Principles of Criminal Procedure: Post-Investigation, 2d
Authors:
LaFave, Wayne R. / Israel, Jerold H. / King, Nancy J. / Kerr, Orin S.
Edition:
2nd
Copyright Date:
2009
28 chapters
have results for principles of criminal procedure
Preface 4 results
- This book is intended to be used primarily by law students while engaged in the study of the subject of criminal procedure. This is one of two concise hornbooks that we have written on this subject; the other is
- Criminal Procedure
- It has been our effort to provide as much information and analysis as is possible in a relatively short and easy to use (and carry) paperback volume. By excluding any documentation via footnotes of the various subjects considered and discussed herein (an approach requiring extraordinary self-restraint by four law professors!), we have been able to use virtually all of the space in this conveniently-sized paperback for textual elaboration of the subjects covered. Leading Supreme Court cases and, occasionally, lower court cases of special significance, are identified in the text by name and date only; full citations are available in the Table of Cases. We have provided both a very detailed Table of Contents and also an Index so that a student may easily locate topics of particular interest.
- While all four of us stand responsible for the work on this book and its companion volume, , as a whole, the initial responsibility for individual chapters in these two concise hornbooks was determined according to the allocation of responsibilities in preparation of the 7–volume treatise. Hence, as to this book Wayne LaFave had initial responsibility for chapters 4–5, 9–10, and 13, Jerold Israel for chapters 1–3, 6–8, 11–12, and 15, and Nancy King for chapters 14 and 16–20. Each of us would appreciate hearing from readers who have criticisms or suggestions relating to the chapters for which we had initial responsibility.
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Chapter 1. The Character of Post-Investigation Criminal Procedure 116 results (showing 5 best matches)
- This concise hornbook is designed for that second course in criminal procedure, whatever its title. For students taking a single course covering the entire criminal justice process, it can be combined with its companion volume—
- As an academic subject matter, “criminal procedure” (or, as some prefer, “the criminal justice process”) commonly refers to the totality of the procedures through which the substantive criminal law is enforced. While some law schools offer a single course on criminal procedure, many have divided that subject matter into two courses. The first course typically is devoted to procedures that are part of the criminal investigation (i.e., the procedures though which investigating officials—usually the police, but sometimes prosecutors—gather evidence that will allow them initially to determine whether it is likely that a crime was committed, and if so determined, to then identify, apprehend, and establish the guilt of the likely offender). The second course covers the remaining procedures of the criminal justice process. That course goes by a variety of titles, none of which are entirely accurate.
- (i) Maintaining the Appearance of Fairness
- For over a century, common law rulings were the primary source of the law governing the criminal justice process in the states. However, the introduction of comprehensive codes of criminal procedure, followed by the adoption in many states of extensive court rules, and then by the constitutionalization of the law of criminal procedure, combined to sharply reduce the role of common law rulings. Today, for all but a few states, the legal standards governing most aspects of the criminal justice process come from a combination of the federal constitution, the state’s own constitution, state statutes, and state court rules (all subject, of course, to judicial interpretation). Common law rulings still dominate, however, as to certain aspects of courtroom procedure, such as the regulation of closing arguments.
- The federal system, the District of Columbia, and each of the states has an extensive group of statutory provisions regulating the criminal justice process. Initially, each jurisdiction has a series of sequentially presented provisions that typically are described as the jurisdiction’s “code of criminal procedure.” In only about a third of the jurisdictions, however, are these statutes truly codifications of the law of criminal procedure. In those jurisdictions, the “code” does set forth all of the basic governing standards, often accompanied by considerable procedural detail, in a conceptually integrated, comprehensive pattern of regulation. Such statutes typically have provisions on various aspects of post-investigative procedure, including: jurisdictional requirements; commencement of prosecutions in magistrate courts; first appearance of arrested persons; venue; pretrial release; preliminary hearings; grand jury proceedings; pleading requirements (indictments and informations);...
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Chapter 2. The Constitutionalization of Criminal Procedure 85 results (showing 5 best matches)
- The most extensive explanations of the special need for expansive interpretations of the Constitution’s criminal procedure guarantees are found in academic commentary rather than Supreme Court opinions. Several of the rationales offered in that commentary, however, do find support in a series of comments, typically brief, made occasionally in opinions for the Court and more frequently in the opinions of individual justices. The rationales having such support look primarily to three factors, each discussed below: (1) the relationship of criminal procedure to the general protection of civil liberties; (2) the relationship of criminal procedure to the protection of minorities; and (3) the presence of various structural elements that enhance the Court’s authority in exercising constitutional review of the criminal process.
- . The special case for expansive interpretations of criminal procedure guarantees also is attributed to several factors that supposedly make the exercise of judicial review more readily supportable in the criminal justice area than in many other areas of constitutional adjudication. Initially, the structure of many of the applicable guarantees—in particular, the specificity of most of the Fifth and Sixth Amendment guarantees—is said to permit criminal procedure rulings to be more firmly rooted in the text and history of the applicable constitutional provisions. Of course, some provisions, such as the due process clause, are open-ended, but at least they present no ambiguity as to their applicability to the criminal justice process.
- Adding to this supposedly firmer foundation for judicial review in the criminal procedure area is the fact that the Court only infrequently is required to overturn legislative decisionmaking. Rulings on police investigative methods generally deal with practices that have been instituted by the police without formal legislative authorization. Rulings relating to trial and pretrial procedures similarly tend to deal with practices adopted by courts on their own initiative. Criminal procedure rulings, it is argued, largely bypass the concerns raised by the anti-majoritarian character of judicial overturning of legislation.
- It was not until after the adoption of selective incorporation that the Supreme Court found it necessary to address the distinct roles of the specific guarantees and the independent content of due process in the constitutional regulation of the state criminal justice systems. The primary source of regulation, the Court noted in the states. “Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.” That is so because “[t]he Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.” In the “field of criminal law,” the Court stated, “we have defined the category of infractions that violate ‘fundamental fairness’ very narrowly,” recognizing that the due...
- Prior to the adoption of the Fourteenth Amendment, (1855) had established two critical principles relating to the content of the Fifth Amendment’s due process clause. First, although the concept of due process clearly was derived from the “law of the land” clause of the Magna Charta, it required more than regular adherence to preexisting law (i.e., more than requiring the Crown to follow those procedures that were established by the common law and Parliament). The due process clause also prohibited any legislative or judicial alteration of procedures that would be inconsistent with the key principles of fairness found in the common law. Second, a procedure that was well established at common law thereby was consistent with due process. concluded that these two principles did not combine to make prosecution by indictment an element of due process, notwithstanding its common law pedigree and its inclusion in the Bill of Rights.
