1. CRIMINAL PROCEDURE Class Ten

2. Today’s Topics: Bail • Tensions • Constitutional Basis • Mechanics • Federal Act • Miscellaneous Issues • Capital Murder • Juveniles • Post-Conviction

3. Today’s Topics: Discovery • Issues • D’s Discovery • Mechanics • Constitutional Duty • Preservation of Evidence • Prosecutor’s Discovery

4. CHAPTER SEVEN BAIL AND PRETRIAL DETENTION

5. Initial Considerations • What is the purpose of bail pending trial?

6. Initial Considerations • Suspect/Defendant View • Query: What “costs” are associated with pretrial detention? • Query: How might pretrial imprisonment prejudice merits of D’s case? • Government/Society View • Query: What are the chief interests of State?

7. Constitutional Basis • Article I, Section 9 • 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”

8. Constitutional Basis • 8th Amendment • “Excessive bail shall not be required, …”

9. Congressional Power to Limit Bail • Carlson v. Landon • Civil action • Denial bail to alien communists awaiting deportation hearings • Rationale: 8th Amd prohibits excessive bail but does not require bail

10. 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) • Even where Texas Constitution provides that bail can be denied, D.A. must do something to trigger

11. Mechanics: Delivery Methods • Cash Bail • Including bail bondsman

12. Mechanics: Delivery Methods • 10% Plan • D pays directly to Court • Often “assignable” • Personal Bond • “Personal recognizance”

13. 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

14. 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

15. Setting Bail • Judge Discretion • Amount • Criteria

16. Setting Bail • Schedules • Significant Factors • Seriousness of offense • Strength of prosecutor’s case • Defendant’s prior criminal record

17. 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?

18. Federal Act: 1966 • Missing Element: Did not permit D to be confined pending trial because of perceived risk of general danger to community

19. Federal Act: 1984 • Preference: Release on personal recognizance • Recognizes: Danger to community as factor

20. 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

21. Pretrial Detention vs. Conditional Release • Distinct concepts • Reno v. Koray

22. Constitutionality of Federal Bail Reform Act • Issue: Is “preventive detention” prior to trial constitutional? • Due process violation? • 8th Amd violation? • United States v. Salerno

23. 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

24. Miscellaneous Issues • Capital Offenses • 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?

25. Miscellaneous Issues • Juvenile Offenders • Difficult to establish right to bail

26. Miscellaneous Issues • Post-Conviction Bail • 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

27. CHAPTER EIGHT DISCOVERY

28. General Concepts • No general right to discovery in criminal cases • Much more limited than typical civil case

29. 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

30. Issues and Tensions • Arguments against discovery by D • 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

31. Issues and Tensions • Arguments favoring discovery by D • Promotes guilty pleas • Best protection against manipulation = early exposure of facts and enforcement of ethical rules

32. Issues and Tensions • ABA Position: Administrative advantages • Expeditious resolution • Reduces motions • Minimizes inequities among similarly situated Ds • Reduces collateral attacks

33. 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 • Open file policy • “Discovery by Grace”

34. Application Exercise: Federal Rule 16 • Query: To which of the following items is D entitled to discovery under Federal Rules?

35. Application Exercise: Federal Rule 16 • Grand Jury Transcript • Defendant’s own statement • Witness statement after direct testimony at trial • Anything exculpatory

36. Application Exercise: Federal Rule 16 • Names and Addresses of Witness?

37. Application Exercise: Federal Rule 16 • D’s Statements? • D’s oral statements to undercover agents? Non government agents?

38. Application Exercise: Federal Rule 16 • Co-Defendant Statements?

39. Application Exercise: Federal Rule 16 • Witness Statements?

40. Application Exercise: Federal Rule 16 • D’s Prior Criminal Record?

41. Application Exercise: Federal Rule 16 • Witness’s Prior Criminal Record?

42. Application Exercise: Federal Rule 16 • Evidence Obtained from or Belonging to D?

43. Application Exercise: Federal Rule 16 • Offense Reports?

44. Application Exercise: Federal Rule 16 • Autopsy Reports? Other Forensic Reports? • Medical? • Psychiatric? • Blood tests? • Handwriting or fingerprinting comparisons?

45. Application Exercise: Federal Rule 16 • Summary Proposed Expert Witness Testimony?

46. Application Exercise: Federal Rule 16 • Information Concerning Potential Juror’s Prior Service?

47. Mechanics • Motion for Discovery • Motion to Suppress • Motion to Reduce Bail

48. Constitutional Duty • Exists independently of obligations imposed by discovery rules • Informed by due process clause [5th Amd] • Types of evidence impacted • Exculpatory information [Brady rule] • False evidence • Continuing duty

49. 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.

50. Preliminary Exercise • Query: What should you do about disclosing each of the following. Why?