Criminal Procedures Discussion

Crime scene television dramas and other similar shows have glamorized the ability for law enforcement to make miraculous evidentiary discoveries and solve crimes through the use of science and technology. Are line-ups, show-ups and the use of photo arrays a thing of the past? Are they still vital tools for law enforcement investigators? Explain and support your argument either for their continued use and/or importance, or their discontinued use.

504   Part II Criminal Procedure
information or access to their systems for the government to collect data. In others, the
government has obtained FISC orders. In recent years third-party authority has been
scrutinized in the context of metadata, or non content information. An example of
metadata is the government’s collection of phone numbers dialed but not the content
of those conversations. In its review of an application for an order to capture a huge
amount of “telephony metadata,” FISC ruled in 2013 that such intelligence gathering is
analogous to the phone records sought in Smith v. Maryland.37 In that case the Supreme
Court held that when an individual dials a phone number he is transmitting the data
to a third party, the telephone company, and as a consequence loses his privacy in the
number he dialed. For this reason the acquisition of the number dialed, but not the
content of the call, does
FISC held that
L not raise implicate the Fourth Amendment.
38
this conclusion is not changed because of the size of the data request. The amendments
I earlier empowered the Foreign Intelligence Surveillance Court
to the FISA mentioned
to review and approveD
programs that collect metadata, in addition to individual orders
of surveillance.
One particularly D
controversial authority created by the Patriot Act is the National
E subpoena, the government is empowered to demand nonSecurity Letter. Without
content data from Internet
L service providers, communication companies, and businesses about their clients. Again, non content data include web sites visited, telephone
L addresses. Thousands, in some years tens of thousands, of
numbers called, and e-mail
NSLs have been issued
, yearly since 9/11. NSLs come with a “gag” order. That is, the
recipient of the NSL is ordered, under criminal penalty, to not disclose to anyone, including the client who is named in the NSL, that the letter has been received. A federal
T and other provisions of the NSL law to be contrary to the First
district judge found this
39
Amendment’s protection
I of free speech and the Fourth Amendment in 2013.
FISC is aimed at foreign governments and its agents, abroad. As you can see, the
F States to spy on U.S. persons abroad is limited to when U.S.
authority of the United
persons are acting asFforeign agents and when engaged in terrorism. If the United
States wants to conduct a search within the United States, the Fourth Amendment and
Aalready learned apply, even if the underlying offense is a viola­Title III rules you have
N law. If the government acquires otherwise protected infortion of a national security
mation during an otherwise
Y legitimate surveillance, the information is to be destroyed
unless the contents indicate a threat of serious bodily harm or death to any person.
An extended discussion of national security law is beyond the scope of a criminal
law and procedure text.
1 Be aware, however, that many other statutes, executive orders,
and judicial decisions exist defining this rapidly evolving area of law.
5
6
8
Pretrial Identification
Procedures
T use a variety of techniques to identify a person as a criminal,
Law enforcement officers
such as eyewitness identifications,
fingerprinting, blood tests, and, recently, deoxyriboS
nucleic acid (DNA) tests. The use of any of these procedures raises certain constitutional
issues, such as the right to be free from self-incrimination and the right to counsel.
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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   505
There is also another concern: reliability. Eyewitness identification, though powerful, has a few inherent problems. First, each person will testify to his or her perception
of an event, and people often perceive the same event differently. Second, not every
person will use the same language to describe what was witnessed. Third, a witness may
simply have a faulty memory and unintentionally testify to an untruth. Fourth, for a
variety of reasons, a witness may intentionally lie.
Scientific testing may also prove to be invalid or unreliable. How accurate is the
test when performed properly? Was the test performed properly in this case? Is the
evidence tested actually the defendant’s? These types of questions are asked of expert
witnesses who testify to the results of scientific testing. This discussion begins with
eyewitness identification procedures.
L
I
D a key piece of evidence in criminal
An eyewitness’ identification of an offender is often
cases. It is generally regarded that eyewitness testimony
is one of the most persuasive
D
forms of evidence that can be presented to jurors.
E
Fairness in Identification
L
There are two competing values concerning the reliability of evidence at trial. The
L is constructed around the jury
first concerns the nature of the jury trial. The system
as the finder of fact. In the extreme, jurors should
, hear all evidence and be trusted to
Eyewitness Identification
distinguish between the reliable and unreliable. The other value is one of fair process,
as enshrined in the due process clauses. Due process demands that seriously unreliable
T
evidence with withheld from a jury.
The Supreme Court has issued several decisions
I that are intended to establish the
balance of these competing values. In Stoval v. Denno, 388 U.S. 293 (1967), the Supreme
F Fifth and Fourteenth Amendments
Court found that the Due Process Clauses of the
prohibit identifications that are so unnecessarily suggestive
that there is a real chance of
F
misidentification. In addition to being impermissibly suggestive, an identification must
A
be unreliable to be excluded.40 Wade illustrates these concepts as applied to lineups.
N
Y
UNITED STATES V. WADE
338 U.S. 218 (1967)
1
5
The question here is whether courtroom identifications of an accused at trial are to be excluded
6 from
evidence because the accused was exhibited to the
8 conwitness before trial at a post-indictment lineup
ducted for identification purposes without notice
T to
and in the absence of the accused’s appointed counsel.
S
The federally insured bank in Eustace, Texas,
was robbed on September 21, 1964. A man with a
small strip of tape on each side of his face entered
the bank, pointed a pistol at the female cashier and
the vice president, the only persons in the bank at
the time, and forced them to fill a pillowcase with
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(continued)
506   Part II Criminal Procedure
UNITED STATES V. WADE
(c o nti nu e d)
the bank’s money. The man then drove away with
an accomplice who had been waiting in a stolen car
outside the bank. On March 23, 1965, an indictment
was returned against respondent, Wade, and two
others for conspiring to rob the bank, and against
Wade and accomplice for the robbery itself.
Wade was arrested on April 2, and counsel was
appointed to represent him on April 26. Fifteen days
L
later an FBI agent, without notice to Wade’s lawyer,
arranged to have the two bank employees observe
I
a lineup made up of Wade and five or six other prisD
oners and conducted in a courtroom of the local
D
county courthouse. Each person in the line wore
strips of tape such as allegedly worn by the robber
E
and upon direction each said something like “put
L
the money in the bag,” the words allegedly uttered
by the robber. Both bank employees identified
L
Wade in the lineup as the bank robber.
,
At trial, the two employees, when asked on
direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identifiT
cation was then elicited from both employees on
I
cross examination. . . . But the confrontation compelled by the State between the accused andFthe
victim or witnesses to a crime to elicit identification
F
evidence is peculiarly riddled with innumerable
A
dangers and variable factors which might seriously,
even crucially, derogate from a fair trial. The vagaN
ries of eyewitness identification are well-known; the
annals of criminal law are rife with instances of Y
mistaken identification. . . . The identification of strangers is proverbially untrustworthy. . . . A major factor
1
contributing to the high incidence of miscarriage of
justice from mistaken identification has been the5degree of suggestion inherent in the manner in which
6
the prosecution presents the suspect to witness
for pretrial identification. A commentator has8observed that “[t]he influence of improper suggestion
T
upon identifying witnesses probably accounts for
S
more miscarriages of justice than any other single
factor—perhaps it is responsible for more such
­errors than all other factors combined.”. . . Suggestion can be created intentionally or unintentionally
in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus
his susceptibility to suggestion the greatest.
Moreover, “[i]t is a matter of common experience
that, once a witness has picked out the accused at the
lineup, he is not likely to go back on his word later
on, so that in practice the issue of identity may (in the
absence of other relevant evidence) for all practical
purposes be determined there and then, before the
trial.”. . .
What facts have been disclosed in specific
cases about the conduct of pretrial confrontations
for identification illustrate both the potential for
substantial prejudice to the accused at that stage
and the need for its revelation at trial. A commentator provides some striking examples:
In a Canadian case . . . the defendant had been picked
out of a lineup of six men, of which he was the only
Oriental. In other cases, a black-haired suspect was
placed among a group of light-haired persons, tall
suspects have been made to stand with short nonsuspects, and, in a case where the perpetrator of
the crime was known to be a youth, a suspect under
twenty was placed in a lineup with five other persons, all of whom were forty or over.
Similarly, state reports, in the course of describing
prior identifications admitted as evidence of guilt,
reveal numerous instances of suggestive procedures, for example, that all in the lineup, but the
suspects were known to the identifying witness,
that the other participants in a lineup were grossly
dissimilar in appearance to the suspect, that only
the suspect was required to wear distinctive clothing which the culprit allegedly wore. . . .
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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   507
UNITED STATES V. WADE
(c o nti nu e d)
Since it appears that there is grave potential
for prejudice, intentional or not, in the pretrial
lineup, which may not be capable of reconstruction at trial, and since presence of counsel can
often avert prejudice and assure a meaningful
confrontation at trial, there can be little doubt that
for Wade the post–indictment lineup was a critical
stage of the prosecution at which [he] was [entitled
to counsel]. . . .
[The Court then concluded that in-court identifications must be excluded if they follow a lineup at
which a defendant is not permitted counsel, ­unless
the in-court identification has an independent
origin.]
