The Right to Counsel at Trial and on Appeal I. Introduction: Importance of defense Lawyers in Adversary System A.

Role of a defense lawyer at criminal trial a. To reduce wrongful convictions of innocent people b. Ensure that guilty receive due process c. Serve as equalizers in confrontation between the govt, which hires it own lawyers to prosecute, and the person charged B. W/out a lawyer the defendant faces the danger of conviction b/c he does not know how to establish his innocence II. The Right to Counsel at Trial A. The Right to Employ Counsel a. 6th Amendment entitles an accused in a federal prosecution to employ a lawyer to assist in defense at trial b. Deemed a fundamental right in 1963 c. Applies to the states under the 14th Amendment B. Indigents: The Right to Appointed Counsel a. Overview i. Goal 1. Supreme Court has mandated legal assistance to indigent criminal defendants through 6th Amendment 2. Gideon v. Wainwrightrequires states to appoint counsel for indigents ii. The Reality 1. 2/3 federal defendants represented by court-appointed lawyers 2. Less than one penny of every govt dollar was spent on judicial and legal services, which includes appropriations for courts, prosecutors, and public defense counsel 3. Three forms of public defender systems a. Public-defender systemorganization of lawyers designated by a jurisdiction to provide representation to indigents in criminal cases b. Contract-Attorney programa jurisdiction enters into an agreement with private attorneys, law firms, or bar associations to represent indigents in the community c. Assigned-Counsel programmany lawyers are placed on a list to provide representation to poor defendants on a case-by-case basis b. The Road to Gideon i. Powell v. Alabamain a capital case, where the is unable to employ counsel, and is incapable adequately of making his own defense b/c of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law

ii. Betts v. Bradyrejected the principle that due process of law demands that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent c. Gideon v. Wainwrightoverruled Betts and brought the protections of the 6th Amendment right to counsel to the states, through 14th Amendment due process d. Post-Gideon Law: Misdemeanor Cases i. Argersinger v. Hamlinabsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial ii. Scott v. IllinoisConstitution only requires that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense III. The Right to Counsel: On Appeal A. Inapplicability of the 6th Amendment a. By its language the 6th Amendment does not apply to appeals b. Appellate procedures are still subject to 14th Amendment EP and DP c. Griffin v. Illinoisa state that requires a to furnish trial transcript to the appellate court as a condition of hearing s appeal must provide the transcript at state expense for indigents B. First Appeal a. In General i. Convicted has no constitutional right to appeal conviction at all ii. Every state provides at least one appeal of right however iii. Douglas v. California14th Amendment requires a state to provide counsel for an indigent for first statutory appeal of right C. Subsequent Discretionary Appeals a. 14th Amendment does not require appointment of counsel to assist indigent appellants in discretionary state appeals and for review in U.S. S.Ct b. Has also extend this ruling to state habeas corpus proceedings c. Indigents on discretionary appeals have an adequate opportunity to present their claims without the assistance of counsel IV. The Right of Self-Representation A. Faretta v. California a. Recognition of the Right i. has a constitutional right voluntarily and knowingly to waive his right to the assistance of counsel and to represent herself at trial ii. It is the not counsel, who must be informed of the nature of the charges, who has the right to confront accusers, and who must be accorded compulsory process for obtaining witnesses iii. The right to defend is given directly to the because he suffers the consequences if the defense fails b. Reflections on Faretta

i. Defendant has a protectable right of autonomy ii. Even if the s decision is ultimately to his own detriment, the choice must be honored out of respect for the individual iii. There is no comparable right to self-representation on appeal iv. States interest in criminal prosecution 1. Not that the state win the case but that justice be done 2. That the legal proceeding appear fair to all who observe them B. Procedural Issues a. Informing the Accused of the Right i. Right of self-representation is independent of right to assistance of counsel ii. does not have to be informed of right of self-representation unless clearly indicates that she is considering the option b. Timeliness of the Request i. Must assert right in a timely fashion ii. Must be made sufficiently early so that the request does not unduly delay orderly processes c. Hybrid Representation i. Defendant is not entitled to hybrid representation d. Standby Counsel i. A trial court may, even over s objections, appoint standby counsel 1. Is limited to assisting the when asks for help and to taking over the case if self-representation must be terminated during trial 2. The right of self-representation is not violated unless standby counsel substantially interferes with significant tactical decisions of the , controls the questioning of witness, speaks in the s place against his wishes on matters of importance, or in some other way destroys the jurys perception that the is representing himself e. Legal Significance of Poor Self-Representation i. One who chooses self-representation cannot later complain that the quality of his own defense amounted to denial of effective assistance of counsel f. Legal Effect of an Erroneous Denial of the Right i. If the court wrongfully refuses to permit the to represent himself any subsequent conviction must be reversed VI. Interference with Right to Counsel A. There must be no restriction upon the function of counsel in defending a criminal prosecution a. The govt may not restrict defense counsels decision on whether and when the accused will testify b. May not prevent counsel from eliciting testimony from his client through direct examination

