| |
| |
| Preface | |
| |
| |
| Acknowledgments | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| Sources | |
| |
| |
| |
| An Overview - The Importance of Discretion | |
| |
| |
| |
| Early Decisions about the Newly Arrested Defendant | |
| |
| |
| |
| The Probable Cause Hearing and the Initial Appearance | |
| |
| |
| |
| Bail | |
| |
| |
| |
| The Mechanics of Bail | |
| |
| |
| |
| Bail before the 1960s | |
| |
| |
| |
| Bail Reform in the 1960s and Later | |
| |
| |
| Determining Bail | |
| |
| |
| |
| The Procedures of Bail | |
| |
| |
| |
| Preventive Detention - Security of the Community as a Criterion of Bail | |
| |
| |
| |
| The "Capital" Exception to Bail | |
| |
| |
| |
| Non-Capital Felonies | |
| |
| |
| |
| Preventive Detention - Locking the Barn While the Horse Is Still There | |
| |
| |
| |
| Pre-Trial Diversion | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Charging Decisions | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| The Decision to Prosecute | |
| |
| |
| |
| The Public Prosecutor | |
| |
| |
| |
| The Basic Decision - Whether to Charge the Defendant at All | |
| |
| |
| |
| Factors Involved | |
| |
| |
| |
| Deciding Whether to Charge | |
| |
| |
| |
| Attacking the Decision to Prosecute - The Defendant without an Immediate Remedy | |
| |
| |
| |
| Generally | |
| |
| |
| |
| "Selective Enforcement" | |
| |
| |
| |
| Discriminatory Impact | |
| |
| |
| |
| Discriminatory Intent | |
| |
| |
| |
| An Alternative View - Judicial Integrity | |
| |
| |
| |
| Prosecutorial "Defenses" to Selective Enforcement | |
| |
| |
| |
| Vindictive Prosecution | |
| |
| |
| |
| Deciding Not to Prosecute | |
| |
| |
| |
| The Victim without a Remedy | |
| |
| |
| |
| Agreeing Not to Prosecute - Waiver of Civil Claims | |
| |
| |
| |
| The Decision to Prosecute: WHAT to Charge | |
| |
| |
| |
| Pre-Trial Diversion | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| The Grand Jury: Gathering Information and Overseeing the Prosecutor's Charging | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| The Grand Jury as an Investigative Body | |
| |
| |
| |
| Subpoena Power | |
| |
| |
| |
| Secrecy of Grand Jury Proceedings | |
| |
| |
| |
| Conferring Immunity | |
| |
| |
| |
| "Pocket" Immunity | |
| |
| |
| |
| "Runaway" Investigative Grand Juries | |
| |
| |
| |
| Evidence in the Grand Jury | |
| |
| |
| |
| Inapplicability of the Sixth Amendment | |
| |
| |
| |
| The Grand Jury as a Screening Device | |
| |
| |
| |
| Presentments | |
| |
| |
| |
| Indictments | |
| |
| |
| Examples/Explanation | |
| |
| |
| |
| Alternatives to the Grand Jury: Informations and Preliminary Hearings | |
| |
| |
| |
| "Information" | |
| |
| |
| |
| Preliminary Hearing | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Evidence Disclosure (Discovery) | |
| |
| |
| Overview | |
| |
| |
| |
| "Brady" Materials - The Constitutional Minimum | |
| |
| |
| |
| Defining "Materiality" | |
| |
| |
| |
| Aggregating the Nondisclosed Evidence | |
| |
| |
| |
| Nonconstitutional Rules of Discovery | |
| |
| |
| |
| Defendant's Statements | |
| |
| |
| |
| Information about Witnesses | |
| |
| |
| |
| Names and Addresses | |
| |
| |
| |
| Statements | |
| |
| |
| |
| Impeachment Evidence | |
| |
| |
| |
| Police Reports | |
| |
| |
| |
| Expert Reports and Witnesses | |
| |
| |
| |
| Information About the Police | |
| |
| |
| |
| The Work Product Exception | |
| |
| |
| |
| Timing of Discovery | |
| |
| |
| |
| Non-Brady Discovery: A Recap | |
| |
| |
| |
| The Defense Duty of "Reasonable Diligence" | |
| |
| |
| |
| Who Is "the Government" for Purposes of Discovery? | |
| |
| |
| |
| Alternative Means of Discovery | |
| |
| |
| |
| "Open File" Discovery - With a Caveat | |
| |
| |
| |
| The Practice of Discovery - "Real Life" versus "Rules" | |
| |
| |
| |
| Discovery from the Defense | |
| |
| |
| |
| Preservation of Evidence | |
