Advanced Criminal Procedure in a Nutshell
Authors:
Cammack, Mark E. / Garland, Norman M.
Edition:
3rd
Copyright Date:
2016
24 chapters
have results for Principles of Criminal Procedure
Preface 16 results (showing 5 best matches)
- The title of this Nutshell, which is also the usual title of the corresponding law school course, may be misleading. “Advanced Criminal Procedure” would seem to suggest an “Advanced” treatment of issues addressed in “Criminal Procedure.” This book is not, however, a further inquiry into the constitutional constraints on police investigation—the subject of Criminal Procedure—but an examination of the procedural aspects of a criminal case once the investigation is complete. The book begins with a discussion of the legal doctrines governing the decision to file formal charges, and ends with the procedures for appeal and collateral attack of the conviction. The Nutshell (and the course) might more accurately be titled “Procedural Aspects of the Prosecution and Adjudication of a Criminal Case,” or, less elegantly, “Criminal Procedures from Bail to Jail.” Those titles better capture the book’s content. However, the label “Advanced Criminal Procedure” is customary, which is why it is used...
- A fundamental premise of our adversarial procedure is that the partisan presentations of the parties shall be submitted to a neutral third party for decision. Chapter 12 discusses rules and procedures designed to ensure that the decision maker—usually a jury—is impartial. Chapter 13 covers a variety of topics relating to the actual conduct of the trial. Because of its varied content, the themes of this chapter are more diverse. However, one important principle that does emerge in this chapter is that while the criminal trial is structured as an adversarial contest, one of the adversaries—the prosecution—has the burden of proof.
- Although much of criminal procedure is directed toward an eventual trial, most criminal convictions are the result of the defendant’s plea of guilty, rather than a finding of guilt after an adversarial trial. Because a guilty plea results in a conviction with all of the consequences that entails, the law has developed rules and procedures to ensure that judgments entered on the defendant’s plea of guilty that are accurate and just. Those rules are the subject of Chapter 10.
- The primary sources of local law regulating post-investigation criminal procedure are legislation and court rules. Because of the federal nature of the nation’s criminal justice system, each jurisdiction—the federal system and all fifty states—has its own local law. It would be neither possible nor helpful to try to describe all of the various rules that govern the subjects covered in this book throughout the United States. This Nutshell thus follows the approach taken in many courses on advanced criminal procedure in focusing primarily on federal law. Focusing on one jurisdiction has the advantage of seeing the doctrines that govern the various stages in the process as part of a system of coherent rules. The federal system is chosen because it is the most visible.
- The subject of Chapter 9 is the constitutional protection against double jeopardy. The double jeopardy rule prevents the government from prosecuting an individual a second time for the same offense following either a conviction or an acquittal, or from punishing an individual twice for the same offense. Despite the seeming simplicity of this rule, the doctrine has developed a complex body of law, which is why Chapter 9 is the longest in the book. Although the double jeopardy principle is applicable to several stages in the processing of a criminal case, its most fundamental importance is as a substantive limit on the criminal process. The doctrine defines basic limits on the government’s use of the processes of the criminal law.
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Chapter 2. Pretrial Detention and Release 59 results (showing 5 best matches)
- decision represents an important statement of principle. In rejecting the argument that the prosecutor’s assessment of probable cause provides a sufficient basis for detaining the defendant pending trial, the decision reaffirms the essentially adversary character of the criminal justice system, in which guilt or innocence is adjudicated through a process of partisan presentation before a neutral decision maker. The practical significance of the decision, however, is limited. Although the resulted in the development of procedures to assure prompt processing of arrestees in many jurisdictions, the informal procedures required under the decision and the absence of a meaningful remedy for a violation diminish the significance of the rule in individual cases.
- The purposes and procedures of the initial appearance vary somewhat from jurisdiction to jurisdiction. Rule 5 of the Federal Rules of Criminal Procedure, which governs the initial appearance in the federal system, is typical. Rule 5 requires that an officer making an arrest, with or without a warrant, take the arrested person “without unnecessary delay” before the nearest available federal magistrate judge. The magistrate is required to inform the defendant of the charges, but the defendant is not required to enter a plea. The magistrate also informs the defendant of various Fed. R. Crim. Pro. 44(a). From the defendant’s perspective, perhaps the most important function of the initial appearance is to determine the conditions of release pending trial.
- The requirement of a judicial determination of probable cause for detained suspects was first stated in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The defendants in were arrested and held in jail under a Florida law that permitted the initiation of criminal proceedings on the basis of a “prosecutor’s information,” a formal allegation by the prosecutor that a particular person has committed specified crimes. Although the Florida procedure required a pre-trial probable cause determination before the defendant could be
- Though approving the procedures of the Bail Reform Act, the Court’s opinion fails to clarify whether a preventive detention scheme with fewer or less stringent procedural safeguards—e.g., no right to counsel, absence of cross examination, a lower standard of proof—would satisfy constitutional standards of procedural due process. In particular, it is not clear from the opinion whether the non-adversarial procedures approved in for probable cause determinations would satisfy due process if those procedures were used to make preventive detention decisions. At least one court has held, in a decision that pre-dates is controlling in the preventive detention context. In United States v. Edwards, 430 A.2d 1321 (D.C.1981) the court reasoned that procedures which suffice for a probable cause determination are also adequate for a preventive detention decision because the effect of the findings in a detention hearing and a ...complex than the determination of whether there is probable...