L
I
Evidence is not automatically excluded evenD
when police employ an identification
D the trial court is to make an indeprocedure that is unnecessarily suggestive. Instead
pendent determination whether the process wasEunreliable, e.g. created a substantial
likelihood of misidentification. If so, the identification is to be excluded. When makL decision, a court is to examine the
ing the substantial likelihood of misidentification
“totality of the circumstances” surrounding the identification.
Examples of impermisL
sibly suggestive were mentioned in the Wade opinion. For example, if a witness states
, improper to exhibit four black men
that a white male committed a crime, it would be
and one white man in a lineup.
Wade, Stoval, and these other decisions defining
T this area of law were issued in
the 1970s. Subsequently a wealth of research in human memory has called the reliI The problems of unconscious bias,
ability of eyewitness identification into question.
blurred memory, the ways memories are stored F
and retrieved, and the phenomena of
reconstructed memory make memory fallible and often unreliable.
F that are highly accurate, such as
The advent of forensic identification procedures
A
DNA testing, have been used to establish the innocence
of many people whose convictions were proven, often largely, by eyewitness identification.
Eyewitness identification
N
played a role in the conviction of as many as 75% of convictions that were overturned
Y convictions, because of eyewitness
through DNA testing.41 The problem of wrongful
misidentification and other causes, is so acute that a non profit group formed to raise
funds, provide legal defense, and support research. The Innocence Project reports that
1 DNA testing since 1989.42
more than 250 people have been exonerated using
Consequently many people have called for5a more critical review of eyewitness
testimony than required by the 1970s decisions.6The Court rejected this position in
Perry v. New Hampsire (2012). The defendant in this case urged the Court to modify
8
the test from requiring proof police created a suggestive
situation to any suggestive
circumstance, police created or not. The defendant
pointed
to the large number of
T
studies that demonstrate the unreliability of eyewitness identifications in support of
S found that (1) one of the purposes
his position. Rejecting the proposition the Court
of the unnecessarily suggestive rule it had created was to deter police misconduct and
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
508   Part II Criminal Procedure
that extending the protection in the manner suggested would not achieve this goal;
(2) juries should be trusted to determine the reliability of evidence in all but the most
extreme cases; (3) trial judges have the authority, both constitutionally and through
rules of evidence, to exclude evidence that is misleading or prejudicial; and (4) the trial
judge instructed the jury in how to evaluate the reliability of the eyewitness testimony.
Lineups and Showups
lineup
■ A group of persons,
placed side by side in a
line, shown to a witness of
a crime to see if the witness
will identify the person
suspected of committing
the crime. A lineup should
not be staged so that it is
suggestive of one person.
showup
■ A pretrial Identification
procedure in which only
one suspect and a witness
are brought together.
A lineup is where the police exhibit a group of people, among whom is the suspect, to a
witness or victim for identification as the criminal. A one-man showup is an exhibition
of one person to a witness or victim for identification as the criminal.
In practice, police first conduct a lineup and then, if the suspect is identified, the
L
witness is asked at trial to testify that he or she identified the perpetrator of the crime
I if the initial identification is faulty, the subsequent in-court
at the lineup. Therefore,
identification is also faulty.
D Even if the witness is asked to identify anew the perpetrator of the crime, such an identification is tainted by the witness’s earlier identification.
D obviously, are more suggestive of guilt than lineups are. As
One-man showups,
such, they should be E
used with caution. Generally, a one-man showup should occur
soon after the crime (minutes or hours). If there is time to organize a lineup, this is the
L
preferable method of identification procedure.
L
,
The Right to Counsel
Wade mandates that counsel be provided at pretrial lineups and showups. For years
it was unknown whether this meant all pretrial lineups and showups or just those
after the Sixth Amendment
attaches. Kirby v. Illinois, (1972)43 resolved this disT
pute by requiring counsel only after initiation of “adversary judicial proceedings—
I charge, preliminary hearing, indictment, information, or
whether by way of formal
arraignment.”
F
F
A Fifth Amendment’s privilege against self-incrimination for a
It is not violative of the
­defendant to be compelled
N to appear in a lineup. The privilege against selfincrimination applies to “testimony” and not to physical acts, such as walking, gesturing, measurYwords for identification purposes.44 If a defendant has changed
ing, or speaking certain
Self-Incrimination
in appearance, he or she may be made to shave, to don a wig or hairpiece, or wear a
certain article of clothing.
1
The question under the Fifth Amendment is whether the act requested is
“communicative.” If 5
so, then the defendant may not be compelled to engage in the
act. If not, the opposite
6 is true.
8
T
Today, witness identification
through photo arrays are more common than lineups.
The due process test S
discussed earlier applies to the use of photos; that is, the event
Photographs
must not be impermissibly suggestive and unreliable. The showing of one picture is
likely to be determined improper, absent an emergency. As is true of lineups, the people
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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   509
in the photos should be similar in appearance. Also, a “mug shot” (a picture taken by
law enforcement agencies after arrest) of the accused should not be mixed with ordinary photos of nonsuspects. Nor should the photos be presented in such a manner that
the defendant’s picture stands out.
The Supreme Court has determined that there is no right to counsel at a photo
identification session, either before initiation of the adversary judicial proceeding or
thereafter.
Forensic Identification Procedures
Law enforcement officials may use scientific methods of identification to prove that
a defendant committed a crime. Fingerprinting,Lblood tests, genetic tests (deoxyribonucleic acid, or DNA, testing), voice tests, and Ihandwriting samples are examples of
such techniques.
D
Such tests are not critical stages of the criminal proceedings, and, accordingly, there is
no right to counsel. There is also no right to refuseD
to cooperate with such testing on Fifth
Amendment grounds, because the defendant is E
not being required to give testimony.
However, if a test involves an invasion of privacy, then the Fourth Amendment requires
probable cause before the procedure may be forcedLon an unwilling defendant.
Confrontation and Cross-examination Clause
L issues are raised when forensic
­experts testify as to what other experts have found or analyzed. See Chapter 15 for a
,
more thorough discussion of these issues.
Validity and Reliability
T
Scientific evidence must be reliable before it may be introduced at trial. In a landmark
I 1923), it was held that scientific
case, Frye v. United States, 293 F. 1013 (D.C. Cir.
techniques must be generally accepted as valid and
F reliable by the scientific community to be admissible. Frye was the law from 1923 until the Supreme Court issued
F
Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993). Daubert changed
the standard of admissibility from acceptance in A
the scientific community to scientific
validity. ­Under this new standard, the trial judge
N is required to make a preliminary
determination that the proffered evidence is valid before it may be presented to a jury.
Y the following factors:
In making this decision, the trial judge is to consider
1. Whether the evidence or theory has, or can be, tested.
1
5 the quality of the publication(s)
Whether the method has been published and
in which it is found.
6
Whether its error rate and other potential defects are known.
8
Whether standards and protocols for its use have been established.
T
Whether its use is widely accepted in the relevant scientific community.
S
2. Whether it has been reviewed and tested by other scientists.
3.
4.
5.
6.
Techniques that are experimental and not highly reliable are not admissible. A few
common scientific techniques are discussed here. Note that the results of a specific test
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564   Part II Criminal Procedure
What appeared to be clear and settled law was dealt a confusing blow in 2012.
In a 5-4 decision with no one rationale commanding a majority of justices, the Court
decided in Williams v. Illinois10 that the testimony of a forensic DNA expert who testified that the DNA of semen taken from a vaginal swab of a rape victim and analyzed at
a private lab, Cellmark, which matched the defendant, was admissible. This expert did
not conduct the testing and most likely had never been in the Cellmark lab.
Because the justices were divided, it is difficult to identify exactly how they distinguished the case from Crawford, Melendez-Diaz, and Bullcomings. But a few ideas can
be extracted from the opinions. First, the testing occurred before the defendant had
been identified as a suspect. The DNA profile had been built in order to identify an unknown rapist. Accordingly,
L the profile was not aimed at the defendant. Accordingly, the
important purpose of enabling defendants to cross-examine witnesses “against them”
would not have been Isatisfied by prohibiting the expert’s testimony.
Second, the expert’s
D statements were not hearsay. She didn’t testify to prove the
matter asserted—that is, she didn’t testify as to the testing or the contents of the testing
D
report. The Court summarized
the expert’s testimony as such:
E
In order to assess petitioner’s Confrontation Clause argument, it is helpful to inventory
L said on the stand about Cellmark. She testified to the truth of
exactly what Lambatos
the following matters:
L Cellmark was an accredited lab; the ISP occasionally sent forensic samples to Cellmark for DNA testing; according to shipping manifests admitted
,
into evidence, the ISP lab sent vaginal swabs taken from the victim to Cellmark and
later received those swabs back from Cellmark; and, finally, the Cellmark DNA profile
matched a profile produced
by the ISP lab from a sample of petitioner’s blood. LambaT
tos had personal knowledge of all of these matters, and therefore none of this testimony
I confrontation right.
infringed petitioner’s
F
Third, the case was tried before a judge. The law assumes that judges have a better
F and are better at categorizing evidence and not considering it
understanding of the law
for purposes beyond what
A is permitted than jurors. In this case the expert’s testimony
was not admitted to prove that the quality of the testing and the judge is presumed
N
to have not considered it for such purposes. Whether the decision would have been
Y been tried before a jury is unclear. But it easy to imagine that
different if the case had
many jurors would interpret the testimony as proving the guilt of the defendant. The
full impact of this decision will be revealed in the years to come.
