1. File charges

2. Decline to file (DA reject)

3. Refer back for futher investigation

1. File wobbler as misdemeanor versus felony

2. Number of counts

3. Types of charges (strikes, mandatory sentences, sex registration)

4. Which D's to charge (joinder), which D's to offer immunity (Bruton)

Prosecutor must have probable cause.

Some DA Offices will require a higher standard, akin to the burden at trial.

1. D's prior criminal background

2. Statutory and administrative limits (jxn)

3. Ethical limits and obligations

4. Economic realities (LADA doesn't often prosecute stat rape, etc.)

1. Improper factors: race, ethnicity, national origin, gender

2. Selective prosecution: there's a general presumption that prosecutors will exercise discretion in good faith, howver, if D can prove a discriminatory motive, prosecution may be dismissed.

3. Vindictive prosecution: D must show actual vindictiveness, doesn't apply to pre-trial decisions. 

1. Lack of sufficient evidence or corpus

2. Inadmissible search or seizure

3. Vict is unavailable/declines to testify

4. Combined counts/cases

5. Interest of justice

6. Referred to another jxn

7. Deferred for probation/parole violation

1. Special interest groups: MADD, Police, Victims, Justice for Homicide, etc.

2. Political influences: media, campaign donors, politicians, etc.

1. Complaint --> Prelim --> Information

2. Grand jury --> Indictment

1. Right to probable cause declaration within 48 hours

2. Right to arraignment within 2 court days (bail setting hearing, appointment of counsel)

3. Prelim within 10 court days of arraignment

4. Second arraignment on information within 10 court days of prelim

5. Trial within 60 court days of prelim

Hearsay is admissible at a grand jury proceeidng, however, California has mandated that only admissible evidence be presented. 

The prosecutor is under no duty to disclose exculpatory information to the grand jury.

In the context of prejudicial joinder. 

1. Separate trials

2. Try Ds together but forgo use of confessoin

3. Redact confession to remove all references to the very existence of a non-confessing co-defendant.

1. OR (own recognizance) or PR (personal recognizance)

2. Financial bond (either secured on unsecured)-- Court can conduct Nebbia hearing to ensure that bond isn't paid out of illegally gotten funds.

Preventative detention:

1. Danger to the community/flight risk

2. Detain sexual predators

3. Detain material witnesses

4. Detain immigrants/non-citizens

5. Detain enemy combatants 

1. Right to challenge designation as an enemy combatant.

2. Court has jxn to review designation as enemy combatant and the legality of that person's detention as an enemy combatant

3. Military commissions convened to try enemy combatants violate the UCMJ and the Geneva Convention

1. D is deemed guilty of all offenses charged for the purposes of setting bail, which goes against the presumption of innocence

2. Having a client in jail makes it harder to prepare for trial

3. Being incarcerated is difficult--there's a social stigma attached, jails are overcrowded and dangerous

1. Seriousness of the offense

2. Punishment that D is facing

3. D's prior record

4. D's ties to the community

5. D's financial status

6. D's character

7. Any other information that reflects a danger to the community or a flight risk.

Technically, the prosecution has the burden, which is initially met by filing the complaint. At that point the D is presumed guilty of the charges and bail is set at the presumptive level set by the bail schedule. Then, burden shifts to D to show why bail should be lower.

D has the burden to show why D should be released pending appeal.

Legal reason: gov't must produce sufficient evidence that D committed crime to hold D for trial

Practical reasons: 

1. Foster settlement/plea bargaining

2. Assist in testing the strengths and weaknesses of the case

3. Test out victims/witnesses

4. Stakes are low-- gov't can refile twice as a matter of right

1. Right to PC hearing within 10 days of arraignment

2. No right to jury

3. Right to an atty

4. Right to confront/cross-exam wits

5. Right to remain silent

6. Right to public hearing

7. Hearsay is admissible

8. Discovery is limited

Grand jury is secretive, D does not have:

1. The right to be present

2. Right to an attorney

3. Right to cross-exam wits

4. Right to testify

5. Right to appointed counsel

6. Right to present witnesses

7. Right to transcript

8. No judge is present

1. It's secretive

2. No defense counsel present

3. No cross-examination of witnesses

4. No judge present

5. Prosecution may introduce inadmissible evidence 

Multiple defendant-type cases like gang cases where there is a desire to protect the victim/witnesses from intimidation.

