commitment suggests designed to punish
3. Civil label not always dispositive
a. Will not reject legislative intent unless party challenging law provides clearest proof that law is so punitive in purpose of effect as to negate states intention to deem it civil
