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Searches and Seizures: Overview of the Fourth Amendment

Excerpted from: Overview of the Fourth Amendment, 40 Georgetown Law Journal Annual Review of Criminal Procedure 3 (2011) (54 footnotes Omitted)

The Fourth Amendment to the United States Constitution governs all searches and seizures conducted by government agents. The Amendment contains two separate clauses: (1) a prohibition against unreasonable searches and seizures and (2) a requirement that probable cause support each warrant issued. Interpreted literally, the Amendment requires neither a warrant for each search or seizure nor probable cause to support a search or seizure. Nevertheless, the Supreme Court imposes a presumptive warrant requirement for searches and seizures and generally requires probable cause for a warrantless search or seizure to be “reasonable.” The Court, however, has also developed several exceptions to the warrant and probable cause requirements.

An unlawful search or seizure neither precludes prosecution nor invalidates a subsequent conviction. Instead, the usual remedy for a Fourth Amendment violation is suppression of the illegally seized evidence.

Government Action. The Fourth Amendment applies only to searches and seizures that are the product of government action. Although a search or seizure conducted by a private party not acting as an agent of the government is shielded from Fourth Amendment scrutiny, any subsequent government search or seizure that exceeds the scope of the initial private search must comply with the Amendment.

Conduct Constituting a Search or Seizure. A search is a governmental invasion of a person's privacy. The Supreme Court has adopted a two-part test to determine whether a person's expectation of privacy is legitimate. First, the individual must have a subjective expectation of privacy in a place or thing. Second, society must be prepared to recognize that expectation as objectively reasonable. Items or areas exposed to the public, abandoned, or accessed by consent are not protected because an individual does not have a legitimate expectation of privacy in those items or areas.

In determining whether government action constitutes a search, courts consider the intrusiveness of the action. For example, the use of dogs to perform a “sniff test” for drugs represents a minimal intrusion and therefore does not constitute a search.

The Fourth Amendment also protects against unreasonable government seizures of persons and property. The Fourth Amendment only applies to government actions that terminate “freedom of movement through means intentionally applied.” Seizureof a person occurs when a reasonable person (1) “would believe that he or she is not ‘free to leave”’ or (2) “would [not] feel free to decline the officers' requests or otherwise terminate the encounter.” The court must “tak[e] into account all of the circumstances surrounding the encounter.” An encounter with an officer does not constitute a seizure unless the officer restrains the individual's liberty by means of physical force or a show of authority to which the individual submits. A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.

Probable Cause. Probable cause is required to justify most governmental intrusions upon interests protected by the Fourth Amendment. The Supreme Court defines probable cause to search as “a fair probability that contraband or evidence of a crime will be found in a particular place.” Probable cause to obtain an arrest warrant or to conduct a warrantless arrest exists when police have, at the moment of arrest, knowledge of facts and circumstances grounded in reasonably trustworthy information and sufficient in itself to warrant a belief by a prudent person that an offense has been or is being committed by the suspect. The Supreme Court has called probable cause “a practical, nontechnical conception” based on “common-sense conclusions about human behavior.” It “is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules,” and its existence must be determined by an analysis of the totality of the circumstances surrounding the intrusion.

The probable cause determination is twofold, and each step warrants a different level of appellate review. First, judges must determine the “historical facts,” the events that occurred leading up to the stop or search. Second, judges must decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer,” amount to probable cause. Appellate courts must review findings of historical fact only for clear error and must “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” By contrast, the ultimate determination of whether probable cause for a warrantless search or seizure existed should be reviewed de novo on appeal.

Facts supporting probable cause may come from several sources. First, the personal observations of officers may establish probable cause. Police may use their experience, special training, and expertise to draw limited inferences of criminal activity from behavior that is not facially criminal. Second, probable cause may be based upon information from a reliable, known informant or information from an independent source that can be independently corroborated. Third, weapons or other evidence seized during stops based upon reasonable suspicion may provide probable cause, as may evidence discovered in plain view or during consensual searches and interviews. Finally, in certain circumstances, association with a person whom police have probable cause to arrest may establish probable cause to arrest the associate, particularly if the associate is present in a place in which criminal activity is openly and repeatedly conducted.