May also be used to expedite the process.

Witness testimony isn't preserved for "prior testimony" evidentiary exception because testimony isn't preserved.

In CA, hearsay isn't permitted, so more witnesses must be called.

There is no constitutional bar to presenting a grand jury with hearsay evidence. 

States, however, are free to enact their own standards, and CA has decided to make hearsay inadmissible before a grand jury.

Nada. Zilch. Zippo.

There is no duty to disclose exculpatory information to a grand jury because a grand jury is not an adjudicative proceeding but rather an accusatory body.

1. Allow defense counsel to accompany witnesses. 

2. Require prosecutors to present exculpatory evidence

3. Prevent prosecutors from using inadmissible evidence

4. Give the target the right to testify

5. Provide witnesses with transcripts of their testimony

6. Grand juries may not name persons as unindicted co-conspirators.

1. Guilty

2. Nolo contendre

3. Not guilty

1. Facilitates the processing of a large number of cases

2. Reduces costs

3. Results in "tailored" dispositions

4. Doesn't require vict/wit testimony

5. Allows police/prosecutors to focus on bigger cases

6. Permits dispo of marginal cases

1. Prosecutors may "coerce" guilty pleas to increase conviction rate

2. Pressures innocent people to plead guilty

3. May result in disparate treatment

4. Allows D to escape full punishment

5. Typically one-sided

6. No public oversight

1. Direct consequences: plea may be found to be not voluntary where D was not advised of a specific element of the crime, wasn't advised of parole eligibility, wasn't advised of offer, etc.

2. Standard: D must show that, but for counsel's ineffectiveness, he would have taken the deal.

1. All guilty or nolo pleas must be accepted by the court.

2. Judge must determine that plea is knowing, voluntary, and intelligent.

3. Judges may enter a plea themselves, but in such cases, D must plead to the entire complaint because judge can't dismiss charges. 

If D can show that the plea agreement was violated, D is entitled to what he originally bargained for.

However, D has to stick to his end of the bargain, even if it requires testifying more than once. This doesn't violate double jeopardy.

Once entered, a guilty plea may be withdrawn only for a "fair and just" reason. The D bears the burden to show that s/he wasn't properly advised of each and every element of the offense.

Judges have broad discretion in this arena.

Failure to advise on immigration consequences, coercion by attorney, felt threatened-- anything that D can use to argue that their ability to knowingly, voluntarily, and intelligently waive was adversely affected. 

Collateral consequences to conviction (voting, job restrictions, handgun restrictions) don't have to be advised.

Batson: race is not a legitimate reason to exclude jurors

Batson has been applied to prohibit discriminatoin on the basis of race, gender, ethnicity, religion, and even sexual orientation.

1. D must make prima facie case of discrimination

2. Burden shifts to party exercising preemptory to provide neutral reason

3. Trial court determines if there was purposeful discrimination

The court should review the entire record of jury selection and determine the validity of the proffered neutral explanation. 

There is no requirement for a specific statistical method to be used to determine systematic exclusion.

1. Courtroom closures: these rights must be balanced on a case-by-case basis.

2. Change of venue

3. Sequestration

4. Gag order

5. Tighter judicial control of courtroom

Lawyers have a general first amendent right to free speech, however, that right is not absolute. 

Where a lawyer's comments are reasonably likely to prejudice the proceedings, they are not protected by the first amendment. 

1. Right to a speedy trial-- attaches when formal proceedings are initiated.

2. Right to confront and cross-exam wits

3. Right to be present at trial

4. Right against self-incrimination

The 6th Amendment guarantees the right to be present, but the defendant may waive this right through his conduct. 