1
5 of Innocence/Burden of Proof
The Presumption
6 rights underlying the right to a fair trial is the presumption
One of the most basic
of innocence. All those
8 accused must be proven guilty by the government. Criminal
defendants have no duty to defend themselves and may remain silent throughout the
T
trial. In fact, the government
is prohibited from calling defendants to testify, and defendants cannot be madeSto decide whether they will testify at the start of the trial.11 The
fact that a defendant chooses not to testify may not be mentioned by the prosecutor
to the jury. Defendants may testify in their own behalf. If so, they are subject to full
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 15: Trial   565
cross-examination by the prosecutor. The Fifth Amendment right to be free from selfincrimination is discussed more fully in Chapter 9.
The standard imposed upon the government in criminal cases is to prove guilt
beyond a reasonable doubt. A doubt that would cause a reasonable or prudent person
to question the guilt of the accused is a reasonable doubt. Although not precisely quantified, beyond a reasonable doubt is greater than the civil preponderance (51 percent
likely) and less than absolute (100 percent confidence of guilt). See the standards of
proof graphic in Chapter 12 to refresh your understanding of the different standards
that are employed in criminal law. The prosecution must prove every element of the
charged crime beyond a reasonable doubt. The reasonable doubt standard is an important feature of the accusatorial system of theLUnited States and is required by due
process.12 A juror must vote for acquittal if he or she harbors a reasonable doubt.
I must be careful not to behave in
To further the presumption of innocence, judges
a manner that implies to a jury that a defendant D
is guilty.
The court and government must be careful not to create a physical setting that implies guilt. The Supreme Court has stated that theDpresence of a defendant at a jury trial
E a federal appellate court reviewed
in prison clothing is prejudicial.13 In the Young case,
the use of “prisoner docks” for a Sixth AmendmentLviolation. Similarly, a criminal defendant also has a right to be free from appearing before the jury in handcuffs or shackles.
The government’s needs are balanced againstL
the defendant’s, however. In H
­ olbrook
v. Flynn, 475 U.S. 560 (1986), the Court stated, that not all practices that single out
the defendant are excessively prejudicial. The Court held that some prejudice may
exist. The question is whether there is unacceptable prejudice that is not justified by
governmental necessity. Using this standard, theTCourt allowed a conviction to stand
where the defendant objected to the presence ofIfour police officers in the first row of
the spectator gallery, directly behind the defendant, during trial.
F private conduct in the courtroom
Trial judges also have a responsibility to monitor
to ensure unacceptable unfairness to the defendant
F does not happen. For example,
spectators are not permitted to express opinions about the case to jurors. Whether more
subtle behaviors, such as wearing a button with aA
photo of the victim, are unacceptably
N
prejudicial remains to be seen.14
This right to be free of restraint is not absolute.
Y Judges have the authority to take
whatever measures are necessary to assure safety in the courtroom and to advance the
administration of justice. Accordingly, a defendant who is disorderly may be expelled
from the trial. However, before exclusion is ordered
1 the court should consider other
alternatives. Defendants who are threatening may be restrained, and those who verbally
interfere with the proceeding may be gagged.15 5
beyond a reasonable
doubt
■ The level of proof
required to convict a
person of a crime. Precise
definitions vary, but moral
certainty and firm belief
are both used. Beyond a
reasonable doubt is not
absolute certainty. This is
the highest level of proof
required in any type of trial.
6
8
All criminal defendants have a right to a speedy trial. It is the Sixth Amendment, as
­extended by the Fourteenth Amendment to theTstates, that guarantees speedy trial.
This right has a history dating back to at least theSMagna Carta.
The Right to Speedy Trial
To date, the United States Supreme Court has not set a specific number of days within
which trial must be conducted. Rather, the Court said in Barker v. Wingo that four factors
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
566   Part II Criminal Procedure
Exhibit 15–1 SIXTH AMENDMENT TRIAL RIGHTS
Right to
Counsel
Sixth
Amendment
Trial Rights
Right to
Confrontation
Copyright © Cengage Learning®.
Public Trial
L
I
D Jury Trial
Speedy Trial
D
E
must be considered when determining if a defendant has enjoyed a speedy trial. First, the
L
length of the delay; second, the reason for the delay; third, whether the defendant has
L trial; fourth, how seriously the defendant was prejudiced.16
asserted the right to a speedy
17
Time for speedy trial
, begins once the defendant is arrested or formally charged.
If a defendant is charged by sealed indictment, speedy trial does not start until the
indictment has been opened.
Dismissal with prejudice
is the remedy for violation of speedy trial. That is, the
T
charge is dismissed and may not be refiled by the prosecutor.
I
All the states and the national government have enacted speedy trial acts. The
F 18 is the federal statute. That act requires that individuals
Speedy Trial Act of 1974
be formally charged within
F 30 days from the date of arrest and tried within 70 days of
the filing date of the information or indictment, or of the date the defendant had the
A the court that will try the case, whichever is later.
initial appearance before
N
Y
YOUNG
1 V. CALLAHAN
700 F.2d 32 (1st Cir. 1983)
5
[The Court included a footnote which stated 6
that
a prisoner dock is “a box approximately four8
feet
square and four feet high. It is open at the top so
Tbe
that the defendant’s head and shoulders can
seen when he or she is seated. The dock is placed
S
typically at the center of the bar enclosure which
separates the spectator’s section from that portion
of the courtroom reserved for trial principals. The
dock is usually fifteen to twenty feet behind counsel table, and is sometimes on a raised platform.”]
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Chapter 15: Trial   567
YOUNG V. CALLAHAN
(c o nti nu e d)
In January of 1979 appellant was tried in Massachusetts Superior Court on one count of assault
and battery with a dangerous weapon and two
counts of murder. The jury returned a guilty verdict
on the assault and battery but was unable to reach
a verdict on the two murder indictments. In a new
trial in February of 1979, appellant was found guilty
of second-degree murder on both counts. These
L
convictions were affirmed by the Massachusetts
Supreme Judicial Court. . . .
I
Prior to appellant’s second trial, counsel moved
D
that he be allowed to sit at counsel table rather than
in the prisoner’s dock on the grounds thatD“forcing him to sit in the prisoner’s dock would deprive
E
him of his constitutional rights to a fair trial, to the
L
presumption of innocence, to access to counsel,
non-suggestive eyewitness identifications,
L and
due process of law.” That motion was accompanied
,
by an affidavit from appellant’s trial counsel averring, based on his own observations and those of
corrections officers during appellant’s two years
T of
incarceration and on appellant’s conduct at the first
trial, that “allowing [appellant] to sit at counsel table
will not present any hazards to the orderly judicial
process or to the security of its personnel,” and that
the trial of the case would involve a substantial
amount of testimony concerning acts and conduct
of the appellant over a several-day period and would
thus “require consultation with the defendant.” . . .
In once again evaluating for constitutional error the confinement of an accused to the prisoner’s
box, we reiterate . . . that such confinement, like appearance in prison attire, is a “constant reminder of
the accused’s condition” which “may affect a juror’s
judgment,” eroding the presumption of innocence
which the accused is due. . . .
The prisoner’s dock, like other physical restraints,
should thus be employed only when “the trial judge
has found such restraint reasonably necessary to
maintain order” and when cured by an instruction to
the “jurors that such restraint is not to be considered
in assessing the proof and determining guilty.”
I
F
F
To avoid prejudice by having a trial before a defendant has had an opportunity to
A
prepare a defense, the statute provides that trial shall not occur for 30 days, unless the
N
defendant consents to an earlier date.
The statute specifies certain delays that areYexcluded from computing time for
purpose of speedy trial. A few of the periods excluded by the Speedy Trial Act of 1974
are when the defendant is a fugitive; when trial is delayed because an issue is on appeal;
when delays are caused by motions of the parties;1and when delays result from mental
examinations of the defendant.
5
The Speedy Trial Act of 1974 gives the trial court the discretion to decide whether
6 or without prejudice. Factors that
violation of its provisions justifies a dismissal with
must be considered are the seriousness of the offense,
8 the reason for delay, other facts of
the case, and the impact of reprosecution on the administration of justice.19
Because the United States Supreme Court T
has not established specific time requirements for speedy trial, each state has its S
own time requirements. Of course,
states must comply with the requirements of Barker v. Wingo. Most states have speedy
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
568   Part II Criminal Procedure
trial provisions in their constitutions, which are similar, if not identical, to the Sixth
Amendment.­Other states set their speedy trial requirements out in statute or court
rules. Time ­requirements differ, but trial within six months is common.
The Right to Counsel
The Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for
his defense.” The right to counsel is one of the most fundamental rights guaranteed to
criminal defendants and is fully applicable to the states.
The right to the assistance of counsel is found not only in the Sixth AmendL and Fourteenth Amendments. These alternative sources are
ment but also in the Fifth
­discussed later in the particular
contexts within which they apply.
