Right to Counsel
A competent defendant charged with felony arson tells the judge he wants to fire his lawyer and handle the trial himself. The judge conducts a thorough colloquy confirming the defendant understands the risks. The judge should:
Grant the request and allow the defendant to represent himself.
A competent defendant has a constitutional right to self-representation after a knowing and intelligent waiver of counsel. Faretta v. California (1975).
Federal grand jury secrecy binds jurors, prosecutors, interpreters, and court reporters. These people, however, may freely tell anyone what happened during their appearance:
Witnesses who testified before the grand jury.
Witnesses are not bound by grand jury secrecy rules. They can speak freely about their own testimony after leaving the grand jury room. Federal Rule of Criminal Procedure 6(e).
The Supreme Court has drawn this bright line to determine whether an offense is petty enough that no jury trial is required:
Six months or less of authorized imprisonment.
An offense carrying a maximum of six months in jail is presumptively petty. Additional fines or collateral consequences rarely convert a petty offense into a serious one. Baldwin v. New York (1970); Blanton v. North Las Vegas (1989).
When a jury reports it cannot reach a verdict, the judge gives a supplemental instruction urging continued deliberation. Courts give this instruction only with caution because it risks this particular harm.
Pressuring holdout jurors to abandon sincerely held views just to reach a verdict.
Supplemental deadlock instructions are permitted but must not coerce. The concern is jurors changing their vote for expediency rather than conviction. Allen v. United States (1896); Lowenfield v. Phelps (1988).
In a jury trial, this is the precise moment when the Double Jeopardy Clause begins to protect the defendant:
When the jury is sworn and impaneled.
Jeopardy attaches at jury swearing in jury trials, and at the first witness being sworn in bench trials. Crist v. Bretz (1978).
To detain a federal defendant pretrial on the ground that he would be dangerous if released, the government must prove dangerousness by this standard, and the Supreme Court has upheld the statute against both due process and excessive bail challenges:
Clear and convincing evidence.
Federal pretrial detention for dangerousness requires clear and convincing evidence. The regulatory-not-punitive nature of detention defeats due process challenges, and the absence of a constitutional right to bail defeats excessive bail challenges. United States v. Salerno (1987); Bail Reform Act of 1984.
A trial court may not accept a guilty plea unless the record affirmatively shows the defendant knowingly and voluntarily waived these three specific constitutional rights:
The privilege against self-incrimination, the right to trial by jury, and the right to confront accusers.
Rule: The record must affirmatively show a knowing and voluntary waiver of these three rights. Silence in the record is insufficient even if counsel was present. Boykin v. Alabama (1969).
When a charging document is technically sufficient but so vague that the defendant cannot identify the specific conduct alleged against him, this is the motion that forces the prosecution to fill in the details.
Motion for a bill of particulars.
A bill of particulars forces the prosecution to specify time, place, and manner of the alleged conduct. It does not cure a charging document that omits essential elements. Federal Rule of Criminal Procedure 7(f); Wong Tai v. United States (1927).
After a bench trial, a defendant argues his lawyer was terrible. To prevail, he must show these two things:
(1) deficient performance falling below an objective standard of reasonableness, and (2) a reasonable probability that but for counsel's errors, the result would have been different.
Ineffective assistance of counsel requires both deficient performance and prejudice. Losing, or disliking counsel's strategy, is not enough. Strickland v. Washington (1984).
A state prosecutor charges every felony by filing an information rather than seeking a grand jury indictment. A defendant objects on Fifth Amendment grounds. The objection fails because of this:
The Fifth Amendment grand jury requirement is not incorporated against the states.
The grand jury requirement of the Fifth Amendment applies only in federal court. States are free to charge felonies by information. Hurtado v. California (1884).
A twelve-person jury in a state felony trial returns an 11 to 1 verdict of guilty. Under current Supreme Court doctrine, this verdict produces this outcome:
No valid conviction, because a state felony jury verdict must be unanimous.
State felony jury verdicts must be unanimous. A non-unanimous verdict is constitutionally invalid. Ramos v. Louisiana (2020).
A stabbing victim is on the phone with a dispatcher, gasping that her attacker is still in the house and coming toward her. She later refuses to testify. The recording is played at trial over the defendant's Confrontation Clause objection. The recording comes in for this reason.
Because the statements were non-testimonial, made to resolve an ongoing emergency rather than to create a record for prosecution.