The visible shackling of the defendant during either the trial or the guilt phase violates his 5th Amendment due process rights.

1. Remove D from courtroom

2. Bind and gag D

3. Hold D in contempt

1. States may not adopt "per se" rules allowing for closed-circuit TV examination of certain vulnerable witnesses, but the gov't is entitled to make a showing on a case-by-case basis.

2. Testimonial statements may not be admitted through hearsay exceptions against the defendant. (Crawford v. Washington)

Where the purpose of the statement isn't accusatory but rather is to aid in an ongoing investigation, the statement is non-testimonial and thus may be admitted.

DNA evidence is deemed non-testimonial.

1. Names of all witnesses

2. Police reports containing witness statements

3. All statements made by the defendant

4. The defendant's criminal record

5. Any physical evidence the gov't seeks to introduce

6. Any expert reports

1. Names of all witnesses to be called at trial, especially alibi witnesses

2. Any reports of witness statements

3. Any mental defenses, including expert reports

4. Defense is not required to state whether defendant will testify.

What exculpatory information must the prosecutor disclose?

Prosecutor's failure to inform D that key witness was offered immunity in exchange for testimony.

Gov't informing D that no offers for leniency were made, when in fact, testifying witnesses had been offered leniency.

Prosecutor's failure to tell D that main witness had made a number of contradictory statements. 

Prosecutor's failure to inform D that witness had been paid $200 for testimony.

Doesn't extend to speculative or irrelevant information.

Doesn't include information already possessed byt he defense.

Doesn't include evidence that defense could obtain through subpoena or subpoena duces tecum (document request).

Trombetta: no requirement to preserve breath samples.

Arizona v. Youngblood: a prosecutor's failure to preserve evidence requires evidence of bad faith in order to violate the due process clause.

Prosecutors have a continuning Brady obligation even following defendant's conviction.

However, there is no post-conviction right to DNA testing by the state. If the defendant wants to conduct tests, he can ask the court for a court order for access to the DNA.

1. Punishment

2. Deterrence

3. Retribution

4. Protection of society

5. Restitution for the victim

6. Rehabilitation of the defendant

1. Fines

2. Probation

3. CalTrans/Community Service

4. Rehab/Prop 36/Drug Court

5. Death (only for capital muder cases)

6. County jail

7. State prison

1. Determinate (fixed)

2. Indeterminate (open-ended)

Determinate sentences. The judge picks from the low, middle or high range of sentences. 

Note: the judge must justify if imposing the high-end sentence.

The Supreme Court held that sentencing schemes that required the sentencing judge to increase a defedant's sentence based on facts never pleaded or proved to a jury violates the defendant's right to due process.

Anything that increases punishment for a defendant must be submitted to the jury and proven beyond a reasonable doubt.

The 6th Amendment jury trial right extends to all elements of a crime, and anything that can increase a defendant's sentence must be proven to a jury. 

In Booker, the Supreme Court also recommends that the federal sentencing guidelines be advisory rather than mandatory.

1. The nature of the crime(s), including D's role in the crime

2. The need to have the sentence reflect the seriousness of the crime, have a deterrent effect, protect the public, and/or rehabilitate the defendant

3. The kinds of sentences available

4. The applicable sentencing guidelines

5. Any pertinent policy statement

6. The desire to avoid unwanted sentencing disparities, and 

7. The need to provide restitution to the victim

D punished to life in prison for passing a $100 "no account" check.

However, the Supreme Court effectively overruled this decision in Harmelin, finding that deference should be given to legislatures and the 8th amendment doesn't provide any strict mandates.

Yes.

1. No mandatory death sentence

2. No death sentence for rape

3. No death sentence for child rape

4. No death sentence without considering defendant's role in the crime

5. Death sentence must consider mitigating and aggravating factors

1. Juveniles

2. Mentally ill/challenged

Must not be cruel and unusual. 

The Supreme Court has upheld the use of the three-drug protocol lethal injection that is currently used by most states.