c. May not deny counsel the opportunity to make a summation to the jury d. May not prohibit a from consulting w/ attorney during an overnight recess B. Direct interference by the govt w/ the s right to the assistance of counsel ordinarily requires automatic reversal of any resulting conviction VII. Effective Assistance of Counsel: General Principles A. Nature of the Issuethe fact that a person who happens to be a lawyer is present at trial along side the accused is not enough to satisfy the 6th Amendment defendants cannot be left to the mercies of incompetent counsel a. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his or her client and free of any compromising influences and loyalties b. A defense lawyer should interview his client early on in their relationship, keep her client informed of important developments in the case, and consult with her client on important decisions c. Counsel has a duty to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in event of conviction, after which she must bring to bear such skill and knowledge as will render the trial a reliable adversarial process B. Ineffective Assistance: The Strickland Test a. General Principles i. Whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result ii. Strickland announced a two prong testboth elements must be proved if the is to show that the conviction resulted from a breakdown in the adversary process that renders the result unreliable b. The First ProngDeficiency of Representation i. The Standard 1. The errors must be so serious that counsel was not functioning as the counsel guaranteed by the 6th Amendment 2. must identify with precision the acts or omissions that he claims were constitutionally unreasonable 3. Court must evaluate from the lawyers position at the time of the act or omission, disregarding what they know of what happened later in the trial 4. Strategic decisions by a defense lawyer are virtually unchallengeable if they were made after thorough investigation of the law and facts relevant to the case 5. Strategic decisions made after less than complete investigation are reasonably precisely to the extent that reasonable professional judgments support the limitations on investigation

ii. Deficiency: Case Law 1. Failure to perform ordinary tasksvery difficult to prove that a counsels failure to conduct ordinary tasks in defending a client constitutes 6th Amendment deficient representation 2. Sleeping on the Joba constitutional deficiency is shown if a proves that his lawyer frequently slept during trial or during significant pretrial hearings 3. Ignorance of Relevant Laweasier to prove than that a lawyer acted with undue vigor in his defense c. The Second Prong: Prejudice i. The Standard 1. The errors must be so serious as to deprive the of a fair trial, a trial whose result is reliable 2. must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different 3. Reasonable probability is a probability sufficient to undermine the confidence in the outcome 4. Whether counsels errors would have effected the outcome of a reasonable decision maker 5. Prejudice is presumed in three types of cases a. Actual or constructive denial of the assistance of counsel b. Certain forms of state interference with counsels assistance c. Representation by a lawyer burdened by an actual conflict of interest ii. Prejudice: Special Problems 1. The Sleeping Lawyerhard to prove when the lawyer was asleep and whether or not it would have changed the outcome of the trial suffers prejudice, by presumption or otherwise, if his counsel was repeatedly unconscious at trial for periods of time in which the s interest were at stake 2. The Factually Guilty a person who may have factually committed an offense can prove prejudice, if she can demonstrate that there is a reasonable probability that, but for counsels error, his guilt would not have been proven on the basis of legally admissible evidence VIII. Effective Assistance of Counsel: Conflicts of Interest A. Nature of the Issue a. is entitled to loyalty of his attorney b. When one attorney represents multiple clients, especially co-defendants, there is possibility that the interests of the clients will clash

B.

C.

D.

E.

c. Joint representation is usually considered unethical if will limit ability to represent the clients d. A breach of ethical standards is not a per se violation of the 6th Amendment Pretrial Procedures to Avoid Conflicts a. Attorney generally makes a timely pretrial motion for appointment of separate counsel based on an assertion of potential conflict of interest b. Trial judge is required to grant the motion or to take adequate steps to ascertain whether the risk is too remote to warrant separate counsel c. Failure of judge to at least conduct a hearing on the matter requires automatic reversal of any subsequent conviction d. Joint representation is constitutionally suspect e. The court is not required to, sua sponte to inquire into joint-representation arrangements Post-trial Proof of Conflict of Interestconvictions will not be overturned on basis of post-trial claims of conflict of interest unless can demonstrate two things a. An actual conflict of interest existed b. The conflict adversely affected the lawyers performance (doesnt have to show that the outcome would have been different Waiver of the Right to Conflict-Free Representation a. Co-defendants may wish to have the same attorney b. The trial court has the authority to disqualify defense counsel if it concludes there is a serious possibility that a conflict exists c. A does not have unlimited authority to waive right of conflict-free representation in order to have attorney of choice Effective Assistance: The Role of Ethical Canons a. Violation does not constitute a per se violation of 6th Amendment b. If there has been no breach of any recognized professional duty, it follows that there can be no deprivation of the right to assistance of counsel under Strickland standard.