Statements made during an ongoing emergency are non-testimonial and fall outside the Confrontation Clause. Once the emergency passes, later statements may become testimonial. Davis v. Washington (2006); Michigan v. Bryant (2011); both built on Crawford v. Washington (2004).
Two statutes criminalize conduct that looks similar, but each requires proof of a distinct element the other does not. Under this test, they are not the same offense for double jeopardy purposes.
The same-elements test (Blockburger).
Two offenses are the same for double jeopardy purposes only if each does not require proof of a fact the other does not. Shared elements or shared conduct is not enough. Blockburger v. United States (1932).
When a court balances the length of delay, the reason for it, the defendant's assertion of his speedy trial right, and prejudice, and finds the right was violated, this is the only remedy:
Dismissal of the charges with prejudice.
A speedy trial violation requires dismissal with prejudice. Dismissal without prejudice is not a constitutional option. Barker v. Wingo (1972) (four-factor test); Strunk v. United States (1973) (remedy).
This type of plea allows a defendant to accept criminal punishment without formally admitting guilt. As a result, it generally cannot be used against the defendant as an admission in later civil litigation arising from the same conduct.
A no contest (nolo contendere) plea.
A nolo plea produces a criminal conviction but is not an admission for civil purposes. A guilty plea, by contrast, is admissible as an admission in civil litigation. Federal Rule of Criminal Procedure 11(a); compare North Carolina v. Alford (1970) (An Alford plea is technically a guilty plea even though defendant says they're innocent. Can be used in civil proceedings.)
The prosecution's constitutional duty to turn over material favorable evidence reaches not just evidence that directly shows innocence, but also this kind of evidence useful for undermining the credibility of the government's witnesses.
Impeachment evidence.
Brady requires disclosure of both exculpatory and impeachment evidence that is material. Materiality means a reasonable probability the outcome would have been different. Brady v. Maryland (1963); Giglio v. United States (1972); United States v. Bagley (1985).
A state schedules a hearing two weeks after arraignment at which prosecutors must prove probable cause to proceed to trial. The defendant is indigent and appears without a lawyer because none was appointed. The state cannot use the conviction that follows unless it shows that:
The lack of counsel at the hearing was harmless.
An adversarial preliminary hearing is a critical stage of the prosecution requiring counsel. Absence of counsel is reversible unless the state shows harmlessness. Coleman v. Alabama (1970).
Facing a likely indictment for tax fraud, a target writes to the U.S. Attorney demanding to be brought before the grand jury to explain his side. The prosecutor refuses. True or false: the target's constitutional rights were violated.
False, because a target has no constitutional right to testify before a grand jury.
Grand jury proceedings are ex parte. Targets have no right to testify, no right to present exculpatory evidence, and no right to be present. United States v. Williams (1992).
After the verdict, a juror swears in an affidavit that deliberations were so tense she changed her vote to guilty just to end the fight, and that two other jurors had bullied her. The defense asks the court to consider the affidavit in support of a new trial motion. The court generally does this:
Refuses to consider the affidavit because evidence of a juror's mental processes or deliberation dynamics is not admissible to impeach a verdict.
Juror affidavits about deliberations, mental processes, or internal dynamics are generally inadmissible. Narrow exceptions exist for extraneous prejudicial information, outside influence, and racial bias. Tanner v. United States (1987); Federal Rule of Evidence 606(b); narrow exception in Pena-Rodriguez v. Colorado (2017).
Two codefendants are charged with the same arson but plan to blame each other at trial. One moves for a separate trial, arguing the jury will be confused by their mutually antagonistic defenses. The judge denies severance unless the defendant shows this.
A serious risk that a joint trial would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt.
Mutually antagonistic defenses do not require severance as a matter of law. The moving party must show a serious risk of compromising a specific trial right. Zafiro v. United States (1993).
A state jury acquits the defendant of armed robbery of a convenience store. Federal prosecutors then charge him with Hobbs Act robbery for the same incident. The federal case proceeds for this reason.
The dual sovereignty doctrine, because state and federal governments are separate sovereigns.
The same conduct can be prosecuted by both a state and the federal government without violating double jeopardy, because each is a separate sovereign. Heath v. Alabama (1985); Gamble v. United States (2019) (reaffirming dual sovereignty).
A defendant claims he was prosecuted because of his religion while others who committed identical conduct were not charged. To dismiss the indictment, he must show these two things:
Discriminatory intent AND discriminatory effect.