- The Court summarily dismissed the claim that the procedures governing detention hearings violate procedural due process. Quoting from an earlier decision upholding a state statute authorizing pretrial detention of juveniles, the Court stated that “there is nothing inherently unattainable about a prediction of future criminal conduct.” (The Court did not address social science studies which have raised questions about the reliability of predictions of future criminality.) The Court then cited the key procedural features of the Act, including: provisions granting the arrestee the rights to counsel, to present evidence and to cross-examine witnesses; the requirements that the judge decide based on specified factors, and provide written findings of fact and reasons for a decision to detain; the requirement that the government prove its case by clear and convincing evidence; and the provisions for immediate appellate review. The Court declared that “these extensive safeguards suffice to...
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Chapter 5. Discovery and Disclosure 73 results (showing 5 best matches)
- Beginning with the enactment of Rule 16 of the Federal Rules of Criminal Procedure in 1946 and the occurrence of parallel developments in the states, discovery in criminal cases has expanded gradually over the course of the second half of the twentieth century. Discovery in criminal cases is still, however, much more limited than in civil cases. Several reasons are given for this difference, though not everyone finds these reasons persuasive. First, the development of broad discovery in criminal cases has been resisted because of the view that fairness requires discovery to be reciprocal, which is not possible in criminal proceedings. In addition, it is sometimes argued that defense discovery of the prosecution’s case will lead to perjury and witness tampering. Finally, other avenues of discovery in criminal cases, like the preliminary hearing, are thought to justify the absence of formal discovery procedures.
- Most jurisdictions now have rules that authorize discovery of specific categories of evidence from both the prosecution and the defense. This section summarizes the major discovery requirements under the Federal Rules of Criminal Procedure, referred to here as the Rules.
- In Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) the Supreme Court exercised its supervisory power over the federal courts to require disclosure by the prosecutor of prior statements of government witnesses. Later that same year, Congress enacted the “ Act” codifying the Court’s decision. In the 1970s the rule was expanded to require disclosure to the government of statements by defense witnesses other than the defendant. The expanded rule was then incorporated in the Federal Rules of Criminal Procedure as Rule 26.2. Despite its placement in the Rules, the witness statement Rule is commonly referred to as the “
- The specific discovery rules contained in the Federal Rules of Criminal Procedure typically prescribe the sanctions for failure to comply with that particular Rule. In addition to these specific remedy provisions, Rule 16(d)(2) contains a general sanctions provision. This Rule is typical of provisions governing remedies for discovery violations in granting broad discretion to the trial judge to fashion an appropriate response to the violation. The Rule authorizes the judge to order the defaulting party to permit the discovery or inspection, grant a continuance, prohibit the party from introducing the evidence not disclosed, or enter such other order as it deems just under the circumstances.
- Rule 12.1(a) creates a notice requirement and a procedure for exchange of information when the defendant intends to present an alibi defense at trial. In order to set the procedure in motion, the prosecutor must file a written demand for notice on the defense. This demand must set forth the time, date, and place at which the alleged offense was committed. Upon receipt of the government’s demand, the defendant must serve a written notice of the defendant’s intention to offer a defense of alibi. This notice must be served within 14 days of the government’s demand, and must state the specific place or places at which the defendant claims to have been at the time of the alleged offense, and the names and addresses of the witnesses upon whom the defendant intends to rely to establish the alibi.
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Chapter 15. Appeal and Collateral Attack 84 results (showing 5 best matches)
- Direct appeal and collateral attack are alternative procedures for challenging the correctness of rulings made in the processing of a criminal case. Historically, the distinction between appeal and collateral attack was based on the fact that an appeal was a continuation of the original criminal proceeding, whereas a collateral attack was a separate civil action attacking the result in the criminal case.
- The second exception to the prohibition against applying new rules of constitutional law in habeas corpus proceedings is for new rules that constitute “bedrock procedural element[s]” that “implicate the fundamental fairness of the trial” and “without which the likelihood of an accurate conviction is seriously diminished.” The Court gave as an example of a rule that implicates fundamental fairness and is central to an accurate determination of innocence or guilt that would meet the second exception the 1963 decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) establishing the right of indigent defendants to appointed counsel. As the Court stated in , most of the watershed principles of constitutional criminal procedure have already been identified, and it is unlikely that many such components of basic due process have yet to emerge. Thus, the circumstances under which this exception will apply can be expected to be very rare. “[I]t should come as no...
- The standard for non-constitutional harmless error in the federal system is contained in Federal Rule of Criminal Procedure 52, which states that “[a]ny error, defect, irregularity or variance which does not affect substantial rights must be disregarded.” In applying this rule a distinction is often made between errors that involve violations of rights that bear on the “structure of the proceedings” and errors that involve violations of rights that relate to the “presentation of the case.” An example of an error that involves structural rights is an error in the application of the venue rules. When one of this category of rights is violated, the error is deemed harmful and reversal is required if 1) the right that was violated is a right that is deemed “substantial,” and 2) the violation deprived the defendant of the basic benefit of that right.