Pretrial Release of the Defendant I. Pretrial Release: Procedural Context A. 1st appearance before a judicial officer is the first opportunity for to be released B. This should occur without unnecessary delay and usually within 24 hours, except on weekends C. Types of release a. On Recognizanceon the promise that he will return for the criminal proceeding b. Bondreleased by depositing cash or property with the court, or by posting it with a bondsman in an amount determined by the magistrate bond is subject to forfeiture if does not appear in court D. Preventative Detentionmagistrate can keep a in jail if determines that no conditions will reasonably assure the accuseds appearance as required or that his release will jeopardize the safety of another person or the community as a whole E. In federal courts a is entitled to representation by counsel appointed by the court if indigent at the bail hearing II. Pretrial Release: Interests at Stake A. The Communitys Interests a. Protecting the integrity of the judicial process b. Ensuring that those released pending trial do not commit other offenses while they are free c. S.Ct recognizes pretrial crime prevention as a constitutionally justifiable interest in regulating pretrial release B. Arrestees Interests a. Interest in libertystrong and fundamental b. Presumption of innocence implied by due process clause and unless the right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning c. Confinement can hamper the s or his counsels preparation of the trial defense d. Confinement can be emotionally and financially disruptive to the accused and his family III. Pretrial Release: Eighth Amendment A. Traditionallythose charged with non-capital offenses had an absolute statutory right to be admitted to bail B. Stack v. Boyleit is permissible for a judge to condition freedom on adequate assurance that the accused will stand trial and submit to sentence if found guilty C. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive under 8th Amendment D. Fixing of bail must be based upon standards relevant to the purpose of assuring the presence of the defendant a. Nature and circumstances of the offense charged b. Weight of the evidence against the accused c. Accuseds character d. Financial ability of the to meet the bail requirements

E. S.Ct. has never ruled that the Constitution entitles a to be released without bail if cannot afford to meet any financial conditions IV. Pretrial Release: Statutory Law A. Pre-Reform a. Pre-trial release was conditioned on a deposit of cash with the court b. If could not make payment then contacted bail bondsman who furnished the payment to the court and received a nonrefundable fee of 10% of the bond from the c. If could not pay bondsman fee or if bondsman refused to pay then defendant remained in jail through the trial B. Federal Bail Reform Act of 1966 a. Announced a presumption in favor of the release of arrestees on their own recognizance b. Conditions for release could only be imposed if the magistrate determined that they were necessary to reasonably assure the appearance of the defendant at criminal proceedings c. The law also required the magistrate to attach the least restrictive condition or combination of conditions possible d. Non-financial conditions were preferred to bail e. If financial conditions were necessary then the preferred condition was for defendant to deposit up to 10% with the court, rather than with a bondsman C. Federal Bail Reform act of 1984 a. Allowed for the first time for magistrate to consider if the release would endanger the safety of nay other person or the community b. The magistrate could also order pretrial detention of a defendant c. Except for the preventative detention the Act is like the last one preferring the least restrictive conditions d. Law expressly provides that judicial officer may not impose a financial condition that results in the pretrial detention of the personthe intent to prohibit the use of bail as a form of sub rosa preventative detention V. Preventative Detention A. Federal Bail Reform Act of 1984 a. Permits the detention of arrestees in specified circumstances b. If, after a hearing, the magistrates determines that no condition or combination of conditions will reasonably assure the appearance of the person is required and the safety of any other person or the community c. Pretrial detention has largely been substituted for bail as a means of detaining s d. Magistrate must hold a detention hearing on motion of prosecutor if is: i. Charged with violent crime ii. Charged with a drug offence with max sentence of 10 years iii. Charged with a capital crime iv. If the felony is committed by one previously convicted of two or more above offenses

v. If there is an allegation of a serious risk of flight, obstruction of justice, or intimidation of a prospective witness or juror e. Accused is entitled: i. To be represented by counsel ii. To testify on own behalf iii. To cross-examine witnesses called by the prosecutor f. Rules of Evidence do not apply g. Magistrate must take into account i. Nature of offense charged ii. Weight of evidence against the defendant iii. History and characteristics of the person, including his physical and mental condition iv. Ties to family and community v. Whether he was on probation, parole, or pretrial release when he was arrested h. The act creates two rebuttable presumptions i. The accused is presumed to be too dangerous to be released if the prosecutor provides that the has previously been convicted of one of the enumerated offenses that justifies a detention hearing, that the offense for which he was convicted was committed while he was on release pending trial for another crime, and that five years have not elapsed since the date of conviction or of release from imprisonment (which ever is later) of the prior conviction ii. There is a presumption that no conditions of release will reasonably assure that the defendant will not flee or commit a crime, if the magistrate determine that there is a probable cause to believe that, on the present occasion, he committed one of a specified set of serious drug offenses or an offense involving the use or possession of firearms i. Judge must include written findings on the reasons for his decision to order preventive detention j. The losing side may immediately appeal the decision B. The Policy Debate a. Critics i. Anticipatory confinement is contrary to presumption of innocence ii. It is wrong to jail a person for what society fears they will do in the future iii. Violates the historical belief in human free will iv. It is unwise to use because experts lack the capacity accurately to predict future dangerousness b. Defenders i. It is hard to sustain the argument that the govt should never have the power to detain a person prior to trial, regardless of the circumstances ii. If preventive detention is justifiable in any cases then there is no question of whether the govt has the right to preventative