I
Indigency
D
It has always been clear that criminal defendants are entitled to retain the attorney of
D
their choice. It was not until 1923 that the United States Supreme Court recognized a
constitutional right toE
appointed counsel for indigent defendants in Powell v. Alabama,
287 U.S. 45 (1923). L
In the Powell case (commonly known as the Scottsboro case), nine young black
L the rape of two white girls. Within one week of arrest, the
males were charged with
defendants were tried., Eight of the “Scottsboro boys” were convicted and sentenced to
death. The defendants appealed, claiming that they should have been provided counsel.
The Supreme Court agreed.
Tto appointed counsel in Powell was not founded upon the Sixth
However, the right
Amendment, but uponI the Fourteenth. The Court reasoned that the absence of counsel
deprived the defendants of a fair trial, and, accordingly, violated the defendants’ due proF was narrow: It applied only to capital cases where the defendant
cess rights. This decision
was incapable of preparing
F an adequate defense and did not have the resources to hire an
attorney.
A
The due process right to counsel was subsequently extended to all situations
in which a defendantNwould not have a fair trial in the absence of defense counsel.
Whether counsel wasY
required depended on each particular case’s “totality of facts.” If
denial of counsel was “shocking to the universal sense of justice,” then the defendant’s
right to a fair trial, as guaranteed by the Fourteenth Amendment, was violated.20 The
Court refused to extend
1 the right to counsel to all state criminal proceedings. Cases
that involve complex legal issues or a defendant of low intelligence are the types
5
of situation that required the appointment of counsel under the Betts due process
6
standard.
In 1938 the Court
8 decided Johnson v. Zerbst, 304 U.S. 458 (1938), which held
that the Sixth Amendment guarantees a right to counsel. The Sixth Amendment right
to counsel was found T
to be broader than the right to counsel announced in Powell, as
it applied to all criminal
S prosecutions. However, Zerbst did not apply to state proceedings. Eventually, the Sixth Amendment right to counsel was extended to all state felony
proceedings, in Gideon v. Wainwright.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 15: Trial   569
GIDEON V. WAINWRIGHT
372 U.S. 335 (1963)
Petitioner was charged in Florida state court with
having broken and entered a poolroom with intent
to commit a misdemeanor. This offense is a felony
under Florida law. Appearing in court without funds
and without a lawyer, petitioner asked the court to
appoint counsel for him, whereupon the following
colloquy took place:
L
THE COURT: Mr. Gideon, I am sorry, but I canI
not appoint Counsel to represent you in this case.
Under the laws of the State of Florida, the only
D time
the Court can appoint Counsel to represent a defenD
dant is when that person is charged with a capital
E reoffense. I am sorry, but I will have to deny your
quest to appoint Counsel to defend you in this
L case.
THE DEFENDANT: The United States Supreme
L
Court says I am entitled to be represented by Counsel.
Put to trial before a jury, Gideon conducted
, his
defense about as well as could be expected from a
layman. He made an opening statement to the jury,
T
cross-examined the State’s witnesses, presented
witnesses in his own defense, declined toI testify
himself, and made a short argument “emphasizing
F
his innocence to the charge contained in the Information filed in this case.” The jury returnedFa verdict of guilty, and petitioner was sentenced to five
A
years in the state prison. Since 1942, when Betts
N
v. Brady, 316 U.S. 455, was decided by a divided
Court, the problem of a defendant’s federalY
constitutional right to counsel in a state court has been
a continuing source of controversy and litigation
in both state and federal courts. . . . Since 1
Gideon
was proceeding in forma pauperis, we appointed
5
counsel to represent him and requested both sides
to discuss in their briefs and oral arguments the
following: “Should this Court’s holding in Betts v.
Brady . . . be reconsidered? . . .
Governments, both state and federal, quite
properly spend vast sums of money to establish
machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential
to protect the public’s interest in an orderly society.
Similarly, there are few defendants charged with
crime, few indeed, who fail to hire the best lawyers
they can get to prepare and present their defenses.
That government hires lawyers to prosecute and
defendants who have the money to hire lawyers
to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with
crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but it
is in ours. From the very beginning, our state and
national constitutions and laws have laid great emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in which every defendant stands equal before
the law. This noble idea cannot be realized if the
poor man charged with crime has to face his accusers without a lawyer to represent him. . . . The Court
in Betts v. Brady departed from sound wisdom upon
which the Court’s holding in Powell v. Alabama
rested. Florida, supported by two other States, has
asked that Betts v. Brady be left intact. Twenty-two
states, as friends of the Court, argue that Betts was
“an anachronism when handed down” and that it
should now be overruled. We agree. . . . Reversed.
6
8
Subsequently, the right to counsel was againTextended to encompass all criminal
cases punished with a jail term. Whether the crime
S is labeled a misdemeanor or felony
21
is not dispositive of the right-to-counsel issue. In the 2002 case, Alabama v. Shelton,
the Supreme Court extended the right again. In Shelton, the right to counsel was found
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
570   Part II Criminal Procedure
for a convictee who was sentenced to imprisonment, even though the entire sentence
was suspended to probation.
In some cases, it may be to the prosecution’s advantage for a defendant to have
counsel, even though a sentence of imprisonment is not available for a first conviction,
but is available for subsequent convictions. This is because a sentence may not be enhanced to include jail time based on a prior conviction where the defendant possessed
a right to, but was denied, counsel.22 For example, the penalty for first-offense drunk
driving is not punished by a term in jail; however, subsequent violations are. If Jack is
arrested and convicted without counsel for his first offense, he may not be sentenced
to jail time for his second drunk driving conviction, because he did not have counsel
during his first trial. L
To qualify for appointed counsel, a defendant does not have to be financially destiI
tute. It need only be shown
that the defendant’s financial situation will prevent him or
her from being able toDretain an attorney. An indigent defendant does not have a right
to choose the appointed attorney; this decision falls within the discretion of the trial
D for a summary of when the right to counsel attaches.
court. See Exhibit 15–2
Investigation
by law
enforcement
Under Miranda v.
Arizona, the Fifth
Amendment
guarantees counsel
at all times that
defendant is in
custody and
interrogated.
Arrest
T
I
F
F
A
N
Formal
charges
Y
Probation Revocation
The Sixth Amendment
guarantees the right
to counsel in some
cases, as does the
Fourteenth
Amendment.
Trial
1
5
Once the adversary
6 proceeding is
judicial
initiated, the Sixth
8
Amendment
guarantees defendants
Tright to counsel at
the
all critical stages.
S
Sentencing
Appeal
If a state provides an
appeal by right,
the Fourteenth
Amendment
guarantees the right
to counsel. If an
appeal is discretionary,
there is no right to
counsel.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Copyright © Cengage Learning®.
Exhibit 15–2 THE RIGHT TO COUNSEL
E
L
L
,
Chapter 15: Trial   571
ALABAMA V. SHELTON
535 U.S. 654 (2002)
This case concerns the Sixth Amendment right of
an indigent defendant charged with a misdemeanor
punishable by imprisonment, fine, or both, to the
assistance of court-appointed counsel. Two prior
decisions control the Court’s judgment. First, in
Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006,
32 L.Ed.2d 530 (1972), this Court held that defense
L
counsel must be appointed in any criminal proseI
cution, “whether classified as petty, misdemeanor,
or felony,” . . . “that actually leads to imprisonment
D
even for a brief period,” . . . Later, in Scott v. Illinois,
D
440 U.S. 367, 373–374, 99 S. Ct. 1158, 59 L.Ed.2d 383
E
(1979), the Court drew the line at “actual imprisonment,” holding that counsel need not be appointed
L
when the defendant is fined for the charged crime,
L
but is not sentenced to a term of imprisonment.
Defendant-respondent LeReed Shelton,
, convicted of third-degree assault, was sentenced to a
jail term of 30 days, which the trial court immediT for
ately suspended, placing Shelton on probation
two years. The question presented is whether
I the
Sixth Amendment right to appointed counsel, as deF
lineated in Argersinger and Scott, applies to a defendant in Shelton’s situation. We hold that a suspended
F
sentence that may “end up in the actual deprivation
A
of a person’s liberty” may not be imposed unless
N of
the defendant was accorded “the guiding hand
counsel” in the prosecution for the crime charged.
Y
After representing himself at a bench trial in
the District Court of Etowah County, Alabama,
Shelton was convicted of third-degree assault,
1 a
class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2000
fine . . . He invoked his right to a new trial before a
jury in Circuit Court. . . . where he again appeared
without a lawyer and was again convicted. The court
repeatedly warned Shelton about the problems selfrepresentation entailed, see App. 9, but at no time
offered him assistance of counsel at state expense.
The Circuit Court sentenced Shelton to serve
30 days in the county prison. As authorized by Alabama law, however, . . . the court suspended that
sentence and placed Shelton on two years’ unsupervised probation, conditioned on his payment of
court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69.
Shelton appealed his conviction and sentence
on Sixth Amendment grounds. . . .
. . . A suspended sentence is a prison term imposed for the offense of conviction. Once the prison
term is triggered, the defendant is incarcerated
not for the probation violation, but for the underlying offense. The uncounseled conviction at that
point “result[s] in imprisonment. . . . This is precisely what the Sixth Amendment, as interpreted in
­Argersinger and Scott, does not allow. . . .