- All jurisdictions recognize exceptions to the raise or waive doctrine that authorize appeals courts to consider some types of claims that have not been preserved at trial. Rule 52 of the Federal Rules of Criminal Procedure, for example, authorizes appeals courts to consider “a plain error that affects substantial rights” even though the error “was not brought to the court’s attention.” The Supreme Court has interpreted the concept of “plain error” under Rule 52 as including four requirements. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
- In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) the Supreme Court interpreted the “contrary clause” of § 2254(d)(1) to mean that “a federal habeas court may grant the writ of the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if a state court decides a case differently than this Court has on a set of materially indistinguishable facts.” In the same case the Court interpreted the “unreasonable application” clause to permit relief in cases in which “the state court identifies the correct governing legal principle from this Court’s decision but unreasonably applies that principle to the facts of the prisoner’s case.” The Court stressed that an unreasonable application of federal law is different from an incorrect application of federal law. A habeas petitioner is not entitled to relief if the state court’s application of the law was erroneous; it must also be unreasonable which sets a “substantially higher...
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Chapter 13. The Trial 130 results (showing 5 best matches)
- Under Rule 43 of the Federal Rules of Criminal Procedure the trial of an absent defendant is prohibited if the defendant was not present when the trial began. In Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), the Court held that Rule 43 of the Federal Rules of Criminal Procedure prohibits the trial of a defendant who was not present at the beginning of the trial.
- In evaluating the constitutionality of this procedure, the Supreme Court relied on decisions addressing Confrontation Clause challenges to the admission of hearsay evidence under an exception to the hearsay rule. In those cases, the authority of which was significantly undermined by the Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (See Section B5b below), the Court identified the purpose of the Confrontation Clause as protecting the defendant against conviction by unreliable evidence. Confrontation guarantees the reliability of evidence in three ways: it ensures that the statements of witnesses will be made under oath; it forces the witness to submit to cross-examination; and it affords the jury the opportunity to observe the demeanor of the witness as an aid to evaluating the witness’s credibility. Applying these principles to the case before it, the Court held that the Confrontation Clause does not prohibit the use of procedures...of
- It is a fundamental principle of American criminal law that conviction for a crime requires proof beyond a reasonable doubt. It was not until 1970, however, that this principle was held to be constitutionally mandated. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Court held that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The Court also held that the beyond a reasonable doubt standard is required in juvenile adjudications.
- subpoena power available to the defendant by statute or court rule. Federal Rule of Criminal Procedure 17 commands the court clerk to issue a subpoena that is signed and sealed to a party requesting it. The subpoena may be used either to compel the attendance of witnesses or to command the production of documents or tangible objects. Rule 17 also provides that the costs of subpoenaing and calling witnesses shall be paid by the government if the defendant demonstrates that she is indigent and that the presence of the witness is necessary.
- In two cases the Supreme Court has addressed the constitutionality under the Confrontation Clause of courtroom procedures in which the witness testifies “in court” but not in face-to-face contact with the accused. Both cases arose out of child abuse prosecutions and involved procedures designed to protect child witnesses from the trauma of testifying in the presence of their abuser.
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Chapter 9. Double Jeopardy 127 results (showing 5 best matches)
- The Supreme Court has said that the rule that the government may not secure a new trial through appeal of an acquittal, no matter how mistaken the decision or serious the trial error, is one of the “elemental principles” of American criminal law. However, the justification for the rule, and for attaching a different significance to an acquittal than a conviction, is uncertain. It may be that an acquittal is given complete finality in order to avoid the risk that the government, possessed of vastly superior resources, will eventually wear down the defendant and convict the innocent. But this rationale does not justify the scope of the protection given to acquittals, which immunizes acquittals that are egregiously erroneous, and rests on the questionable assumption that a defendant who has been convicted through flawed procedures is more likely guilty than a defendant who has been wrongly acquitted.
- civil forfeiture is a remedial civil sanction … [that] does not constitute punishment under the Double Jeopardy Clause.” In another part of the opinion, however, the Court expressly denied that it was exempt from the scope of the Double Jeopardy Clause, and engaged in the same two part inquiry established in . With respect to whether Congress intended forfeiture to be civil or criminal, the Court looked to the procedural mechanisms established for enforcing the forfeitures, and concluded that Congress clearly intended a civil sanction. In addition to being actions, which are presumed to be civil, the forfeiture statutes included other procedures indicative of their civil character. The statutes provided for seizure without notice to the owner through a summary administrative procedure under some circumstances, and placed the burden of proof on the party claiming the property. In addressing the second stage of the inquiry, the Court identified two non-punitive regulatory goals...
- Although important in principle, the collateral estoppel doctrine has a relatively narrow application in practice. This is because in the vast majority of criminal cases, the jury announces its decision through a “general verdict” of either guilty or not guilty, and therefore does not disclose the reasons for its decision. Since most cases require the jury to decide several ultimate issues of fact, in most cases it is impossible to determine from a general “not guilty” verdict what issues have been finally and validly determined.
- Finally, the doctrine does not apply if the government’s standard of proof on the issue that the defendant seeks to preclude was higher at the first trial than at the second trial. As a matter of simple logic, the fact that the prosecution failed to prove fact A beyond a reasonable doubt does not mean that it failed to prove fact A by a preponderance of the evidence. Thus, even if the jury found fact A in the defendant’s favor at the first trial where the prosecution’s standard was proof beyond a reasonable doubt, the prosecution is not precluded from re-litigating fact A at a subsequent trial where its standard of proof is lower. Based on this principle, the Supreme Court has held that an acquittal on criminal charges does not bar the government from instituting a civil forfeiture action at which the government must prove the commission of the crime by a preponderance of the evidence. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984...