A search or seizure unsupported by probable cause is generally unlawful. In a series of decisions, however, the Supreme Court has held that reasonable suspicion of unlawful activity justifies searches and seizures when the intrusion on individual privacy is minimal and outweighed by an important governmental interest. Thus, investigatory stops, detentions, and protective sweeps if they are supported by individualized, articulable suspicion.

Some searches may be reasonable under the Fourth Amendment without any individualized suspicion. Searches extending beyond routine border searches, and searches involving special needs of the government other than normal law enforcement are reasonable. For example, random drug testing of certain students is reasonable without any particularized showing of suspicion. Additionally, individualized suspicion may not be necessary to justify searches incident to lawful arrest, searches at fixed checkpoints, routine border searches, inventory searches, and searches of pervasively regulated industries.

. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. The Fourth Amendment is applicable to state officials through the Due Process Clause of the Fourteenth Amendment. See Wolf v. Colo., 338 U.S. 25, 27-28 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961).

Warrantless Searches and Seizures

Reprinted from: Warrantless Searches and Seizures, 40 Georgetown Law Journal Annual Review of Criminal Procedure 44 (2011) (283 Footnotes Omitted)

Under the Fourth Amendment, every search or seizure by a government agent must be reasonable. In general, searches and seizures are unreasonable and invalid unless based on probable cause and executed pursuant to a warrant. However, certain kinds of searches and seizures are valid as exceptions to the probable cause and warrant requirements, including investigatory stops, investigatory detentions of property, warrantless arrests, searches incident to a valid arrest, seizures of items in plain view, searches and seizures justified by exigent circumstances, consensual searches, searches of vehicles, searches of containers, inventory searches, border searches, searches at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause and warrant requirements impracticable.

Investigatory Stops of Persons. Not all encounters between individuals and police are seizures governed by the Fourth Amendment. A seizure occurs when a reasonable person (1) would not feel “free to leave” or (2) would not feel “free to decline the officers' requests or otherwise terminate the encounter.” Investigatory stops--brief seizures by police officers-- are governed by the Fourth Amendment and are lawful when justified by “reasonable suspicion.” A lesser standard than probable cause, reasonable suspicion exists when an officer can “point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.” In adopting this formulation, the Supreme Court in Terry v. Ohio emphasized the importance of balancing “the need to search (or seize) against the invasion which the search (or seizure) entails” to determine whether a search or seizure is lawful. Under this balancing approach, important government interests can justify brief investigatory stops based on less than probable cause.

Law enforcement officers may initiate an investigatory stop if they have reasonable suspicion that a person is engaged in criminal activity. To determine whether reasonable suspicion existed at the time of the encounter, courts use a “totality of the circumstances” test. Inarticulable hunches or generalized suspicions are insufficient. Police may stop and question a person for a limited period of time when they reasonably suspect that person is engaged in criminal activity. The requirements for performing an investigatory frisk are discussed later in this Section.

Generally, investigatory stops are valid only if reasonable suspicion objectively exists. The subjective intentions of police are irrelevant to an evaluation of the constitutionality of an investigatory stop under the Fourth Amendment. The primary bases for reasonable suspicion are a police officer's personal observations and the officer's knowledge that a crime has been committed. Courts afford considerable deference to the observations and conclusions of the police, reasoning that an experienced officer can infer criminal activity from conduct that may seem innocuous to a lay observer. Although an officer may not base reasonable suspicion on isolated or minimal instances of innocent activity, several apparently innocent activities may cumulatively create the requisite reasonable suspicion.

Reliable information from a citizen informant may also create reasonable suspicion and justify an investigatory stop. Courts assess the reliability of an informant's tip on a sliding scale: greater corroboration is necessary to justify acting on a tip from an unknown informant or an informant of uncertain trustworthiness, while less corroboration will suffice if the information is from a known source or source that has proven trustworthy.