Satisfied that Shelton is entitled to appointed
counsel at the critical stage when his guilt or
innocence of the charged crime is decided and
­
his vulnerability to imprisonment is determined,
we affirm the judgment of the Supreme Court of
Alabama. It is so ordered.
5
6
Effective Assistance of Counsel
8
Defendants are entitled not only to have an attorney but also to receive the “effective
assistance of counsel.” On appeal, defendants mayTchallenge their convictions by claiming that at a lower level (trial or appellate) they did
S not have effective counsel.
To succeed with such a claim, two facts must be shown. First, the representation
must be extremely inadequate. Second, the defendant must show that he or she was
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
572   Part II Criminal Procedure
actually harmed by the lack of adequate counsel. So, if an appellate court determines
that a defendant would have been convicted with the best of attorneys, the defendant’s
claim of inadequate counsel fails.
A Sixth Amendment claim of ineffective assistance of counsel can take many
forms. Incompetence of counsel is often claimed, but rarely successful. Attorneys are
expected to make the legal and tactical decisions of the defense. The fact that defense
counsel rendered incorrect legal advice is not determinative. The issue is whether the
defendant’s representation was shockingly substandard.
A defendant has a right to the “undivided loyalty” of defense counsel. Hence, it is
common to have ineffective assistance of counsel claims where one attorney is representing codefendants. In Cuyler
L v. Sullivan, 446 U.S. 335 (1980), it was held that an ineffective assistance of counsel claim based upon an alleged conflict of interest will succeed
I show that the conflict “adversely affected” his or her rights.
only if the defendant can
Also, the accusedD
has a right to confer with counsel to prepare a defense. If a court
denies a defendant access to his or her counsel, a Sixth Amendment claim may be made.
D
Governmental eavesdropping
on a defendant’s conversation with his or her counE violative of the Sixth Amendment.
sel is also improper and
L
L 422 U.S. 806 (1975), the right to self-representation was esIn Faretta v. California,
tablished. The Supreme
, Court recognized that the assistance of trained legal counsel is
The Right to Self-Representation
essential to preparing and presenting a defense. However, in balance, the Court found
that a defendant’s right of choice has greater importance. Therefore, defendants may
T counsel (pro se), even though the decision increases the probchoose to act as their own
ability of a conviction.I
The record must clearly show that a defendant who has chosen to proceed pro se
F and knowingly. The defendant “must be made aware of the
has done so voluntarily
dangers and disadvantages
F of self-representation.” Whether the defendant possesses any
legal training or education is not relevant.
A
Trial judges are permitted to appoint “standby counsel” for trial. This attorney
Navailable to counsel the defendant or take over the defense, if
attends the trial and is
necessary. The Court Y
later approved the practice of appointing standby counsel over
the objection of the defendant. This is routinely done in felony cases in which the
­defendant has opted to proceed pro se.
The right to self-representation
is not absolute. A defendant who engages in
1
­disruptive behavior during the proceeding may be relieved of pro se status. Standby
5
counsel, if appointed, may be ordered to complete the trial.
6
The Scope of the Right
8
Through Gideon, the right to counsel in criminal prosecutions was extended to the
T it clear that counsel must be provided in all cases in which the
states. Argersinger made
defendant is sentencedSto actual imprisonment. But when does the right begin?
The United States Supreme Court has stated that the Sixth Amendment right to
counsel applies to all critical stages of a criminal prosecution. This definition requires that
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 15: Trial   573
a “prosecution” be initiated before the right to counsel, under the Sixth Amendment,
­attaches. Accordingly, the Sixth Amendment does not apply to juvenile proceedings, nor
to administrative hearings such as parole determination and revocation.
The right starts whenever the “adversary judicial proceeding” is initiated. Police
contacts prior to the initiation of an adversary judicial proceeding are not covered by
the Sixth Amendment.
In determining what constitutes a critical stage, courts focus on “whether substantial rights of the defendant may be affected.” The greater the contact between the
prosecutor and the defendant, the more likely the event is at a critical stage.
The first critical stage is normally the initial appearance or the arraignment. Courts
have also determined that a defendant may be entitled
L to counsel at a police lineup, sentencing, preliminary hearing, and during a probation revocation hearing. Once charges
I government are critical stages.
are filed, all interrogations of the defendant by the
The Sixth Amendment is not the only constitutional
provision assuring counsel.
D
The Fifth Amendment’s right to be free from self-incrimination also guarantees counD
sel in some instances, as does the Fourteenth Amendment’s
Equal Protection and Due
E
Process Clauses.
Trial Procedure
Voir Dire
L
L
,
The first stage of trial is the voir dire. This is a French phrase that translates “look
T as jury selection.
speak” (to speak the truth). Voir dire is also known
The process of selecting a jury differs amongI the jurisdictions. In all jurisdictions,
prospective jurors are asked questions bearing upon their individual ability to serve
F information is obtained. In many,
fairly and impartially. Each state differs in how this
the judge is responsible for asking most of the questions.
In others, the judge makes
F
only a few brief inquiries, and the lawyers do most of the questioning.
A
There are two ways of eliminating a juror. First, if one of the attorneys believes that
a juror could not be fair and impartial, the jurorNcan be challenged for cause. If the
judge agrees, the juror is released. An unlimitedYnumber of jurors may be eliminated
for cause.
In addition to challenges for cause, a juror may be eliminated by a party using a
peremptory challenge. Each party is given a specific
1 number of peremptory challenges
at the start of the trial and may strike jurors until that number is exhausted. A party is
5
free to eliminate, without stating a reason, any potential juror. However, a juror may
6
not be eliminated because of race.23
In the federal system, both defendant and prosecutor
have 20 peremptory strikes
8
in death cases and 3 in misdemeanors; in noncapital felony cases the defendant gets
10 and the government 6.24 States have similar T
rules. The authority of the parties to
use peremptory challenges is nearly absolute. Two
S limitations exist, though—the use
of a challenge to eliminate a prospective juror for race and sex. Such criteria violate the
Fifth and Fourteenth Amendments’ equal protection guarantees.25 Other than these
voir dire examination
■ (French) “To see,
to say”; “to state the
truth.” The preliminary
in-court questioning of
a prospective witness
(or juror) to determine
competency to testify (or
suitability to decide a case).
[pronounce: vwahr deer]
challenge for cause
■ A formal objection to
the qualifications of a
prospective juror or jurors.
peremptory challenge
■ The automatic
elimination of a potential
juror by one side before
trial without needing to
state the reason for the
elimination.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 16
Chapter Outline
Sentencing
Sentencing Procedure
Forms of Punishment
Habitual Offender Statutes
Postconviction Remedies
Appeal
Habeas Corpus
Ethical Considerations: Attorney Discipline
by the Numbers
Sentencing
and Appeal
L
I
D
D
E
L
L
,
T
I
F
F
A
N
Y
Chapter Objectives
After completing this chapter you should
be able to:
• describe and apply to fact scenarios
the laws of punishment, including the
constitutional limitations of punishment.
• describe the sentencing process
and identify the constitutional rights
defendants possess at sentencing.
• connect and apply the various forms of
punishment to the objectives of criminal
justice.
• identify and describe the law of appeals
and postconviction relief.
• identify the material facts and legal
issues in nearly all of the cases you
read, describe the courts’ analyses
and conclusions in the cases, and
demonstrate the ability to synthesize
and think critically about the law of
the subject.
1
5
6
8
T
S
582
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 16: Sentencing and Appeal    583
Sentencing
After conviction, sentence must be imposed. For many misdemeanors and nearly all
infractions, sentence is imposed immediately. For felonies and some misdemeanors, a
future sentencing date is set.
In most cases, sentence is imposed by the trial judge. A few jurisdictions provide
for a jury sentence recommendation, and even fewer actually permit the jury to impose
sentence. Juries always plays a role in deciding whether death should be imposed. In
some states, a jury recommendation is required before death can be imposed. In all
jurisdictions, due process and jury trial right empower juries to find the facts, called an
aggravating factor, that are required in capital cases.
L be punished. Legislatures normally
The legislature determines how a crime should
set ranges within which judges may punish violators.
I In recent years there has been a
substantial movement to limit the discretion of judges. This has been done in the fedD
eral system and many states.
D is curbed by the Eighth AmendThe right of the legislative branch in this area
ment, which prohibits “cruel and unusual punishment.”
The protection of the Eighth
E
Amendment has been extended to state proceedings through the Fourteenth Amendment. However, legislatures enjoy wide discretionLin deciding how to punish criminals.
Sentencing Procedure
L
,
The Presentence Investigation/No Right to Counsel
After a defendant is determined guilty, a sentencing date is set. For most felonies and
misdemeanors the date will be set far enough in T
the future to permit the probation officer to complete a presentence investigation. I
The investigation typically begins with an interview of the defendant. Information
concerning the defendant’s drug habits, criminalFhistory, family, employment history,
education, medical and psychological problems, and
F personal finances is obtained. The
defendant is also permitted to give his or her version of the facts surrounding the ofA
fense. There appears to be no right to counsel during this interview,1 although most
courts and probation officers permit attorneys toN
attend. The Seventh Circuit Court of
Appeals held that the Sixth Amendment right to Y
counsel does not apply at presentence
interviews by probation officers. The court reasoned that because probation officers
are neutral judicial employees, and not law enforcement officers, interviews conducted
by them are not critical stages of an adversarial
1 proceeding.2 The Seventh Circuit,
like other courts that have considered the issue, thus determined that the presentence
5
­interview is a neutral, nonadversarial meeting between the probation officer and the
6 may be in custody and admissions
defendant. This is so even though the defendant
could lead to greater punishment.
