Criminal Procedure II
Winter (2010) Professor Feller
· The general rule is if you don’t raise an objection at trial, you waive your right.
· However, there is an exception to this general rule—the plain error exception
o 52 (b) provides that a plain error affects a substantial right may be considered even though it was not brought to court’s attention.
· Plain error rule is permissive and not mandatory.
· United States v. Olano:
o 1) error- deviation from a legal rule.
o 2) plain- the error must be clear
o 3) Must affect substantial rights- There must be prejudice the outcome of the proceedings.
§ Some errors are structural- per se prejudicial
o Codified at Fed. R. Crim P. 52 (a)—any error, defect irregularity, or variance that does not affect substantial rights must be disregarded.
· The court must distinguish between constitutional and non-constitutional errors
o Constitutional errors face a more strict test and less likely to be considered harmless.
o If a constitutional error, the court must determine whether it is:
§ 1) trial error (which is subject to the harmless error analysis); or
§ 2) Structural error (which is never harmless)
o Kotteakos (reasoning usually applies to non-constitutional errors) – the error must affect the outcome, otherwise it would be harmless. In federal court, the government has the burden of proof with respect to the prejudice element of the harmless-error inquiry.
o Chapman v. Ohio- Prosecutor closed by saying “of course they are guilty. They did not even bother to get up on the stand and lie about it.” Judge gave jury instructions agreeing with the prosecutor. This was an okay rule until Griffin, where the Supreme Court held no negative inference can be drawn from failure to testify under 5th and 14th amendment.
· Even constitutional errors can be harmless.
o Error must be harmless beyond a reasonable doubt.
o Error in Chapman was prejudicial- case was a circumstantial web of evidence in which honest, fair-minded jurors could have found defendant not guilty
· Structural defects are never harmless.
o Errors the remedy for which is a bar to prosecution
§ Double jeopardy
§ Speedy trial
o Errors that require prejudice as part of standard
§ Brady- exculpatory evidence
§ Strickland-ineffective assistance
· Neder v. Ohio: defendant forgot to declare a few million dollars in income on his tax returns. Charged with filing false tax return. Jury improperly instructed that materiality is not an element of charge. Held: some structural errors so affect substantial rights that no finding of prejudice is required- can never be harmless.
· An instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair.
o Harmless error test: is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.
· Structural errors
o Structural errors affect the framework within which the trial proceedis.
§ Batson- grand or petit juries
§ Jurors view on death penalty in non-capital case.
§ Counsel-related issues- anders, denial of right to select/consult with counsel
§ Judicial conflicts of interest.
§ Arizona v. fulimante- admission of coerced confession not a structural error.
o US v. Castano- defendant arrested driving borrowed truck ith gun in center console and 50 pounds of mary-jane in the flatbed after a botched drug deal.
o He pled guilty to PWID. Convicted of FIP, using and carrying a firearm during and in relation to a crime of violence (924) (c).
o 924 (c) sometimes prohibits two distinct crimes:
§ Possession of a firearm in furtherance of a crime of a violence.
§ Use and carrying a firearm during and in relation to a crime of violence
§ Example: drug dealer selling from front porch of his house, with gun hidden under cushions of his couch, is guilty of possession but not use
o Jury twice instructed that Castano was charged with “possession of a firearm during a crime of violence”
§ Cross-labeling of elements
§ Instructed properly on elements of offense.
· Trial errors are harmless
o Search and seizure
o Admission of statement using coercion
o Violation of right to counsel
o Admission of unconstitutional pre-trial identification
o Bruton error
· Structural error
o Total deprivation of counsel
o Judge conflict of interest
o Attorney conflict of interest
o Selection of a jury by judge without justification
o Batson error
o Race discrimination in grand jury selection
o Improper exclusion of a juror for his view on death penalty
o Deprived of right to proceed pro se
o Denial to a jury trial
o Erroneous instruction on reasonable doubt
o Denial of the right to a speedy public trial.
Prosecutional discretion [no rule] · Discretion not to prosecute is absolute. Why?
o 1) Separation of powers.
o 2) political question doctrine- is the better answer.
o 3) Judicial oversight is difficult.
§ Don’t want courts to act as super-prosecutors.
§ Would have to look at secret grand jury material
§ When can prosecutor say enough?
§ What standard would a court apply?
§ How does a court compel prosecutor to pick among cases?
§ What if there is recourse to state prosecution?
· US v. Cox: US attorney refused to sign grand jury indictments charging two blacks who had testified in a civil rights case with perjury. Held: Prosecutor must prepare but not sign indictment on the theory that grand jury is entitled to prosecutors assistance but can’t force him to prosecute.
· So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision as to whether or not to prosecute lies solely in his hands.