A selective prosecution claim requires both prongs. Showing only that similarly situated people were not charged, or only that the prosecutor harbored bad motives, is insufficient. United States v. Armstrong (1996); Wayte v. United States (1985).
After the trial court denies her motion to suppress a coerced confession, the defendant pleads guilty without reserving the suppression issue. She then tries to appeal the denial. Her appeal fails because her plea did this:
Waived the suppression claim.
An unconditional guilty plea waives all non-jurisdictional defects, including prior suppression rulings. Conditional pleas are available in some jurisdictions but must be expressly reserved. Tollett v. Henderson (1973); conditional pleas governed by Federal Rule of Criminal Procedure 11(a)(2).
Police improperly store a bloody shirt that was recovered from a crime scene. By the time the defense requests testing, it has degraded beyond analysis. The shirt might have exonerated the defendant. To prevail on a due process claim, the defendant must show this:
That the police acted in bad faith when they failed to preserve the evidence.
When lost evidence was only potentially useful, bad faith is required. When lost evidence had apparent exculpatory value, bad faith may not be required, but potentially-useful evidence is the far more common category. Arizona v. Youngblood (1988); compare California v. Trombetta (1984) (apparent exculpatory value).
An unrepresented indigent defendant is convicted of shoplifting and sentenced to 90 days in jail, fully suspended on condition of one year of probation and staying out of trouble. Even though he never spends a night in jail, his conviction is unconstitutional for this reason:
A suspended sentence counts as imprisonment for Sixth Amendment purposes because activation later can result in jail without any new trial.
A suspended jail sentence triggers the right to appointed counsel because the defendant could end up incarcerated without further adjudication. Alabama v. Shelton (2002), building on Argersinger v. Hamlin (1972) and Scott v. Illinois (1979).
A federal information charges obstruction of justice by tracking the words of the statute and alleging the defendant acted corruptly but never specifying what obstructive act he actually committed. The trial court must:
Dismiss the information because it fails to allege an essential element with sufficient specificity.
A charging document must set forth every essential element of the offense. Merely parroting the statutory language is insufficient when the conduct alleged is not identified. Russell v. United States (1962); Hamling v. United States (1974).
A prosecutor uses a peremptory strike against a prospective juror who is an Asian man. A court later finds the strike was motivated partly by ethnicity and partly by gender. This is the constitutional violation.
A violation of the Equal Protection Clause.
Peremptory strikes based on race or gender violate equal protection. The defendant's own race or gender is irrelevant to standing. Batson v. Kentucky (1986); J.E.B. v. Alabama (1994); Powers v. Ohio (1991) (re: standing).
A judge closes voir dire to all spectators because the courtroom is too small, without considering alternatives or making any specific findings on the record. On appeal, the defendant's public trial objection produces this result.
Reversal without any harmless error inquiry, because unjustified courtroom closure is structural error.
Unjustified closure of voir dire or trial violates the public trial right. The error is structural and requires automatic reversal. Presley v. Georgia (2010); Waller v. Georgia (1984).
After three days of deliberation, a jury reports it is hopelessly deadlocked despite two supplemental instructions. The judge declares a mistrial over defense objection. Retrial is allowed because the deadlock supplied this:
Manifest necessity.
A genuine jury deadlock constitutes manifest necessity, permitting retrial even over the defendant's objection. United States v. Perez (1824); Arizona v. Washington (1978).
After a defendant successfully appeals his misdemeanor conviction, the prosecutor files a felony charge based on the exact same conduct. A presumption of this attaches, and the prosecutor must rebut it with an objective, non-retaliatory reason:
Vindictive prosecution.
When the prosecution raises the stakes after a defendant exercises a procedural right, the Due Process Clause presumes vindictiveness and shifts the burden to the prosecutor. Blackledge v. Perry (1974); compare Bordenkircher v. Hayes (1978) (no presumption in plea bargaining).
The prosecutor promised to recommend probation in exchange for a guilty plea. At sentencing, the prosecutor instead argues for five years. When this kind of plea agreement breach occurs, the defendant is entitled to one of these two remedies:
Plea withdrawal OR specific performance of the agreement usually before a different judge.
A breach of a plea agreement entitles the defendant to either rescission (withdrawal of the plea) or specific performance, at the defendant's option and generally before a different judge. Santobello v. New York (1971).
An indigent defendant plans to raise an insanity defense, and his mental state at the time of the offense is genuinely in dispute. Due process requires the state to provide him with this, even if he cannot afford to pay.
Access to a competent mental health expert to assist in preparing the defense.
