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Criminal Procedure II
University of North Carolina School of Law
Muller, Eric L.

CP: Adjudication Outline

1) Charging Discretion and Ethical Roles of Prosecutor
a) Ps have an overarching duty to do justice.
b) If there’s PC to believe the accused committed an offense defined by statute, the P has almost unfettered discretion as to whether or not to prosecute, and what charge(s) to bring.
c) P also has discretion to frame facts and has great investigative discretion.
d) Ps have absolute civil immunity from suits for malicious prosecution.
e) A P can subpoena whomever he wants, to pursue a serious offense.
f) Abbe Smith: Ps have a tendency to view whatever they do as justice, but they have a disparate impact on minorities. DA offices pressure their Ps to be tough and to ignore suspected police perjury and to win instead of doing what’s just.

2) Ethical Roles of Defense Counsel
a) Defense lawyers’ overarching duty is zealous advocacy of client.
i) Unlike Ps, defense lawyers have no duty to defend the truth, only defend the client. With few limitations, defense counsel should put the state’s case in the worst light possible, regardless of what he knows or believes about the guilt of client.
ii) Lawyer believes W’s testimony against his case is truthful.
(1) P may NOT suggest W is lying, may NOT aggressively cross-examine.
(2) D has duty to aggressively cross-examine.
b) Strickland, D entitled to effective assistance of counsel. Minimum level of effectiveness is very low (must show : (1) bad performance, (2) that actually prejudiced D).
c) Nix v Whiteside, No Const right to present perjured testimony. Ct says lawyer is not ineffective when, believing D will lie, he threatens to withdraw, tell court D is lying, and take the stand to impeach him (even though rules seem to preclude lawyer testifying against client).
i) Most jurisdictions require a firm factual basis for lawyer’s knowledge that client will lie (based on client’s affirmative statement of intent to lie, or sources other than client).
(1) Lawyer must act in good faith based on objective circumstances firmly rooted in fact.
(a) Harry Subin (minority view): When D wants counsel to suborn perjury, counsel should adopt “monitoring role” where he just screens P’s case to make sure it meets burden of proof. To do more would subvert the truth.
ii) Defense counsel should always first try to dissuade client from lying.
iii) Counsel may seek to withdraw if client persists, but most jurisdictions allow narrative form of testimony: when questioning gets to part where D is going to lie, counsel just asks D to tell his story (or get entire testimony as narrative) and continue trial w/o reference to the lie.

3) Vindictive Prosecution
a) The DP Clauses of the 5th and 14th Ams protect against “vindictive” prosecution.
b) Vindictive Prosecution/Sentencing (DPC): penalizing a person bc he did what the law plainly allowed him to do is due process violation (increasing charges/penalties only to penalize D for requesting a trial by jury).
i) Goodwin, When P increasing charges after D requests jury trial (exercises Const right), there is a presumption of vindictiveness, unless P has objective evidence that the increased charges could not have been brought bf D exercised his right.
ii) NC v Pearce, If D’s conviction is reversed and he’s given greater sentence on remand, there’s a presumption of vindictiveness (must show that new, specific, valid sentencing factors). …Unless the jury imposes the sentence in 2nd trial.
(1) But in some states, this does not trigger presumption.
(2) Also, if first sentence was imposed upon a guilty plea, presumption is not triggered.
(3) Blackledge v Perry, Ct found presumption is triggered when D invokes right to trial de novo in district court after conviction in misdemeanor court.
(a) …even if P is different? (Thigpen v Roberts suggests so in dicta.)
(4) Colten v KY, Presumption is not triggered by trial de novo in superior ct after conviction in district ct bc it’s a different kind of trial, not a re-do.
(5) Bordenkircher, No presumption when P threatens D with additional charges if he doesn’t plead.
iii) Presumption kicks in when P takes final version of the case to trial (unle

i) Release on (personal) recognizance (ROR)- D is released on unsecured promise to appear.
ii) Cash bail- judge fixes amt of $ D must pay, and D will lose $ is he doesn’t show up.
iii) Property bond- court holds lien against personal or real property.
e) Bail bonding is when private industry (bail bondsman) steps in, and for a fee (usually 10%), puts up $ for D and is liable for bail if D doesn’t show up.
i) This dis-incentivizes showing up since D has already paid the fee (D will still face failure to appear).
ii) This privatizes government functions of making sure Ds show up and capturing those who flee.
b) 8th Am prohibits excessive bail. But no absolute right to bail. It allows offenses to be non-bailable.
c) 1966 Bail Reform Act announced that D in any case is presumptively entitled to release and that D is entitled to be released w/ the least restrictive conditions that will still assure D’s continued appearance. Set purpose of bail as assuring D’s appearance.
i) But it didn’t address practice of setting bails high to protect the community (to prevent arrestee from committing crimes upon release).
d) Stack v Boyle, Abnormally high bail requires individualized consideration.
e) Salerno, Detention is not punishment, it’s just a civil measure, serving regulatory goals. Regulatory detention doesn’t violate due process as long as there is an orderly procedure that proceeds it.
f) 1984 Bail Reform Act, 18 USC § 3142
i) Recognized and regularized practice of preventative detention (to protect community from D committing crimes).
(1) This is based on propensity (including prior record).
(2) This works against presumption of innocence.