detention just under what circumstances they should be able to use it iii. Detention may be justifiable if and only if there is substantial preliminary proof that those whom society intends to detain are, indeed dangerous individuals C. The Constitutional Debate a. U.S. v. Salerno: The Holding i. In this society, liberty is the norm, and detention prior to trial or without trial is carefully limited exception ii. The provision in the Federal Bail Reform Act is constituted to carefully limit exceptions to the liberty norm b. Due Process i. Substantive 1. Although pretrial punishment is unconstitutional, not all incarceration constitutes punishment 2. Whether preventative detention violates substantive due process is a matter of interest-balancing 3. Salerno Court created three step process for determining whether a restriction on liberty constitutes impermissible punishment or permissible regulation a. A court must look at legislative history to determine if Congress expressly intended to impose punitive restrictions b. If no such intent is divined, a court must decide if an alternative purpose to which the restriction may rationally be connected is assignable for it c. The court decide if the restriction is excessive in relation to the alternative purpose assigned to it 4. Other pretrial and non-trial restrictions on justice have been justified a. Detentions of persons believed to be dangerous in times of war b. Incarceration of mentally disordered persons or danger to themselves or others c. Detention of dangerous criminal defendants incompetent to stand trial 5. Court determined that the Act falls into this category of justifiable pretrial detentions ii. ProceduralCourt found that the procedures of the Act were adequate to authorize the pretrial detention of a least some persons charged with crimes c. Eighth Amendment i. Preventative detention does not go against the 8th Amendment ii. It prohibits excessive bail but does not provide an absolute right to bail in the first place

Plea Bargaining and Guilty Pleas I. Guilty Pleas: Overview A. Procedural Context a. Defendant may plead i. Not guiltynot necessarily factually innocent but that prosecutor does not have enough info to prove the case ii. Nolo Contendereliterally means I will not contest it, has same effect as guilty plea but cannot be used as admission of guilt in civil proceedings iii. Guilty iv. Not guilty by reason of insanity v. Conditional guilty pleasprevents the defendant to appeal a specific issue that otherwise would not have survived the plea B. Constitutional and Policy Concerns a. In pleading guilty a person gives up several constitutional rights i. 5th Amendment privilege against self-incrimination ii. 6th Amendment right to speedy trial iii. Right to a jury trial, to confront witnesses and call witness on own behalf iv. Procedures used to obtain guilty pleas must adequately ensure that s waive their constitutional rights voluntarily and knowingly v. Also a question of whether the law should encourage, tolerate, or actively discourage guilty pleas II. Validity of a Guilty A. In General a. Guilty Plea is not valid unless it meets constitutional safeguards i. who pleads guilty must be represented by counsel or validly waive that right ii. A criminal may not plead guilty, or waive counsel in order to do so unless he is mentally competentsame as competency to stand trialsufficient present ability to consult with attorney with reasonable degree of rational understanding and can understand the proceedings against him iii. A guilty plea is invalid unless the trial court satisfies itself that the defendants waiver of her constitutional rights is voluntary and knowing iv. A guilty plea will not be upheld, in some cases, unless a factual basis for it exists b. A defendant does not have a federal constitutional right to forgo a criminal trial by pleading guilty B. Voluntariness of the Plea a. Due Process is violated if a trial judge accepts a coerced guilty plea b. A guilty plea is not coerced unless it was induced by threats, misrepresentation, or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business

c. S.Ct is hesitant to invalidated guilty pleas on basis of involuntariness because a strict standard might discourage guilty pleas and the plea bargaining process that precedes them C. Knowing Nature of the Plea a. In Generala guilty plea is invalid if the is unaware of: i. The nature of the charges to which she is pleading ii. The penal consequences of the plea iii. The nature of the rights she is waiving by pleading guilty b. Nature of the Charges i. Defendant must receive real notice of the true nature of the charge against him ii. Only applies to undefined critical elements of the crime c. Penal Consequences of the Plea i. must be informed of the direct consequences of his guilty plea ii. At minimum, must be informed of possible maximum for crime is pleading guilty to iii. Majority view is that failure of court to inform defendant of direct penal consequences of the plea does not by itself constitute a violation of due process iv. Due process violation occurs if the pleaders lack of correct information prejudiced himparticularly if he would not have pled guilty d. Nature of the Rights Being Waived must be informed of the rights he is waiving e. Incorrect Legal Advice: How it Affects the Intelligence of the Plea i. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the states case or the likely penalties attached to alternative courses of action ii. It is enough that the plea be based on a competent lawyers advice, based on then possible penalties iii. A plea will not be vacated on the ground of ineffective representation unless the proves both that her counsels representation was constitutionally deficient, and that she was prejudiced by the deficiency D. Factual Basis of the Plea a. Generally a judge is not constitutionally required to determine whether there is a factual basis for a defendants guilty plea b. The constitution does require a judicial determination of the factual basis for the plea when a defendant affirmatively tells the judge that he is innocent of the crime pleading guilty to c. It is unlikely that the judge will be required to be convinced of a defendants guilty beyond a reasonable doubt III. Obtaining a Valid Guilty Plea: Federal Procedures A. Ensuring Voluntariness

