adjudicatory Crim pro – Wolitz – Fall 2017
Chapter 1: Introduction (pg. 1-12)
Incorporation: The theory by which the Bill of Rights are applied against the states (not just the federal government)
Values à Law Doctrine à Actual Procedure in Practice
Chapter 2: prosecutorial discretion (pg. 31-62)
Inmates of Attica Correctional Facility v. Rockefeller
Prosecutorial discretion, where the prosecutor declines to prosecute, is not subject to federal judicial review.
Prosecutors are a part of the executive branch and the court is a part of the judicial branch. For prosecutors to be subject to judicial review would disrupt the separation of powers.
Selective or discriminatory enforcement
Wayte v. United States
Wayte is a war protestor. He refused to register for the draft. Writes a letter to the government expressly stating this.
Wayte was indicted for failure to register. He moved for dismissal arguing that he was “selectively prosecuted” for resisting the draft as a way of violating his right to free speech. The District court granted the motion.
Issue: Whether a passive enforcement policy under which the Government prosecutes only those who report themselves as having violated the law or who are reported by others, violates the First and Fifth Amendments.
“So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charges to file or bring before a grand jury, generally rests in his discretion.”
“Selectivity is subject to constitutional restraints”: Includes race, religion, or other arbitrary classification.
Petitioner has shown that those who were prosecuted reported themselves as violating the law. Has not shown that the enforcement policy systematically picked those on the basis of their speech. Only charged if their letters specifically state they were refusing to register – not just because their speech disagreed with the government.
Because the case was dropped by the district court before the case went to trial, this was not double jeopardy.
Rule: A prosecution will only be dismissed as unconstitutional selective prosecution if the defendant can show 1) a discriminatory effect and 2) a discriminatory purpose.
“Petitioner has not shown that the government intended such a result.”
Discriminatory purpose…implies more than… intent as awareness of consequences. It implies that the decision maker… selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Dissent: Court ruled on the wrong issue. The actual issue is whether Wayte has earned the right to discover Government documents relevant to his claim of selective prosecution.
United States v. Armstrong
Defendant is indicted on drug and firearms charges. He files a motion to dismiss believing that he was only prosecuted because of his race.
Issue: What showing is necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out/prosecuted him because of his race.
Same standard as Wayte. Must show that the policy 1) had a discriminatory effect, and 2) that it was motivated by a discriminatory purpose.
In this case, to establish a discriminatory effect, claimant must show that similarly situated individuals of a different race were not prosecuted.
Rule: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution because of race, he must make a threshold showing that the government has declined to prosecute similarly situated suspects of other races, regardless of whether he shows that his race is being prosecuted.
vindictive prosecution
Blackledge v. Perry
Perry was an inmate in an NC prison, got into a fight with another inmate. He was charged with a misdemeanor and convicted by a lower court. He then exercised his statutory right to appeal his conviction and seek a trial de novo. While the appeal was pending, the prosecutor obtained an indictment charging Perry with felony assault. Perry claims vindictive prosecution.
North Carolina v. Pearce:
“Imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be… a violation of due process of law.”
“Since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.”
Pre-trial decisions are generally not considered vindictive.
Rule: The Due Process Clause of the Fourteenth Amendment is violated when an increased punishment after appeal has a real likelihood of being the result of vindictiveness.
Once the trial has begun, the prosecutor is locked into the charges they have filed and any increases in severity have to overcome a presumption of vindictiveness.
The Grand Jury
Costello v. United States
Issue: Under the 5th Amendment, must an indictment be dismissed if the grand jury issued the indictment based solely on hearsay evidence?
Costello indicted for willfully attempting to evade payment of taxes. All of the testimony and documents related to the business transactions and expenditures of petitioner and wife. Three government experts also testified, summarizing the evidence and introducing their computations showing that they had a greater income then reported.
The Fifth Amendment gives the right to a grand jury, but does not prescribe the kind of evidence or procedure rules they must follow.
Rule: A grand jury indictment is not dismissed because it is based solely on hearsay evidence.
An indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on its merits, regardless of the fact that the only evidence before the grand jury was hearsay.
United States v. Williams
The prosecutor has no obligation to produce any exculpatory evidence to the grand jury. Trial evidentiary rules do not apply to the grand jury.
“Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’”
Rule: A district court may not dismiss an otherwise valid indictment because the government failed to disclose to the jury ‘substantial exculpatory evidence’ in its possession.
The government is not required to present any exculpatory evidence at the grand jury hearing.
The federal government must bring indictments by grand jury, but states are not required to do so. (although many do).
Bail and preventative detention (pg. 77-99)
Generally
S
whose mental abnormality makes them likely to commit acts of sexual violence does not create a criminal proceeding and is therefore not subject to the Double Jeopardy and Ex Post Facto Clauses.
right to counsel (pg. 209-250)
The right to counsel falls under the 6th Amendment. It was not always applied to the States.
Appointment of Counsel – Gideon v. Wainwright
Petitioner was charged with a crime in a Florida State Court and asked the court to appoint counsel. The judge responded saying, “the only time the court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.” Petitioner was forced to conduct his own defense and found guilty.
“[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty… The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.” Johnson v. Zerbst
“…any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”
“…lawyers in criminal courts are necessities, not luxuries.”
Rule: The Fourteenth Amendment incorporates the Sixth Amendment right to counsel to the states. The right to counsel applies to all “critical stages of a criminal prosecution after the filing of formal charges.
When the Right to Counsel Applies – Argersinger v. Hamlin
Petitioner was charged with an offense punishable by up to six months in jail. Petitioner was unrepresented by counsel and sentenced to serve 90 days. Brought action habeas corpus alleging that he was deprived of his right to counsel.
“Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.”
“misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.”
“Actual Imprisonment” Standard.
The Sixth Amendment right to counsel extends to defendants charged with any offense that carries a possible penalty of imprisonment. Absent a knowing, intelligent waiver, no person may be imprisoned for any offense, whether petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
If you are a judge and you think the outcome of a case may involve a sentence of imprisonment, then you ought to appoint counsel to ensure that any conviction is legitimate. A judge should only withhold counsel if he is sure that there will be no jail time.
Standard for “Effective Assistance” of Counsel – Strickland v. Washington (1984)