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Chapter 16. The Criminal Trial 217 results (showing 5 best matches)
- (a) Content of Final Instructions
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- In addition, rules of exclusion designed to promote other goals of criminal procedure may affect admissibility. Thus, the rule governing guilty pleas may preclude admissibility of statements made during plea negotiations, the rules on discovery may allow exclusion of evidence due to discovery violations, and rules requiring pretrial notice of intent to use evidence may be enforced through exclusion. Statements made in the course of pretrial suppression hearings may be excluded at trial so that defendants are not forced to choose between giving up a valid fourth amendment claim or waiving the privilege against self-incrimination.
- principle produced a per se due process violation, when the government charged a defendant with smuggling aliens into the country and then deported many of those aliens before defendant even had an opportunity to interview them, the Supreme Court in (1982), declined to go that far. Stressing that the government was responsible both for enforcing the criminal law and faithfully executing the congressional policy favoring prompt deportation of illegal aliens, the Court concluded it was proper for the government to undertake “the prompt deportation of illegal-alien witnesses upon the Executive’s good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution.” Accordingly, the mere act of deportation would not in itself constitute a violation of either the due process or compulsory process clauses. To establish a violation, the defense would have to show “that the evidence lost would be both material and favorable to the defense.” The...
- with the subtle, and perhaps open, direct effect that answering special questions may have upon the jury’s ultimate conclusion. There is no easier way to reach, and perhaps force, a verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. * * * It may be said that since the law should be logical and consistent, if the questions were proper in substance this would be a desirable rather than an undesirable result. [But in criminal cases there are other considerations, especially] the principle that the jury, as the conscience of the community, must be permitted to look at more than logic. * * * The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury...
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Chapter 18. Sentencing Procedures 131 results (showing 5 best matches)
- Assuming due process might require the disclosure to the defendant of sentencing information used by a judge in non-capital cases, the appropriate analysis for assessing what due process requires has been the subject of debate. The balancing test of has been advanced as one analysis for determining the extent to which notice is required by due process in the context of sentencing. Under , the disclosure required may vary with the type of information at issue and the circumstances of the case. This approach was adopted by three justices of the Supreme Court dissenting in ...his presentence report, but was not told that the court was contemplating an upward departure from the guidelines range. The majority avoided addressing whether due process required such notice by concluding that such disclosure was required by Rule 32. The dissenters, however, concluded that Congress did not intend to mandate such disclosure, nor was disclosure required as a matter of due process. Examining...
- (1949), remains the leading ruling on the content of due process as it applies to procedures in traditional discretionary sentencing. Commentators have steadily predicted that the “revolution” that transformed much of constitutional criminal procedure after and its reasoning obsolete. So far, such predictions have not been realized. The Supreme Court continues to cite with approval the principles expressed in Justice Black’s opinion for the Court in . Compared to the Court’s fundamental refashioning of constitutional requirements for other phases of the criminal prosecution, its more conservative application of due process in sentencing appears almost frozen in time, even as sentencing itself has been transfigured by legislative reform.
- A second financial directive that has gained prominence in recent years is the forfeiture order. Criminal forfeiture is a form of punishment which authorizes the government to seize certain assets of the defendant. Modern criminal forfeiture is of relatively recent origin. The Framers prohibited the English practice of “forfeiture of estate,” a criminal penalty that deprived a convicted felon of the ability to transfer any of his property at death. Thereafter, criminal forfeiture disappeared almost entirely from American law until 1970 when Congress provided for the criminal forfeiture of certain specified assets as a penalty for violating RICO. Subsequently, Congress and many state legislatures have authorized criminal forfeiture as a punishment for drug offenses and various other crimes. The scope of assets subject to forfeiture is limited by statute to that property possessing a prescribed relationship with the criminal activity. Common categories of forfeitable assets include “...
- (e) The Right to the Assistance of Counsel
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
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Chapter 7. Grand Jury Review 125 results (showing 5 best matches)
- the very presence of a guarantee in the Bill of Rights strongly suggests that the guarantee is one of those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” As a result, it has found Fourteenth Amendment due process to encompass almost all of the guarantees relating to criminal procedure that are in the Bill of Rights. Indeed, the only other guarantees, besides the grand jury clause, not definitely within the protection of due process are those as to which the Court has not had occasion to rule. Nonetheless the Supreme Court has reaffirmed its ruling that due process does not require a state to initiate prosecution by a grand jury indictment or presentment in a capital case or any other criminal case.
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- Rule 7 of the Federal Rules of Criminal Procedure restates the Fifth Amendment guarantee in modern form. It provides that “an offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year.” Federal Rule 7 does not refer to prosecution by presentment since presentments became obsolete in federal practice with the assumption of an executive branch monopoly over the prosecution function. Indeed, Rule 7(c) gives effect to an indictment approved by a vote of the grand jurors only if it is also signed by the attorney for the government (thereby indicating the prosecution’s acceptance). Rule 7 extends to all offenses punishable by imprisonment for more than a year (which also defines a “felony”), as an “infamous” non-capital offense traditionally was defined by reference to potential incapacitation in a penitentiary (the case for all felonies). An exception is made for criminal contempt, as that...of
- For roughly thirty years the Supreme Court did not speak to the issue, and during that period the lower courts developed an extensive “common law” of prosecutorial misconduct in presenting evidence. See § 7.5(b). Then in (1992), the Court undercut at least a substantial portion (if not all) of the doctrinal foundation of such rulings. For reasons discussed in § 7.5(b), the majority concluded that, “as a general matter at least,” federal courts lacked the authority to independently prescribe standards of appropriate prosecutorial conduct before the grand jury. Federal courts could utilize their supervisory authority “as a means of enforcing or vindicating legally compelled standards of prosecutorial conduct before the grand jury,” but those standards were to be found basically in statutes, the Federal Rules of Criminal Procedure, and any constitutional prohibitions. Federal courts were not ...own initiative additional limits based on their independent judgment of what was needed...
