ACJ II

Prosecution Discretion

100

It is constitutionally permissible for a prosecutor to do this during plea negoations, even if it seems like vindictive prosecution

Threaten to increase charges if defendant doesn't accept a plea deal, or add additional charges after defendant requests a jury trial 

200

A defendant appeals his misdemeanor conviction. The prosecutor responds by filing a felony charge for the same conduct. Is this allowed?

BONUS: what case?

NO!!! Due process prohibits a prosecutor from bringing more serious charge after defedant exercises a constitutional right

Blackledge v. Perry 

300

HYPO: a prosecutor has evidence of insider trading against both a prominent Democratic senator and a Republican business executive. The prosecutor only charges the senator because the prosecutor is a maga stan. The senator moves to dismiss. 

Is the motion to dismiss likely to succeed? What much defendant prove? 

BONUS: what case does this test come from? 

Unlikely to succeed. 

Defendant must prove both discriminatory effect AND purpose. 

He can show that similar situated Republicans were not prosecuted (effect), but it will be very difficult to show discrim purpose without discovery, and to even get discovery you need a substantial showing.  

BONUS: Wayte v. United States or United States v. Armstrong

400

HYPO: a defense attorney suspects racial bias in federal drug prosecutions. She shows that 100% of federal crack prosecutions involve black defendants, while state procesutions are 60% white defendants. She moves for discovery. Is she likely to get discovery? 

No! she compared FEDERAL prosecutions of black defendants to STATE prosecutions of white defendants, which isn't a valid comparator. 

Instead, she must show similarly situated individuals of different races in the federal system who were not prosecuted. 

500

HYPO: a prosecutor has probable cause agaisnt 100 drug dealers, but only has rescourses for 15 cases. She decides to only prosecute drug dealers within 1000 feet of schools. It is well known that minorities tend to deal near schools, while whites deal in the suburbs. 14 of the 15 prosecuted are minorities. Defendants move to dismiss for selective prosecution. Thoughts?

To win, defendants must show discrim effect & purpose. 

Effect: Defendant must show that similar situated individuals of another race (white dealers outside school zones) were not prosecuted - likely satisfied 

Purpose: must show that the prosecutor selected the minority defendants because of their race, not merely in spite of known correlations. Here, the policy is facially neurtral, and purpose is to protect school zones, not punish minorities, so likely fails 

Pretrial Detention/Discovery/ Guilty Pleas

100

Under the Bail Reform Act, what standard must the government prove before a defendant can be detained purely for dangerousness

BONUS: what year was this act created?

Clear and convincing evidence 

BONUS: 

200

The police botched a major investigation by mixing up and discarding important evidence. The prosecutor wants to offer a discounted plea to avoid exposing the errors at trial. Is this permissible? 

BONUS: what must be shown for a valid guilty plea

Likely yes, as long as the plea remains voluntary, knowing, intelligent, and based on probable cause, the prosecutorial motive does not alone invalidate a plea. 

300

HYPO: a Tesla was blown up outside a prominent hotel. A security camera identified 2 potential witnesses who were near the scene. One witness lives in the area and has agreed to testify. The other is only on vacation and has plans to leave soon, but said he could give a deposition before leaving. Instead, the State moves to detain him under the Material Witness statute (§ 3144), arguing that his testimony is so critial to the case and that he won't respond to a subpoena because he lives far away. Is this allowed?

Nope. 

First, the argument that he "lives too far away" isn't enough to show impractiability of his testimony - you must give specific reasons for why the person will not show up. 

Second, because a deposition can secure the testimony, detention is prohibited 

400

HYPO: a prosecutor's office receives a police memo showing that the State's key witness is a paid informant with a violent criminal history. The memo is never placed in the prosecutor's formal file and is not disclosed. The witness testifies and the defendant is sentenced to death. Is this nondisclosure excused because the prosecutor personally didn't know about the memo?

BONUS: what is the Brady v. Maryland standard?

No! The State has an affirmative duty to disclose exculpatory and impeachment evidence, and the police and prosecutors are considered a "team", so lack of knowledge is not a defense. 