8
Three facts support the conclusion that there is no right to counsel during a preT of the interview is to gather inforsentence investigation interview. First, the objective
mation to assist the sentencing court, not to establish
S that the defendant committed a
crime. Second (and related to the first), a probation officer is not, strictly speaking, a law
enforcement officer. Third, the questions asked at the interview are routine, and defense
counsel can properly advise the client of his or her rights before the interview occurs.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
584   Part II Criminal Procedure
In addition to conducting an interview of the defendant, the probation officer
will obtain copies of vital documents, such as the defendant’s “rap sheet” and relevant
medical records. The probation officer will attempt to verify the information provided
by the defendant through these documents and other investigatory processes.
When the probation officer has completed the investigation, a presentence report
is prepared. This report reflects the information discovered during the investigation
and is used by the court in determining what sentence should be imposed. Often, the
prosecutor and law enforcement officers involved in prosecuting the defendant, family
members of the defendant, and the victim of the crime are permitted to make statements that are incorporated into the report.
There is no constitutional
right to the preparation of a presentence report; howL
ever, most jurisdictions have followed the lead of the federal government, which reI unless the record contains information sufficient to enable
quires a presentence report
the meaningful exercise
Dof sentencing discretion.3
In the federal system, the defendant is entitled to review the presentence report
D is true in most states as well, but the right is not absolute.
prior to sentencing. This
E
For example, the recommendation
of the probation officer may be kept confidential.4
At the sentencingLhearing, the defendant may disprove factual statements contained in the report. To this end witnesses may be called and exhibits introduced.
L
,
The next stage in the process is the sentencing hearing. Sentencing hearings are adverThe Sentencing Hearing
sarial. Witnesses may be called, other evidence introduced, and arguments made. In
most instances the hearing
T is before a judge, not a jury, and accordingly the rules of
evidence are relaxed. When the hearing is before a jury, such as in capital cases, the rules
I
of evidence are fully effective.
This is a critical stage under the Sixth Amendment, and
therefore there is a right
F to counsel. As is true for defendants at earlier stages of the process, convictees are entitled to more than a warm body; they are entitled to effective asF
sistance of counsel. To prove ineffective assistance of counsel, it must be shown that the
A fell below an objective standard of reasonableness and that the
attorney’s representation
defendant was actuallyNprejudiced. The following case, which involves the sentencing of
a man for a brutal rape and murder, is an example of ineffective counsel at sentencing.
Y
1 V. UPTON
SEARS
5
6
Per Curiam
8
In 1993, a Georgia jury convicted Sears of armed
T
robbery and kidnaping with bodily injury (which
also resulted in death), a capital crime under state
S
561 U.S. ___ (2010)
law. During the penalty phase of Sears’ capital
trial, his counsel presented evidence describing his
childhood as stable, loving, and essentially without
incident. Seven witnesses offered testimony along
the following lines: Sears came from a middle-class
background; his actions shocked and dismayed his
relatives; and a death sentence, the jury was told,
would devastate the family. Counsel’s mitigation
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 16: Sentencing and Appeal    585
SEARS V. UPTON
(c o nti nu e d)
theory, it seems, was calculated to portray the adverse impact of Sears’ execution on his family and
loved ones. But the strategy backfired. The prosecutor ultimately used the evidence of Sears’ purportedly stable and advantaged upbringing against him
during the State’s closing argument. With Sears,
the prosecutor told the jury, “[w]e don’t have a deprived child from an inner city; a person who[m] soL yet,
ciety has turned its back on at an early age. But,
we have a person, privileged in every way, who
I has
rejected every opportunity that was afforded him.”
D
The mitigation evidence that emerged during
Dhowthe state postconviction evidentiary hearing,
ever, demonstrates that Sears was far fromE
“privileged in every way.” Sears’ home life, while filled
L
with material comfort, was anything but tranquil:
His parents had a physically abusive relationship,
L
and divorced when Sears was young, he suffered
,
sexual abuse at the hands of an adolescent male
cousin, his mother’s “favorite word for referring to
her sons was ‘little mother fuckers,’ and hisTfather
was “verbally abusive,” and disciplined Sears with
age-inappropriate military-style drills. SearsI struggled in school, demonstrating substantial F
behavior problems from a very young age. For example,
F
Sears repeated the second grade, and was referred
Anine.
to a local health center for evaluation at age
By the time Sears reached high school, he was
N “described as severely learning disabled and as seY
verely behaviorally handicapped.”
Environmental factors aside, and more significantly, evidence produced during the state post1
conviction relief process also revealed that Sears
5 ”
suffered “significant frontal lobe abnormalities.
Two different psychological experts testified
6 that
Sears had substantial deficits in mental cognition
8 seand reasoning—i.e., “problems with planning,
quencing and impulse control,”—as a resultT
of several serious head injuries he suffered as a child, as
S
well as drug and alcohol abuse. Regardless of the
cause of his brain damage, his scores on at least
two standardized assessment tests placed him at
or below the first percentile in several categories of
cognitive function, “making him among the most
impaired individuals in the population in terms of
ability to suppress competing impulses and conform behavior only to relevant stimuli.” The assessment also revealed that Sears’ “ability to organize
his choices, assign them relative weight and select
among them in a deliberate way is grossly impaired.” From an etiological standpoint, one expert
explained that Sears’ “history is replete with multiple head trauma, substance abuse and traumatic
experiences of the type expected” to lead to these
significant impairments.
Whatever concern the dissent has about some
of the sources relied upon by Sears’ experts—
informal personal accounts,—it does not undermine
the well-credentialed expert’s assessment, based
on between 12 and 16 hours of interviews, testing,
and observations, that Sears suffers from substantial cognitive impairment. Sears performed dismally on several of the forensic tests administered
to him to assess his frontal lobe functioning. On
the Stroop Word Interference Test, which measures
response inhibition, 99.6% of those individuals in
his cohort (which accounts for age, education, and
background) performed better than he did. On the
Trail-Making B test, which also measures frontal
lobe functioning, Sears performed at the first (and
lowest) percentile. Based on these results, the expert’s first-hand observations, and an extensive review of Sears’ personal history, the expert’s opinion
was unequivocal: There is “clear and compelling
evidence” that Sears has “pronounced frontal lobe
pathology.”
Further, the fact that Sears’ brother is a convicted drug dealer and user, and introduced Sears
to a life of crime, actually would have been consistent with a mitigation theory portraying Sears as an
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
586   Part II Criminal Procedure
SEARS V. UPTON
(c o nti nu e d)
individual with diminished judgment and reasoning skills, who may have desired to follow in the
footsteps of an older brother who had shut him out
of his life. And the fact that some of such evidence
may have been “hearsay” does not necessarily undermine its value—or its admissibility—for penalty
phase purposes.
Finally, the fact that along with this new mitigaL
tion evidence there was also some adverse evidence
is unsurprising, given that counsel’s initial mitigation
I
investigation was constitutionally inadequate. ComD
petent counsel should have been able to turn some of
the adverse evidence into a positive—perhaps in D
support of a cognitive deficiency mitigation theory. InE
particular, evidence of Sears’ grandiose self-conception
L
and evidence of his magical thinking, were features,
in another well-credentialed expert’s view, of
L a
“profound personality disorder.” This evidence might
,
not have made Sears any more likable to the jury, but
it might well have helped the jury understand Sears,
and his horrendous acts—especially in light ofThis
purportedly stable upbringing.
I
Because they failed to conduct an adequate
mitigation investigation, none of this evidenceF
was
known to Sears’ trial counsel. It emerged only during state postconviction relief.
Unsurprisingly, the state postconviction trial
court concluded that Sears had demonstrated his
counsel’s penalty phase investigation was constitutionally deficient. . . .
What is surprising, however, is the court’s
analysis regarding whether counsel’s facially inadequate mitigation investigation prejudiced Sears. . . .
A proper analysis of prejudice under Strickland
would have taken into account the newly uncovered
evidence of Sears’ “significant” mental and psychological impairments, along with the mitigation
evidence introduced during Sears’ penalty phase
trial, to assess whether there is a reasonable probability that Sears would have received a different
sentence after a constitutionally sufficient mitigation investigation.
[Accordingly the Court remanded the case for a
full analysis of whether the ineffective assistance of
counsel at sentencing actually prejudiced the outcome of the sentence. Be aware that Justices Scalia
and Thomas issued a sharply worded dissent in
this case.]
