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CRIMINAL PROCEDURE Class Eleven. Today’s Topics: Pleas Issues Overview Support & Critique Sentencing Guidelines “Overcharging” Requirements Record Voluntary.

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Presentation on theme: "CRIMINAL PROCEDURE Class Eleven. Today’s Topics: Pleas Issues Overview Support & Critique Sentencing Guidelines “Overcharging” Requirements Record Voluntary."— Presentation transcript:

1 CRIMINAL PROCEDURE Class Eleven

2 Today’s Topics: Pleas Issues Overview Support & Critique Sentencing Guidelines “Overcharging” Requirements Record Voluntary Knowing

3 Today’s Topics: Pleas Innocence Factual Basis Finality Withdrawal breach

4 Today’s Topics: Trial Issues Speedy Trial Background Delay in Arrest and/or Charge Assessing Speedy Trial Claims Remedies

5 Today’s Topics: Trial Issues Joinder and Severance Defendants Claims/Crimes Proof Requirements Beyond Reasonable Doubt Elements Means

6 CHAPTER NINE GUILTY PLEAS AND BARGAINING

7 Guilty Pleas: General Issues Estimates: 90-95% all criminal cases end with plea of guilty rather than a trial D may bargain for Reduction in crime charged Recommendation for particular sentence “Open” punishment

8 Guilty Pleas: General Issues Plea bargaining can occur at any stage in process Formerly the “dirty little secret” of justice system

9 Societal Considerations Sentencing differential Support Law and economics model

10 Societal Considerations Critique Immunizes poor trial counsel performance Reward or Punishment? Practical risk of more severe punishment Prosecutor’s decision to “charge up” permissible Judge may not impose more severe sentence merely because D went to trial

11 Impact of Federal Sentencing Guidelines Guidelines claim to limit plea bargaining to the extent that amount of reduction in sentence is fixed Prosecutors can evade harshness of Guidelines by their charging decisions

12 Impact of Federal Sentencing Guidelines Query: Where is the more appropriate repository for discretion -- judge or prosecutor? Inverted Sentencing Concept: In multi-D cases, most culpable D has better shot at receiving lesser sentence because she has more to offer gov’t

13 Exercise: Overcharging You are a Texas prosecutor. D is charged with third degree felony. He is 45 years old. Twenty years earlier, he received 2 felony convictions for offenses that now have been reduced to state jail felonies punishable by 2 years confinement. Punishment range for third degree felony: years. You offer D plea bargain of 7 years.

14 Exercise: Overcharging D rejects your offer. You threaten to indict D as habitual offender under Texas enhancement statute, using his two 20-year old prior convictions. If you re-indict, D will face minimum 25 years (maximum punishment of 99 or life) Query: Can you constitutionally make this threat?

15 Policy Consideration Many states have adopted 3 strikes statutes Some allow D.A. no choice but to charge “strike” felony if facts support charge Query: How will this impact D’s decision to - - accept or reject plea offer go to trial?

16 Requirements of Valid Plea Records Intentional relinquishment of known right or privilege No presumption on basis of silent record Boykin

17 Requirements of Valid Plea EXERCISE: As general counsel to Texas Legislature, what would you suggest the “record” specifically contain? What vehicles might satisfy Boykin?

18 Guilty Pleas Used to Enhance Issue: Does Boykin [requirement of record showing voluntary plea] apply? Or, can validity of prior guilty plea used to enhance be presumed in the face of a silent record? Issue: Can D in federal prosecution attack validity of prior state court guilty plea conviction under Boykin (I.e., no showing of knowing and intelligent waiver)

19 Voluntary Plea To be valid, guilty plea must be voluntary Consider, “voluntariness” in confession context where D raises due process challenge Off limit inducements Threats with punishment not authorized by law Offers of consideration outside plea process Potential Problem Area: Package Deals

20 Knowing & Intelligent Plea Knowledge of Elements of Crime Concept: Guilty plea cannot be valid unless D knows nature of offense

21 Knowing & Intelligent Plea Competency Ability to consult with his lawyer “with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him.”