| |
| |
| |
| Sanctions | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Pleas of Guilt and Bargained Pleas | |
| |
| |
| |
| The Concept of "Pleading Guilty" | |
| |
| |
| |
| The Prerequisites of a Valid Guilty Plea | |
| |
| |
| |
| Voluntary | |
| |
| |
| |
| Intelligent | |
| |
| |
| |
| Knowing | |
| |
| |
| |
| Knowing the Charge - Factual Basis | |
| |
| |
| |
| Knowing the Impact - "Direct" and "Collateral" Consequences | |
| |
| |
| |
| The "Conditional" Plea | |
| |
| |
| |
| Withdrawing a Guilty Plea | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Plea Bargaining - Bane or Salvation? | |
| |
| |
| |
| An Overview | |
| |
| |
| |
| Types of Bargains | |
| |
| |
| |
| Inducements - Or Threats? | |
| |
| |
| |
| Judicial Participation | |
| |
| |
| |
| Waiving Rights | |
| |
| |
| |
| Accepting and Enforcing the Bargain | |
| |
| |
| |
| The Contract Analogy | |
| |
| |
| |
| Assessing Plea Bargaining | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| The Jury | |
| |
| |
| |
| Overview | |
| |
| |
| |
| Selecting a Jury | |
| |
| |
| |
| Determining the "District" | |
| |
| |
| |
| Determining the "Pool" | |
| |
| |
| |
| Constructing the Wheel | |
| |
| |
| |
| Composing the Wheel | |
| |
| |
| |
| The Cross-Section Requirement | |
| |
| |
| |
| What Is the "Community"? | |
| |
| |
| |
| Defining "Cognizable Groups" | |
| |
| |
| |
| Measuring Disproportionate Representation | |
| |
| |
| |
| The Venire - From Potential Service to Juror | |
| |
| |
| |
| Voir Dire - Establishing Information for Challenges | |
| |
| |
| |
| Voir Dire and Juror Privacy | |
| |
| |
| |
| Challenges for Cause | |
| |
| |
| |
| Nullification As a Ground for Cause | |
| |
| |
| |
| Pre-Trial Publicity As a Ground for Cause | |
| |
| |
| |
| Peremptory Challenges | |
| |
| |
| |
| A Quick Summary | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| The Passive Jury - And Jury Reform | |
| |
| |
| |
| The Jury - Alternate Jurors | |
| |
| |
| |
| Jury Behavior - Reviewing Jury Verdicts | |
| |
| |
| |
| Evidentiary Transgressions - Jury Experimentation and Resort to Outside Evidence | |
| |
| |
| |
| Juror Competence - Revealed "Cause" and Intransigence | |
| |
| |
| |
| Juror Competence and Pressure - Herein of Threats, and Drugs, and Attention Spans | |
| |
| |
| |
| Uncovering Jury Misbehavior - External and Internal Information | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Double Jeopardy | |
| |
| |
| |
| The General Issue | |
| |
| |
| |
| The Purpose of Double Jeopardy | |
| |
| |
| |
| When Does Jeopardy Begin? | |
| |
| |
| |
| When Is a Defendant "Acquitted"? | |
| |
| |
| |
| The "Same Offense" Doctrine | |
| |
| |
| |
| The "Same Elements" Test - Blockburger v. United States | |
| |
| |
| |
| The "Same Conduct" and the "Same Evidence" Tests | |
| |
| |
| |
| "Multiplicity" | |
| |
| |
| |
| Collateral Estoppel (Issue Preclusion) | |
| |
| |
| |
| Multiple Punishments | |
| |
| |
| |
| Joinder and Severance - The "Kissing Cousins" of Double Jeopardy | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Hung Juries, Mistrials, and Manifest Necessity | |
| |
| |
| |
| Mistrials | |
| |
| |
| |
| Hung Juries | |
| |
| |
| |
| Trial Errors | |
| |
| |
| |
| Successful Appeals: Double Jeopardy and Vindictiveness | |
| |
| |
| |
| The Dual Sovereignty Doctrine | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Assistance of Counsel | |
| |
| |
| |
| The Right to Counsel | |
| |
| |
| |
| The Right to Appointed Counsel | |
| |
| |
| |
| The Right to Appointed Counsel - To What Does It Apply? | |
| |
| |
| |
| What Is a "Criminal Prosecution"? | |
| |
| |
| |
| What Constitutes Part of a "Criminal Prosecution"? | |
| |
| |
| |
| The Right to Appointed Counsel - Gideon and Argersinger | |
| |
| |
| |
| The Right to Appointed Counsel - Systems of Providing Counsel | |
| |
| |
| |
| The Right to Effective Counsel | |