Generalized fear of criminal activity and the presence of a suspect in a high-crime neighborhood are factors that, standing alone, do not justify seizure. Courts may use these factors, however, in assessing the totality of circumstances surrounding a seizure. For example, a suspect's unprovoked flight upon seeing the police can justify a seizure when it occurs in a high-crime neighborhood. Generalized suspicion of criminal activity based solely on race does not justify a seizure.

The range of police activities permitted during an investigatory stop must be reasonably related to the circumstances that initially justified the stop. During a lawful investigatory stop, police may ask questions or request documents to establish a person's identity and to confirm or dispel suspicions of criminal activity. If reasonable suspicion does not exist, police may still order occupants out of a vehicle they have lawfully stopped. In addition to detentions that are justified in the absence of a warrant, a detention may be justified because a search warrant implicitly carries with it the limited authority to detain the occupants of the premises while the search is conducted.

When the police hold a suspect beyond the amount of time necessary to effectuate the purpose of the stop, the seizure becomes an arrest and must be supported by probable cause. The Supreme Court has declined to establish a bright-line rule to determine when an investigatory stop becomes an arrest. Instead, lower courts decide on a case-by-case basis whether an investigatory stop has become an arrest. In making such decisions, courts consider the diligence of police in resolving their reasonable suspicion as quickly as possible, the scope and nature of the restraints placed on an individual's liberty, and whether police transported the individual to another location. The mere existence of a less intrusive means of investigation does not make a detention unreasonable. When a detainee's own actions contribute to the duration of a stop, a longer detention may be reasonable.

Under Terry, a police officer who makes an investigatory stop may conduct a limited pat-down frisk of a suspect's outer clothing. The frisk may only be conducted if the officer has a reasonable belief that the detainee poses a threat to the officer's safety or the safety of others. The frisk must be limited in scope to a search for weapons and may not be used to search for evidence of criminal activity.

Investigatory Detentions of Property. Under the Fourth Amendment, seizures of property in which a person has a legitimate privacy interest are valid only when police reasonably suspect that the property constitutes evidence of criminal activity. Seizures of property that is abandoned, in plain view, or obtained by consent are valid because the Fourth Amendment does not protect voluntarily surrendered privacy interests. When evaluating the reasonableness of a seizure of property, courts consider the duration and intrusiveness of the seizure, including how quickly police conducted their investigation of the seized property and whether police took the seized property to a different location after seizing it. While brief seizures of property are valid if based on reasonable suspicion, a subsequent search of seized property is generally valid only if executed pursuant to a warrant issued upon probable cause.

Warrantless Arrests. In certain circumstances, a law enforcement officer may lawfully arrest a person without an arrest warrant. An officer may conduct a warrantless arrest if (1) the arrestee has committed an offense in the officer's presence, (2) the officer has probable cause to believe the arrestee has committed a felony and the arrest occurs in a public place, or (3) the officer has probable cause for an arrest and the circumstances are “exigent.” After making a warrantless arrest, an officer must promptly secure a judicial determination of probable cause. The probable cause required to make a lawful warrantless arrest is identical to the probable cause required to secure an arrest warrant.

Probable cause alone is insufficient to justify warrantless entry into a person's home and warrantless arrests in suspects' dwellings are presumptively unreasonable. Absent consent, only exigencies--such as fear of imminent destruction of evidence, hot pursuit, or immediate threats to the safety of the public or the officers--can justify a warrantless entry into an individual's home to make an arrest. Courts disapprove of police conduct that creates exigent circumstances used to justify a warrantless arrest in a suspect's home, but will often sustain such arrests when the police can demonstrate that their actions were motivated by legitimate law enforcement needs.

The special protections afforded to dwellings extend to rented premises, hotel rooms, and temporary residential arrangements, but not beyond the premises to hallways, common areas, or areas where there is no legitimate expectation of privacy. Even with an arrest warrant, police may not enter the home of a third person to arrest an individual not living there unless the police have a search warrant or a reasonable belief that the person named in the arrest warrant resides in the home and is currently inside.

Searches Incident to Valid Arrests. When conducted incident to a lawful custodial arrest, a full search of the arrestee's person for both weapons and evidence is permitted. In addition, police may search containers and other items found on the arrestee's person and any items or areas within the person's immediate control. However, the search of the arrestee's person may not be unreasonably intrusive.

