CRIMINAL PROCEDURE - South Texas College of Law
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Transcript CRIMINAL PROCEDURE - South Texas College of Law
CRIMINAL PROCEDURE
Class Ten
Today’s Topics: Bail
Tensions
Constitutional Basis
Mechanics
Federal Act
Miscellaneous Issues
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Capital Murder
Juveniles
Post-Conviction
Today’s Topics: Discovery
Issues
D’s Discovery
Mechanics
Constitutional Duty
Preservation of Evidence
Prosecutor’s Discovery
CHAPTER SEVEN
BAIL AND PRETRIAL
DETENTION
Initial Considerations
What is the purpose of bail pending trial?
Initial Considerations
Suspect/Defendant View
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Query: What “costs” are associated with
pretrial detention?
Query: How might pretrial imprisonment
prejudice merits of D’s case?
Government/Society View
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Query: What are the chief interests of State?
Constitutional Basis
Article I, Section 9
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Gives person in custody right to seek writ of
habeas corpus
“The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of
Rebellion or Invasion the pubic Safety may
require it”
Constitutional Basis
8th Amendment
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“Excessive bail shall not be required, …”
Congressional Power to Limit
Bail
Carlson v. Landon
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Civil action
Denial bail to alien communists awaiting
deportation hearings
Rationale: 8th Amd prohibits excessive bail
but does not require bail
State Constitutional Provisions
Many states, including Texas, have added a
bail requirement to the State Constitution
Texas Constitution, Article I, Sections 11
and 11(a)
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Even where Texas Constitution provides that
bail can be denied, D.A. must do something to
trigger
Mechanics: Delivery Methods
Cash Bail
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Including bail bondsman
Mechanics: Delivery Methods
10% Plan
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D pays directly to Court
Often “assignable”
Personal Bond
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“Personal recognizance”
Bondsmen
Important role in determining which
defendants are released and which remain
incarcerated
Uniquely American
Private citizens
Traditionally broad discretion to establish
collateral and to retrieve clients
Exercise: Private Bail Bondsmen
Identify a minimum of 3 arguments
supporting a private bonding system
Identify a minimum of 3 arguments against
a private bonding system
Setting Bail
Judge Discretion
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Amount
Criteria
Setting Bail
Schedules
Significant Factors
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Seriousness of offense
Strength of prosecutor’s case
Defendant’s prior criminal record
Federal Act: 1966
Purpose: Encourage federal courts to
release people without requiring them to go
through bail bondsmen
Focus: What amount would reasonably
assure trial appearance?
Federal Act: 1966
Missing Element: Did not permit D to be
confined pending trial because of perceived
risk of general danger to community
Federal Act: 1984
Preference: Release on personal
recognizance
Recognizes: Danger to community as
factor
Federal Act: 1984
Procedure: Hearing at which judicial officer may
determine if any conditions can adequately protect
against bail flight risk and community danger
Rebuttable Presumptions: Certain offenses and
certain offenders --- no conditions adequate to
warrant pretrial release
Conditions: Judge can add least restrictive means
necessary
Pretrial Detention vs. Conditional
Release
Distinct concepts
Reno v. Koray
Constitutionality of Federal Bail
Reform Act
Issue: Is “preventive detention” prior to
trial constitutional?
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Due process violation?
8th Amd violation?
United States v. Salerno
Other Types of Preventive
Detention
Confinement in mental institution following
verdict of “not guilty by reason of insanity”
Civil commitment of sex offender following
discharge of criminal punishment
Miscellaneous Issues
Capital Offenses
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Long standing rule that permissible to deny
where proof gives rise to strong presumption of
guilt
Practice Tip: Defense attorney may still want
to pursue bail hearing even if release unlikely.
Why?
Miscellaneous Issues
Juvenile Offenders
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Difficult to establish right to bail
Miscellaneous Issues
Post-Conviction Bail
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No constitutional right to bail or release
pending appeal
Federal Bail Reform Act of 1984 frowns on
release
Texas more liberal than federal system, but
limits by punishment assessed and type of
crime
CHAPTER EIGHT
DISCOVERY
General Concepts
No general right to discovery in criminal
cases
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Much more limited than typical civil case
General Concepts
Role of 5th Amd in prosecution’s right to
discovery
Limits on D’s right to discovery primarily
result of Rules of Procedure, not
constitutional limitations
Issues and Tensions
Arguments against discovery by D
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Gov’t should not have to share information
when D cannot be compelled to do same
Likely to endanger witnesses
Places D in better position to commit perjury
Promotes fishing expeditions
Issues and Tensions
Arguments favoring discovery by D
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Promotes guilty pleas
Best protection against manipulation = early
exposure of facts and enforcement of ethical
rules
Issues and Tensions
ABA Position: Administrative advantages
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Expeditious resolution
Reduces motions
Minimizes inequities among similarly situated
Ds
Reduces collateral attacks
D’s Discovery: Basics
Extent to which discovery as matter of right
exists depends on local law
Judge discretion to order enlarged discovery
varies by jurisdiction
Prosecutor discretion
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Open file policy
“Discovery by Grace”
Application Exercise: Federal
Rule 16
Query: To which of the following items is
D entitled to discovery under Federal
Rules?
Application Exercise: Federal
Rule 16
Grand Jury Transcript
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Defendant’s own statement
Witness statement after direct testimony at trial
Anything exculpatory
Application Exercise: Federal
Rule 16
Names and Addresses of Witness?
Application Exercise: Federal
Rule 16
D’s Statements?