- The Supreme Court’s most recent effort to defined the boundary between civil and criminal sanctions for double jeopardy purposes is Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). In that case the Court repudiated the test that had been established less than a decade earlier in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and reaffirmed a narrower test developed in that the protections of the Double Jeopardy Clause do not apply to all sanctions that qualify as “punishment” or are in some sense “punitive,” but apply only to sanctions that constitute criminal punishment. The determination of whether a punishment is criminal for double jeopardy purposes requires a two stage inquiry. The first question is a matter of statutory construction. The court must ask whether the legislature indicated an intention, either expressly or impliedly, that the penalty be criminal or civil. If the legislature intended to impose a criminal...
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Chapter 1. The Decision to Prosecute 57 results (showing 5 best matches)
- The broad discretionary power granted to prosecutors is arguably in conflict with the bedrock principle that the imposition of criminal penalties shall be based on the rule of law. Any attempt to explain why prosecutors are granted such discretionary powers raises questions that are more sociological than legal. One view holds that substantial discretion is unavoidable in the functioning of a criminal justice system, though this is debatable. It is probable that prosecutorial discretion is both more acceptable and more extensive in the criminal justice system of the United States than in many other countries.
- A realistic understanding of the criminal justice process recognizes that the decision whether to initiate a criminal prosecution includes a large element of discretion. The discretionary character of the decision to prosecute is both a practical reality and a firmly established legal principle. Prosecutors in the United States are under no legal obligation to prosecute every meritorious case that comes to their attention. The law permits, if not commands, prosecutors to base their decision whether to charge someone with a crime on non-legal considerations. Obviously legal standards—the definition of crimes and the evidence necessary to convict—play an important role in the decision to initiate a criminal case. But other considerations play a role as well. These extra-legal factors influence both the decision a criminal case will be commenced and, if so,
- Procedures for pre-trial review of the sufficiency of the evidence, principally the grand jury and the preliminary hearing, are reasonably effective in preventing prosecutions that are not based on adequate evidence. The law has not developed comparable mechanisms for ensuring that prosecutions instituted against all persons as to whom there is evidence that would support the bringing of criminal charges.
- As a practical matter, the most important checks on the arbitrary or malicious enforcement of the criminal law are administrative and political constraints, rather than legal rules. Some prosecutors’ offices, especially larger ones, have adopted formal internal procedures that set forth guidelines for charging decisions. Offices without formal guidelines usually develop standardized responses to recurring situations as a matter of customary practice. Because prosecutors in the United States are either political appointees or are directly elected, they are, to some extent, politically accountable for their actions.
- One vehicle that is sometimes used to attempt to compel the prosecutor to act is a writ of mandamus. Suits seeking a writ ordering a prosecutor to bring a criminal case are rarely successful. See Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2nd Cir.1973). The basic reason given for denying such claims is that the plaintiffs do not possess rights that entitle them to mandamus. The writ of mandamus is available only to compel the performance of a duty that is owed . The general rule, however, is that “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981). In rejecting suits for a writ of mandamus courts also cite separation of powers principles, arguing that judicial intervention in prosecutorial decision making encroaches on an executive function, and the practical difficulties of judicial oversight of a decision as complex and sensitive...of
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Chapter 10. Guilty Pleas and Plea Bargaining 124 results (showing 5 best matches)
- Probably the most common defense of plea bargaining focuses not on supposed virtues of plea bargaining as such, but on the costs of operating a system without plea bargaining, in which all criminal cases are resolved through a trial. The effect of the elimination of plea bargaining on the criminal justice system cannot be predicted with certainty, but it would probably be profound. At present, only about ten percent of criminal cases go to trial. If prosecutors were prevented from rewarding defendants who plead guilty, the number of trials would presumably increase dramatically. Unless significant changes were made in trial procedures to make trials shorter and simpler, the increase in trials as a result of the elimination of plea bargaining might well overwhelm the system completely.
- Finally, plea bargaining can be seen as the cost and consequence of our exceptionally complex trial procedures. This view asserts that because American criminal trials are so long and complex, the system can afford to try only a small percentage of defendants; the rest must be pressured into pleading guilty. The relationship between plea bargaining and the complexity of the trial process is borne out by a comparison of the US criminal justice system with systems operating in much of Europe, where trials are shorter and less complex, and plea bargaining is less common.
- The procedures for entry of guilty pleas are now generally regulated by statutes which set forth in detail the requirements for a valid plea. Rule 11 of the Federal Rules of Criminal Procedure governs the taking of guilty pleas in federal court. Like similar state provisions, Rule 11 requires a hearing or “plea colloquy” at which the judge must address the defendant personally in order to ensure that the requirements for a valid plea are satisfied.
- Rule 11(c) of the Federal Rules of Criminal Procedure requires that the existence of any plea agreement be disclosed to the court at the time the defendant enters her plea. The rule authorizes three types of plea agreements. In exchange for the defendant’s plea of guilty or nolo contendere, the prosecutor may 1) not bring, or move to dismiss, other charges; 2) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate; or 3) agree that a specific sentence or sentencing range is the appropriate disposition of the case.