a. Trial court is required to withhold acceptance of a guilty plea until it determines that the plea is voluntary b. Requires the judge to determine the voluntariness by addressing the personally in open court c. Any variance from the procedures requires that does not affect substantial rights shall be disregarded B. Ensuring An Intelligent Plea a. Must determine in open court a variety of matters pertaining to the nature of the charges to which is pleading, the penal consequences of the plea and the constitutional rights waiving b. Judge must inform of nature of charge to which is pleading, any mandatory minimum sentence provided by law, and the maximum penalty for the offense C. Determining the Factual Basis of the Plea a. The court should not enter a judgment upon a guilty plea without making such inquiry as shall satisfy it that there was a factual basis for the plea b. Only applies to guilty pleas IV. Effect of a Guilty Plea on Prior Constitutional Claims A. General Rule a. If pleads guilty is ordinarily barred from raising a claim in federal court of a constitutional violation that occurred prior to the guilty plea b. is not barred from proving that there was a procedural defect in the guilty plea procedure itself, or that the plea was not voluntarily or intelligently made B. Exceptions to the General Rule a. Although a assumes the risk of ordinary error by her attorney, she does not assume the risk that her lawyer is incompetent b. Distinction between factual verses legal guilta plea of guilty is an admission of factual guilt and therefore removes that issue from the case; it does not remove claims that the may not be legally subjected to conviction and punishment C. Conditional Pleas a. If the court and the prosecution consent, the may enter a conditional plea of guilty or nolo contrendere, reserving the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion b. Defendant then appeals and if prevails then may withdraw the plea c. Saves on judicial resources as dont have to have a full trial V. Plea Bargaining: General Principals A. Overview a. The process by which a defendant in a criminal prosecution agrees, in exchange for some official concession, to an act of self-conviction b. The S.Ct made clear that plea bargaining is not unconstitutional per se B. Types of Plea Agreements a. Usually involves charge bargaining, sentence bargaining or both

b. Charge bargainingin exchange for guilty plea for some charges other charges will be dropped or to accept a plea of a lesser degree of the charge c. Sentencing bargainingin exchange for guilty plea prosecutor will either recommend to the judge a lesser sentence or a specific sentence C. Federal Plea Agreement Procedures a. The prosecution and the defendants attorney or the defendant himself to engage in plea negotiations b. Judge is not required to accept a dismissal, charge-reduction, or sentencing plea agreement, although the rules are silent regarding the factors she should consider in determining whether to accept c. If judge rejects plea agreement, must be given opportunity to withdraw the plea and must be informed that failure to withdraw may lead to the disposition of the case to be less favorable to than what was contemplated in the plea agreement d. A guilty plea based on sentencing-recommendation may be treated differently depending on the jurisdiction i. The sentencing-recommendation does not have to be followed by a judge ii. The judge must inform the that the judge does not have to follow the recommendation and that the has no right to withdraw the plea e. A guilty plea that was later withdrawn cannot be introduced against the in any civil or criminal proceeding, neither can any statements made to the prosecutor in the plea negationsthis protection can be waived by D. Judicial Participation in Plea Negotiations a. A judge might initiate bargaining btw the prosecution and the defense b. The judge might participated as an information provider, by answering questions about her sentencing philosophy if decides to stand trial c. Fed Rule of Crim. Pro. prohibit judicial participation in plea agreement discussions d. A bar on participation would serve the s interest in not being coerced to plead guilty e. Judge has a competing interest in judicial economy f. In order to maintain the appearance and reality of a fair trial, the judge participating in plea negotiations might be barred from conducting the trial, if negotiations break down VI. Plea Bargaining: Policy Debate A. Is Plea Bargaining Inevitable? a. If bargaining were not permitted, the guilty-plea rate would drop substantially, resulting in increased number of trials and overwhelm the criminal justice system b. If bargaining is desirable, the law should recognize this fact and allow the process to proceed in a comparatively unfettered manner B. Is Plea Bargaining Good in Principle? a. In Support of Plea Bargaining

i. Negotiation process permits the accused to determine rationally whether the contemplated punishment is lower than the anticipated post-trial sentence, discounted by the possibility of acquittal ii. Plea bargaining is beneficial to the prosecutor iii. Society more efficiently attains the objectives of criminal punishment, by ensuring that it is more promptly imposed and scarce resources are conserved for those trials where there is an issue of s guilt or innocence b. In Opposition to Plea Bargaining i. Overview: Serving the Interests of the Powerful 1. Plea bargaining is a great tool of the defense and prosecutor and the judges and courts but is not always in the best interest of the interest of the real parties, the defendant, the public, and the victim 2. It prejudices crime control interests of the community 3. It affects the accuseds constitutional rights ii. Sentencing Differential 1. It results in undue leniency to criminals 2. Reduced penalties reduce the deterrent value of punishment 3. Plea bargaining unfairly burdens a choosing to assert his constitutional right to a trial iii. Prosecutorial Overcharging 1. Many critics believe that prosecutors overcharge and as a result plea bargaining deals are mostly illusory 2. Prosecutors charge as many crimes and the highest degree of offense that the evidence will remotely permit 3. The prosecutors uses these charges to entice the to engage in plea bargaining even if there is no possible way the jury would find BRD on most of the charges anyway iv. Inadequate Representation 1. Some critics question whether the quality of representation of s in the bargaining process is in the best interest of the 2. Private defense attorneys too often become pleaders 3. Even the most ethical public defender, forced to deal with a huge caseload, is apt to rely too heavily on plea bargaining 4. Public defenders have an incentive to cooperate with the prosecutors with whom they deal on a daily basis 5. Lawyers, like others, do not like to be wrong, and the decision to plead guilty is never wrong, in the sense that there is no way to determine whether the client would have been acquitted or received a more lenient penalty had she proceeded to trial v. Conviction of the Innocent 1. Incompetent representation enhances the risk that an innocent person will be convicted

