Weisselberg – Spring 12
Criminal Procedure Outline
Jurisdiction – fed’l vs. state crime
Fed’l crimes need federal nexus or interest. Examples:
laws against the nation
drug laws because of fed’l drug laws
bank robberies – banks fed’lly insured
crimes that take place in fed’l property, e.g. fed’l parks or buildings
· Direct appeal- appellate review based on record compiled in trial court
o Record of court proceedings = pleadings, exhibits, transcripts, etc.
o Appeals “as of right” to court of appeal (in fed’l and state)
§ Past that, discretionary
· Collateral review (habeas corpus)- challenging conviction based on things outside record
o New proceeding that expands the record
§ Mech to bring in new evid or to litigate claims (such as inadequacy of counsel or gov’t misconduct) not in the trial record
o Limited grounds: e.g., constitutional viol.
o Will take new investigation after conviction to find evidence or new witnesses- would be difficult in trial record to show evidence not presented
I. PROSECUTORIAL DISCRETION
· To charge/not charge w/ crime
o Scope?
o Ensuring properly exercised
· Factors that may be considered:
Severity of the crime
Probability of conviction/ sufficiency of evidence
Reactive arrest- may not be enough info to go fwd
Factors re the Offender:
First-time offender vs. hardened criminal
Lack of remorse
Mitigating factors
Age/mental condition/education/employment
*recidivism
motivation of the offender
*past record – dangerous to society
Resource allocation of prosecutors – there are more severe crimes that should be prosecuted
Public Eye – Reflects poorly on office/police to prosecute bogus crimes
Alternative Sanctions/ diversion program
[Impermissible factors: race/ethnicity, gender, sexual orientation, other “arbitrary classifications”]
· Consequences of no-discretion system:
o Exacerbation of burdened caseloads
o More egalitarian
o If mandatory sentencing: charging decision important
· ABA Std 3-2.5- at charging, whether disproportion b/t what defendant did and offense
o “Statement of gen’l policies” available to the public
§ If variance from statement, might be easier to challenge pros decision
§ Overt statements about element of the offense by pros may become well known
· Ex. drug trafficking: when mandatory to charge over 50 lbs, many cases where 45 lb transactions
· understanding that pros has wide discretion- cts reluctant to intrude upon it
o Attica- where prison riot and inmates challenged that civil rights viol., sought writ of mandamus to compel pros. Ct did not grant writ even tho statute had “required” charging lang
§ Authorized and required to institute prosecutions…
· Plain lang of statute
§ Practical considerations court said overrode lang of that particular statute
· Court might not have all the facts prosecutor has
o But can ask for facts for in camera review
· Courts would become “superprosecutors”
o d/n want to be placed in that role
· Limited resources of courts
· Protections of confidential info
· Selective prosecution- assertion that pros charged for reasons forbidden by Constit. (EPC- 14th (states), 5th (fed’l))
o “unjustifiable std such as race, religion and other arbitrary classifications”
o By implication, c/n police indivs on same basis (4th amend)
§ BUT some leeway: pretext stops, etc.
· Legal std:
o 1. Discriminatory effect
§ Specific instances
§ That “similarly situated” ppl of diff trait not pros, but these defs were
o 2. Motivated by discrim purpose
o àStd: clear evid to dispel presumption that pros d/n viol 5th amend
§ Demanding: substantial showing
· Judicial review of prosecutorial discretion in who to charge- NOT demanding, absent significant showing by def.
o Presumption that pros choice NOT based on classification
o Ex., Armstrong- seeking discovery for claim that fed’l pros or crack cocaine possession based on race (under 5th amend. EPC claim)
§ Rather than state pros (affected penalties: fed’l mandatory minimums)
§ Legal std for discovery “some evid tending to show existence of discrim effect/intent”- clear evid
§ USSC: showing for discovery insuff
· Affidavits from own experiences- anecdotal
· Stats that in 1991 24/24 pros for crack cocaine all black- d/n show other indivs weren’t pros
· Policy: if every pros to comply w/ discovery, would “chill” law enforcement from doing full investigation, divert resources, reveal pros. strategies
o Prob: burdensome for defense to obtain docs that would help show discrim effect and purpose- mostly in pros. office
§ Practically difficult showing to make
· Discretion to charge under harsher law- rests w/ pros. May choose more serious charge, even when overlapping or multiple charges may be brought
o Batchelder- 2-year and 5-year sentencing statutes
o àProb: legis aren’t good at going thru criminal codes and removing out-of-date or ridiculous laws
II. INCORPORATION
SOURCES OF LAW: application of constitution to states
· Fed’l cases:
o US Constitution: applies directly to fed’l gov’t
§ Amendments
o Fed’l statutes
o Court rules: rules of crim procedure
o “Supervisory power” of fed’l courts
§ Power to supervise pros that are before fed’l courts
o Treaties/int’l law principles
· State criminal cases:
o US Constit.: some directly apply to states (14th amendment)
§ Other amendments (4-6th): applied to states by being “incorporated” thru 14th amendment
§ Some amendments do NOT apply to states
o State constitutions
o State statutes
o State court rule
sser “liberty interest” in access to ct pcds
Osborne- after convicted indiv sought access to forensic evid.. lost state post-conviction hearing. Arg that state’s failure to disclose evid to him viol fed’l law (1983 action)
Post-conviction pcd to gain access to DNA evid. created liberty interest by state law (which state not req. to create), no reason to constitutionalize issue by recognizing DP right
Already convicted- removes many liberty interests
Trial “main event”
Also evolving technology- ct reluctant to enter area
Ct assumes, w/o deciding, that fed’l constit. right to be released upon proof of actual innocence
“SUPERVISORY POWER”
· Some inherent power of fed’l courts/USSC (apart from other sources of law) to supervise FED’L pros. / admin of criminal justice
o àapplies in fed’l crim pros. (applying fed’l rules of evid/crim pro)
o àIn state, limited to fed’l grounds, e.g. constitutional
§ State pros not before fed’l courts
· Three purposes of SP:
o Implement remedy for violation of recognized rights
o Increase judicial integrity by insuring a conviction uses appropriate considerations validly before the jury
o Remedy to deter illegal conduct
· McNabb- USSC exercised supervisory power where indiv detained for prolonged unlawful period of time before being brought to court
· While SP exists, employed sparingly
o Payer- “briefcase caper” documents of TP used against indiv whose bank accounts reflected in bank official’s briefcase documents.
§ USSC: c/n use SP to exclude evid that d/n violate def’s OWN rights
o Hasting- c/n use SP to avoid “harmless error” doctrine to justify reversing criminal pros
· However, some lower courts aren’t afraid to employ SP inherent in fed’l cts
o CA dist ct: first pros under Foreign Correct Practices Act against corp which pcded to jury trial. Ground for pros common in fed’l courts
o US v. Agular-Moriega- defs convicted following jury trial. Allegations that pros misconduct during trial
§ Ct: decided to vacate conviction and order indictment dismissed, under its supervisory power
o Used in cases where errors standing alone might each indiv been insufficient to lead to result, but taken together appropriate case for exercise of supervisory power