22 Illustration: Federal System Federal Rule of Criminal Procedure 11c “Admonishments” What trial judge must tell D when addressing her in open court pursuant to plea

23 Illustration: Federal System Remedies for violation U.S. v. Timmreck: Can only raise in collateral attack if alleged violation is either constitutional or jurisdictional in nature Typically only “substantial compliance” needed

24 Judge’s Role Regardless of plea, trial judge must satisfy herself there is factual basis to support it Trial judge may reject plea agreement

25 Claims of Innocence North Carolina v. Alford Query” Who would benefit if Alford pleas were rejected? Who would suffer?

26 Establishing Factual Basis Possible sources of evidence giving in court judicial confession: testifying and admitting crime signing confession admitting elements of offense stipulating that witnesses would testify in specific manner prosecution’s using live testimony or documents

27 Finality of Plea Bargains Issues implicated Withdrawing guilty pleas Remedies for broken plea agreements

28 Withdrawal Many jurisdictions limit period during which D can withdraw plea Texas Examples Right Discretion Prosecution Withdrawal Executory agreement; prior to acceptance by court, lacks constitutional significance

29 Remedies for Breach Prosecution Breach Santobello v. New York Withdrawal Specific Performance D does not have choice of remedies

30 Remedies for Breach Cooperation Agreements Potential problem: Dispute between parties about whether D has sufficiently fulfilled her obligation under agreement

31 Remedies for Breach Defense Breach Ricketts v. Adamson Held: Double jeopardy does not bar government from filing capital charges against D who entered plea in return for specific prison term for lesser offense when D later violates terms of bargain

32 Appeal & Collateral Attack Is D entitled to withdraw plea, if later Supreme Court decision suggests statute under which D pled guilty was invalid? Brady v. United States

33 Appeal & Collateral Attack Can D attack guilty plea on basis it was motivated by prior coerced confession? Parker v. North Carolina

34 Appeal & Collateral Attack Can D who pleads guilty later challenge plea on ground there was improper racial composition of Grand Jury which indicted? Tollett v. Henderson

35 Appeal & Collateral Attack Can D challenge guilty plea on claim it violated double jeopardy? Was product of impermissible retaliation? Blackledge v. Perry Menna v. New York Boce [inquiry into evidence outside record]

36 Conditional Plea Concept:allows D to litigate pretrial issues and then plead guilty conditionally when issue is appealed. If D prevails on appeal, allowed to withdraw plea.

37 Conditional Plea Federal: Rule 11(a)(2) Texas: Does not have conditional guilty plea, but does have vehicle to allow appeal of certain pretrial issues

38 CHAPTER TEN TRIAL AND TRIAL-RELATED RIGHTS

39 SPEEDY TRIAL

40 Right to Speedy Trial 6th Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,…”

41 Right to Speedy Trial Background & Policies No person should be detained for long period while awaiting trial No person should be denied prompt justice Query: Can D who is already in jail on another charge have right to speedy trial? Smith v. Hooey

42 Scenarios Between institution of formal charges (either arrest/indictment) and beginning of trial Post-Accusation Barker v. Wingo 6th Amd right to speedy trial Between commission of crime and D’s arrest or filing charges Pre-Arrest U.S. v. Marion No speedy trial right Statute limitations Due Process (limited)

43 Delay in Arresting or Charging Issue: Does potential D have protection under right to speedy trial? Due process? United States v. Marion Does person need to be indicted or charged by information or other formal mechanism in order for right to speedy trial to apply?

44 Delay in Arresting or Charging What mechanisms might be available to guard against actual prejudice stemming from passage of time between commission of crime and time of arrest or charge? Statute of limitations, limitations Due process, limited application

45 Speedy Trial Applications What is remedy for speedy trial violation? How does D raise issue? If speedy trial motion is denied, can D take interlocutory appeal? If charges are dropped or dismissed, and later reinstated, is that time considered in assessing speedy trial?

