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Tag: Criminal Procedure

Washington and Lee Law Review - Criminal Procedure

Development

The Right to a Public Trial in the Time of COVID-19

by Stephen E. Smith

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific circumstances. This Article proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

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Note

In re Government Attorney-Client Privilege: A Categorical Rule to Settle the Issue

by Luke Charette

This Note explores the reasoning and factors used by each of the federal circuits in deciding whether or not to uphold attorney-client privilege between the government and the lawyers representing it. After considering those factors, this Note argues that there should be a categorical rule that neither a state nor the federal government may invoke the attorney-client privilege in response to a criminal grand jury subpoena. To justify this conclusion, this Note outlines how current government attorney-client privilege case law, as well as the policy underpinnings of the privilege itself, dictate that a categorical rule is appropriate.

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Note

Collateral Consequences of Pretrial Diversion Programs Under the Heck Doctrine

by Bonnie Gill

Circuit courts disagree on whether participation in a pretrial diversion program counts as a favorable termination of the conviction or sentence such that a § 1983 action challenging the conviction can proceed. Following the Introduction, Part II of this Note gives an overview of federal and state pretrial diversion programs. Part III explores the statutory and doctrinal background of 42 U.S.C. § 1983, including its interaction with another civil rights statute, 28 U.S.C. § 2254, the federal habeas statute. Both statutes are essential to understanding the Heck v. Humphrey doctrine’s purpose and application to pretrial diversion participants. Part III also explores the development and interpretation of the Heck doctrine in four Supreme Court cases. Part IV discusses the circuit split as it currently stands. Part V presents three proposals for resolving the split and analyzes how closely the proposals adhere to the original purpose of § 1983 as well as the potential implications of these proposals on policy concerns. This Note concludes by suggesting that the Court revisit the issue presented by the Heck circuit split and clarify that challenges to allegedly unconstitutional investigatory practices should never be barred by Heck.

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Article

Reasonable Doubt and Relativity

by Michael D. Cicchini

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.

Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, civil burdens of proof.

To solve this dilemma, courts should explain reasonable doubt on a relative basis, within the context of the civil burdens of proof. A relative, context-based instruction will allow jurors to compare and contrast the different standards, thus giving them the necessary reference points to appreciate how high the state’s burden actually is.

This approach is rooted in a psychological principle called “contrast effects,” and is now supported by empirical evidence as well. In this Article, I present the results of my controlled experiment where mock jurors read the identical case summary of a criminal trial and were then randomly assigned to two groups, each of which received a different reasonable doubt instruction. The group that received the relative, context-based instruction acquitted at a rate 30 percent higher than the group that received a simple, undefined instruction. This result was significant at p < .05. Further, participants that received this relative, context-based instruction required a higher subjective confidence level in the defendant’s guilt before they were willing to convict.

Drawing on this and other behavioral research, this Article presents a comprehensive jury instruction on the presumption of innocence and burden of proof that is designed to fulfill the Constitution’s promise: to ensure that defendants remain free of conviction “except upon proof beyond a reasonable doubt.”

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Development

Representation by Counsel or Access to Defense Resources: Utah’s Single Source Approach to Indigent Defense

by John P. Gross

The State of Utah has a unique way of providing representation in criminal cases to defendants who are too poor to hire an attorney. In Utah, there is no statewide funding or supervision of indigent defense. Each county, city, or town is responsible for creating and funding their own indigent defense delivery system. Utah is one of only two states in the United States—Pennsylvania is the other—that fails to provide state funding or oversight of indigent defense. But what makes Utah truly unique is the way in which counties and municipalities are required to structure their indigent defense delivery systems. Utah’s Indigent Defense Act (IDA) mandates a single-source approach to the provision of indigent defense: indigent defendants who require additional “defense resources” to adequately prepare for trial, such as investigators or expert witnesses, must agree to be represented by the county or municipality’s “defense service provider.” A defendant who elects to retain private counsel is not entitled to additional funds from the county or municipality for any additional “defense resources.”

This “single-source approach” does not affect those defendants who are too poor to hire an attorney or those defendants wealthy enough to both retain counsel and pay the cost of whatever additional defense resources are necessary to adequately prepare for trial. But for defendants who are marginally indigent, who have the financial resources to retain counsel but are unable to afford additional “defense resources,” the single-source approach forces them to waive either their Sixth Amendment right to counsel of choice or their Fourteenth Amendment right to “the basic tools of an adequate defense.”

Defendants have the right to select an attorney who will be the architect of their defense, but they also have the right to “the raw materials integral to the building of an effective defense.” Utah’s single-source approach to indigent defense ignores the fact that these rights are two separate and distinct constitutional rights and conditions a defendant’s access to additional resources on a waiver of their right to counsel of their own choice. Now that the Supreme Court of Utah has decided that the IDA’s single-source approach is constitutional, marginally indigent defendants in Utah who wish to retain counsel, but also need additional defense resources to adequately prepare for trial, have no other option than to appeal to the Federal Courts. Whatever decision is ultimately reached by the United States Court of Appeals for the Tenth Circuit, it is abundantly clear that the IDA’s single-source approach to indigent defense is yet another legislative effort to avoid adequately funding an indigent defense system that would seem to have “no other purpose or effect than to chill the assertion of constitutional rights.”

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Note

The Admissibility of TrueAllele: A Computerized DNA Interpretation System

by Katherine L. Moss

When analyzing the admissibility of emerging scientific technologies, judges balance various competing principles of criminal law. These principles include accuracy and fairness. While the computerized DNA technology may claim to yield accurate results (and may in fact yield accurate results), defense attorneys––and to some extent judges––must test this claim and uphold due process by admitting the evidence in a fair manner. This Note discusses the admissibility of TrueAllele, a computerized DNA interpretation technology.

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Article

The Irrelevance of Prisoner Fault for Excessively Delayed Executions

by Russell L. Christopher

Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty years of death row incarceration is unconstitutional. Nearly every lower court disagrees, reasoning that prisoners have the choice of pursuing appellate and collateral review (with the delay that entails) or crafting the perfect remedy to any delay by submitting, as Justice Thomas has invited complaining prisoners to do, to execution. By choosing the former, any resulting delay is self-inflicted; delayed executions are prisoners’ own fault. Despite this argument’s commonsense appeal, left unexplained is how prisoner fault inoculates state-imposed punishment from Eighth Amendment violation. Lacking a rationale for the prisoner fault argument, this Article proposes the two most obvious candidates: (i) analogizing to fault attribution for delays in the Sixth Amendment speedy trial right context; and (ii) choosing post-conviction review rather than submitting to execution, prisoners waive Eighth Amendment challenge of the resulting delay. But neither is persuasive; moreover, each proposed rationale presupposes the existence of the very right that Justice Thomas and nearly every court vigorously deny: an Eighth Amendment right against excessively delayed execution. The absence of a persuasive rationale exposes prisoner fault as irrelevant and removes the primary obstacle to courts recognizing that execution following decades of death row incarceration constitutes cruel and unusual punishment.

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