BONUS: suppression of evidence that is favorable to the accused violated due process if the evidence is material to guilt or punishment. Material = reasonable probability that, had it been disclosed, the result of the proceeding would have been different

500

Emma (no relation) is indicted for manslaughter, but the evidence is weak. The State offers an Alford plea, resulting in 3 years in prison + probation. Emma maintains her innocence, but accepts the plea due to the risk of a 25 year sentence. The agreement states that Emma will testify in all related proceedings. 

Emma testifies at Blake's (also no relation) trial. The trial results in a mistrial, and Emma refuses to testify again. The state reinstates her original charges. 

Meanwhile, it emerges that the prosecution failed to disclose that the main eyewitness who said she saw Emma later took her statement back. Also, it turns out Emma is boarderline schizophrenic, but wasn't displaying any symptoms during her plea bargaining process so she was assumed competent. 

Evaluate all issues and give overall conclusion

1. OG charges reinstated: under Ricketts v. Adamson, if a defendant breaches cooperation clause in plea agreement, state may reinstate OG charges. So likely valid 

2. Brady Violation: eyewitness recanting statement is exculpatory evidence, and Emma likely would not have accepted the plea if she knew this information. 

3. Competency: Competency to plead guilty = competency to stand trial. Must be able to understand the proceedings and rationally consult with counsel. Having schizophrenia alone prob isn't enough to make her incompetent, but strenghtens argument that her plea was not made knowing, intelligent, & voluntary. 

Conclusion: Emma is likely entitled to have the plea vacated & be retried 

Speedy Trial/Right to Counsel

100

What is a defendants primary safeguard agaisnt pre-indictment delays? 

Statute of Limitations, since the 6th amendemnt doesn't apply to pre-accusation 

200

Under the Speedy Trial Act, within how many days after indictment/inital appearance must a trial begin?

BONUS: what are excludable delays?

70 days 

BONUS: delay due to pretrial motions, unavaiablility of defendant or essetional witness, or when necessary to "serve the ends of justice" 

300

Which defendant has a stronger right to counsel?

A: misdemeanor charge, fine-only initially, but possible jail time if probation is later revoked.

B: petty offense, judge warns that he may consider jail time later. 

Defendant A - counsel is required whenever actual imprionsment may be imposed, including at later probation hearings. 

Not B because a judge's hypothetical threat doesn't convert the offense into one with actual imprisonment exposure 

400

The State indicts Blake for fraud. 5 years pass before trial.

Year 0-1: State loses the file during a staffing transition

Year 2-3: Blake files repeated motions for continuances to look into other suspects

Year 3-4: Prosecutor leaves, case is reassigned with a 10 month delay

Year 4-5: Blake asserts speedy trial right for first time.

By trial time, 2 defense witnesses have died. 

Analyze Blake's 6th amendment claim under all Barker factors. Should charges be dismissed? 

1. Length: 5 years is presumptively prejudical, so triggers full Barker analysis 

2. Reason: State loses file (negligence, weighs against state); State reassignes (bureaucratic delay, weights against state); Blake's continuances, weigh aginst defendant.

3. Assertion: Blake waits 4 years to assert claim, weak factor 

4. Prejudice: 2 witnesses died so this severely impairs the defense, strongest factor 

Conclusion: Despite Blake causing part of the delay and asserting right late, the early State negligence and serious prejudice may compel dismissal.

500

Josie is charged with armed robbery. Her lawyer, Robert, does the following:

1. Investigation: Never interviews the only eyewitness and fails to obtain surveillance footage that is later found to show that the robber didn't have a leg tattoo

2. Trial Startegy: Robert tells the jury that Josie was at the scene but that her involvement was a misunderstanding, even though Josie objected to this before trial and maintained that she was nowhere near the scene. 

3. Sentencing: Robert offers no mitigating factors, even though he knows Josie has documented PTSD 

Josie is convicted and sentenced to 25 years. Analyze her 6th amen claim

Easy answer: Under McCoy v. LA, when a defendant clearly asserts they want to maintain innocnence, defense cannot go against this at trial. Since Josie clearly objected before trial and Robert did it anyway, this is a McCoy violation and requires reversal even without a showing of prejudice. 