- was not confined to exculpatory evidence” or even to misconduct claims that relate to the “quality” of the evidence placed before the grand jury. These rulings generally view misconduct dismissals as likely to have a sound footing “only where violations of positive law embodied in a rule of criminal procedure, a statute, or the Constitution are raised.” As discussed in § 7.4(b) and § 7.6(e), supervisory-authority rulings relating to the presentation of evidence, and the same should be the case for most of the other pre- rulings discussed at the start of this subsection. Such “misconduct” as incorrect legal advice, conflicts of interest, inflammatory comments, and expression of personal opinions as to guilt are unlikely to involve violations of a court rule or statute.
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Table of Cross–References 2 results
Chapter 14. Trial by Jury and Impartial Judge 76 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- As for the procedure that must be followed in determining whether relief under challenge “must show that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the petit jury on account of their races,” which is an “inference of purposeful discrimination.” It is then for the trial court, considering “all relevant circumstances,” such as a pattern of exercising strikes from the venire on the basis of race and the nature of the prosecutor’s questions and statements on voir dire, to decide if the showing “creates a prima facie case of discrimination.” If it does, then “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors,” which requires more than a denial of a discriminatory motive or the explanation “that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared...
- (c) Denial of Equal Protection
- It was long accepted that the constitutional challenge could be made only by a defendant who was a member of the excluded class. But in (1991) the Court held that the defendant in a criminal case has standing to raise the equal protection rights of excluded jurors, who would themselves confront “considerable practical barriers” to challenging their exclusion. Thus, a white defendant may challenge the exclusion of black jurors on equal protection grounds because discrimination in jury selection “causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice.”
- seeks to exclude members of the venire based on their race or gender. In applicable where a prosecutor sought to prevent white defendants, charged with assaulting blacks, from striking black prospective jurors because of their race. The Court reasoned that (i) “a criminal defendant’s exercise of peremptory challenges in a racially discriminatory manner inflicts the harms addressed by ,” denial of prospective jurors’ right to serve as jurors, and loss of public confidence in the fairness of jury verdicts; (ii) such exercise of peremptories “is performing a traditional governmental function”; (iii) “the State has standing to challenge a defendant’s discriminatory use of peremptory challenges,” as “its own judicial process is undermined” thereby and there are significant barriers to the excluded jurors themselves obtaining relief; and (iv) the interests served by need not “give way to the rights of a criminal defendant,” as a defendant’s rights to a fair trial, counsel and an...
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Chapter 8. The Location of the Prosecution 76 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- The distinction between venue and vicinage underlies the adoption of separate jury selection and venue provisions in the federal constitution and in Congress’ initial legislation implementing those constitutional provisions. Though the framers of the Constitution initially saw no need to safeguard by constitutional provision the basic rights of the individual (a position later altered with the agreement to add the Bill of Rights), they nonetheless did include in the body of the Constitution certain requirements of criminal procedure that would protect the accused. Not surprisingly, one of those safeguards guaranteed that the accused would not be forced to trial outside of the state in which the charges against him arose. Appropriate venue had been a matter of great concern to the colonists. They had fiercely opposed Acts of Parliament that allowed the Crown to take colonists to England or to another colony for trial on various capital offenses. Article III, Section 2, of the... ...of...
- The Supreme Court, in both majority and dissenting opinions, has often noted the importance of turning to the policies underlying the Constitution’s venue and vicinage provisions where the language and structure of the crime does not clearly fix venue. Indeed, no statement on venue determination is more frequently cited than the admonition in one such case, (1944), where the Court stated that “questions of venue in criminal cases” should not be viewed as presenting “merely matters of formal legal procedure,” but as “rais[ing] deep issues of public policy in light of which legislation must be construed.” However, as both commentators and lower courts have noted, the Supreme Court has been unable to achieve a consistent consensus on the precise content of those policies.
- Looking to the essential character of the crime created by Congress, found that one crime treated related criminal conduct as no more than an anterior factor giving rise to a separate offense, and the other treated such conduct as critical element of the crime itself. held that the element that characterized the money laundering offense was the laundering element, and though an illegal source of the funds to be laundered also was an element, the criminal conduct creating that status was simply an anterior factor. held that the ongoing crime of violence was a “critical” conduct element of a crime prohibiting the use of a firearm “during and in relation to” that crime; the predicate crime stood alongside the use of the firearm itself, thereby creating venue in any district on which the predicate crime occurred (whether or not the firearm also was used there).
- was the multi-venue potential of a criminal statute prohibiting the “use” or “carry[ing]” of a firearm “during and in relation to any crime of violence.” The defendant there, who had participated in a kidnaping that extended over several districts, argued that the prosecution for this firearms offense could be brought only in the district in which he threatened the victim with a weapon, and not in other districts where the kidnaping had occurred without the weapon. Relying on what it called the “verb test,” the Third Circuit sustained that contention, reasoning that venue for this part of the overall criminal transaction was tied to where the firearm was either used or carried. The Supreme Court rejected that conclusion, looking to the standard of ...that “the ‘verb test’ certainly has value as an interpretive tool,” but should “not be applied rigidly, to the exclusion of other relevant statutory language.” Such language here established that the underlying violence offense itself...
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Chapter 4. Pretrial Release 88 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- (b) Citation in Lieu of Arrest Without Warrant
- Because state courts have typically relied upon juvenile code safeguards in dealing with pretrial release issues in juvenile cases, there has for some time existed considerable uncertainty as to what extent a constitutional right to bail exists in this context. But under the general “fundamental fairness” approach that the Supreme Court has utilized in determining what rights of adult defendants also apply in juvenile proceedings, it may be concluded that there is no unqualified constitutional right to bail for a juvenile. This is clearly reflected in the fact that the Supreme Court, in the case of ...authorizing pretrial detention of an accused juvenile delinquent based on a finding that there is a “serious risk” that the child “may before the return date commit an act which if committed by an adult would constitute a crime.” The Court, in holding this provision conformed to the “fundamental fairness” demanded by the due process clause, first concluded that the statute served...