- Under Federal Rule of Criminal Procedure 11(e) the defendant may not withdraw a plea of guilty or after sentencing and the plea may be set aside only on direct appeal or collateral attack. Many states permit a motion to withdraw a guilty plea to be filed either before or after sentencing. Typically, however, a defendant who moves to withdraw her plea after sentencing must show that denial of the motion would result in a “manifest injustice,” a more demanding test than the “fair and just reason” test applied to pre-sentence withdrawals.
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Chapter 4. The Grand Jury 90 results (showing 5 best matches)
- The discovery rules also authorize some disclosure of grand jury evidence for use at trial as possible impeachment evidence. Federal Rule of Criminal Procedure 26.2 requires disclosure to the defendant of the grand jury testimony of witnesses who testify at trial. Many state discovery rules provide broader access to grand jury testimony.
- Rule 7(c) of the Federal Rules of Criminal Procedure states that “the indictment or information shall be a plain, concise and definite statement of the essential facts constituting the offense charged.” Many states use rules that are similar or identical to the federal standard.
- The equal protection guarantee of the Fifth and Fourteenth Amendments of the Constitution prohibits purposeful discrimination in the selection of grand jurors. Although the states are not constitutionally required to provide any grand jury screening of criminal charges, Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), insofar as states make use of grand juries, state selection procedures are subject to the same equal protection limitations as are imposed on federal grand juries.
- Court also recognized that a misconduct challenge can be based on a violation of one of the “ ‘few, clear rules which were carefully drafted and approved by [the Supreme] Court and by Congress to ensure the integrity of the grand jury’s functions.’ ” In a footnote to its opinion, the Court cited portions of Rule 6 of the Federal Rules of Criminal Procedure, which governs procedures in the grand jury, and several provisions of the United States Code as examples of non-constitutional federal laws prescribing standards of conduct for federal prosecutors. The Rule 6 provisions cited by the Court prohibit any person, other than the jurors, from being present while the grand jury is deliberating and voting, and place controls on disclosure of matters occurring before the grand jury. The cited U.S. Code provisions include federal statutes setting forth standards for granting a witness immunity from prosecution, criminalizing false declarations before the grand jury, prohibiting grand jury...
- All jurisdictions authorize disclosure of grand jury evidence in certain clearly defined circumstances. Rule 6(e)(3) of the Federal Rules of Criminal Procedure states the exceptions to the secrecy requirement for federal grand juries. Among the exceptions listed in the Rule is an exception for disclosure to other members of the prosecutorial team, including attorneys and other personnel, for the purpose of discharging the duty to enforce the criminal law. A 2002 amendment to the Rule permits disclosure to law enforcement and national security officials of grand jury material that includes foreign intelligence or counterintelligence matters or that involves a threat of an attack or terrorism. The Rule also authorizes disclosure, at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. Disclosure under this provision requires judicial approval, which typically requires some... ...of...
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Chapter 8. Joinder and Severance 48 results (showing 5 best matches)
- The second type of prejudice under Rule 14 recognizes that a defendant is entitled to a severance if a trial on multiple charges would result in the admission of prejudicial character evidence that would not be admissible if the charges were tried separately. This is simply an application of the general principle from the law of evidence prohibiting the use of evidence of the defendant’s bad character or criminal disposition to prove the defendant’s conduct on a particular occasion. See Federal Rule of Evidence 404.
- Federal Rule of Criminal Procedure 14 authorizes the trial court to order a severance of offenses that have been joined under Rule 8(a) if the joinder of offenses or defendants “appears to prejudice a defendant or the government.” The rule does not define prejudice, and trial judges have considerable discretion in determining whether prejudice has been demonstrated. The courts, however, have recognized three general types of prejudice to the defendant requiring a severance of charges.
- Federal Rule of Criminal Procedure 8(a) governs joinder of offenses in the federal system. (Under Rule 13, offenses or defendants that can be together.) The Rule authorizes joinder in two circumstances. First, offenses may be joined under the Rule if they are “of the same or similar character.” Thus, two or more burglary charges alleged to have been committed by the same defendant could be joined under this provision, even though the burglaries were not related to each other, and were committed at distinct times and places.
- Federal Rule of Criminal Procedure 8(b) provides that two or more defendants can be charged together “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” It is not necessary under this Rule that all of the joined defendants be charged with all of the offenses. Thus, the fact that two defendants are alleged to have been part of the same conspiracy is a sufficient basis for charging them together for both the conspiracy and any substantive crimes committed by either of the defendants in furtherance of the conspiracy. This means that defendant A can be charged with crime X in the same proceeding in which defendant B is charged with crime Y, provided that crimes X and Y were both in furtherance of a conspiracy in which both A and B participated.
- The Supreme Court has interpreted the double jeopardy prohibition as including a collateral estoppel principle. Under this principle, an acquittal bars a subsequent prosecution if the verdict at the first trial resolved in the defendant’s favor an ultimate issue of fact that is a necessary element of the prosecution’s case in the second prosecution.