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D’s oral statements to undercover agents? Non
government agents?
Application Exercise: Federal
Rule 16
Co-Defendant Statements?
Application Exercise: Federal
Rule 16
Witness Statements?
Application Exercise: Federal
Rule 16
D’s Prior Criminal Record?
Application Exercise: Federal
Rule 16
Witness’s Prior Criminal Record?
Application Exercise: Federal
Rule 16
Evidence Obtained from or Belonging to D?
Application Exercise: Federal
Rule 16
Offense Reports?
Application Exercise: Federal
Rule 16
Autopsy Reports? Other Forensic Reports?
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Medical?
Psychiatric?
Blood tests?
Handwriting or fingerprinting comparisons?
Application Exercise: Federal
Rule 16
Summary Proposed Expert Witness
Testimony?
Application Exercise: Federal
Rule 16
Information Concerning Potential Juror’s
Prior Service?
Mechanics
Motion for Discovery
Motion to Suppress
Motion to Reduce Bail
Constitutional Duty
Exists independently of obligations imposed
by discovery rules
Informed by due process clause [5th Amd]
Types of evidence impacted
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Exculpatory information [Brady rule]
False evidence
Continuing duty
Preliminary Exercise
Facts: You are the prosecutor in the Sally Vee
aggravated sexual assault case against Johnny
Dee. Her claim is that she was raped, at
knifepoint, inside of her apartment by a stranger
she later identified in a lineup. D has consistently
asserted his innocence, offering investigating
officers an alibi defense. Court-appointed defense
counsel has filed a Motion for Discovery seeking
“anything exculpatory” in your files.
Preliminary Exercise
Query: What should you do about
disclosing each of the following. Why?
Preliminary Exercise
Houston Police Department lab report on knife
found at scene. Results: Inconclusive match with
D’s fingerprints.
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Variation One: Investigating officer testifies that
various scientific tests were performed and D was
linked to scene.
Variation Two: Prints come back to Bobby Saltzburg.
Variation Three: Prints come back to Bobby but you
were never told that by police.
Variation Four: Sally’s identification of D was tentative
at first, and “positive” only after a suggestive one-onone show up in court.
Preliminary Exercise
Confession to offense by Crazy Will, a man
who routinely confesses to sexual crimes.
You do not believe the confession. Police
tend to dismiss Willie as a crank.
Preliminary Exercise
Sally Vee’s “rap sheet” indicating that she
has had several arrest warrants for hot
checks, which each time she cleared up by
paying her creditors.
Preliminary Exercise
Fact that underwear worn by Sally Vee at
time of offense was misplaced somewhere
in hospital emergency room.
Preliminary Exercise
Fact that Sally Vee volunteered to take a
polygraph test, the results of which were
inconclusive, with the examiner stating his
personal opinion that she may have been
lying on the questions of consent and prior
relationship.
Prosecutor’s Constitutional Duty
to Disclose: Recap
Trumps any discovery rules of statutes
Prosecutor’s Constitutional Duty
to Disclose: Recap
False Evidence: Due process violated if gov’t
engages in deliberate deception by presenting
testimony known to be perjured
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Mooney v. Holohan
Alcorta v. Texas
Napue v. Illinois
Brady Rule: Due process violated if gov’t
withholds evidence would would tend to exculpate
D or reduce punishment
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Brady itself required demand; later modified
Prosecutor’s Constitutional Duty
to Disclose: Recap
Good Faith: No relevance
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Giglio
Prosecutor’s Constitutional Duty
to Disclose: Recap
Determining “materiality”: Material only if
there is a reasonable probability that, had
the evidence been disclosed, result of
proceeding would have been different.
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Probability sufficient to undermine confidence
in outcome
United States v. Agurs
United States v. Bagley
Observations from Kyles (1995)
To meet burden, D does not have to show
by preponderance that disclosure would
have meant acquittal
Do not confuse with sufficiency test
No harmless error analysis [Bagley
materiality substitutes]
Consider “big picture” of trial rather than
piecemeal
Application to Guilty Pleas
Issues: Does Brady apply to guilty pleas?
If so, what is the test for materiality?
Application to Guilty Pleas
United States v. Ruiz (2002) [Supplement]
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Impeachment
Information bearing on affirmative defense
Fairness of trial vs. voluntariness of plea
Application to Guilty Pleas
Query: What if withheld evidence tends to
establish factual innocence?
Preservation of Evidence
Issue: What duty does gov’t have to keep
evidence? Is D denied due process when
evidence is destroyed and he looses
opportunity for independent analysis?
Preservation of Evidence
California v. Trombetta
Arizona v. Youngblood
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Presumption destroyed evidence is exculpatory
if destruction done in bad faith
Discovery by Prosecution
Concept: Is it constitutionally permissible
to require D to provide material to gov’t?
Discovery by Prosecution
Constitutional provisions implicated
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5th Amd: self-incrimination
5th Amd: due process [fundamental fairness]
Discovery by Prosecution
Williams v. Florida
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Advance notice of intent to claim alibi
Due process analysis
Self-incrimination analysis
Discovery by Prosecution
Reciprocity
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Wardius v. Oregon
Federal Rule of Criminal Procedure 16
Discovery by Prosecution
General Discovery
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ABA Standards
Illustrative State examples
Texas: insanity; experts
Discovery by Prosecution
Remedies
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Taylor v. Illinois [exclusion of defense witness]
Ethical implications
Discovery by Prosecution
Discovery During Trial
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United States v. Nobles [work product]