- Even if a particular preventive detention scheme suffers from none of the previously discussed constitutional defects, it is nonetheless necessary that the procedures whereby it is determined which individuals will actually be confined be fair in a procedural due process sense. Even in a situation in which it is conceded that the defendant has no absolute right to bail, a fair adjudicatory procedure must be followed. Just what constitutes fair procedure for due process purposes depends to some extent upon the circumstances and matter at issue. Thus, in (1975), concerning the judicial determination of probable cause after a warrantless arrest, the Court held that “the full panoply of adversary safeguards—counsel, confrontation, cross-examination, and compulsory process for witnesses,” is not constitutionally required, while in the Court briefly discussed the procedural due process question in upholding the facial constitutionally of the Bail Reform Act of 1984. The Court stressed the
- What then of the broader proposition that a defendant may have his bail revoked for any serious criminal conduct engaged in during such release? In support of such a scheme, it may argued that it lacks the defects of outright pretrial detention, where one of the main failings is the fact that the judge has no reliable indicator available by which to determine which defendants will commit further crimes, and thus it is not surprising that there exists even pre- , the question is whether a requirement that the arrestee be guilty of a prior offense or be charged with committing a crime while out on parole, probation, or pretrial release obviates any need for the arrestee to be charged with an “extremely serious” crime or to be shown to be dangerous. The rationale for an affirmative answer, that the government’s interest in detaining repeat criminal offenders is more significant because such individuals pose a statistically greater danger to the community upon release than do first-time...
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Chapter 19. Appeals 117 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- (1977), the Supreme Court added an additional ruling to the list of orders deemed collateral. The Court there held appealable the denial of a pretrial defense motion seeking dismissal of an indictment on double jeopardy grounds. The denial of the motion to dismiss had constituted a “complete, formal and * * * final rejection” of the defendant’s double jeopardy claim; the double jeopardy issue was “collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i.e., whether or not the accused is guilty of the offense charged;” and “the rights conferred upon the criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.” The function of the Double Jeopardy Clause, ...being subjected to double punishment, but also to protect the defendant against being forced “to endure the personal strain, public embarrassment, and expense of...
- , strictly limited such appeals to the letter of that provision. Government attempts to gain more expansive appellate review using the general appeals statute, 18 U.S.C. § 1291 (allowing for appeals from final decisions), were rejected. In (1981), the Court reviewed the basis for this limitation, noting that the Court’s “continuing refusal to assume that the United States possesses any inherent right to appeal” reflects the need “to check the Federal Government’s possible misuse of its enormous prosecutorial powers.” Requiring Congress “to speak with a clear voice when extending to the Executive a right to expand criminal prosecutions” through appeal places the responsibility for “such assertions of authority over citizens in the democratically elected Legislature where it belongs.” This philosophy is repeated frequently in state as well as federal decisions. All of the states now have provisions allowing prosecution appeals from at least a limited class of orders in criminal cases...
- The delay that can accompany interlocutory appeals is especially pernicious in the criminal justice process, where a speedy trial advances a “societal interest * * * which exists separate from * * * the interests of the accused.” In his frequently quoted opinion in (1940), Justice Frankfurter emphasized the dangers of delay in urging strict adherence to the final judgment rule in criminal cases. He noted:
- In many jurisdictions defense appeals in criminal cases are governed by the same statutes that regulate civil appeals. The federal provision, 28 U.S.C. § 1291, is typical. It provides that the “courts of appeals * * * shall have jurisdiction of appeals from all final decisions of the district courts * * *.” Counterpart state statutes often refer to appeals from “final orders.” In those states with separate statutes governing defense appeals in criminal cases the statutes commonly refer to a “final judgment of conviction.” Notwithstanding such references to “convictions,” the prevailing view is that an appealable final judgment does not come with conviction alone, but requires the imposition of a sentence for that conviction.
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Chapter 15. Fair Trial and Free Press 75 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- , the Court pointed to traditions of openness that were clearly established and at least a century old. Some courts view such an historical tradition, showing “clarity, generality and duration,” as an absolute prerequisite for meeting the “experience” standard, at least as to procedures which are not recent innovations. Other courts find no need for such a clearly established, lengthy tradition, even as to longstanding procedures, where they can point to a shift in the significance of the particular procedure. In dealing with pretrial procedures, for example, they note “the relative importance of pretrial procedure to that of trial has grown immensely in the last two hundred years” and stress that the “First Amendment must be interpreted in the context of current values and conditions.”
- In applying the “logic” prong of , lower courts look to various functional enhancements that public access would contribute to the particular procedure. Opening a judicial proceeding, it is noted, can serve one or more of the following six “societal interests”: “[1] promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; [2] promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; [3] providing a significant community therapeutic value as an outlet for community concern, hostility and emotion; [4] serving as a check on corrupt practices by exposing the judicial process to public scrutiny; [5] enhancement of the performance of all involved; and [6] discouragement of perjury.” Virtually every proceeding in the criminal justice process that impacts upon decisionmaking would be enhanced by contributing to one or more of these societal...
- characterized a prior restraint as involving “an immediate and irreversible sanction,” in contrast to a “criminal penalty or a judgment in a defamation case [which] is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted.” This might suggest that it would be constitutionally permissible for a state to adopt criminal statutes prohibiting certain identifiable prejudicial reporting, such as reporting a defendant’s prior criminal record or his confession not yet ruled admissible. But other rulings of the Court indicate that criminal sanctions are not permissible except to “further a state interest of the highest order” which cannot be adequately protected by less stringent measures. Indeed two key rulings hold unconstitutional criminal prosecutions for the publication of court information normally deemed confidential. In ...for a newspaper to publish, without written order of the juvenile...
- The teaching of (1976) is that a prohibition upon the media publishing information which might be prejudicial to a criminal defendant will seldom, if ever, be a permissible means for preventing prejudicial pretrial publicity. At issue in that case were orders entered prior to the trial of a mass murder, which barred the publication of “any testimony given or evidence adduced” in court and which also barred the reporting of any confessions or incriminating statements made by the defendant to the police or to any third parties (except members of the press) or of “other facts ‘strongly implicative’ of the accused.” The Supreme Court (per Burger, C.J.) first unequivocally concluded that the bar on reporting what happened “at the open preliminary hearing * * * plainly violated settled principles,” namely, that “once a public hearing had been held, what transpired there could not be subject to prior restraint.”
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Chapter 9. The Scope of the Prosecution: Joinder and Severance 74 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- But a plurality of the Supreme Court has now indicated its willingness to extend this exception beyond instances of actual necessity. In (1985), the defendant, two months after pleading guilty to importing marijuana, was charged with engaging in a continuing criminal enterprise, which requires proof of three or more successive violations of a certain type within a set period of time. At trial, the government’s proof in that respect included the earlier importation offense, which the plurality deemed permissible under simply because “the continuing criminal enterprise charged against Garrett in Florida had not been completed at the time that he was indicted” on the importing charge. While the dissenters objected the exception was not applicable because all the facts needed to prove a continuing criminal enterprise of shorter duration existed prior to that indictment, the plurality deemed it irrelevant “whether the Government could [at the time of the importing charge] have...
