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Criminal Procedure: Prosecution
University of Mississippi School of Law
Clancy, Thomas K.

INTRODUCTION- Incorporation vis a vis the 14th Amd.

Duncan v Louisiana
White for the majority….
Options for incorporation doctrine- (Pre-Duncan)

total adoption- universally rejected
selective adoption, i.e. due process theory- fundamental fairness test applied to see which rights are fundamental in the Bill of Rights and therefore making it applicable to the states; Palko “implied in the concept of ordered liberties” language- also rejected
selective incorporation- none of the rights in the Bill of Rights are, per se, incorporated but rights that are “fundamental” are applied to the state. This is the one adopted.

basically none of the 5th, 6th, bail provision in the 8th is adopted


in general, there is a presumption for release on personal recognizance or execution of unsecured bond unless they are

a flight risk
danger to the community: 18 USC §3142(b)

setting conditions for release: must set the least restrictive: §3142(c)(1)(B)

also contains list of conditions (pg 37-38 of supp)

nonfinancial such as home detention, TROs, etc.
financial- bonds

surety: bondsman puts up $, Δ pays 10%
unsecured: Δ pays certain % of bond, gets it back if he shows up
§3142(c)(2) provides that a financial condition that results in pretrial detention is impermissible

statutory criteria for release §3142(g) (pg 42 of supp)

nature, circumstances of offense
weight of evidence
financial ability of Δ to get bail
character of Δ (crim history, community ties, employment, etc)

penalty for failure to appear (§3146)

is a crime (see statutory punishment scheme (§3146(b))

10 yrs for capital crime/felony, 1 yr for misdemeanor and sentences run consecutively

bond forfeiture (§3146(d))
committing another crime while on release (§3147)
sanctions for violation of a release condition (§3148)

contempt of court
revocation of release

bail bondsman can pick you up (§3149)
Stack v. Boyle- traditional right to bail based on presumption of innocence; bail cannot be more than what is reasonably needed to ensure the presence of the defendant at trial
U.S. v. Salerno- if you have a right to bail, it cannot be excessive; however, sometimes you don’t have a per se right to bail. Provision at issue in Salerno was not violative of SDP or PDP; also, bail provision of 8th Amd. is not applicable to the states thru the 14th.
the government may detain if it is shown that no conditions can be set that will give adequate assurances that the Δ will appear; must have a pretrial hearing; rebuttable presumptions ocur when:

it is a crime of violence
offenses w/ max sentence of life imprisonment/death
drug offenses w/ max of 10 yrs
two priors (or one within 5 yrs)
serious flight risk
felony involving minors
felony w/ dangerous weapon
obstruction of justice, jury tampering/intimidation, etc. (pg 40- supp)
see §3142(e) and (f) (pp39-40 in supp)

dangerousness- clear and convincing
flight risk- preponderance

Hamdi – a US citizen held indefinitely as an enemy combatant has to be given a “meaningful opportunity” to contest the factual basis for his detention before a “neutral decision-maker.” This would be on the merits, not just whether he should be released or not. Its not really analogous to Salerno.

Prosecutorial discretion

US v. Armstrong

5th Amd. equal protection claim; Blacks arrested more frequently for selling crack cocaine;
TEST: have to show that similarly situated persons of other races known to law enforcement are not being prosecuted.
Court’s vision of the role of the prosecutor.

This is a separation of powers argument: afford wide deference to another branch of government.

What you have to have for discriminatory prosecution.

1) discriminatory purpose
2) discriminatory effect- as a result of the govt’s action, only X is being targeted.
to even get to this point, you need a showing that similarly situated persons of other races are not being prosecuted.
FN: even if you can show that it was selective prosecution, what is the remedy? you don’t necessarily get the case dismissed.

ABA Standards for prosecutorial discretion

“illustrative” factors in exercising discretion:

prosecutor’s reasonable doubt in guilt
harm caused by offense
disproportion of penalty to offense/offender
possibly improper motives of complaintant
reluctance of victim to testify
cooperation of accused in catching others
likelihood of prosecutor by another jurisdiction


must be supported by PC
don’t file if insufficient admissible evidence
no weight given to political/personal advantage
no more charges than evidence reasonably supports

Blackledge v. Perry- due process precludes prosecutors from vindictively “upping the ante” through felony indictments, in essence, punishing Δ for exercising his right to appeal

North Carolina v. Pearce- applies same rationale to trial judges
US v. Goodwin- inapplicable pre-trial where Δ requests jury trial and case reassigned to ct that had jurisdiction- no prior trial.

basic rationale: difference between pretrial and post-trial- at pretrial, state needs ability to assess evidence and no presumption of vindictiveness justified

also, look at example of how to charge 30K images of kiddie porn

se immunity- cannot use the testimony against in any way but can still charge if there is evidence from a completely independent source

Kastigar v. US- burden is on the govt. to show no taint whatsoever; evidence was obtained 100% independently of the compelled testimony

transactional immunity- immune from all criminal charges to which the compelled testimony relates

in any criminal case (i.e. not civil charges)

applies to grand jury proceedings, civil trials, legislative hearings, police stations

Pretrial Motions

governed by FRCrP Rule 12 (pp 81-87 of supp)
12(b)(3) motions include:

defects in institution of prosecution
defects in indictment
suppress evidence
prejudicial joinder (Rule 14)
all these are waived if not made under 12(e)

Look at Rule 12.1 for special notice pleadings for alibi defenses (p83)
Look at Rule 12.2 for special notice pleadings for insanity defense (p84)


US Const., art III § 2, cl. 3: “Trial shall be held in the State where the said Crimes shall have been committed.”
US Const., Amend VI: In all criminal prosecutions, the accused shall enjoy the right of … trial … of the State and district wherein the crime shall be committed….”
FRCrP rule 18: unless statute or rules otherwise permit, must prosecute in district where offense occurred
rule 21

(a) transfer on Δ’s motion if “so great a prejudice against the Δ exists . . . cannot get fair trial”

Δ’s burden to allege and prove-
Murphy v. Florida– potential juror’s admissions -> prejudice: “hang the guy” in the voir dire

still not enough to show prejudice


setting of trial has to be inherently prejudicial
or jury selection process of which the Δ complains permits an inference of actual prejudice

(b) convenience of parties, witnesses

where there is a continuing offense, venue is proper anywhere the crime takes place. US v. Rodriguez-Moreno

continuing crime (kidnapping)- kidnapped in Tex, drove to NY- where is venue? any of the jurisdictions, even though one element of the crime occurred only in MD “use of gun in crime of violence.”