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Criminal Procedure II
University of California, Hastings School of Law
Aviram, Hadar

*BAIL (pg 2-4)
Gerstein – Preliminary Hearing must be held to establish Probable Cause
Riverside (1991) – P. Hearing must be held within reasonable time, such as 48 hours.
Bail hearing to occur shortly after P. Hearing
Impact on DEF – might lose job, lose ability to prepare defense, LIBERTY interest
Govt/Community interests – safety risk, potential for DEF to destroy evidence.
Stack v. Boyle (51) – must make individual assessment in awarding bail (can’t base on 4 co defendants).   Purpose of bail = to ensure this DEF will appear in court. 
Fed. Bail Reform Act (84) – Release on Own Recognizance is default.  Otherwise – Unsecured Bond.   Factors to decide whether to grant: 
·         Safety
·         History and Character of DEF
·         Weight of ev. against DEF
·         Whether DEF was out on parole or probation at time of crime. 
·         No bail in capital cases
FBRA (84) à if no amount of bail is going to ensure DEF’s appearance OR the Public Safety à DENY and give PREVENTATIVE Detention
Rothgery (Alito)– bail NOT a “critical stage” à right to counsel “attaches” but need not be present
Salerno (Rehnquist) – Preventative Detention is not Penal in nature, is Regulatory – avoids DP and Cruel/Unusual problem.  Preventative detention NOT EXCESSIVE – Safeguards in place (segregated from general population, other protections in place). 
Salerno challenging constitutionality of FBRA
If held without bail (Prev. Deten.) and later ACQUITTED à can only recover if prove some malice, bad faith, miscarriage of justice. 
·         Must make an individual assessment – cannot say “well other Robbers have skipped bail on me in the past, so this guy probably will too!”
*Salerno / FBRA factors – Used to decide whether to grant bail at all! 
·         Grant Bail?, or
·         Impose Preventative Detention?
*Salerno – DEFs were arguing that FBRA was unconstitutional.  SCt à “No Set of Circumstances Test”: Challenger bringing facial challenge must show that “no set of circumstances exist under which the statute could be valid.”
*Note – excessive bail has NEVER been incorporated against the states!  But many state constitutions prohibit it. 
Shift to Determinate Sentencing à has made the charging decision more significant, boosted Prosecutor’s power relative to other actors.
Expressive Prosecution – focus on community concerns (e.g., Lori Drew, Casey Anthony)
Instrumental Prosecution – focus on Convictability. 
Standards of the Bar à prosecutor must have:
·         At least Probable Cause in order to exercise discretion to prosecute
·         Cannot bring more charges than Reas. Necessary to reflect gravity of Offense
US v. Armstrong à alleged Selective Prosecution on basis of Race.  SCt à DEF assumes that crack is randomly distributed among diff. ethnic groups (fallacious arg. by ct)
Armstrong Test à for valid Selective Pros. Defense, DEF must show (1) Discriminatory Intent, (2) Discriminatory Effect (e.g., show whites arrested for crack but NOT prosecuted
McClesky – similar case, DEF argued discriminatory effect of Death Penalty.  Both McClesky and Armstrong show how unlikely it is for Court to apply aggregate data to individual case. 
Blackledge v. Perry – DEF exercises statutory right of appeal, Prosecutor files de novo charges against him, seeking higher punishment. 
Problem for Blackledge DEF à hard to show prosecutor’s actual intent à Court comes up with PRESUMPTION. 
North Carolina v. Peers à when DEF appeals and thereafter faces a MORE SEVERE PUNISHMENT, a rebuttable Presumption of Vindictiveness arises!
Prosecutor must then Rebut the presumption and show good faith reason for increasing the sentence.  E.g, Goodwin à prosecution increases charges after locating additional incriminating evidence. 
U.S. v. Goodwin (82) à DEF jumped bail before charges were finalized, prosecution finds new evidence, decides to increase the charges.  Court says this is okay! Still in the pretrial phase!
JUDGE exercises discretion during P.H.  Weighs the initial evidence against DEF for Probable Cause
Most DEF’s waive P.H.!  Just want to get out quick, accept a plea deal.  DA can bargain – ask you to waive and threaten higher penalty if you refuse.
Good reasons to attend PH à preview of government’s case, cross examine some witnesses, etc.
Prosecutors like PH too à get to see how their witnesses stand up to cross examination. 