- usually involves two criminal charges, it will occasionally involve a criminal charge and another type of proceeding. Although it has long been clear that the Double Jeopardy Clause protects only against the imposition of multiple criminal punishment, the Supreme Court has experienced difficulty over the years in deciding how to go about making the civil-criminal distinction. One approach, under which the outcome depended primarily on whether the sanction imposed served the traditional “goals of punishment,” namely “retribution and deterrence,” was abandoned in (1997), where the Court rejected the contention of bank officers indicted for misapplication of bank funds that the prosecution was barred because monetary penalties and occupation debarment had previously been imposed upon them by the Office of Comptroller of Currency. Under ...” that the statutory scheme is “so punitive either in purpose or effect” as to transform what was intended as a civil remedy into a criminal...
- said that once “an issue of ultimate fact has once been determined * * * that issue cannot again be litigated,” it is of course necessary to consider whether the issue in the second proceedings is actually the same as the issue decided in the earlier criminal trial. This requires, for one thing, consideration of the burden and standard of proof applicable in the two proceedings, as is indicated by (1972). One Klementova had been acquitted on charges of smuggling certain goods into the United States, after which the government instituted a civil forfeiture action with respect to those goods. In holding that he had no valid defense to this action, the Court reasoned that “the difference in the burden of proof in criminal and civil cases precluded application of the doctrine of collateral estoppel,” for “acquittal of the criminal charges may have only represented ‘ “an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused,” ’ ” “...
- (1993), which involved two consolidated cases in which the defendants were charged with crimes following their trials for criminal contempt based on the same conduct. After concluding that the double jeopardy protection is applicable “in nonsummary criminal contempt prosecutions just as * * * in other criminal prosecutions,” the Court decided to overrule because (i) it “lacks constitutional roots” by virtue of being “wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy”; (ii) it “has already proved unstable in application,” as manifested by the fact that in less than two years the Court had recognized “a large exception” thereto grounded in “longstanding authority” (the reference is to ...jeopardy claim failed “because of long established precedent in this area,” namely, “the rule that a substantive crime, and a conspiracy to commit that crime, are not the ‘same offence’ for double jeopardy purposes.”); and (iii...
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Chapter 5. The Decision Whether to Prosecute 84 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- Given the well established principle that a prosecutor possesses vast discretion in the enforcement of the criminal law, does it follow that he is obligated to exercise it? At least one court has answered in the affirmative. In charged under the habitual criminal statute pursuant to the prosecutor’s “mandatory policy of filing habitual criminal complaints against all defendants with three or more prior felonies.” The defendant, who had prior convictions for taking a motor vehicle without permission, second degree burglary, and unauthorized use of a vehicle, argued that “a policy which prevents the prosecutor from considering mitigating factors is a failure to exercise discretion, which may, as in this case, result in an unfair and arbitrary result,” and the court agreed. Given the draconian nature of full enforcement of habitual criminal laws, the result in is an appealing one. But it does not necessarily follow that full enforcement of any particular criminal statute is... ...of...
- (d) The “Problem” of Discretion
- It has sometimes been argued that private prosecution is desirable and ought to be recognized by more jurisdictions. But the generally accepted view is that the prosecution function should be performed by a public prosecutor because prosecution by a private party without authorization or approval of the prosecutor presents a serious danger of the vindictive use of the criminal law process. Thus, even in the face of apparent authority in the law permitting private prosecution, it has been refused on the ground that it is desirable to seek uniformity of prosecutorial policy. Indeed, it has often been held that private attorneys may constitutionally be involved in a criminal prosecution if the prosecutor maintains substantial control over the case. Even where a private citizen is allowed to file an application for a criminal complaint, it does not necessarily follow that the judge must issue the complaint upon a showing of ...the prosecutor’s objection. A criminal prosecution brought...
- the words were used in a way that implied bad faith, or awareness of the unjustifiability of the standard of selection. Given the context in which the matter arose in that case, this is not surprising. involved a civil suit to recover damages for infringement of civil rights, and it is understandable that the Court might not have wished to have an administrative official held personally liable in damages for a good faith mistake on his part. But this sensible notion that a nonmalicious official should not be required to pay out damages clearly has no application when a defendant in a criminal prosecution is seeking dismissal of the charges against him because of the basis upon which he was selected for prosecution. In such a case, the question ought to be whether the classification used by the prosecutor is ...prosecutor was personally aware that it was arbitrary. This principle is unquestionably sound, but it cannot be said with assurance that it is always grasped by the courts...
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Chapter 20. Post Conviction Review: Collateral Remedies 156 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- as the “paradigmatic example of a watershed rule of criminal procedure,” the Court has yet to find another rule that meets this exception. Some rulings fail the requirement that they affect the accuracy of a criminal judgment. Consider, for example, the new ruling advanced by the petitioner in —an innovative reading of the Sixth Amendment’s cross-section requirement that would have provided a -like prohibition against racially discriminatory use of peremptory challenges. Though a -type rule might promote accuracy in a systemic sense, it did not necessarily affect accuracy in any particular case, and it therefore fell outside of
- is the determination of whether the rule on which the petitioner relies is a “new” rule of criminal procedure. Speaking for a plurality in , Justice O’Connor advanced a broad definition of a new ruling that was later extended to include applications of prior precedent that would not have been classified as new rulings under the Supreme Court’s previous retroactivity decisions.