2. Lawful plea bargaining often places too much pressures on s, especially those who are risk-adverse 3. Advocated of plea bargaining state that innocent persons are not necessarily exonerated at trial and so it is appropriate to give a an opportunity to decide whether to take the risk VII. Plea Bargaining: Broken Deals and Withdrawn Offers A. Broken Deals a. Once plea negotiations result in an agreement, the parties are expected to abide by their promises b. When a guilty plea rests in significant part on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled c. Two possible remedies for broken deals i. Trial court can require specific performance of the deal ii. Or can vacate the plea and permit to plea anew to original charge B. Withdrawn Offers a. Govt may permissibly revoke an offer, even after acceptance, at least if there has been no detrimental reliance on the offer b. Even if the prosecutor was negligent in making and withdrawing the offer, the Court says that the due process clause is not a code of ethics for prosecutors VIII. Prosecutorial and Judicial Vindictiveness A. Explanation of the Issue a. There is a tension in the law b. On the one hand, the law affords prosecutors substantial discretion in determining whether to prosecute and what charges to bring c. On the other hand, with substantial discretion comes the power to abuse and a prosecutor might be severe for inappropriate reasons B. The Original Vindictiveness Rules a. Judicial Vindictiveness: The Pearce Principle i. A judge may not punish a for successfully appealing a conviction by imposing a more severe sentence after a second trial and conviction ii. A judge may not impose a more severe sentence the second time around unless the reasons for doing so appear on the record and are based upon objective information concerning identifiable conduct on the part of the occurring after the time of the original sentencing proceeding b. Prosecutorial Vindictiveness: The Blackledge Principal i. A prosecutor may not bring a more serious charge after a has been once tried and convicted ii. Unless it had been impossible to proceed on the more serious charge at the beginning of the trial C. The Supreme Court Narrows the Vindictiveness Rules a. Pearce-Blackledge Becomes a Rebuttable Presumption

i. The Constitution is not violated unless an enhanced sentence or charge is motivated by actual vindictiveness toward for having exercised a right ii. The due process clause does prohibit actual vindictiveness in judicial sentencing and prosecutiorial charging and if can prove such vindictiveness then the enhanced penalty or charge will be voided b. When Does the Presumption of Vindictiveness Apply i. Judicial Vindictiveness 1. Presumption applies in those circumstances in which there is a reasonable likelihood that an increase in sentence was the result of vindictiveness 2. Does not apply if the second sentence is applied by a different sentencer than the first trial 3. Does not apply even if the same sentecer is involved if the original and lesser sentence was imposed after a guilty plea 4. Does not apply if special circumstances in the case suggest that there is no reasonable likelihood that the increase in sentence was the result of vindictiveness ii. Prosecutorial VindictivenessCourt refused to apply the presumption in the context of pretrial plea bargaining c. How May the Presumptions be Rubutted i. Judicial Vindictivenessmay be overcome on the basis of any objective information that justifies an increased sentence, including information relating to s conduct that occurred before the original sentencing proceeding ii. Prosecutorial Vindictivenessin limited circumstances, namely when the govt could show that it was impossible to proceed on the more serious charge at the outset

Double Jeopardy I. General Principles A. Constitutional Text a. In General i. 5th Amendmentno person shall be subject for the same offence to be twice put in jeopardy of life or limb ii. Applicable to the states through the 14th Amendment DP clause b. In Jeopardy i. A person is not in jeopardy until the jury is empaneled and sworn in or for a bench trial until the first witness is sworn in ii. The prosecution is not barred from appealing a pretrial dismissal of criminal charges against a or from refilling charges against him, even if a courts ruling was based on evidence that would have been introduced at trial c. Of Life and Limb i. Generallyapplies to all crimes including those offenses for which only potential punishment is a monetary fine ii. Civil versus Criminal Proceedings and Penalties 1. A legislature may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense 2. However, the govt cannot escape double jeopardy by simply labeling a proceeding as civil 3. Two step approach to deciding if it is civil or criminal a. Whether the legislature in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other b. Whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty i. Whether the sanction involves an affirmative disability or restraint ii. Whether it has historically been regarded as a punishment iii. Whether it comes into play only on a finding of scienter iv. Whether its operation will promote the traditional aims of punishment v. Whether the behavior to which it applies is already a crime vi. Whether an alternative purpose to which it may rationally be connected is assignable for it