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Chapter 7. The Location of the Prosecution 32 results (showing 5 best matches)
- Rule 18 of the Federal Rules of Criminal Procedure states that “the prosecution shall be had in a district in which the offense was committed.” Because federal judicial districts often cover a large geographic area, and because a single judicial district may have courthouses in more than one location, it is often necessary to decide where within the district the trial shall be held. Rule 18 directs that the court shall determine the place of trial within the district based on 1) “the convenience of the defendant and the witnesses” and 2) “the prompt administration of justice.”
- The standards governing change of venue are primarily a matter of local law. Federal Rule of Criminal Procedure 21(a) governs change of venue because of prejudice against the defendant in the federal system. The Rule provides that the court shall transfer the proceeding to another district if the court
- Rule 21(b) of the Federal Rules of Criminal Procedure provides that, upon motion by the defendant, the court may transfer the proceedings to another district “for the convenience of the parties and witnesses, and in the interest of justice.” In ruling on transfer motions made under this Rule, the federal courts have generally relied on nine factors: 1) the defendant’s residence or the location of a corporate defendant; 2) location of possible witnesses; 3) location of events likely to be in issue; 4) location of documents and records likely to be involved; 5) disruption of defendant’s business unless the case is transferred; 6) expense to the parties; 7) location of counsel; 8) relative accessibility of the place of trial; and 9) docket condition of the district or division involved. Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964).
- The other major approach to determining venue where the nature of the crime and the acts by which it was committed implicate more than one location is the “substantial contacts” test. This test assumes that there may be more than one appropriate venue for the trial of a criminal case, and requires consideration of several factors to determine what venue or venues are proper. The first factor is the site of the defendant’s acts. The occurrence of the criminal acts by itself provides substantial contacts with the district to ensure that it is as suitable for fact finding as any other.
- Consideration of the other factors may lead to the conclusion that there are other permissible venues as well. The second factor looks to the elements and nature of the crime. If, for example, the charge is based on a failure to take some required action, such as appearing for a scheduled court date, the crime is “committed” at the location where the defendant’s presence was required. The third factor looks to the location of the effect of the criminal conduct. Under this factor, a federal crime requiring an effect on interstate commerce as an element of the crime could be tried where that effect occurred, even if the defendant’s criminal acts were committed elsewhere. The fourth factor is the suitability for accurate fact finding of the district identified through the other three factors. This fourth factor is not an independent basis for establishing venue, but is to be considered in connection with the other factors
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Chapter 14. Sentencing 73 results (showing 5 best matches)
- The subject of sentencing—the decision about what consequences should be imposed for a violation of the criminal law—has been a matter of considerable debate in recent years, and both the law and public attitudes regarding sentencing have changed in important ways. There has occurred a general shift in emphasis away from rehabilitation as the purpose of criminal sanctions in favor of retribution or punishment. In addition, in many jurisdictions the law has been changed to make the sentencing decision less discretionary and more “structured,” in that the decision is based on the application of legal rules to formal findings of fact. This shift toward more structured sentencing has raised new questions about the procedures to be followed in determining sentences.
- For those who believe in the principle of retribution or “just deserts,” the punishment of an offender requires no justification beyond the fact of the commission of an offense. Because retribution is premised on the belief that the offender to be punished, a retributive theory of punishment is strictly limited by the principle of proportionality. Retribution prohibits imposition of a punishment that is excessive in relation to the offense.
- Under the Federal Sentencing Guidelines an offender’s sentence is based primarily on two factors—the “offense level,” which is based on the characteristics of the offense, and the offender’s “criminal history,” which is based on the characteristics of the offender. A numerical score is calculated for both the offense level and the offender’s criminal history based on the addition and subtraction of point values assigned to various factors under the Guidelines. Once the judge has computed the offense level and the criminal history, the recommended sentence is determined by locating the sentence on a table, or grid, which assigns sentences for specific combinations of offense level and criminal history.
- These four goals, or theories, of sentencing need not be mutually exclusive. That is, a legislature in enacting a sentencing law, or a judge in imposing a sentence, can be motivated by more than one goal or theory. For example, a sentence or a sentencing scheme may be intended to deter future crimes, but the severity of the sentence may be limited by the proportionality principle that is inherent in the idea of retribution.
- Decisions regarding what is the appropriate sentence for a person convicted of a crime depend to a great extent on the goal or goals that the criminal sentence is intended to achieve. One goal of sentencing is deterrence. The theory behind deterrent sentencing is that if the commission of a crime carries a threat of unpleasant consequences, the potential offender will refrain from committing crime in order to avoid those consequences.
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Chapter 12. The Tribunal: Impartial Judge and Jury 83 results (showing 5 best matches)
- The Federal Rules of Criminal Procedure and the laws of most states preserve the common law requirement that the criminal jury consist of twelve persons. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), however, the Court held that a 12-person panel is not a necessary ingredient of “trial by jury” that is guaranteed by the Sixth Amendment, and that the defendant’s Sixth Amendment rights were not violated by his trial in state court before a jury of six. In arriving at this conclusion, the Court first determined that the traditional practice of 12 person juries was a “historical accident” unrelated to the purposes for which trial by jury was established, and that the incorporation of a right to trial by jury in the constitution did not necessarily preserve every feature of the jury as it existed at common law.