- Justice O’Connor’s plurality opinion derived this “law-at-the-time” principle from what was described as the “deterrence function” of the habeas writ. A central function of federal habeas review, it was argued, is ensuring that the state courts faithfully apply the prevailing “constitutional principles” as announced by the Supreme Court. Because the Supreme Court’s docket limitations preclude its review of all but a small number of state court departures from prevailing constitutional principles, habeas review in the lower federal courts was needed to deter state courts from taking advantage of the likelihood that their departures from prevailing precedents would escape Supreme Court review. Federal habeas review was to “serve as a necessary incentive for trial and appellate judges * * * to conduct their proceedings in a manner ...established constitutional principles.” Such a “deterrence function” requires only that the conviction be reviewed by reference to the law prevailing at...of
- Although not involving constitutional limitations on congressional efforts to restrict federal habeas review of state-convicted prisoners, the decision in (2008) contained dicta that may be relevant to future interpretations of the scope of the Clause in that context. In a closely divided Court concluded that the Military Commissions Act of 2006 effected an unconstitutional suspension of the writ because it stripped the federal courts of habeas jurisdiction over claims of illegal custody filed by detainees at the U. S. Naval Station at Guantanamo Bay, Cuba, and did not provide an adequate substitute for habeas corpus review. Under the Suspension Clause, the Court explained, “the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings.” In ...Status Review Tribunals (CSRTs) that the detainees were “enemy combatants.” Because the CSRTs provided only limited safeguards, the Court found, they presented “a considerable risk of error in the... ...of...
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Chapter 10. Speedy Trial and Other Prompt Disposition 76 results (showing 5 best matches)
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- Under the Uniform Criminal Extradition Act, adopted in the overwhelming majority of the states, procedures are set out whereby a person imprisoned in another state may be extradited for purposes of criminal prosecution. However, the necessity for extradition often can be avoided by proceeding under the Interstate Agreement on Detainers, a Compact adopted by the federal government and virtually all the states. The IAD provides that a prisoner against whom a detainer has been filed must be promptly notified of that fact and of his right to demand trial, and if he demands trial then trial must be had within 180 days thereafter; the request is a waiver of extradition by the prisoner, and the state by adopting the Compact has agreed to surrender the prisoner under such circumstances; if trial is not had within 180 days and good cause for delay is not shown, the charges are dismissed with prejudice.
- The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature had decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
- But, while this is a useful explanation of why society should be interested in the prompt disposition of criminal cases, it is rather misleading to say, as it is put in that this “societal interest” is somehow part of the right, for the Bill of Rights does not speak of the rights and interests of the government.
- Because appeals are not a part of the “criminal prosecutions” to which Sixth Amendment rights attach, it seems clear that a speedy trial claim may not be made with respect to delays in the appellate process. But, while the Constitution apparently does not require the states to afford a right to appellate review of a criminal conviction, when a state does provide the right it must do so in a manner meeting the requirements of due process and equal protection. As one court concluded, “due process can be denied by any substantial retardation of the appellate process, including an excessive delay in the furnishing of a transcription of testimony necessary for completion of an appellate record.” Though this might suggest that would provide the best analogy for purposes of analysis, the court decided that application of the four factors in was the best way “to determine whether a denial of due process has been occasioned in any given case.”
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Chapter 6. The Preliminary Hearing 71 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- criminal justice process, designed to provide a fairly prompt independent review of the sufficiency of the evidence supporting the prosecution’s decision to charge. At that time, there was no requirement of a review of a warrantless arrest (see § 1.2(d)), and the time span between arrest and grand jury review of the decision to charge could be quite extensive. As the preliminary hearing developed over the years, it came to perform several additional functions (commonly described as “incidental” or “ancillary”) that often were of value to the defense. A critical legal issue today is whether those other functions (discussed below) will be taken into account by courts in shaping the procedures of the preliminary hearing and the remedies available where preliminary hearing errors are consider in a post-indictment or post-conviction setting. See e.g., § 6.4(a), (e). Whether or not recognized in judicial decisions, those other functions play a very significant role in the defense...
- In the federal system, the Fifth Amendment requires grand jury screening (unless waived) in all felony cases. Federal law also provides for a preliminary hearing, but federal courts from the outset held that preliminary hearing screening was subordinate to grand jury screening. Thus, where a grand jury indictment was issued prior to the time set for the preliminary hearing, courts held that the defendant’s right to a hearing was “mooted.” The return of the indictment established probable cause, so there was nothing left for the preliminary hearing magistrate to decide. The Federal Rules of Criminal Procedure subsequently incorporated this analysis. Federal Rule 5.1(a) requires a preliminary hearing for a felony prosecution, but then recognizes an exception where the “defendant is indicted.” That exception allows the prosecutor to “bypass” the preliminary hearing by simply obtaining a grand jury indictment prior to the scheduled date of the hearing.
- Other states have sought to place a greater focus on likely success at trial by emphasizing the procedures used in meeting the bindover standard rather than the standard itself. These states use the traditional probable cause standard while providing what is commonly described as a “mini-trial” hearing. The prosecution is limited to use of evidence that would be admissible at trial, and the defense is allowed full scope in cross-examination and in the presentation of defense evidence. Though the mini-trial hearing fits naturally with a bindover standard requiring a prima facie case, it is seen as having value as well in a jurisdiction applying a probable cause standard requiring a degree of probability similar to an arrest warrant. A mini-trial hearing, particularly if combined with the magistrate’s capacity to judge witness credibility, provides a screening procedure that arguably is much more exacting even though it requires no greater degree of probability.
- . (1984), the Supreme Court held that the Fifth Amendment guarantee of prosecution by grand jury indictment was not a fundamental right applicable to the states through the due process clause of the Fourteenth Amendment. The procedure challenged in that case provided for charging by prosecutor’s information rather than by indictment, but it also required a magistrate’s determination of probable cause at a preliminary hearing. In (1913), however, the Court was faced with a procedure permitting direct filing of an information without “any examination of commitment by a magistrate * * * or any verification other than [the] prosecutor’s official oath.” A unanimous Supreme Court held that the lack of a preliminary hearing caused no due process difficulties. Having held earlier in ...“judicial determination of probable cause [is] a prerequisite to extended restraint on liberty following [a warrantless] arrest,” it concluded this could be done in a nonadversary proceeding (as opposed...
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Chapter 11. The Accusatory Pleading 96 results (showing 5 best matches)
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- In fact, as applied over the years, neither the essential elements requirement nor the requirement of adequate factual specificity have been tied to what is necessary to ensure that a court can determine, simply by comparing allegations, whether two pleadings charge the same offense. The essential elements requirement, as described in § 11.2(a), demands far more than a basic identification of the crime charged (e.g., by citation to the applicable criminal code provision), though only such an identification would be needed to determine whether the two pleadings charged violations of the same criminal prohibition. The specificity requirement, as discussed in § 11.2(b), typically does not require inclusion of such matters as the precise time and place of the offense, which often are critical in assessing whether the two pleadings refer to the same criminal episode (a prerequisite for charging the same offense). Thus, even at a time when the charging instrument was the primary record of...
