Criminal Procedure

Office: 9112 (first off elevator on 9th); 263-7762

Class is an opportunity to practice lawyer things. Better to think than to write.

No outlines on exam. Exam: place us in the role of a lawyer, ask us to perform the job of a lawyer.

Generally, we will not meet on Mondays.

Class Notes

Case Briefs

Brown v. State: 1/23/08 - old rape statute (evidence of resistance)
Baldwin v. State: 1/23/08 - still old rape statute, but attitudes are changing
State v. Pullizano: 1/29/08 - rape shield law vs. right to present evidence
Commonwealth v. Berkowitz: 1/29/08 - degree of force necessary to constitute rape
State v. Bonds: 1/29/08 - what acts constitute 2nd-degree sexual assault
State v. Jaworski: 1/30/08 - what constitutes force or threat of violence in rape?
State v. Williquette: 1/31/08 - can omission count as sexual assault
Sears v. State (1): not discussed? : Not really a whole case: no obligation to charge, what to charge is within the prosecutor's discretion, so long as it's supported by probable cause
Thompson v. State: not discussed? is it abuse of discretion to charge attempted murder?
United States v. Batchelder: 2/21/08 - if the same conduct violates two statutes, can you sentence under either?
State v. Karpinski: 2/21/08 - same offense could be either a misdemeanor or violation of a city ordinance
State v. Annala: not discussed? review of reasons for charging
United States v. Ojala: 2/26/08 - was the decision to charge a reprisal, and if so, then what?
United States v. Kerley: 2/26/08 - does prosecution violate right to protest?
Sears v. State (2): 2/27/08 - selective prosecution of male prostitutes?
State v. McCollum: 2/26/08 - actual abuse of discretion (at least by LEOs)
United States v. Cowan: 2/27/08 - judicial review of the decision to dismiss charges
State v. Kenyon: 2/27/08 - harrassing prosecutorial tactics.
Brady v. Maryland: not discussed? Maybe 3/4 - disclosure of exculpatory evidence
United States v. Agurs: Not discussed? Maybe 3/4 - failure to disclose of evidence about victim's past
Taylor v. Illinois: not discussed? Maybe 3/4 - failure to identify defense witnesses means they can't present evidence
Rock v. Arkansas: not discussed? Maybe 3/4 - is blanket suppression of hypnotically refressed testimony constitutional?
Griffin v. State of California: not discussed? maybe 3/4 - the right not to testify
Nicholas v. State: prior convictions must be admitted. They don't have to be discussed in detail, but if you answer untruthfully about them, cross-examination is free to inquire about their nature.
Whitty v. State: not discussed? Maybe 3/4 - evidence of other criminal conduct
Mistretta v. United States Maybe 3/10 - constitutionality of the federal sentencing guidelines
Williams v. New York: maybe 3/10 - what rules of evidence operate on facts used in sentencing decisions?
Apprendi v. New Jersey: 3/12 - facts increasing maximum sentence must be proved beyond reasonable doubt
Blakely v. Washington: 3/12 - sentences incident to pleas can not be based on facts beyond what is pled (i.e., not proved beyond reasonable doubt)
United States v. Booker and Fanfan: 3/13 - federal sentencing guidelines are advisory only
Kimbrough v. United States: not discussed? - crack and powder cocaine guidelines are also advisory
Gall v. UnitedStates: 3/26 - sentencing review is deferential, only looking for abuse of discretion
Ewing v. California: not discussed - three strikes rules are OK under 8A
State v. Gallion: 3/26 - sentencing is subject to review
Terry v. Ohio: 4/3 - Stopping and questioning and frisking
Davis v. Mississippi: not discussed - probable cause is required for fingerprinting
Hayes v. Florida: not discussed - Re-affirmation of Davis. Reasonable suspicion is not enough to justify fingerprinting. Need probable cause.
Mapp v. Ohio: not discussed - 14A makes 4A applicable to states; discussion of need for exclusionary rule.
Minnesota v. Dickerson: 4/9 - no "plain touch" exception to the 4th amendment
Horton v. California: not discussed - plain view doesn't have to mean totally inadvertent discovery.
Texas v. Brown: not discussed - plain view requires only probable cause to think that what you are plainly viewing is connected with a crime before you can sieze it.
Michigan v. Long: 4/8 - search in the passenger compartment is OK, but not the trunk
California v. Hodari D.: 4/10 - When are you siezed?
Molina v. State: not discussed - throwing away your drugs on the public street is dumb
California v. Greenwood: not discussed - your trash isn't private
Florida v. Bostick: 4/9 - They can question you on a bus.
United States v. Drayton: not discussed - more bus fun
Schneckloth v. Bustamonte: not discussed - the totality of the circumstances is the key in determining whether someone voluntarily consented to search.
Illinois v. Wardlow: 4/10 - Evasive behavior is enough to create reasonable suspicion
Hiibel v. Nevada: 4/10 - The source of the obligation to show ID was from state law.
Michigan v. Sitz: 4/10 - Sobriety checkpoints are OK...
City of Indianapolis v. Edmond: 4/15 - ...but general law-enforcement checkpoints are not...
Illinois v. Lidster: 4/16 - investigating a specific crime can justify a checkpoint.
U.S. v. Sokolow: 4/16 - Drug profiles can be a part of reasonable suspicion
Kyllo v. United States: 4/15 - The home is especially protected, even against infrared.
Draper v. United States: 4/16 - You must have probable cause to make an arrest
Illinois v. Gates: not discussed - Informant's uncanny accuracy counts as probable cause for issuing a search warrant
Florida v. J.L.: 5/16 - anonymous tips by themselves are not sufficient, in general.
United States v. Watson: not discussed - warrantless arrest is ok, if based on probable cause and authorized by statute.
Payton v. New York: -