vii. Whether it appears excessive in relation to the alternative purpose assigned 4. Will rarely be a case in which imposition of monetary penalty will bar later criminal prosecutions based on double jeopardy 5. Also nearly impossible to contest civil forfeitures on the basis of double jeopardy B. Dual Sovereignty Doctrine a. Conduct may simultaneously constitute a violation of federal and state law b. A single act may also constitute a violation of criminal statutes in more than one state c. May also violate state law and a local ordinance d. An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be prosecuted and punished by both i. Thus, it is permissible for the federal govt. (or a different state) to prosecute after a state prosecution of the same conduct or viceversa ii. U.S. v. Lanza, 260 U.S. 377 (1922). Prosecutions under laws of separate sovereigns are prosecutions of different offenses, not reprosecutions of the same offense. e. The doctrine also applies to duel state prosecutions f. A city is considered a subordinate instrumentality of the state in which it is located and is not an independent sovereign for purpose of the double jeopardy clause g. Doctrine is needed to vindicate federal interests C. Guarantees of the Double Jeopardy Clause a. Consists of three separate constitutional protections i. Protects against a second prosecution for the same offense after acquittal ii. Protects against a second prosecution after conviction iii. Protects against multiple punishments for the same offense b. Also protects against reprosecution after certain dismissals; and embodied in the prohibition of double jeopardy is the doctrine of collateral estoppel D. Values Underlying the Double Jeopardy Clause a. Reprosecution for the same offense subjects the individual to embarrassment, expense and ordeal and compels him to live in a continuing state of anxiety and insecurity b. Reprosecution creates an unacceptably high risk that the govt will convict an innocent person by wearing him down with its superior resources c. The govt may use the first trial as a dry run for the second prosecution d. 5th Amendment protects the s right to have his trial completed by a particular tribunal, once the trial begins has a weighty interest in being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate

e. The double jeopardy clause is to preserve the finality of judgment II. Reprosecution After a Mistrial A. General Principles a. Mistrialjudicial termination of a trial before a verdict is reached granted on the motion of either party or sua sponte b. Intention of judge is that prosecutor will be able to reprosecute c. The general bar on reprosecution following a mistrialas limited as that prohibition isonly applies if the mistrial was granted over the defendants objections B. Mistrials over the s Objection a. The Manifest Necessity Standard i. Reprosecution following a defendant-opposed mistrial is permitted if a manifest necessity existed for terminating the trialif the ends of public justice would otherwise be defeated ii. The power to declare a mistrial must only be used with the greatest of caution, under urgent circumstances, and for very plain and obvious causes iii. The general bar on reprosecution following a mistrial only applies if the mistrial was granted over the defendants objection. b. Manifest Necessity: The Case Law i. Early Casesuntil 1963 S. Ct upheld every retrial that followed the grant of a defense-opposed mistrial that it considered ii. The Temporary Radical Transformationmistrials should only be granted in very extraordinary and striking circumstances iii. The Supreme Court Turns Direction Againa trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial c. Making Sense of the Case Law i. Four factors are important in mistrial cases 1. Whether the govt was responsible for the difficulty that gave rise to the motion for the mistrial 2. Whether the motivation of the party associated with the difficultly was wrongful 3. Whether the defendant suffered special prejudice from the mistrial 4. Whether there were meaningful alternatives to the mistrial ii. A mistrial will probably be found to be improper if there is a finding against the govt on 1 and 2 or on 1 and 4 but not on 1 alone C. Mistrials With the Defendants Consent a. General Rule i. A who requests a mistrial or who consents to one may not object on double jeopardy grounds to the institution of a second trial

ii. Serves a deliberate relinquishment of his constitutional interest in obtaining a verdict at the first trial b. Exception: Intent to Provoke a Mistrial MotionReprosecution is barred, even when a mistrial is declared at the s request, if the prosecutor or judge intended to provoke or goad the mistrial motion III. Reprosecution After an Acquittal A. Rule a. In General i. Acquittals are accorded special weight in double jeopardy jurisprudencea defendant who is acquitted of an offense may not be prosecuted again for the same offense ii. The prohibition applied whether the acquittal was the result of 1. A not guilty verdict by jury or judge 2. An implied acquittal by jury or judge 3. Ruling by a judge that represents a resolution in the defendants favor of some or all of the factual elements of the offense charged iii. The prohibition applies even if the verdict is based upon an egregiously erroneous foundation iv. may not be retried if the acquittal if the legal rulings underlying the acquittal were erroneous v. Reprosecution is also prohibited if the verdict was the result of the judges erroneous exclusion of evidence favorable to the prosecution at trial b. Appealing an Acquittalthe double jeopardy bar does not prevent the govt from appealing an acquittal if the would not be exposed to a second trial if the appeal were successful B. Should the Rule be Modified? a. To permit a second trial after an acquittal would present an unacceptably high risk that the govt might wear down a so that even though he is innocent he may be found guilty b. If a jury acquittal, it may be the product of the jurys legitimate authority to acquit against the evidence, that is no nullify the law IV. Reprosecution After a Dismissal A. Nature of a Dismissal a. Often takes the appearance of a mistrial or acquittal b. Involves a judicial termination of the trial before a verdict is reached c. The granting of a dismissal contemplates that the proceedings will terminate then and there in favor of the defendant d. Involves the termination of the trial in the defendants favor on a basis unrelated to factual guilt or innocence B. General Rules a. Dismissal of Defendants Motiongovt is barred from appealing a dismissal