F
A
In most instances, sentencing facts are established by preponderance of the evidence and are found N
by the sentencing judge. In rare instances, however, clear and
convincing evidence or
Y proof beyond a reasonable doubt is required. Death cases are
victim impact
statement
■ At the time of
sentencing, a statement
made to the court
concerning the effect the
crime has had on the victim
or on the victim’s family.
an example. This issue has also arisen in the context of sentence enhancements. For example, due process requires that any fact that increases the penalty for a crime beyond
the prescribed statutory
1 maximum, other than the fact of a prior conviction, must be
submitted to a jury and proved beyond a reasonable doubt. So, a sentencing scheme
5
that increases the punishment for racially motivated second-degree murder beyond
6
the limits set by the second-degree
murder statute is invalid unless the racial motive is
proved to the jury beyond
a
reasonable
doubt.5
8
One issue that has received considerable attention, and contradictory treatment,
T in recent years is the use of victim impact statements at
from the Supreme Court
sentencing. A victim S
impact statement is an oral or written statement to the sentencing judge explaining how the crime has affected the victim and, possibly, the victim’s
­family. In 1987 the Supreme Court handed down Booth v. Maryland, 482 U.S. 496
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 16: Sentencing and Appeal    587
(1987), wherein it invalidated a state statute requiring sentencing judges to consider
victim impact statements in capital cases. The Court determined that the use of victim
impact statements could prejudice the proceeding by injecting irrelevant, but inflammatory, evidence into the sentencing determination.
Only four years later, though, the Supreme Court overruled Booth in Payne v.
Tennessee. Thus, victim impact evidence may be admitted, even if it is not related to
the facts surrounding the crime. The decision concerning admissibility must be made
on a case-by-case basis, and it is a violation of due process to admit evidence that is so
prejudicial that the sentencing becomes fundamentally unfair.
On the other side of the coin, defendants are generally allowed to present nearly
any evidence at sentencing. This right is constitutionally
mandated in capital cases;
L
the Supreme Court has said that a state cannot preclude a defendant from proffering
evidence in support of a sentence less than death.I6
D
D
PAYNE
E V. TENNESSEE
501 U.S. 808 (1991)
L
In this case we reconsider our holdings inLBooth
around the town with a friend in the friend’s car,
v. Maryland . . . that the Eighth Amendment bars
each of them taking turns reading a pornographic
,
the admission of victim impact statement evidence
during the penalty phase of a capital trial.
The petitioner, Pervis Tyrone Payne, was
T convicted by a jury on two counts of first-degree murI
der and one count of assault with intent to commit
F to
murder in the first degree. He was sentenced
death for each of the murders, and to 30 years
F in
prison for assault.
A
The victims of Payne’s offenses were 28-yearold Charisse Christopher, her 2-year-old daughter
N
Lacie, and her 3-year-old son Nicholas.The three lived
Y
together . . . across the hall from Payne’s girlfriend,
BobbieThomas. On Saturday, June 27, 1987, Payne visited Thomas’s apartment several times in expectation
1
of her return from her mother’s house in Arkansas,
5 overbut found no one at home. One visit, he left his
night bag, containing clothes and other items6for his
weekend stay, in the hallway outside Thomas’s apart8
ment. With the bag were three cans of malt liquor.
T
Payne passed the morning and early afternoon
injecting cocaine and drinking beer. Later, he
Sdrove
magazine. Sometime around 3 p.m., Payne returned
to the apartment complex, entered the Christophers’
apartment, and began making sexual advances toward Charisse. Charisse resisted and Payne became
violent. A neighbor who resided in the apartment
directly beneath the Christophers heard Charisse
screaming, “‘Get out, get out,’ as if she were telling the children to leave.” The noise briefly subsided
and then began “horribly loud.” The neighbor called
the police after she heard a “bloodcurdling scream”
from the Christopher apartment. . . .
When the first police officer arrived at the scene,
he immediately encountered Payne, who was leaving the apartment building, so covered with blood
that he appeared to be “sweating blood.” The officer
confronted Payne, who responded, “I’m the complainant.” . . . When the officer asked, “What is going on up there?” Payne struck the officer with the
overnight bag, dropped his tennis shoes, and fled.
Inside the apartment, the police encountered a
horrifying scene. Blood covered the walls and floor
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
588   Part II Criminal Procedure
PAYNE V. TENNESSEE
(c o nti nu e d)
throughout the unit. Charisse and her children were
lying on the floor in the kitchen. Nicholas, despite
several wounds inflicted by a butcher knife that
completely penetrated through his body from front
to back, was still breathing. Miraculously, he survived. . . . Charisse and Lacie were dead.
Charisse’s body was found on the kitchen floor
on her back, her legs fully extended. . . . None of the
Lfa84 wounds inflicted by Payne were individually
tal; rather, the cause of death was most likely bleedI
ing from all of the wounds. She had suffered stab
D
wounds to the chest, abdomen, back, and head. The
murder weapon, a butcher knife, was found atD
her
feet. Payne’s baseball cap was snapped on herE
arm
near her elbow. Three cans of malt liquor bearing
Payne’s fingerprints were found near her body,L
and
a fourth empty was on a landing outside the apartL
ment door.
,
Payne was apprehended later that day. . . .
[T]he jury returned guilty verdicts against Payne
on all counts.
T
During the sentencing phase of the trial, Payne
presented the testimony of four witnesses,I his
mother and father, Bobbie Thomas, and Dr. John
F T.
Huston, a clinical psychologist specializing in crimiF
nal court evaluation work. Bobbie Thomas testified
A
that she met Payne at church, during a time when
she was being abused by her husband. She stated
N
that Payne was a very caring person, and that he
devoted much time and attention to her three Y
children, who were being affected by her marital difficulties. She said that the children had come to love
1
him very much and would miss him, and that he
“behaved just like a father that loved his kids.”5
She
asserted that he did not drink, nor did he use drugs,
6
and that it was generally inconsistent with Payne’s
character to have committed these crimes. . . . 8
The State presented the testimony of Charisse’s
T
mother, Mary Zvolanek. When asked how Nicholas
S
had been affected by the murder of his mother and
sister, she responded:
He cries for his mom. He doesn’t seem to understand
why she doesn’t come home. And he cries for his
sister Lacie. He comes to me many times during the
week and asks me, Grandma, do you miss Lacie. And
I tell him yes. He says, I’m worried about my Lacie.
In arguing for the death penalty during closing
argument, the prosecutor commented on the continuing effects of Nicholas’s experience, stating:
But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to the
paramedics. He was able to follow their directions.
He was able to hold his intestines in as he was carried
to the ambulance. So he knew what happened to his
mother and baby sister. . . .
Somewhere down the road Nicholas is going to
grow up, hopefully. He’s going to want to know what
happened. And he is going to know what happened
to his baby sister and mother. He is going to want to
know what type of justice was done. He is going to
want to know what happened. With your verdict, you
will provide the answer. . . .
In the rebuttal to Payne’s closing argument, the
prosecutor stated:
You saw the videotape this morning. You saw what
Nicholas Christopher will carry in his mind forever.
When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture
will always come into your mind, probably throughout the rest of your lives.
■
■
■
No one will ever know about Lacie Jo because she
never had a chance to grow up. Her life was taken
from her at the age of two years old. . . . His mother
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 16: Sentencing and Appeal    589
PAYNE V. TENNESSEE
(c o nti nu e d)
will never kiss [Nicholas] good night or pat him as he
goes off to bed, or hold him and sing him a lullaby.
[Petitioner’s attorney] wants you to think about a
good reputation, people who love the defendant and
things about him. He doesn’t want you to think about
the people who loved Charisse Christopher, her
mother, and daddy who loved her. The people who
loved little Lacie Jo, the grandparents who are still
here. The brother who mourns for her every single
day and wants to know where his best little playmate
is. He doesn’t have anybody to watch cartoons with
him, a little one. These are the things that go into why
it is especially cruel, heinous, and atrocious, the burden that child will carry forever.
L
I
D
D
E
The jury sentenced Payne to death on each of
L
the murder counts. The Supreme Court of Tennessee affirmed the conviction and sentence. . .L
.
We granted certiorari . . . to reconsider our
,
holdings in Booth . . . that the Eighth Amendment
prohibits a capital sentencing jury from considering
“victim impact” evidence relating to the personal
T
characteristics of the victim and the emotional impact of the crimes on the victim’s family. . . .I
Under our constitutional system, the primary
F
responsibility for defining crimes against state law,
F
fixing punishments for the commission of these
A tricrimes, and establishing procedures for criminal
als rests with the States. The state laws respecting
N
crimes, punishments, and criminal procedure are of
course subject to the overriding provisionsYof the
United States Constitution. . . .
Within the constitutional limitations defined
1
in our cases, the States enjoy their traditional lati5 who
tude to prescribe the method by which those
commit murder should be punished. . . . The states
6
remain free, in capital cases, as well as others, to
8 meet
devise new procedures and new remedies to
felt needs. Victim impact evidence is simply
T another form or method of informing the sentencing
S
authority about the specific harm caused by the
crime in question, evidence of a general type long
considered by sentencing authorities. [The] Booth
Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death
penalty. In the majority of cases, and in this case,
victim impact evidence serves entirely legitimate
purposes. In the event that evidence is introduced
that is so unduly prejudicial that it renders the trial
fundamentally unfair, the Due Process Clause of
the Fourteenth Amendment provides a mechanism
for relief. . . . Courts have always taken into consideration the harm done by the defendant in imposing sentence, and the evidence adduced in this
case was illustrative of the harm caused by Payne’s
double murder.