- As previously noted, most jurisdictions treat the amendment of an indictment no differently than the amendment of an information. However, the federal courts and several states draw a sharp distinction between the amendment of the information and the indictment. While utilizing the liberal Rule 7(e) standard for amendments to the information, they apply a much more stringent standard to amendments of the indictment. The permissible scope of an amendment of an indictment in federal courts is controlled by the ruling relied on common law principles that treated the indictment as the sole product of the grand jury, subject to alteration only by that body. As originally announced, the rule imposed a prohibition against amending indictments that arguably was more restrictive than even the most stringent interpretation of the form/substance distinction. A few states that continue to look to the same common law principles (and thus are described as “
- The essential elements requirement demands that the pleading allege the presence of each of the basic elements required for the commission of the offense—in general, the elements of mental state, criminal conduct, and resulting harm. It does not demand, however, that the pleading negate exemptions, excuses, or justifications that relieve one of liability notwithstanding the presence of the basic elements.
- Where the amendment alleges violation of a different substantive criminal prohibition, most courts will apply the traditional double jeopardy standard that looks to the elements of crime in determining whether two statutes proscribe the same offense. See § 9.4(b). Under that standard, an amendment will be accepted if it merely alleges a lesser included offense, but not if it alleges a more serious offense with additional elements or even a similarly graded offense with different elements.
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Chapter 17. Double Jeopardy 89 results (showing 5 best matches)
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- The overview that follows, at the risk of oversimplification, brings together the essence of the double jeopardy principles relevant to reprosecutions. Those principles are:
- Eventually, in the case of ’s three-tiered approach to double jeopardy as “unworkable.” Hudson had argued that the Double Jeopardy Clause barred the United States from pursuing criminal charges against him following a civil proceeding initiated by the Office of the Comptroller of the Currency that had resulted in monetary penalties and exclusion from participation in the affairs of any banking institution. Applying the the Court concluded that the prior sanctions were not criminal penalties, and thus double jeopardy did not bar the indictment. The monetary penalties had been designated by Congress as “civil,” and Congress’s decision to confer debarment authority upon an administrative agency was “prima facie evidence” that debarment was intended as a civil sanction. There was “very little showing, to say nothing of the ‘clearest proof’ required by ,” that these sanctions were actually criminal. Debarment was “ ‘certainly nothing approaching the “infamous punishment” of imprisonment,...
- Because forfeiture of citizenship traditionally had been considered punishment and the legislative history of the forfeiture provisions “conclusively” showed that the measure was intended to be punitive, the Court in concluded that the deprivation of citizenship was a criminal sanction requiring the procedural safeguards incident to a criminal prosecution.
- test was not the sole measure of whether defendants facing civil and criminal penalties for the same misdeed were entitled to relief under the Double Jeopardy Clause. In a unanimous decision in (1989), the Court concluded that the Double Jeopardy Clause regulated the imposition of successive civil and criminal sanctions for the same offense whenever the civil sanction could be characterized as “punitive.” A “punitive” civil sanction following a criminal sanction was barred, the Court held, even though the civil sanction did not amount to a “criminal” sanction under the had been convicted and sentenced for filing 65 false claims defrauding the government of a total of $585. The government then sought $130,000 in civil penalties for the same fraudulent claims under the False Claims Act. Noting the great disparity between the monetary sanction sought and the actual loss suffered, the Court held that the civil penalties could be explained only as serving the “retributive or deterrent...
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Chapter 13. Pleas of Guilty 162 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- In the material that follows, the concern is with what procedures are appropriate when a judge conducts an arraignment at which the defendant enters a plea of guilty or nolo contendere. Statutes or rules of court often prescribe a set of procedures for such a situation. At least some of those procedures are constitutionally required, though it remains unclear in many respects just how much of the usual plea-receiving process is constitutionally mandated.
- But this left unsettled exactly where the line should be drawn between the permissible tender of concessions and impermissible “threats.” What if the prosecutor confronted the defendant with dramatically different punishment consequences depending upon whether or not he entered a guilty plea? What if the prosecutor indicated that failure of the defendant to plead guilty would result in the filing of more serious charges against the defendant? Such were the issues in (1978), for there the prosecutor carried out his threat that if the defendant did not plead guilty to the existing charge of uttering a forged instrument, punishable by two to 10 years, he would be indicted under the Habitual Criminal Act, which would subject defendant to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. On federal habeas corpus, the court of appeals had held that defendant’s prosecution and conviction under that Act violated the principles of ...of... ...of...
- A defendant who has entered a plea of guilty might also challenge that plea by resorting to certain procedures likewise utilized by defendants convicted at trial, such as appeal, habeas corpus or a statutory post-conviction hearing. In federal procedure, a defendant may take a direct appeal from a guilty plea conviction. Direct appeal offers the plea-convicted defendant a significant advantage over collateral attack, as the appeal is reviewed by a three-judge panel of the court of appeals that can overturn the plea conviction on a finding of error less than of constitutional, jurisdictional, or fundamental magnitude. The states also generally allow an appeal to be taken from a guilty plea, where again there is this advantage. But the appeal alternative is more limited in that the appeal must be taken promptly after the plea, and the only matters properly raised are those that can be resolved on the basis of the record in the case—mainly the transcript of the proceedings at which...
- (2005), on 5-Justice majority held that the federal Sentencing Guidelines violated the Sixth Amendment jury trial principle that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” But another 5-Justice majority concluded the proper remedy was to make the guidelines advisory. While this means sentencing judges are now free to give as much or as little weight as they choose to the defendant’s willingness to plead guilty, to the presence of serious criminal conduct which would be unpunished under the plea agreement, and to other factors, so long as the sentence is “reasonable,” in practice
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Chapter 3. The Right to Counsel 229 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- held invalid on equal protection grounds an intermediate appellate court’s practice of refusing to appoint counsel on appeal when the court, after reviewing the trial record, concluded that “such appointment would be of no value to either the defendant or the court.” The majority opinion found this practice inconsistent with the “ principle.” Here too, there was “discrimination against the indigent,” with “the kind of appeal a man enjoys depend[ing] on the amount of money he has.” Unlike the indigent, the more affluent defendant was not required to “run [the] gauntlet of a preliminary showing of merit” to have his case presented by counsel. As the Court saw the state’s procedure, “the indigent, where the record was unclear or errors were hidden, had only the right to a meaningless ritual, while the rich man had a meaningful appeal.” The ...stressed, however, that it was not requiring “absolute equality” throughout the criminal justice process. What was at stake here was the first...of
- The Supreme Court has applied critical-stage analysis to a variety of different steps in the criminal prosecution. In the course of those rulings, it has referred to several different touchstones for determining whether a particular step constitutes a critical stage (and therefore gives the accused the right to the assistance of counsel as to that step). Courts are directed to ask whether the particular procedural step was one “where available defenses may be irretrievably lost, if not then and there asserted,” whether the assistance of counsel at this point is “necessary to mount a meaningful defence,” and whether “potential substantial prejudice to defendant’s rights inheres in the confrontation between the accused and the government” and counsel’s assistance can “help avoid that prejudice.” Supplemented by the analysis applied in the Court’s various rulings, these touchstones ...court to ask the following questions in determining whether a particular procedure... ...the criminal...