When police make a valid arrest of a recent occupant of a vehicle, police may search the passenger compartment of the vehicle only (1) “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle” or (2) “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Authorization to search a vehicle's passenger compartment also extends to any containers found therein.

Although police must conduct searches incident to arrest reasonably promptly, substantial delay may be appropriate based on the circumstances surrounding a particular arrest. Searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search. However, if the probable cause to arrest derives from a warrantless search, then the search is not justifiable as a search incident to arrest.

In general, an arrest does not justify a search of the arrestee's entire home. In Maryland v. Buie, however, the Supreme Court held that officers may conduct a limited protective sweep of “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” This sweep may extend to a non-adjoining area only if officers have a “reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” The protective sweep may only entail a cursory inspection of those spaces in which a person may be found and cannot last longer than is reasonably necessary to dispel suspicion of danger.

Seizures of Items in Plain View. In certain situations, police may seize evidence that is in plain view without a warrant. First, the police must not “violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Thus, police may lawfully seize evidence in plain view when executing a search warrant or arrest warrant and when conducting a lawful warrantless search. Second, the incriminating character of the evidence seized must be immediately apparent, and police may not disturb or further investigate an item to discern its evidentiary value without probable cause. In order to establish probable cause, however, police may lawfully engage in investigatory action not considered a search under the Fourth Amendment.

Warrantless seizures of evidence based on the plain view doctrine may be valid even if the officers expected to find the seized evidence. The plain view doctrine also permits police to seize a container if its contents are in plain view and provide probable cause for a search. In Minnesota v. Dickerson, the Court expanded the plain view doctrine to include a “plain touch” corollary. Several courts have also adopted “plain smell” and “plain hearing” corollaries.

Exigent Circumstances. Government agents may conduct a warrantless search or seizure if (1) probable cause supports the search or seizure and (2) “exigent circumstances” exist. Exigent circumstances include imminent destruction of evidence, a threat to the safety of law enforcement officers or the general public, “hot pursuit” of a suspect by police, or likelihood that a suspect will flee before the officer can obtain a warrant.

Conducting a warrantless search or seizure to preserve evidence is justified if the police reasonably believe that unless they immediately conduct a warrantless search, the evidence is in imminent danger of being removed or destroyed. Because narcotics can be destroyed easily, criminal investigations involving narcotics often result in warrantless searches or seizures based on exigent circumstances. If exigent circumstances do not compel an immediate warrantless search, police may secure a residence to prevent destruction or removal of evidence before obtaining a search warrant.

If police reasonably believe that their safety or the safety of the general public is threatened, they may enter a dwelling and conduct a full warrantless search. In the course of such a search, police may inspect places where they reasonably believe inherently dangerous items are present. The police may also search a residence in which a violent crime has occurred if they reasonably believe victims or dangerous persons are present. Other dangers to the public may also constitute exigent circumstances. For example, a burning building or an imminent fire hazard may justify a warrantless entry into that building to extinguish the fire or eliminate the hazard. Officials at the scene of a fire or explosion do not need a warrant to remain in the building for a reasonable time after the fire has been extinguished to investigate the cause, or to search for victims or prevent further damage. Once the cause has been established, however, officials must secure a warrant to conduct a further search for evidence.

Warrantless searches may also be justified by the exigency of hot pursuit if the pursuing officers have probable cause to arrest the suspect. The Supreme Court has stated that “‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry ‘in and about [the] public streets.”’ The hot pursuit justification for a search is not valid unless officers make an immediate and continuous pursuit of the suspect from the crime scene. The scope of a search justified by hot pursuit is only as broad as necessary to prevent the suspect from resisting arrest or escaping.

A warrantless entry or arrest may be justified if the police have reason to believe that a suspect will flee before they can obtain a warrant. The scope of such a search is only as broad as necessary to prevent the suspect from resisting arrest or escaping.