· Discretion to prosecute, however, is not absolute
o Constitutional limits to prosecutorial discretion
§ 1) selective prosecution: defendant must show that the prosecutorial policy was discriminatory both in its effect and its purpose.
· The burden is on the defendant that the government has failed to prosecute similarly situated suspects of other races. If the claim is well founded then it should not have been an insuperable task to prove that persons of a different race were not prosecuted (US v. Armstrong- alleged that he was prosecuted b/c he is black for a crack case; lower ct ordered discovery; govt didn’t comply, case dismissed, sc reversed).
· The defendant must show that prosecution is directed so exclusively against a particular class of persons with a mind so unequal and oppressive that the system of prosecution amounts to a practical denial of equal protection of the law.
· You need both discriminatory effect and discriminatory intent
o Discriminatory effect- similarly situated defendants of different race were not prosecuted.
· To get discovery, Must produce some evidence that similarly situated defendants of other races could have been prosecuted but were not.
· Statistics alone are not enough-must show discriminatory effect with regard to charges brought against similarly situated defendants US v. Bass: defendant challenged death penalty b/c higher percentage of blacks get it. court said that there was no showing of discriminatory purpose against this defendant.
· Classification- it is okay to target so long as there is a rational relationship to broad purpose of criminal law and is reasonably related to law enforcement objectives.
o Target public tax protestors? Yes
o Attorney and accountants who fail to pay their taxes? Argue both ways.
o Sex shop targeted for building code violations?
o Prostitutes bikes missing bells? It is not okay to classify
o Supermakets v. mom and pops for Sunday liquor laws?
§ 2) Vindictive prosecution: when defendant argues that a prosecutor has brought additional or greater charges motivated by the desire to punish him for doing something that the law plainly allowed him to do. Cannot punish a defendant for exercising his constitutional or statutory right.
· Blackledge v. perry (122): def. got a 6 months sentence in district court. Appealed and got charged with felony. SC said you ca
held to answer for a capital or otherwise infamous crime unless on a presentation or indictment of a grand jury.
· Indictment not applied to the states through the Fourteenth amendment. See Hurtado v. California
o Only 18 states require indictment in state court presentation
o Can be waived through information for purposes of guilty plea. See Fed. R crim p. 7(b)
· The grand jury has two purposes
§ 1) investigates: issues subpoenas. The jury’s function is analogous to that of the magistrate in a preliminary hearing. The prosecutor presents evidence o the grand jurors and, if the majority determines that the evidence is sufficient, they find a “true bill” and, through the prosecutor, issue an indictement. The indictment set out the charges against the defendant and the most basic facts on which they are founded. Same standard as probable cause.
§ 2) screens: to see which cases are worthy of being prosecuted.
o Their job is to determine whether there is probable cause
· Grand Jury basics (Rule 6)
o A grand jury must have 16 to 23 members. Sit Tue Wed, thurs, every other week, for six months. May be recalled for 12 months thereafter
§ A grand jury must serve until the court discharges it, but it may serve more than 18 months only iif the court, having determined that an extension is in the public interest extends the grand jury’s service.
o Ct may select alternate jurors
o Need 16 for a quorum- you need 16 ppl present
o Need 12 for an indictment- you need 12 ppl in our favor. If you got the 12 then you can’t dismiss indictment even though #13 is not qualified.
o 1. Foreperson and 1 deputy foreperson appointed
§ Role of foreperson is to administer oath and sign indictment.
§ In the foreperson’s absence, the deputy foreperson will act as the foreperson.
§ Summoned in same manner as petit jury
§ Only chief judge and criminal chief involved in selection process.
§ Significant number excused for hardship.
§ No for cause challenges other than statutory requirements, inability to follow the law.
§ No peremptory challenges.
§ Regularly get lawyers on the grand jury.
o Excusing a juror- at any time, for good cause, the court may excuse a juror either temporarily or permanently, and if permanently, the court may impanel an alternate juror in place of the excused one.
o Racial/gender discrimination
§ Automatically voids conviction
§ Cassell v. Texas; rose v. Mitchell; Vasquez v. Hillary
· Is this a good policy?
o Must the judge seating the grand jury root out of any biases? i.e. preindictment publicity.
§ Beck v. Washington: Harmless error analysis for all non-racial errors in grand jury composition. See porter v. wainright
o All proceeding transcribed by court reporter.
o Only “attorneys for the government,” grand jurors, witness (with interpreter if necessary) and court reporter may be present
§ Attorney for government defined in fed r. crim. P. 1.
§ No interns/students (must be at least an attorney)
§ No defense lawyers
§ Witness may leave room to consult with attorney
o Only grand jurors may be present during deliberations
o Grand juror may be removed for cause.
§ Believing marijuana should be legal is cause.
o Indictment may be returned under seal
§ Danger to witnesses
§ Defendant may flee