CRIMINAL PROCEDURE

1
CRIMINAL PROCEDURE

• Class Fourteen

2
Todays Topics

• Overview Protections
• Impact of Acquittal
• Ds Appeal
• Second Trial of Convicted D
• Same Offense
• D Responsible

3
Todays Topics

• Collateral Estoppel
• Dual Sovereigns
• Aborted Proceedings
• Vindictiveness

4
Double Jeopardy

• Chapter Twelve

5
Constitutional Provision

• Fifth Amendment
• Nor shall any person be subject for the same
  offense to be twice put in jeopardy of life or
  limb
• Applicable to state prosecutions Incorporation
  Doctrine in 1969

6
Common Fact Patterns

• Second prosecution after acquittal
• Second prosecution after conviction
• Multiple punishments

7
Acquittal Consequences for Prosecution

• Second prosecution barred -- even if acquittal
  was a mistake
• No appeal from acquittal -- even if rulings
  supporting acquittal were incorrect
• No new trial from jury verdict of acquittal

8
Determining if Court Action Acquittal

• United States v. Scott
• Final determination of guilt/innocence necessary
• Contrast with mistrial
• Contrast with dismissal

9
Determining if Court Action Acquittal

• Sanabria v. United States
• Trial judge believed he was construing indictment
  and ruling on merits
• United States v. Martin Lemon
• If trial judge enters judgment of acquittal
  before jury reaches verdict, that determination
  is final

10
Defendants Appeal

• Issue What is the double jeopardy effect of a
  reversal?
• Concept Results vary depending on the ground on
  which reversal is based sufficiency vs. trial
  error

11
Reversal Insufficient Evidence

• Issue Does it make a difference whether it is
  reviewing court or trial court/jury that
  determines evidence is insufficient
• Remember Finding of insufficient evidence at
  trial verdict of acquittal
• Burks v. United States
• Jeopardy interest Prohibits prosecution from
  another opportunity to supply or muster evidence
  it failed to provide in first case

12
Sufficiency vs. Trial Error

• Reversal for trial error does not equate to
  decision that govt failed to prove its case
• Implies nothing about guilt/innocence
• Is determination that D has been convicted
  through process that is defective
• Therefore, no jeopardy bar for retrial

13
Balancing Interests

• D has strong interest in fair determination of
  guilt free from fundamental error
• Society has valid interest in ensuring guilty are
  punished.

14
Reversal Trial Court Error

• Considering improper evidence in gauging
  sufficiency
• Issue What impact when legally competent
  evidence is insufficient but trial judge
  erroneously allowed incompetent evidence to be
  introduced at trial and the resulting
  combination was sufficient
• Lockhart v. Nelson
• Defective charging instrument
• Montana v. Hall

15
Reversal Trial Court Error

• Weight v. Sufficiency
• Tibbs v. Florida

16
Second Trial of Convicted D

• Concept Following valid conviction, the same
  offense cannot be prosecuted again
• Problem Determining what is the same offense
• Examples lesser included offense think
  aggravated robbery with gun, non-weapon robbery
  closely related offenses think speeding and
  failure to use turn signal in same transaction
• Analytical Key Blockburger Rule

17
Blockburger Test

• Asks whether each statutory provision contains an
  element the other does not

18
Blockburger

• Crime One
• A
• B
• C

• Crime Two
• A
• B
• D

19
Blockburger Examples

• Brown v. Ohio
• Joyriding as lesser included of auto theft
• Second conviction violated double jeopardy
• Grady v. Corbin
• Now abandoned same conduct test
• Constitutional detour

20
Blockburger Examples

• United States v. Dixon
• Criminal contempt possession drugs
• Rutledge v. United States
• Elements of conspiracy and in concert aspect of
  CCE continuing criminal enterprise

21
Recap Blockburger Application

• Separate
• Crime One
• A B C
• Crime Two
• A B D

• Same
• Crime One
• A B C
• Crime Two
• A B C
• Lesser Included
• Crime One
• A B C
• Crime Two
• A B