Coleman v. Alabama à PH is a Critical Stage, so DEF has the Right to Counsel at PH.  Benefits of counsel at PH – (1) start poking holes at Govt case, (2) Cross examine witness, (3) use details gleaned as Plea negotiation chips, (4) DEF can use Atty as “Shield” throughout investigative stages (assert right to silence, etc.)
Compare to Rothgery – no right to counsel at Bail hearing b/c not a critical stage (Alito). 
Coleman à denial of right to counsel at Preliminary Hearing  is A HARMLESS ERROR on appeal!
Grand Jury – never incorporated against States, but included in most State Constitutions. 
Grand Jury theory – have a non-govt actor review the case against you.  But heavily influenced by prosecutor (legal counsel to GJ) and Judge (presides over GJ).  
98%+ of GJ end in indictment (“ham sandwich”)
Unanimity not required, number of G. Jurors ranges from 11 to 23 depending on jxd. 
DEF and DEF atty are NOT present, conducted in SECRET.   All participants under duties of secrecy (Rule 6(e)) Federal Rules. 
DEF cannot waive GJ (could waive PH). 
No D. Jeopardy bar – prosecution can pursue multiple GJ indict. ag, single DEF for same crime. 
“Shield” function – protect citizen if there is no evidence to support prosecution.
“Sword” function – grants huge Discovery powers to prosecution to uncover evidence. 
Brenner article – wants to remove role of Prosecutor as legal counsel.  Have judge do it instead.  She supports GJ even though 98% indictment rate, would argue it shows prosecutors doing effective screening job.
Leopold article  — wants to eliminate GJ, big problem = that would require Amending Const.
U.S. v. Williams:
1.      Prosecution does NOT have to present

fendants’!) & not statements to undercover agents. 
2.      Physical Ev. that (a) came from DEF, and (b) either Govt Plans to Use @ trial, OR is “material to DEF’s defense” – ie. Brady ev
3.      Govt’s Witnesses Statements – only discoverable if BRADY applies
4.      Copy of DEF’s criminal record
5.      Results of Scientific/Medical tests done at Govt’s request
6.      All other “Brady Material”
Discovery BY Govt (D to Govt):
1.      Alibi Defenses – Williams v. Florida
2.      Insanity Defenses
3.      Some jxd require DEF reveal tangible ev., witnesses, experts, if not 5th A protected.
*Constitutional Discovery (Brady, Bagley):
Brady –  Govt must provide (upon DEF request) any exculpatory evidence (anything that would help DEF – lighter sentence or acquittal). 
Agurs – (1) specific request à Brady applies, hand it over. (2) general “all Brady material” request à only give if Obviously Exculpatory!
Bagley – eliminates 2 tier, new rule à Ev. must be disclosed if “reasonable probability that HAD the ev. been disclosed, the result of proceeding WOULD HAVE BEEN DIFFERENT!
Many states have stronger rules than Bagley à eg. NEW YORK -> Vilardi case à required to give anything that MIGHT BE exculpatory.  (Calif. has similar rule).  (Bagley is const. floor)
Some jxd still follow Agurs.
Strickler – clarifies Bagley:
1.      Ev. at issue must be favorable to the accused becaue it is either exculpatory or impeaches a witness
2.      Ev. must have been suppressed by the state either Willfully or Inadvertantly;
3.      The DEF case was prejudiced as result.
Kyles v. Whitley –
1.      Bagley is not preponderance test; Q is not whether DEF was more likely than not to have received diff verdict; Q IS: Whether in absence of ev., he received a Fair Trial.
2.      Bagley is not a sufficiency of evidence test.  Test goes to whether favorable ev. could reasonably be taken to put the case in a diff light so as to undermine confidence in the verdict.
3.      By definition, Bagley error IS A HARMLESS ERROR.
*After Bagley – only have to give DEF is exculpatory ev. that would lead to REVERSAL. 
Ariz. v Youngblood (Rehnquist) – good faith/ bad faith standard for preservation of ev. Police at most negligent in failing to keep DNA ev. refrigerated à No reversible error. 
·         Stevens à Jury instructed about Police negligence à cures some of the problem.
Williams v. Florida – DEF must disclose alibi defense in advance, witnesses.  Ct says not a 5th Am. Violation – had a choice to raise that DEF, and all these details would come out eventually  at trial anyway