Beyond the specific examples of exigent circumstances listed above, courts will consider several factors in deciding whether an exigent-circumstances search or seizure was proper. First, courts may consider the gravity of the offense that prompts a search or seizure. Second, police must demonstrate that the search was conducted in a reasonable manner; the reasonableness inquiry requires a showing that a telephone warrant was unavailable or impractical for the searching officers. Third, the police may not take actions to create an exigency and subsequently use that exigency to justify a warrantless search or seizure. However, police do not generally have a duty to alleviate potential exigencies.

In determining whether exigent circumstances justify a warrantless entry, courts examine the totality of circumstances during the period immediately preceding the search.

Consent Searches. Government officials may conduct a search without a warrant or probable cause based upon an individual's consent, so long as that consent (1) was voluntary and (2) came from someone authorized to give it. Any evidence discovered during a consent search may be seized and admitted at trial. Consent may be express or implied, and, although a waiver of Fourth Amendment rights, need not be knowing and intelligent.

To determine whether consent was given voluntarily, courts examine the totality of the circumstances. Factors that weigh on the court's determination of voluntariness include: (1) the consenting individual's knowledge of the constitutional right to refuse consent; (2) the consenting individual's age, intelligence, education, and language ability; (3) the degree to which the consenting individual cooperates with the police; (4) the consenting individual's attitude about the likelihood of the discovery of contraband; and (5) the length of detention and the nature of questioning, including police threat of physical punishment or other coercive behavior. No single factor is dispositive. Moreover, the influence of drugs, intoxication, and mental agitation do not automatically render consent involuntary. Additionally, persons in lawfully detained vehicles do not have to be advised that they are free to leave before giving voluntary consent. The prosecution bears the burden of proving voluntary consent. Whether consent was voluntary is a question of fact reviewed under a “clearly erroneous” standard.

Consent is not voluntary if given only in acquiescence to a claim of lawful authority. Therefore, a search may not be justified based on consent given only after the official conducting the search asserts possession of a warrant or the possibility of obtaining a warrant if necessary. In addition, consent cannot justify a search conducted in reliance upon a warrant if a court subsequently determines that the warrant was invalid.

Consent to search is generally invalid if an illegal search or seizure occurred before the consent was given. If, however, consent to search is given under conditions sufficiently attenuated from an illegal arrest or search, evidence discovered during the subsequent search will not be suppressed.

In addition to express consent, consent may be implied by the circumstances surrounding the search, the person's prior actions or agreements, or the person's failure to object to the search.

Generally, anyone who has a reasonable expectation of privacy in the place being searched can consent to a warrantless search, and any person with common authority over, or other sufficient relationship to, the place or effects being searched can give valid consent. However, if two residents are present during the search request and one expressly denies consent, the other's consent is not valid. Courts recognize common authority to consent in each person whose mutual use of the property demonstrates “joint access or control for most purposes.” The law presumes that other users of the property assume the risk that areas under common control may be searched. The prosecution, however, bears the burden of establishing that common authority exists.

Further, a warrantless search is valid when law enforcement personnel rely on a person's “apparent authority” to consent to the search if the reliance is in good faith and is reasonable based on all facts known by police at the time of the search. Some courts have held that even if a third party is acting as an informant or other agent of the government, that person may still consent to a warrantless search if otherwise empowered to consent.

The scope of a consent search may not exceed the scope of the consent given. The scope of consent is determined by asking how a reasonable person would have understood the conversation between the officer and the suspect or third party when consent was given. Generally, the expressed object of a search defines the scope of consent, unless the suspect or third party giving consent expressly limits its scope.

Consent to search may be revoked. If a person effectively withdraws consent before the search is completed, police may not continue searching based on prior consent.

Vehicle Searches. In general, the Fourth Amendment does not require that police obtain a warrant to search an automobile when they have probable cause to believe it contains contraband or evidence of criminal activity. This exception to the warrant requirement--the “automobile exception”--stems from both the inherent mobility of vehicles and the reduced expectation of privacy that results from their pervasive regulation. Even if a vehicle's mobility is temporarily restricted or potential drivers have been secured, warrantless vehicle searches supported by probable cause are generally valid. The automobile exception has been applied to motor homes and portable campers, as well as trains, planes, and vessels.