| |
| |
| |
| The "Three Prongs" of Ineffectiveness | |
| |
| |
| |
| State Interference | |
| |
| |
| |
| Conflict of Interest | |
| |
| |
| |
| Inquiring about Conflict | |
| |
| |
| |
| Waiving Conflict | |
| |
| |
| |
| Adequacy of Representation - Strickland v. Washington | |
| |
| |
| |
| The Standard of Performance | |
| |
| |
| |
| Demonstrating Prejudice | |
| |
| |
| |
| Making Trial Counsel More Effective | |
| |
| |
| |
| Death and Inadequate Counsel | |
| |
| |
| |
| The Right to Effective Assistance - Expert Witnesses | |
| |
| |
| |
| Raising the Right to Effective Counsel | |
| |
| |
| |
| Frivolous Appeals | |
| |
| |
| |
| The Right to Self-Representation | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Sentencing | |
| |
| |
| |
| The Importance of Sentencing Law - An Introduction | |
| |
| |
| |
| Determinate Systems | |
| |
| |
| |
| Indeterminate Systems | |
| |
| |
| |
| Theories of Punishment and Sentencing | |
| |
| |
| |
| A Short History of Sentencing in the United States | |
| |
| |
| |
| Procedures at Sentencing | |
| |
| |
| |
| A Revolution in Sentencing - Structured Sentencing | |
| |
| |
| |
| Mandatory Minimum Sentences | |
| |
| |
| |
| The Disappearance of Parole Release | |
| |
| |
| |
| Presumptive Sentences | |
| |
| |
| |
| Sentencing Commissions | |
| |
| |
| |
| State Guideline Systems | |
| |
| |
| |
| The "Commission" | |
| |
| |
| |
| "Presumptive" Sentencing | |
| |
| |
| |
| Offense-Based Sentencing: Criminal Record | |
| |
| |
| |
| Institutional Resources | |
| |
| |
| |
| Appellate Review | |
| |
| |
| |
| The Federal Guidelines | |
| |
| |
| |
| The Commission | |
| |
| |
| |
| The Basis of the Sudden | |
| |
| |
| |
| Real Offense Sentencing | |
| |
| |
| |
| Past Criminal Conduct | |
| |
| |
| |
| Departures | |
| |
| |
| |
| Structured Sentencing - An Assessment | |
| |
| |
| |
| Undoing the Revolution? Or Reframing It? Blakely, Booker and the Future of Sentencing in the United States | |
| |
| |
| |
| Use the guidelines as information and suggestive, rather than mandatory | |
| |
| |
| |
| "Decap" the guidelines | |
| |
| |
| |
| "Blakely-ize" the guidelines | |
| |
| |
| |
| Bifurcate the process | |
| |
| |
| |
| Adopt jury sentencing | |
| |
| |
| |
| Create a simple "charge offense" system | |
| |
| |
| |
| Repudiate the guidelines entirely and return to the totally discretionary sentencing system | |
| |
| |
| |
| Sentencing and Death | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Appeals and Collateral Attack | |
| |
| |
| |
| A General Overview per Author (Review) | |
| |
| |
| |
| Why Allow Review at All? | |
| |
| |
| |
| At What Time Should Review Be Allowed? | |
| |
| |
| |
| What Is the "Scope of Review"? | |
| |
| |
| |
| What Remedy? Retroactivity and Finality; Herein of Legal Realism and Other Relevant Irrelevancies | |
| |
| |
| |
| Appeals | |
| |
| |
| |
| Plain Error - The "Contemporaneous Objection" Rule | |
| |
| |
| |
| "Harmless" Error | |
| |
| |
| |
| Non-constitutional Mistakes | |
| |
| |
| |
| Constitutional Errors | |
| |
| |
| Examples/Explanations | |
| |
| |
| |
| Collateral Attack | |
| |
| |
| |
| State Collateral Review | |
| |
| |
| |
| Federal Habeas Corpus | |
| |
| |
| |
| A (Very) Short History of the "Great Writ" of Habeas Corpus | |
| |
| |
| |
| Federal Habeas Corpus - More Procedural Barriers | |
| |
| |
| |
| Timeliness | |
| |
| |
| |
| Exhaustion of Remedies | |
| |
| |
| |
| Procedural Default | |
| |
| |
| |
| Procedural Default Under AEDPA | |
| |
| |
| |
| Cause | |
| |
| |
| |
| Prejudice | |
| |
| |
| |
| The Merits of the Claim | |
| |
| |
| |
| Issues of "Pure" Law | |
| |
| |
| |
| "Issues of Fact" or "Mixed Questions of Fact and Law" | |
| |
| |
| |
| Federal Habeas Corpus - Successive Petitions | |
| |
| |
| Examples/Explanations | |
| |
| |
| Table of Selected Cases | |
| |
| |
| Index | |