46 Due Process Analysis United States v. Lovasco Held: Right to speedy trial does not apply prior to time person becomes accused under Marion [arrest] Prosecution need not file charges as soon as it has sufficient evidence to convict D limited to due process claims for pre- indictment delay Egregious cases only

47 Assessing Speedy Trial Claims: Barker v. Wingo Right to speedy trial differs from other procedural rights enshrined in Constitution Accused’s interest in prompt trial shared by community Accused might benefit, rather than suffer, because of delay Vague concept: when, precisely, has right been denied

48 Assessing Speedy Trial Claims: Barker v. Wingo Illustrative factors in assessing Length of delay May be threshold factor Justification offered D’s efforts to assert speedy trial right Prejudice to D often carries critical weight

49 Barker Application: Doggett v. United States Delay triggering mechanism is approx 1 year Negligence [or inattentiveness] counts against gov’t

50 Barker Application: Doggett v. United States D’s unawareness of indictment was significant factor Trial prejudice is independent factor No specific prejudice necessary if delay is long enough

51 Remedies Dismissal Practical Impact: Remedy may be so extreme so as to vitiate the right

52 JOINDER & SEVERANCE

53 Illustrative Scenarios Crimes -- conduct stemming from drug ring Might include: conspiracy to import, possession, delivery, bribery, $ laundering, tax evasion Defendants -- conduct: murder for hire Criminally responsible parties might include: D-1 (shooter) D-2 (driver) D-3 (person hiring)

54 Overview Issue: What charges, which defendants, can be combined in a single trial Area does not involve constitutional error per se

55 Overview Some issues have constitutional implications Historically: Gov’t could only charge 1 offense per indictment. Also restricted in trying Ds jointly over objection

56 Federal Joinder: Defendants Rule 13 (multiple Ds) Rule 14 (severance at trial court’s discretion)

57 Federal Joinder: Defendants Richardson v. Marsh: upheld joinder impair efficiency & fairness if require separate randomly favor D tried last avoid inconsistent verdicts more accurate assessment of relative culpability among co-actors Criticisms Unfair gov’t advantage: “birds of a feather” Tool to wear down opponent

58 Federal Joinder: Claims Rule 8 Permits gov’t to offer evidence that might otherwise have been excluded as inadmissible character evidence

59 Federal Joinder: Claims Not always clear that D damaged by consolidation of claims Even if misjoinder, reviewing courts often rely on jury instructions to find harmless

60 Joinder of Defendants: Problem Areas Finger-Pointing Antagonistic defenses Remedy: proper jury instruction Mutually antagonistic defenses not pre se prejudicial

61 Joinder of Defendants: Problem Areas Misjoinder May be harmless Burton Error Constitutional error can occur in joint trial that would not arise if Ds were tried separately Rule: Error when co-D’s post-custodial confession offered at joint trial

62 Bruton D-1 D-2 confession implicates D-1 Non-testifying

63 Bruton Is confession admissible against D-2? Why or why not? Is D-2’s confession admissible against D-1? What constitutional right at issue? Is severance the only method to protect against this type of error? What other alternatives might be used?

64 Constitutionally Based Proof Requirements

65 Proof Beyond Reasonable Doubt Constitutional rule that cannot be tied to one specific portion of Bill or Rights In re Winship “It is far worse to convict an innocent man than to let a guilty man go free.”

66 ELEMENTS [What ] Issue: What does gov’t have to prove beyond a reasonable doubt

67 ELEMENTS [What ] Elements must be charged in indictment submitted to jury proved beyond reasonable doubt Significant recent clarification Apprendi: Other than fact of prior conviction, any fact that increases penalty for crime beyond statutory maximum must be submitted to jury and proved beyond reasonable doubt Query: Why should recidivism be treated differently?

68 MEANS [How] Issue: Does Constitution allow crime to be defined so broadly as to permit jurors to reach one jury verdict based on a combination of alternative findings

69 Example: Shad Death Murder charge premeditated murder felony murder


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