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CRIMINAL PROCEDURE. Class Ten. Today’s Topics: Bail. Tensions Constitutional Basis Mechanics Federal Act Miscellaneous Issues Capital Murder Juveniles Post-Conviction. Today’s Topics: Discovery. Issues D’s Discovery Mechanics Constitutional Duty Preservation of Evidence

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today s topics bail
Today’s Topics: Bail
  • Tensions
  • Constitutional Basis
  • Mechanics
  • Federal Act
  • Miscellaneous Issues
    • Capital Murder
    • Juveniles
    • Post-Conviction
today s topics discovery
Today’s Topics: Discovery
  • Issues
  • D’s Discovery
  • Mechanics
  • Constitutional Duty
  • Preservation of Evidence
  • Prosecutor’s Discovery
chapter seven



initial considerations
Initial Considerations
  • What is the purpose of bail pending trial?
initial considerations6
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?
constitutional basis
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”
constitutional basis8
Constitutional Basis
  • 8th Amendment
    • “Excessive bail shall not be required, …”
congressional power to limit bail
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
state constitutional provisions
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
mechanics delivery methods
Mechanics: Delivery Methods
  • Cash Bail
    • Including bail bondsman
mechanics delivery methods12
Mechanics: Delivery Methods
  • 10% Plan
    • D pays directly to Court
    • Often “assignable”
  • Personal Bond
    • “Personal recognizance”
  • 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
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
Setting Bail
  • Judge Discretion
    • Amount
    • Criteria
setting bail16
Setting Bail
  • Schedules
  • Significant Factors
    • Seriousness of offense
    • Strength of prosecutor’s case
    • Defendant’s prior criminal record
federal act 1966
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 196618
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
Federal Act: 1984
  • Preference: Release on personal recognizance
  • Recognizes: Danger to community as factor
federal act 198420
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
Pretrial Detention vs. Conditional Release
  • Distinct concepts
  • Reno v. Koray
constitutionality of federal bail reform act
Constitutionality of Federal Bail Reform Act
  • Issue: Is “preventive detention” prior to trial constitutional?
    • Due process violation?
    • 8th Amd violation?
  • United States v. Salerno
other types of preventive detention
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
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?
miscellaneous issues25
Miscellaneous Issues
  • Juvenile Offenders
    • Difficult to establish right to bail
miscellaneous issues26
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
chapter eight



general concepts
General Concepts
  • No general right to discovery in criminal cases
    • Much more limited than typical civil case
general concepts29
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
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
issues and tensions31
Issues and Tensions
  • Arguments favoring discovery by D
    • Promotes guilty pleas
    • Best protection against manipulation = early exposure of facts and enforcement of ethical rules
issues and tensions32
Issues and Tensions
  • ABA Position: Administrative advantages
    • Expeditious resolution
    • Reduces motions
    • Minimizes inequities among similarly situated Ds
    • Reduces collateral attacks
d s discovery basics
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”
application exercise federal rule 16
Application Exercise: Federal Rule 16
  • Query: To which of the following items is D entitled to discovery under Federal Rules?
application exercise federal rule 1635
Application Exercise: Federal Rule 16
  • Grand Jury Transcript
    • Defendant’s own statement
    • Witness statement after direct testimony at trial
    • Anything exculpatory
application exercise federal rule 1636
Application Exercise: Federal Rule 16
  • Names and Addresses of Witness?
application exercise federal rule 1637
Application Exercise: Federal Rule 16
  • D’s Statements?
    • D’s oral statements to undercover agents? Non government agents?
application exercise federal rule 1640
Application Exercise: Federal Rule 16
  • D’s Prior Criminal Record?
application exercise federal rule 1641
Application Exercise: Federal Rule 16
  • Witness’s Prior Criminal Record?
application exercise federal rule 1642
Application Exercise: Federal Rule 16
  • Evidence Obtained from or Belonging to D?
application exercise federal rule 1644
Application Exercise: Federal Rule 16
  • Autopsy Reports? Other Forensic Reports?
    • Medical?
    • Psychiatric?
    • Blood tests?
    • Handwriting or fingerprinting comparisons?
application exercise federal rule 1645
Application Exercise: Federal Rule 16
  • Summary Proposed Expert Witness Testimony?
application exercise federal rule 1646
Application Exercise: Federal Rule 16
  • Information Concerning Potential Juror’s Prior Service?
  • Motion for Discovery
  • Motion to Suppress
  • Motion to Reduce Bail
constitutional duty
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
preliminary exercise
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 exercise50
Preliminary Exercise
  • Query: What should you do about disclosing each of the following. Why?
preliminary exercise51
Preliminary Exercise
  • Houston Police Department lab report on knife found at scene. Results: Inconclusive match with D’s fingerprints.
    • 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-on-one show up in court.
preliminary exercise52
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 exercise53
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 exercise54
Preliminary Exercise
  • Fact that underwear worn by Sally Vee at time of offense was misplaced somewhere in hospital emergency room.
preliminary exercise55
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
Prosecutor’s Constitutional Duty to Disclose: Recap
  • Trumps any discovery rules of statutes
prosecutor s constitutional duty to disclose recap57
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
    • 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
    • Brady itself required demand; later modified
prosecutor s constitutional duty to disclose recap59
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.
    • Probability sufficient to undermine confidence in outcome
    • United States v. Agurs
    • United States v. Bagley
observations from kyles 1995
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
Application to Guilty Pleas
  • Issues: Does Brady apply to guilty pleas? If so, what is the test for materiality?
application to guilty pleas62
Application to Guilty Pleas
  • United States v. Ruiz (2002) [Supplement]
    • Impeachment
    • Information bearing on affirmative defense
    • Fairness of trial vs. voluntariness of plea
application to guilty pleas63
Application to Guilty Pleas
  • Query: What if withheld evidence tends to establish factual innocence?
preservation of evidence
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 evidence65
Preservation of Evidence
  • California v. Trombetta
  • Arizona v. Youngblood
    • Presumption destroyed evidence is exculpatory if destruction done in bad faith
discovery by prosecution
Discovery by Prosecution
  • Concept: Is it constitutionally permissible to require D to provide material to gov’t?
discovery by prosecution67
Discovery by Prosecution
  • Constitutional provisions implicated
    • 5th Amd: self-incrimination
    • 5th Amd: due process [fundamental fairness]
discovery by prosecution68
Discovery by Prosecution
  • Williams v. Florida
    • Advance notice of intent to claim alibi
    • Due process analysis
    • Self-incrimination analysis
discovery by prosecution69
Discovery by Prosecution
  • Reciprocity
    • Wardius v. Oregon
    • Federal Rule of Criminal Procedure 16
discovery by prosecution70
Discovery by Prosecution
  • General Discovery
    • ABA Standards
    • Illustrative State examples
    • Texas: insanity; experts
discovery by prosecution71
Discovery by Prosecution
  • Remedies
    • Taylor v. Illinois [exclusion of defense witness]
    • Ethical implications
discovery by prosecution72
Discovery by Prosecution
  • Discovery During Trial
    • United States v. Nobles [work product]