Harder answer: Under Strickland, must show deficient performance and prejudice.

Deficient performance: Robert failed to interview the only eyewitness, failed to get the surveillance tape, ignored her claim that she wasn't at the scene, and failed to offer mitigating evidence - there was no strategic reason to support these omissions, so Robert's performance was objectively unreasonable & thus deficient. 

Prejudice: Josie must show a reasonable probability that the outcome would have been different but for Robert's errors. The surveillance tape clearly would have showed Josie wasn't at the scene & the only eyewitness likely would have contradicted the State's theory, thus the outcome would likely be difference. Also at sentencing, the lack of mitigating evidence despite knowing Josie had PTSD likely resulted in prejudice because her sentence likely would have been reduced, even if very slightly. 

 

Trial

100

What's the difference between a serious and petty offense?

Why does this matter?

serious = 6+ months possible imprisonment 

only serious crimes require jury trials 

200

During trial, the judge lets an influencer live stream the trial for her TikTok. The jurors later admitted they tried to look cool for her livestream. Does this automatically require retrial? 

No, under Chandler v. Florida, cameras in courtroom don't automatically violate right to fair trial. Need to show actual prejudice

300

A 12 person jury returns a verdict where 11 find defendant guilty of burglary, and the 12th finds him guilty of trespass (lesser included offense). Judge treats this as implied unanimity for burglary and sentences him. Allowed or nah? 

Nah, under Ramos v. Louisiana, jury verdicts must be unanimous on the same offense 

400

What are the types of juror challenges? 

Explain how a Batson challenge works

for cause and peremptory 

Batson 3-step:

1. Prima facie case of discrimination: show facts that raise inference that strike was motivated by race/gender

2. Burden shifts to other party to give neutral explanation (doesn't have to rise to level of for cause)

3. Judge decides 

500

During a burglary trial, the defendant repeatedly interrupts and mocks a witness, who is testifying on zoom because the judge thinks "remote testimony looks better". Without warning, the judge removes the defendent for the remainder of trial.

Identify the constitutional issues

1. Remote testimony without a finding of necessity likely violated Confrontation clause

2. Removing the defendant without warnings or lesser alternatives violates the right to be present under Illinois v. Allen, could've just bound and gagged him duh 

Sentencing/Double Jeopardy

100

What do Apprendi and Blakely establish about judicial fact-finding?

Any fact, other than a prior conviction, that increases the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt

200

Defendant is charged with life without possibility of parole for writing his 6th bad check, this had only been sentenced one other time for this crime. In other states, the maximum penality for same offense is 5 years. 

What test is used to anaylze proportionality? Explain how it would work here

Solem v. Helm 3 part test:

1. Gravity of the offense vs. harshness of penality (here, nonviolent felony receiving harshest non-capital punishment is crazy)

2. Same jurisdiction comparison (only once before)

3. Other jurisdiction comparison (LWOP v. 5 years)

300

What must a jury find before imposing death under Gregg v. Georgia

at least one statutory aggravating circumstance and guided discretion 

400

Part 1: A defendant participates in an armed robbery. He stays in the getaway car and supplied the weapons. His partner kills the store clerk. Can he be given the death penality? 

Part 2: Before you were able to decide if the death penality was even an option, they were both senteced to death. But after an immediate appeal, the court reversed their conviction because the evidence was legally insufficient. Can they be retried? 

1. Death: Likely yes, under Tison, a defendant who is a major participant and acts with reckless indifference to human life can be eligible for death even without intent to kill.

2. Retrial: Nope, double jeopardy bars retrial because insufficient evidence means the state didn't meet their burden the first time so they don't get to try again.

500

Defendant is acquitted of robbery. After acquittal, new DNA evidence implicates him. He's charged with felon in possession based on the same incident. Is this a double jeopardy violation?

No, As long as felon in possession has an element that the robbery charge does not, it is a distinct offense under Blockburger. 

but there may be some issue preclusion issues if prosecution trys to use evidence that jury rejected in first trial (that the defendant was the robber)