22
Remedy for Violations

• Frequently, reversal and dismissal of results in
  second prosecution
• Reformation
• Morris v. Matthews reduced to conviction for
  lesser included offense
• D burden reasonable probability would not have
  been convicted of non-jeopardy barred offense
  absent presence of jeopardy-barred offense

23
When D Responsible for Multiple Prosecutions

• Concept If D is responsible for multiple
  prosecutions, double jeopardy limitation not
  applicable
• Jeffers v. United States D opposed government
  attempt to consolidate
• Cf, Rutledge
• Ohio v. Johnson D chose over govt objection to
  split offenses
• Caution As matter of state law, later trial
  might raise question of cumulative punishments

24
Collateral Estoppel
25
Collateral Estoppel Background

• Multiple victims multiple offenses
• May be circumstances when even separate trials on
  distinct offenses are constitutionally barred
  --- when cases have ultimate fact in common
• Constitutional basis Due Process clause

26
Ashe v. Swenson The Facts

• Accused defendants
• 1
• 2
• 3
• 4
• Criminal conduct
• Robbery
• Car theft

• Crime Victims
• 1
• 2
• 3
• 4
• 5
• 6
• Total possible charges per defendant 7

27
Ashe Facts

• Trial One Victim X
• Govt evidence that D had been one of robbers was
  weak
• Jury returns verdict of not guilty
• Verdict recites not guilty due to insufficient
  evidence
• Trial Two Victim Y
• Six weeks later

28
Collateral Estoppel

• Principle when an issue of ultimate fact has
  once been determined by a valid and final
  judgment, that issue cannot be litigated between
  the same parties in any future lawsuit

29
Determining Ultimate Fact

• Consider
• Pleadings
• Evidence at trial
• Charge jury instruction
• Other relevant matter
• Conclude whether a rational jury could have
  granted its verdict on an issue other than the
  fact on which D seeks to foreclose future
  litigation

30
Dual Sovereigns
31
Constitutional Protection

• When Double Jeopardy prohibits successive
  prosecutions, it does so only when those
  prosecutions are brought by the same sovereign
• Dual Sovereign possibility of dual prosecutions
• Theory each sovereign has been offended
• Inherent in American Federalism

32
Examples

• Rodney King
• Angleton prosecution in Houston

33
Limitations

• If one sovereign acting as tool of another ---
  sham, or cover
• Bartkus v. Illinois
• Current event update Supreme Court is
  considering issue this term

34
Test Your Knowledge

• Is a state a separate sovereign from the federal
  government?
• Is city separate sovereign from state in which it
  is located?
• Are individual states in the Union dual
  sovereigns vis a vis one another?
• Are Indian nations separate sovereign recent
  Supreme Court decision?

35
Aborted Proceedings
36
Scenarios

• Trial ends prematurely
• Mistrial declared
• Examples
• Prosecutor improperly comments on Ds failure to
  testify and D seeks mistrial
• Prosecutions key witness fails to appear in
  response to subpoena
• Jury is deadlocked and cannot reach verdict

37
Key Terms

• Attachment
• Manifest Necessity

38
Attachment

• Jury trial
• When jury empaneled and sworn
• Bench trial to the court
• When court begins to hear evidence

39
Mistrial over Ds Objection

• Critical concept Manifest necessity
• General rule If there is manifest necessary,
  then there is exception to double jeopardy
  protections
• Test Manifest necessity exists when end of
  public justice are not served if there is no
  retrial

40
Mistrial on Ds Motion

• Generally, no double jeopardy bar
• Exception conduct by prosecutor intended to
  goad D into moving for mistrial

41
Vindictiveness

• Issue What, if any, limitations are imposed on
  courts and prosecutors when a case is retried.
• Example More time added to second sentence
  following successful appeal.
• Query Is D being punished for exercising her
  right to appeal.

42
Vindictiveness

• Courts
• North Carolina v. Pearce
• Presumption of vindictiveness can be overcome
• Prosecutors
• Presumption