b. Dismissal Without Defendants Consentwhen charges are dismissed without the defendants consent he is denied primary control over his fate and the can appeal the dismissal V. Reprosecution After a Conviction A. General Rule a. The govt may not reprosecute a convicted for the same offense if he does not appeal his conviction or if his appeal is unsuccessful b. Double jeopardy does not bar reprosecution of a who successfully appeals his conviction on the basis of prejudicial error in the prior proceeding B. When Reprosecution is Barred a. Insufficiency of the Evidence i. The Burks Principle--govt is barred from reprosecuting a previously convicted defendant if an appellate court reverses the conviction on the sole ground that the evidence presented at the trial was insufficient to sustain the guilty verdict ii. When Burks Does Not Apply 1. Reprosecution is not barred if the appellate court of trial judge reverses the conviction on the basis of the weight, rather than the sufficiency of the evidence 2. Does not apply after a mistrial is granted 3. Reprosecution is permitted after a successful appeal by a as long as the evidence is offered by the state and admitted by the trial courtwhether erroneously or notwould have been sufficient to sustain a guilty verdict iii. Prosecutorial Misconductreprosecution after a successful appeal should be barred in the case of certain forms of prosecutorial misconduct C. Special Problem: Convictions With Implied Acquittals a. Verdict Acquittalif a is acquitted on one of the charges (usually when charged of a lesser included offense) then cannot be recharged of the implicitly acquitted charge b. Sentence Acquittal i. Generally double jeopardy is not violated if a judge imposes a more severe punishment up to the maximum allowed under the law, after any subsequent reprosecution and conviction ii. Different rule applies in capital-sentencing context because the sentencing procedure is a separate trial, sentencing to life is an acquittal of the death sentence VI. Government Appeals of Criminal Sentences A. The federal govt has no right to appeal in criminal proceedings absent explict statutory authority B. The federal govt may appeal a final sentence, following a conviction, if it believes that the sentence imposed was in violation of the law or sentencing guidelines, was imposed as a result of an incorrect application of the sentencing guidelines, or was otherwise plainly unreasonable

VII. Multiple Prosecutions of the Same Offense A. An Overview of the Problems Ahead a. Unit of Prosecution Problemhas to do with how to deal with multiple offenses that occur at the same time b. A single act may constitute a violation of two or more distinct statutory provisionsseparate statutory crimes need not be identical in order to be the same within the meaning of the constitutional prohibition c. And does double jeopardy only apply to multiple prosecution for the same offense or does it also apply to multiple punishments for the same offense B. Same Offense: The Blockburger Rule a. Provides that two distinct statutory provisions constitute separate offenses if each provision requires proof of a fact the other does not b. If application of the Blockburger test reveals that the two offenses have identical statutory elements or that one is a lesser included offense of the other, than the inquiry must cease, and subsequent prosecution is barred C. Same Offense: Beyond Blockburger a. Harris v. Oklahoma: A Minor Variation on the Blockburger Theme finding the felony to be a lesser included offense to felony murder b. Grady v. Corbin: A Broad (but Temporary) Addition to Blockburgerthe Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of one offense charged in that prosecution, the govt will prove conduct that constitutes an offense for which the defendant has already been prosecuted c. U.S. v. Dixon: Back to Harris?Court overruled Corbin D. Exceptions to the General Rule a. If two statutory provisions constitute the same offense under the applicable law, multiple prosecutions are not barred in all circumstances b. An exception may exist where the state is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence c. The no-successive prosecution rule does not apply if a is retried on the same charge after a mistrial, dismissal, or after a conviction is reversed on appeal d. Double jeopardy is not violated when the defendant requests separate trials on the greater and lesser offenses, or in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other VIII. Excessive Punishments A. Excessive Punishments a. In Generaldouble jeopardy clause prohibits punishment in excess of that authorized by the legislature b. Credit for Time Serveddouble jeopardy clause is violated when punishment already exacted for an offense is not fully credited in imposing sentence upon a new conviction for the same offense B. Multiple Punishments

a. In Generalthe imposition of cumulative punishments for two crimes that constitute the same offense under the Blockburger test is not in itself a violation of the double jeopardy clauseis not barred if legislature intended to permit it b. Sentence Enhancement for Uncharged Criminal Conductas long as a defendants sentence falls within the legislatively authorized punishment range, consideration of offender-specific information at sentencing does not result in punishment for such conduct and so does not violate double jeopardy IX. Collateral Estoppel A. Nature of the Doctrine a. Collateral Estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated btw the same parties in any future lawsuit b. A court must examine all of the relevant matters in the case in order to determine whether a rational jury could have grounded its verdict upon an issue other than that which the seeks to foreclose from consideration c. Govt is not permitted to take advantage of the collateral estoppel doctrine in criminal cases B. Limits on Application of the Doctrine a. It can only be invoked if a rational jury could not have grounded its verdict on nay basis other than the claim that the defendant seeks to foreclose from further consideration b. The doctrine applies only if the issue in question has been adjudicated to a valid and final judgment c. The doctrine does not apply in a proceeding in which a lower standard of proof is permitted than at a criminal trial