- (1987), the majority characterized the issue before it as whether due process required the state to appoint counsel to assist the respondent in preparing a collateral attack upon her conviction under a state postconviction relief procedure. The state there had appointed counsel, but counsel had then been allowed to withdraw after concluding that the collateral attack lacked arguable merit. The Court majority reasoned that the withdrawal procedure would present a constitutional issue (see § 3.2(c)) only if respondent had an underlying constitutional right to the appointment of counsel. Turning to that question, the Court did not focus on the importance of counsel’s expertise in preparing a collateral attack petition. Arguably, a stronger case could be made here than in Court stressed, instead, the place of the collateral attack within the totality of the proceedings for determining guilt. The majority noted that “postconviction relief is even further removed from the criminal trial...
- prophylactic framework was not mandated, but simply presented as an illustration of “one method of satisfying the requirements of the Constitution for indigent criminal appeals.” The state has leeway to craft other methods that also guarantee a “fair opportunity to obtain an adjudication on the merits of the appeal,” with that fairness judged in light of “the underlying goals that the procedure should serve—to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required by , a closely divided Court upheld a procedure under which counsel initially informed the court (and the client) that he had reviewed the record and found the appeal to be frivolous and attached a summary of the “procedural and factual history of the case with citations to the record,” and the appellate court then independently examined the record and required counsel to brief on the merits if it found any non-frivolous issues, and if not, affirmed the conviction. The...
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Chapter 12. Pretrial Discovery 103 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- American courts, relying on the English common law, initially took the position that the judiciary lacked authority to order pretrial discovery in criminal cases absent legislative authorization of such discovery. Over the first half of the twentieth century, courts in many states reconsidered the common law’s prohibition and concluded that it was a rule “of policy, not power.” They recognized a discretionary authority of the trial court, in the exercise of its inherent authority over the trial process, to require at least the prosecution to make pretrial disclosure of specified evidence to the defense. During the 1930s and 1940s, through court rules and legislation, the vast majority of jurisdictions adopted procedures designed to promote full and open pretrial discovery in civil cases. Over the next few decades, the success of this movement led to a similar legislative expansion of pretrial discovery in criminal cases. Today, almost all jurisdictions have statutes or court rules...
- In almost all jurisdictions there will be available to the defense, and to a lesser extent, to the prosecutor, various other procedures through which some degree of pretrial discovery may be obtained. Unlike the discovery provisions, these procedures are not designed specifically to gain disclosure of the evidence possessed by the other side, but they nonetheless reveal incidentally part of that evidence. Procedures providing such a discovery potential include the bail hearing (particularly where the prosecution seeks preventative detention), the preliminary hearing, the challenge to the sufficiency of the evidence before the grand jury (available in only a small group of states), and hearings on various pretrial motions, such as the motion to suppress. Some defense discovery may be available outside of the criminal justice process, although the primary vehicle here, the Freedom of Information Act, typically will include an exemption for records “compiled for law enforcement...
- In civil cases, the deposition is a major discovery device. At the deposition, the witness is placed under oath, and subjected to questioning by the party taking the deposition, with the opportunity given to the adversary to cross-examine and to object to improper questions. The deposition is stenographically transcribed and in many jurisdictions may also be videotaped. In criminal cases, the form of the deposition is quite similar, but the availability of the deposition is much more restricted. Only about ten states allow for the use of depositions as a basic discovery procedure. In the vast majority of the states and in the federal system, the deposition is available in criminal cases primarily for the purpose of preserving the testimony of a witness likely to be ...may be unable to attend or be prevented from attending a trial or hearing, that the witness’ testimony is material, and that it is necessary to take the witness’ deposition in order to prevent a failure of justice...
- As to content, discovery provisions can be loosely categorized by reference to basic coverage patterns both as to defense and prosecution discovery. Allowable defense discovery can be helpfully categorized by comparison to the Federal Rules of Criminal Procedure (providing the narrowest discovery), the original edition of the ABA Standards (providing substantially broader discovery), and the third edition of the ABA Standards (providing even broader discovery, but followed in no more half-dozen states). Not all jurisdictions have provisions that even roughly fit one model or another. Thus, approximately a dozen states provide defense discovery that is significantly broader than Federal Rule 16 but not as broad as the original ABA Standards.
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Table of Contents 179 results (showing 5 best matches)
- Chapter 1. The Character of Post–Investigation Criminal Procedure
- Chapter 2. The Constitutionalization of Criminal Procedure
- 3.7 The Right to Effective Assistance of Counsel: Guiding Principles
- Significance of Noncompliance With Plea–Receiving Procedures
- Significance of Compliance With Plea–Receiving Procedures
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Index 192 results (showing 5 best matches)
Advisory Board 12 results (showing 5 best matches)
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, Chancellor and Dean Emeritus, University of California,
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Title Page 5 results
Copyright Page 2 results
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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- Publication Date: August 28th, 2009
- ISBN: 9780314199348
- Subject: Criminal Procedure
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book, for use in connection with a course focused upon the formal part of the criminal process, covers counsel, bail, the charging decision, preliminary hearing and grand jury review, the prosecution's location and scope, speedy trial, pleading and discovery, guilty pleas, jury trial, pretrial publicity, the trial, double jeopardy, sentencing, appeal, and collateral attack. All sections in the book are cross-referenced to comparable sections of the authors' seven-volume Criminal Procedure treatise containing more detailed analysis and citations to additional supporting authorities.