When sanity is a significant factor, due process entitles an indigent defendant to state-funded psychiatric assistance. This extends beyond psychiatry to other expert assistance where necessary. Ake v. Oklahoma (1985).
Two weeks after the grand jury indicts her, police put the defendant in a physical identification procedure with five fillers and ask witnesses to identify the robber. Defense counsel is never notified. The procedure itself is not suggestive. The identification is still inadmissible for this reason:
A post-indictment lineup is a critical stage of the prosecution at which the right to counsel attaches, and the suggestiveness of the procedure is irrelevant to the right-to-counsel analysis.
Once formal charges are filed, a lineup or other physical identification procedure is a critical stage. Absence of counsel requires exclusion regardless of whether the lineup was fair. United States v. Wade (1967); Gilbert v. California (1967); Kirby v. Illinois (1972) (limiting to post-charge).
A defendant discovers that the grand jury that indicted him was selected under a system that systematically excluded Hispanic residents from service. Even without any showing that a different grand jury would have refused to indict, or that the trial jury was tainted, this is the required remedy.
Dismissal of the indictment.
Racial discrimination in grand jury selection is structural error. Dismissal is automatic and does not require a showing of prejudice at trial.
Vasquez v. Hillery (1986); Castaneda v. Partida (1977).
A state adopts a jury system that systematically produces venires with almost no Native American jurors. A white defendant objects even though he is not Native. The court finds the underrepresentation is systematic. He wins reversal without showing this.
Without showing actual prejudice, and without sharing the excluded group's identity.
A fair cross section violation requires systematic underrepresentation of a distinctive group. The defendant need not belong to the excluded group, and need not show actual prejudice from the exclusion. Taylor v. Louisiana (1975); Duren v. Missouri (1979).
In a joint trial, Codefendant Alpha's written confession directly names Codefendant Beta as the getaway driver. Alpha refuses to take the stand. A limiting instruction telling the jury to consider the confession only against Alpha does not cure the problem. The judge has exactly these two options to proceed:
Sever the trials, OR redact the confession so thoroughly that it eliminates any reference to Beta or to Beta's existence.
A non-testifying codefendant's confession that names the defendant violates the Confrontation Clause even with a limiting instruction. Severance or thorough redaction is required. Blank-space redactions that obviously refer to the codefendant do not cure the violation. Bruton v. United States (1968); Richardson v. Marsh (1987) (redaction permitted); Gray v. Maryland (1998) (blank-space redaction insufficient).
An earlier jury acquitted the defendant of robbing one of four poker players at a home game because the jury necessarily found he was not among the masked robbers at all. Prosecutors now charge him with robbing a different player at the same game. The new charge is barred under this doctrine.
Collateral estoppel (issue preclusion) as a component of double jeopardy.
When a prior acquittal necessarily decided an ultimate fact in the defendant's favor, that fact cannot be relitigated in a later prosecution even for a different offense. Ashe v. Swenson (1970); Yeager v. United States (2009).
The government knows of a suspect for six years before indicting him. During that time a critical defense witness dies. To win a due process challenge, the defendant must show actual prejudice and also this specific thing about the government's motive:
The government intentionally delayed charging in order to gain a tactical advantage
Pre-indictment delay requires both actual prejudice and intentional delay for tactical advantage. Negligent delay or docket congestion is insufficient. United States v. Lovasco (1977); United States v. Marion (1971).
A fraud statute carries a 5 year maximum, or 10 years if the loss exceeds one million dollars. A jury convicts but makes no finding on loss amount. The sentencing judge is personally convinced the loss was over a million. She may not impose 10 years, because of this constitutional principle:
Any fact (other than a prior conviction) that increases the statutory maximum must be found by the jury beyond a reasonable doubt.
Facts that elevate the statutory maximum are elements that must be submitted to the jury. This does not apply to facts within an existing range or to prior convictions. Apprendi v. New Jersey (2000); Blakely v. Washington (2004); Alleyne v. United States (2013) (mandatory minimums).
Before a defendant enters a guilty plea, the Constitution requires prosecutors to turn over material exculpatory evidence. But the Constitution does not require pre-plea disclosure of this kind of evidence, even though it would be required before trial.
Material impeachment evidence (evidence useful only for impeaching government witnesses).
Impeachment evidence need not be disclosed before a guilty plea, though it must be disclosed before trial. The distinction turns on the different role impeachment plays in trials versus plea decisions. United States v. Ruiz (2002).