Miscellany

Criminal Justice and Community Response to Rape: overview of the history of rape law reform. (p. 11)
Prior Untruthful Allegations under Wisconsin's Rape Shield Law: Constitutional concerns regarding the opportunity to confront witnesses, present evidence. (p. 15)
Rape: Article by Susan Estrich on mens rea as an element in rape (p. 23)
Teens who have sex charged with abuse: MKE JS article on statutory rape, and the politics of deciding who should be prosecuted, when both parties are consenting teens. (p. 39)
Dane County Statutory Rape Prosecution Policy Project: final report from a cooperative project seeking to obtain and apply community input about when prosecution for statutory rape is appropriate. Several cases involving consenting teens, pedophiles, etc., followed through, and discussion of cultural priorities/sensitivities among both professionals and the public. (p. 42)
State v. Barry Brown Notes of a rape case from a lawyer who served on the jury. "Happy" with the hung jury result. (p. 66)
Acquaintance Rape of College Students Interestingly slanted article about acquaintance rape prevention and prosecution. Strives for proactive/problem-based solutions, but ultimately centers on blame and conviction. (p. 72)
Repeal of the Wisconsin Sex Crimes Act Elimination of the requirement that sex offenders be treated until they are no longer dangerous. When would that be, after all? (p. 103)
Sex Crimes and Penalties in wisconsin registration, involuntary commitment, community notifications, etc. (p. 107)
The Lawyer's Role and Responsibility in Modern Society Attorney-client relationships are essential to the whole thing: the nature and importance of the adversary system. What client does a "public interest" lawyer have? (p. 118)
The Lawyer's Responsibility to the Client Pitfalls: instrumentalism (technicians in service of the client) and practical utilitarianism (deciding the objectives of representation). Story about gift delayed for tax purposes. (p. 124)
Model Rules of Professional Conduct
- 1.0: Terminology: reasonably believes, substantial, etc.
- 1.1: Competence: must know what you're doing
- 1.2: Scope of representation: abide by client's decisions about objectives of representation, consult with client about means.
- 1.3: Diligence: be diligent and prompt
- 1.4: Communication: keep the client informed, apprise of potential significant expenses
- 1.6: Confidentiality: must act to preserve confidentiality
- 1.7: Conflict of interest: w/ current clients
- 1.8: More conflict of interest: financial assistance to clients, etc.
- 1.14: Client with diminished responsibility: keep the relationship normal as far as possible
- 1.16: Declining or terminating representation: there can be trouble here-- you might get asked to explain the reason, and the explanation might violate confidentiality
- 2.1: Advisor: can refer to factors beyond the law (any relevant facts or issues, essentially)
- 3.1: Meritorious claims and contentions: no frivolous stuff
- 3.3: Candor toward the tribunal: no falseness
- 3.4: Fairness to opposing party and counsel: includes access to evidence, no contingency fees for expert witnesses, etc.
- 3.8: Special responsibilities of a prosecutor: don't charge w/o probable cause, don't seek waivers of representation, etc.
- Special Responsibilities of prosecutors: "see that justice is done both on behalf of the victim and the defendants." Discretion and the charging decision, duty to disclose exculpatory evidence, not making out-of-court statements.(P. 161)
- 4.1: Truthfulness in statements to others: no false statements of material fact, disclose facts necessary to avoid aiding crime