- In the federal system and a majority of states, the defendant may waive trial by jury only with the approval of the court and the consent of the prosecution. Fed. R. Crim. Pro. 23(a). In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), the Court upheld this requirement. The Court held that the defendant does not have a constitutional right to be tried by a judge without a jury, and that there is no constitutional impediment to conditioning a defendant’s attempted waiver of a jury on the consent of the trial judge and the prosecutor. Rule 23(a) of the Federal Rules of Criminal Procedure does not require the prosecution to articulate its reasons for refusing to consent to a waiver of jury trial. The Court in ...for wanting to be tried by a judge alone are so compelling that the prosecutor’s insistence on trial by jury would result in the denial to the defendant of an impartial trial. Lower courts have not, however, been receptive to claims by defendants that...
- In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court held that the Sixth Amendment right to trial by jury is binding on the states. In reaching that conclusion, the Court stated that Fifth and Sixth Amendment rights applicable to federal criminal proceedings are also applicable to state prosecutions if they are “basic in our system of jurisprudence.” The Court reviewed the long history of the use of juries in Anglo-American law, and the universal recognition of the right to jury trial in serious criminal cases in the laws of the states. Given this evidence of the country’s commitment to the use of juries, the Court had little difficulty concluding that trial by jury in criminal cases is “fundamental to the American scheme of justice.”
- All jurisdictions grant both the defense and prosecution the power to exclude a limited number of jurors—from as few as three to 20 or more—without having to provide any reason for the challenge. The procedure for exercising these “peremptory” challenges varies. In the most common jury selection method, twelve qualified jurors are seated in the jury box, at which point the prosecutor and defense counsel take turns exercising one challenge at a time. As each challenged juror is removed, another juror is randomly selected from the venire to keep the number of jurors under consideration at twelve. This procedure continues until both sides have either exhausted their reserve of peremptory challenges or approved the same group of twelve jurors. Under the so-called “struck system,” a larger group of qualified jurors is assembled equal to the number of peremptory challenges available to both sides plus the number of jurors needed for the trial of the case. Thus, if each side is entitled to...
- The Court explained that the line between serious and non-serious crimes should be drawn based on the punishment that is authorized by the legislature, rather than the punishment actually imposed on the defendant, because the maximum authorized penalty is the most reliable indicator of society’s appraisal of the gravity of the crime. For crimes as to which the legislature has not established a maximum punishment, such as criminal contempt, the determination of whether the crime is “petty” is made based on the penalty actually imposed.
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Chapter 11. Assistance of Counsel 55 results (showing 5 best matches)
- The Supreme Court’s fullest statement of the principles that govern when a denial of effective assistance of counsel will be presumed is claimed that he was denied effective assistance of counsel because the attorney assigned to represent him on charges arising out of a complicated “check kiting” scheme had been assigned to the case just 25 days before the trial began, and was a real estate lawyer who had never before tried a criminal case. The defendant did not allege any specific errors or omissions in the attorney’s preparation for or conduct of the trial, but argued instead that the circumstances of counsel’s appointment compelled the conclusion that the representation he received was deficient.
- the Supreme Court approved state procedures different from those at issue in the case. In McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) the Court considered the constitutionality of a state procedure that required appointed counsel to include in a no-merit brief an explanation of the issues that might be raised on appeal lack merit. The Court rejected an argument that this requirement forced counsel to violate her ethical obligations to the defendant by requiring defense counsel to take a position in opposition to the attorney’s client. The Court held instead that the explanation required by the Wisconsin procedure furthered the basic purpose of the rule by encouraging a careful consideration of the issues.
- In its most recent decision on the obligations of appointed counsel in cases lacking meritorious appellate claims the Court approved procedures that fell short of those required in . In Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) the Court rejected a challenge to a California procedure (called the procedure) that did not require either an explicit statement from counsel that the appeal lacks merit or a brief identifying issues that might arguably support an appeal. Instead, upon concluding that an appeal would be frivolous, counsel is required to file a brief with the appellate court summarizing the procedural and factual history of the case, including citations to the record. Counsel must also affirm that counsel has reviewed the record and explained her evaluation to the client, provided the client with a copy of the brief, and informed the client of the right to file a ...procedure requires the court to review the entire record, and authorizes the...
- Three decades later, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held that an indigent defendant has a constitutional right to appointed counsel under the Sixth Amendment. The Court declared that, “in our adversary system of criminal justice, 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.” Observing that both state and federal governments “spend vast sums of money to establish machinery to try defendants accused of crime,” and that lawyers are everywhere deemed essential to the prosecution, the Court concluded that “lawyers in criminal courts are necessities, not luxuries.”
- The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” It has always been understood that this provision guarantees that a person accused of a crime has the right to secure legal representation by hiring a lawyer. For many years it was not clear, however, whether or to what extent the constitution requires the government to provide a lawyer to an indigent defendant who cannot afford to pay for one.
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Chapter 3. The Preliminary Hearing 42 results (showing 5 best matches)
- The Fifth Amendment requires that the prosecution of felonies in federal court be based on an indictment issued by a grand jury. In addition to the constitutional requirement of grand jury review, Rule 5(c) of the Federal Rules of Criminal Procedure requires a preliminary hearing within 14 days after the initial appearance if the defendant is in custody, and within 21 days if the defendant is not in custody. However, no preliminary hearing is required if the defendant is indicted by a grand jury before the deadline for holding the preliminary hearing. The indictment of the defendant by a grand jury, eliminates the necessity for a preliminary hearing. This avoidance of the preliminary hearing can be referred to as the bypass rule.