We are now of the view that a State may properly conclude that for the jury to assess meaningfully
the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing
phase evidence of the specific harm caused by the
defendant. “[T]he State has a legitimate interest in
counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the
sentencer that just as the murderer should be considered an individual, so too the victim is an individual whose death represents a unique loss to society
and in particular to his family.” . . . By turning the
victim into a “faceless stranger at the penalty phase
of a criminal trial” . . . Booth deprives the State of
the full moral force of its evidence and may prevent
the jury from having before it all the information
necessary to determine the proper punishment for
a first-degree murder.
The present case is an example of the potential for such unfairness. The capital sentencing jury
heard testimony from Payne’s girlfriend that they
met at church, that he was affectionate, caring, kind
to her children. . . . Payne’s parents testified that he
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
(continued)
590   Part II Criminal Procedure
PAYNE V. TENNESSEE
(c o nti nu e d)
was a good son, and a clinical psychologist testified that Payne was an extremely polite prisoner
and suffered from a low IQ. None of this testimony
was related to the circumstances of Payne’s brutal crimes. . . . The Supreme Court of Tennessee in
this case obviously felt the unfairness of the rule
pronounced in Booth when it said “[i]t is an affront to the civilized members of the human race
L
to say that at sentencing in a capital case, a parade
of witnesses may praise the background, character
and good deeds of the defendant (as was done in
this case), without limitation as to relevancy, but
nothing may be said that bears upon the character
of, or the harm imposed, upon the victims.” . . .
We thus hold that if the State chooses to permit the admission of victim impact evidence and
prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.
I
D
D Crimes
Punishing Acquitted
Historically, judges have
E held considerable discretion in sentencing. The rules of evidence are relaxed, andLjudges may hear evidence that is otherwise inadmissible. Victim
impact evidence, family history, medical history, mental health history, employment
L
history, and criminal history
are examples of the type of evidence that is considered at
sentencing.
,
Additionally, the nature of the crime committed and the particular manner in
which it was committed are considered. In some cases, evidence concerning the nature
and manner of the offense
T may include evidence of other crimes that were committed in conjunction with the offense under sentence. An interesting question concerns
I
whether a defendant may have a sentence increased for acquitted crimes. This issue
F Court in United States v. Watts (1997).7 Police discovered both
was before the Supreme
cocaine and guns in aF
search of Watts’s property, and he was subsequently charged and
tried for possession of cocaine and possession of a gun in relation to a drug offense.
A of the former charge and acquitted him of the latter charge.
The jury convicted him
At sentencing, however,
N the trial judge found that Watts did use the gun in relation
to a drug offense and,Yaccordingly, increased his sentence for the cocaine possession
conviction.
On appeal, the Supreme Court affirmed the sentence enhancement. The Court
stressed that judges have
1 historically had significant discretion in sentencing and that
the enhancement was not punishment for an acquitted offense, but instead was an
enhanced punishment5for the manner in which the defendant committed the crime
of conviction. Also important
are the differing standards of proof between conviction
6
and sentencing. Conviction requires a finding beyond a reasonable doubt, while sen8
tencing requires proof by preponderance of the evidence. The high standard of proof
T to the Court, means that an acquittal cannot be interpreted
for conviction, according
as a finding of fact. An
S acquittal means that the government has not proved its case,
not that the defendant did not commit the act in question. However, for reasons to be
discussed, the status of Watts is unknown.
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Chapter 16: Sentencing and Appeal    591
Proving Facts for Sentencing
In a practice similar to that of using acquitted crimes to enhance a sentence, judges
have historically used facts not presented to the trial jury to increase sentences. If there
is a plea of guilty, the judge must find that the essential elements of the crime were
committed. This usually involves a recitation of the facts by the defendant. If there has
been a trial, the judge is armed with the findings of the jury; or in the case of a bench
trial, of the trial judge. Once the facts have been established at trial, whether by confession or a finding of fact, additional evidence must be received at sentencing. However,
that evidence is limited to the facts that are relevant to the sentencing decision. For
over 150 years, trial judges routinely found facts, often by a preponderance of the
evidence, at sentencing hearings. Judges have always been restricted by jury decisions.
L
That is, they cannot refind facts that have been decided by trial juries. For example, if
a jury finds a defendant guilty of possession of a Ispecific amount of cocaine, a sentencing judge is prohibited from increasing the sentence
D because the judge finds that the
defendant possessed a greater amount of cocaine.
However, judges would commonly find otherD
facts that affected the final sentence—
for example, whether a defendant possessed a weapon
E while engaged in a drug deal in
a case where the defendant was charged only with dealing drugs, not possession of the
L
weapon. Often these facts were proved by the preponderance standard.
L has developed around the Sixth
In recent years, however, a new body of law
Amendment’s jury trial right. In short, these cases
, require that all findings that are
used to support the sentence must be heard by a jury and found to be true beyond
a reasonable doubt.8 In Blakely, the defendant had been charged with first-degree
kidnapping. He and the state reached a plea T
agreement that reduced the charges
to second-degree kidnapping involving domestic violence and the use of a firearm.
I
Pursuant to the plea agreement, the state recommended a sentence of between 49
F the crime involved deliberate cruand 53 months. The judge, however, found that
elty and enhanced the sentence to 90 months.
F After the defendant objected, the
judge conducted a three-day fact hearing on the deliberate cruelty question. The
A having found deliberate cruelty
judge again sentenced the defendant to 90 months,
following the hearing.
N
The Supreme Court reversed, finding that it was not possible for the judge to jusY
tify the enhanced sentence solely because of the facts admitted in the guilty plea. While
the defendant admitted to kidnapping and the use of a gun, he did not provide evidence that he acted with deliberate cruelty. Accordingly,
the judge had to find facts the
1
trial jury was not charged with determining. This effort is proved by the judge’s need
5 the Sixth Amendment guarantees
to conduct a three-day sentencing hearing. Because
individuals the right to have all facts essential to6sentencing heard by a jury, using the
reasonable doubt standard, the trial judge erred. Whether the judge had charged the
8
trial jury to make the deliberate cruelty finding or had empaneled a jury at sentencing to make the finding, the sentence would notThave violated the Sixth Amendment.
Similarly, in the 2007 Cunningham case, the Court
S invalidated a California law that
created an upper range of 12 years in prison for the crimes covered by the jury’s verdict
but allowed the judge to sentence the offender to an additional four years for facts the
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
592   Part II Criminal Procedure
judge could find, by preponderance of the evidence, at a sentencing hearing. Later,
in the discussion of the federal sentencing guidelines, you may read an excerpt of the
Supreme Court’s decision United States v. Booker wherein the right to have facts decided
by a jury under the Sixth Amendment was used to invalidate the mandatory nature of
the federal sentencing guidelines. The relationship between Booker and Watts is not
clear. Watts may be overruled altogether. At the least, Booker demands that the conduct
for which the defendant was acquitted be found by a jury before a judge may rely upon
them at sentencing.
In capital cases the Supreme Court has specifically held that the aggravating circumstances that must be found to impose death have to be found by a jury and beyond
a reasonable doubt.9 Judges
L may still be empowered to decide whether to impose death
or another punishment, but death is only an option to the judge if the jury finds an
I states have delegated only the aggravating factor decision to
aggravating factor. Some
juries, as required, andDothers have handed the jury both the aggravating factor and the
sentencing decision.
D
E
Forms of Punishment
The legislature determines
L what
sentences.
L
Capital Punishment
,
type of sentence may be imposed; judges impose
Clearly the most controversial punishment is the death penalty. In early American
history, capital punishment was commonly used. During the nineteenth century, use
of the death penalty greatly
T declined. Today, more than half the states provide for the
death penalty, and its use has regained popular support. Although the number of inI
mates actually executed every year is small, the number is increasing.
F the death penalty is inherently cruel and unusual and thereThe contention that
fore violative of the Eighth
F Amendment has been rejected. However, the Court has
struggled, as have state courts and legislatures, with establishing standards for its use.
A 408 U.S. 238 (1972), the Court held that the death penalty
In Furman v. Georgia,
cannot be imposed under
N a sentencing procedure that creates a substantial risk of being
implemented in an arbitrary manner. It found that Georgia’s law permitted arbitrary
Y
decisions and so declared it void. Furman required that the sentencer’s discretion be
limited by objective standards to eliminate unfairness—specifically, to eliminate racial
and other bias from death
1 sentence decisions.
States responded to Furman in various ways. Some chose to eliminate discretion
entirely by mandating5capital punishment for certain crimes. The Supreme Court invalidated mandatory capital
6 punishment laws in Locket v. Ohio, 438 U.S. 586 (1978).
In Locket the Court held that individualized sentencing was constitutionally required.
8
The Court stated that any law prohibiting a sentencer from considering “as a mitigating factor, any aspect T
of a defendant’s character or record and any circumstances of the
offense that the defendant
S proffers as a basis for a sentence less than death” creates an
unconstitutional risk that the “death penalty will be imposed in spite of factors which
may call for a less severe penalty.”10
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.