- 4.3: Dealing with an unrepresented person: don't state or imply that you are disinterested, don't give advice (other than to seek counsel) if there is a conflict of interests.
- 8.4: Misconduct: violating the rules, doing crimes, being deceptive, etc.
(p. 130)
Why Should Prosecutors Seek Justice?: guilt should not escape, nor innocence suffer. They have special powers, and they have therefore special responsibilities. They represent the most powerful client. They have a strong interest in the perception that prosecution is fair. They can't blame the adversarial process for wrongful convictions, since it was they who decided to charge and prosecute. (p. 163)
Virtual Justice: the flawed prosecution of crime in America: Criminal codes permit conviction for things nobody intends to be causes for prosecution. The prosecutor needs to have discretion so that the law can be responsive to unique fact patterns. The prosecutor is decision maker for the client, unlike other lawyers. Prosecutors decide who is guilty (though not necessarily who is punished) when they charge-- or even sentence, as in the case of plea bargains. Note that with a plea bargain, the prosecutor can secure punishment without the same standard of proof at all. Also, a prosecutor can rely on evidence that is believed to be false, as long as it is not KNOWN to be false (3.3(c)) (p. 174)
Shiela Broughel case: mentally incapacitated client; how to represent? What are the objectives? What are the means? (p. 182)
At the bar: tainting the victim of rape/murder as a defense strategy. We hate the lawyer, but did he have other options? (p. 187) Then, the professional responsibility problems.
Charging procedures, john doe hearings. (p. 193-7)
Prosecutor's discretion (p. 198-201).
Excerpts from testimony by experts and former prosecutors: Thoughts on the merits of Clinton prosecution. (p. 209)
State v. Barman: trial court decision. The prosecution is selective. (p. 227).
State ex rel. Unnamed Petitioners: memo about why charges are not brought. Sort of a pre-emptive self-review.
Law Without Order or Limit: excerpt from Frankel's seminal book about the need to replace indeterminate sentencing. (p. 668)
Reconsidering Indeterminate and Structured Sentencing: Tonry's article weighing the differences.(p. 680)
Newspaper articles on the dark side of TIS (pp. 692, 698, 703).
Federal sentencing guidelines (pp. 706-734; incl Jane Green example)
US v. Ranum (pp. 766-770) sentencing memo about a bank guy who committed fraud in order to help out a struggling cruise line. Talks about including factors ruled out by federal guidelines, and the purposes of considering them (e.g., personal culpability).
Why Are Facts So Important To The Rule [of, sic] Law: (pp. 786-88) rule of law sentencing. Require logical connection between the desired effect, the strategy for accomplishing it, and the specific measures imposed. Let's not treat sentencing as extralegal.
State v. Crochiere: (pp. 788-89) Facts matter for two reasons. First, sentences are a statement of condemnation for a particular actor about a particular crime. Second, there should be a link between that particular crime and the particular sentence imposed.
The Purposes of Pubishment and Sentencing (p. 789-892): deterrance, incapacitation, retribution, rehabilitation.
Proposed Sentencing Statute (pp. 805-809) components of sentence should be both subjective (i.e., offender doesn't like it) and objective (i.e., community's expectations are fulfilled). If a criminal conviction is obtained, some punishment is required, but it should be no greater than deserved.
Reforming Sentencing and Corrections for a Just Punishment and Public Safety (pp. 810-820) What is public safety? How does punishment produce it?

Criminal Procedure

Class Notes

Case Briefs

Miscellany

Additional Matters