- The majority of states and the federal system do not apply the rules of evidence to preliminary hearings. For example, Federal Rule of Evidence 1101(d) specifically states that the “rules (other than with respect to privileges) do not apply in … preliminary examinations in criminal cases.” Under this rule, and state rules following it, no rules of evidence apply, and there are two important categories of evidence commonly admissible at a preliminary hearing but inadmissible at trial: hearsay evidence and evidence obtained illegally. Federal Rule of Criminal Procedure 5.1 provides, in part: “The finding of probable cause may be based upon hearsay evidence in whole or in part…. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination.” The permissive reference to hearsay evidence suggests that the magistrate judge in the federal system can take into account the hearsay nature of the evidence in assessing probable...
- On its face, the probable cause showing required at the preliminary hearing would appear to be redundant and unnecessary, since a prior judicial determination of probable cause will usually have been made either in the issuance of an arrest warrant or as part of a probable cause determination under the principles of . But the probable cause standard applied at the preliminary hearing is not necessarily identical with the probable cause standard applied at the arrest stage. The differences are related to the different purposes of the preliminary hearing and the procedures for testing the legality of an arrest under the Fourth Amendment. The preliminary hearing is a “forward looking” proceeding, in the sense that its function is to determine whether the defendant should be required to submit to the burdens and risks of an indictment or trial. In determining the legality of an arrest, the only question is whether the evidence available at the time of arrest establishes a sufficient “...of
- As previously mentioned, the constitution does not mandate a preliminary hearing for an accused in a criminal proceeding. Thus, a state may devise a criminal process that does not include a preliminary hearing or a right to one. However, if the state does afford the accused a preliminary hearing, the state cannot restrict the defendant’s rights at the hearing in a manner that violates his or her constitutional protections.
- The effectiveness of the preliminary hearing in screening out baseless charges is debatable. In many jurisdictions the defendant is held to answer on the charge in all but a small percentage of cases. In other jurisdictions as many as thirty percent of cases are dismissed at the preliminary hearing stage. The requirement of a pre-trial or pre-indictment screening procedure may be as important as the screening process itself, since an awareness that a judge will be required to pass on the sufficiency of the evidence may impel prosecutors to engage in a self-screening of charges that accomplishes the basic objectives of the hearing.
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Chapter 6. Time Limitations 43 results (showing 5 best matches)
- A mainstay of the Anglo-American criminal justice system, stemming from the Magna Carta, the right of a criminal accused to a speedy trial, is guaranteed by the Sixth Amendment. The Sixth Amendment states that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy … trial.” The Supreme Court has acknowledged that the Sixth Amendment right applies to federal prosecutions, Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905), and applies to the states through the Due Process Clause of the Fourteenth Amendment, Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In , the Court noted that the right to a speedy trial “is as fundamental as any of the rights secured by the Sixth Amendment.”
- Both the constitution and various statutes protect the accused against undue delay in the prosecution of criminal cases. In applying these protections it is necessary to distinguish between two kinds of delay. First is pre-accusation delay—the delay between the commission of the crime and arrest or the filing of charges. Second is post-accusation delay—the delay between arrest or the filing of charges and the commencement of the trial. Because post-accusation delay is relatively more significant, it is discussed first.
- The fourth factor is the prejudice to the defendant caused by the delay. The Court explained that prejudice is to be assessed in light of the interests the right to a speedy trial is designed to protect. Those interests are i) preventing oppressive pre-trial incarceration; ii) minimizing anxiety to the accused arising from the existence of an unresolved criminal charge; and iii) limiting the possibility that the defendant’s ability to defend at trial will be impaired. Because impairment of the defense undermines the fairness of the system of determining guilt or innocence, it is the most serious form of prejudice.
- Problems may also arise if the defendant is arrested for one offense and is later charged with another. The determination of when the right attaches depends on the relationship of the offense charged to the offense for which the defendant was originally arrested. Even though the ultimate offense charged may differ, if it relates to the offense for which the defendant was arrested, then the speedy trial time should begin to run from the time of arrest, not formal charge. Similar problems can arise where the jurisdiction of arrest and the jurisdiction of formal charge differs. Dual sovereignty principles suggest that there is a separation time of attachment of the speedy trial right by jurisdiction as well. However, where there is close cooperation between sovereigns, be they state or federal, there is a strong argument that speedy trial rights should attach upon the earliest act by either sovereign.
- Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “(1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.”
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Outline 59 results (showing 5 best matches)
Advisory Board 10 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Professor of Law Emeritus, University of California, Los Angeles
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Table Of Cases 11 results (showing 5 best matches)
Copyright Page 3 results
- The publisher is not engaged in rendering 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.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
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Table Of Rules 1 result
- Publication Date: August 19th, 2016
- ISBN: 9781634609197
- Subject: Criminal Procedure
- Series: Nutshells
- Type: Overviews
- Description: Designed for use as supplemental reading in an advanced criminal procedure course on the post-investigation processing of a criminal case. Includes a clear, concise, and thorough narrative explanation of the issues involved in the prosecution and adjudication of a criminal case, from the decision to prosecute and pre-trial release through to sentencing, appeal and collateral attack. Ideal reference for students and practitioners.