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

Prof. Hadar Aviram
Spring 2013
I.            Class Introduction Material
a.       Packer, Two Models of the Criminal Process
                                                   i.      Crime Control Model
                                                 ii.      Due Process Model
b.      Amendments Relevant to this Class
                                                   i.      V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury … nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
                                                 ii.      VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
                                               iii.      VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
                                               iv.      ***note: grand jury and bail are the only two criminal procedure rights not incorporated against the state
c.       Warren Court (1953-1969), themes:
                                                   i.      Reform through bright-line rules
                                                 ii.      Federalism (incorporation)
                                               iii.      Attention to inequality and indigent defendants
                                               iv.      Broad access to justice
d.      Post-Warren Court themes:
                                                   i.      Convict guilty, let innocent go free
                                                 ii.      Totality of the circumstances, rather than bright line
                                               iii.      Greater faith in integrity of prosecution
                                               iv.      Less federal interference in state process
II.            Pretrial Process (Bail)
a.       Interests at Stake in the Release Decision
                                                   i.      Detainee interests
1.      Potential for significant period of lost liberty
2.      Impact on detainee’s ability to prepare for trial
3.      Risk to detainee’s job
4.      Higher conviction rates for those detained, as opposed to released, prior to trial
a.       Limits the attorney-client interaction
b.      Loss of income precludes the detainee from being able to afford a private attorney
c.       Crappy jail conditions put pressure on detainee to take plea deal and get out sooner
                                                 ii.      Public interests
1.      Defendant may flee
2.      Defendant may destroy evidence
3.      Intimidate witnesses
4.      Commit new crimes
b.      Bail and Other Release Mechanisms
                                                   i.      Mahoney, Pretrial Services Programs: Responsibilities and Potential
1.      Used to be that bail was posted by a private individual (friend, family member) and that person guaranteed appearance
2.      19th c. commercial bondsmen became popular, defendants or affiliates would put up collateral to insure against D’s flight. Bondsman’s discretion became determining factor in release.
3.      Manhattan Bail Project: give judges information at arraignment about individual’s roots in community; if appropriate, release on own recognizance
4.      Success of MBP led to more expansive use of own recognizance and “deposit bail” – percentage of bail posted directly to court, circumvents bondsmen
5.      2009: only 23.5% of federal felony defendants released before trial; 13.4% if violent crime
6.      2004: 19.8% of individuals released before trial violated conditions of release, but largely technical; only 1.8% charged with new crime
                                                 ii.      Stack v. Boyle (1951): multiple petitioners charged with violations of the Smith act. Initially, differing amounts of bail were set, but then court changed to a uniform 50k, resulting in a reduction for some and an increase for some. All petitioners moved to reduce bail on the grounds that the fine was excessive under the 8th amendment. Holding: in federal trials, all defendants not accused of a capital crime shall be admitted to bail. If the court aims to set the bail for a particular petitioner much higher than is generally charged for that crime, must present evidence justifying that departure at a hearing to avoid violation of the detainees’ rights.
1.      Federal Bail Reform Act of 1984 (appendix) – some provisions have moved, but it lists the factors to be considered in determining a detainee’s eligibility for release
2.      Note that the “no excessive bail” provision of the 8th Amendment has not been incorporated against the states, but most state constitutions have a similar clause. Also, most states have a provision similar to the federal one about admitting non-capital indictees to bail
3.      Rothgery v. Gillespie (2008): the 6th Amendment right to counsel “attaches” at the first appearance of the defendant before a judicial officer, however “attachment” does not necessarily require subsequently constant presence of counsel. Rather, the defendant is e

v. Armstrong (1996): Selective prosecution claims require a showing of discriminatory effect and discriminatory purpose in the decision to prosecute particular defendants. Here, in order to show that the prosecutor impermissibly decided to prosecute D because of his race, must show that the prosecutor failed to prosecute similarly situated Ds of other races. It is not enough to show that all of the Ds prosecuted are of one race, because evidence shows certain crimes occur along racial lines. Here, D failed to meet the standard of showing “some evidence tending to show the existence of the essential elements.
a.       Berk study – problematic because of sample size and questions about statistical significance, but found that percentage of black defendants in crack cases was much higher for federal court than for state court, indicating some  (possibly sinister) reason for the discrepancy.
b.      US v. Bass (2001): SCOTUS staid the course in a case where evidence was presented that black defendants were charged with crimes for which death is a permissible punishment at twice the rate whites were. This statistical evidence failed to make the requisite comparison between similarly situated individuals.
2.      Blackledge v. Perry (1974): assault with a deadly weapon is a “wobbler” in North Carolina. D charged with and convicted of misdemeanor version. D chose to exercise is absolute right to a trial de novo – because it was de novo, prosecutor had and took the option to charge D with the felony version. D says this violates the 14th Amendment due process because he is, in effect, being punished for exercising his right to appeal. (North Carolina v. Pearce held that penalty for successful use of appeal violates due process). Even where there is no indication of actual vindictiveness, the holding of North Carolina v. Pearce requires that the prosecutor must not bring a more serious charge to prevent a D from being dissuaded from exercising a constitutional right – presumption of vindictiveness.
a.       US v. Goodwin (1982): distinguished pre-trial charge increases from post-conviction increases. The presumption of vindictiveness will not apply to the former because the prosecutor may still reasonably uncover evidence that legitimately warrant a charge increase. Actual vindictiveness is, of course, still prohibited.