If police have probable cause to search an entire vehicle, they may search all compartments, containers, and packages within the vehicle, including those belonging to passengers. In California v. Acevedo, the Supreme Court confronted a variant of this scenario: there, police had probable cause to believe that a particular container--a brown sack--held contraband, and they watched the defendant place the container in the trunk of his car. Although a warrant is generally required to search containers, the Court held that, when placed in a vehicle, a container may be searched on probable cause alone. In addition, the part of the vehicle in which there is probable cause to believe the container will be found may be searched, but a search of the entire vehicle is unlawful absent the existence of probable cause as to the entire vehicle.

Vehicle searches performed after exigent circumstances lapse are valid as long as the police legitimately could have searched the automobile at some point. In Chambers v. Maroney, the Supreme Court upheld the warrantless seizure and subsequent search of a car at a police station because there was probable cause at the time of the stop to justify an immediate search. Moreover, in Florida v. Meyers, the Court upheld the warrantless search of an impounded car that had already been subject to a legitimate inventory search.

An officer with probable cause to believe that a motorist has violated a traffic law may temporarily detain the motorist--regardless of the officer's motivations or suspicions --and may conduct a limited search of the motorist and vehicle for weapons upon reasonable belief that the motorist is potentially dangerous.

Legal challenges to the validity of a search under this exception are typically considered by the courts only if brought by the owner or by an operator with legitimate possession of the vehicle.

Container Searches. When police have reasonable suspicion that evidence of criminal activity is located in a movable container, they may secure the container to prevent its loss or destruction. However, a warrant is required to search the container unless an exception to the warrant requirement applies. The police may conduct a warrantless search of any container located in an automobile if probable cause exists to search the container itself or the automobile as a whole. Similarly, no warrant is necessary to search a container if its illicit contents are in plain view or may be inferred from the container's outward characteristics, if the container is an abandoned, or if the container search is simply repeated to the extent of a previously conducted private search.

Other exceptions to the warrant requirement may apply after a lawful seizure of an individual or a container. For example, following a custodial arrest, the police may search any container within the arrestee's reach. Similarly, based on reasonable suspicion, the police may detain luggage for a brief inspection, such as a canine sniff test. Finally, the police do not need a warrant to conduct an inventory search of a lawfully seized container.

Inventory Searches. After lawfully taking custody of property, police may conduct a warrantless search of that property if the owner's diminished expectation of privacy is outweighed by the government's interest in satisfying one of three purposes: (1) protecting the owner's property while it is in police custody; (2) protecting the police against claims of lost or stolen property; or (3) protecting the police from potential danger. Because the justification for the search is the production of an inventory of the container's contents, police may not conduct an inventory search in bad faith or solely for investigative purposes. Nevertheless, an inventory search may be justified by legitimate inventory purposes despite the presence of additional investigative motives.

Inventory searches are only valid if conducted according to standardized criteria and procedures. Within the framework of these criteria, however, police officers may exercise discretion to determine the appropriateness and scope of an inventory search, and they are not required to use the least intrusive means to secure property lawfully in their possession.

Courts have upheld inventory searches of vehicles lawfully in police custody, including searches of the passenger compartment, glove compartment, trunk (with some exceptions), engine compartments, and any containers in the vehicle. Police may search containers and items in the possession of lawfully detained individuals. In addition, government officials may inspect seemingly abandoned property to determine the identity of the owner, protect public safety, and inventory the property for safekeeping.

Border Searches. The Fourth Amendment does not require warrants for routine stops and searches at borders because the sovereign state and its public officials have the right to protect the United States by stopping and examining persons and property entering or leaving the country. Under the “border search” exception to the warrant requirement, routine border stops and searches of persons, luggage, personal effects, and vehicles may be conducted without probable cause or reasonable suspicion. Detention beyond a routine customs stop, however, requires at least reasonable suspicion of wrongdoing. Although the Supreme Court has not stated what distinguishes a routine from a nonroutine border search, several factors have been examined in making such a determination. Most searches of persons, luggage, personal effects, and vehicles are found to be sufficiently nonintrusive and therefore qualify as routine border searches. Circuit courts generally agree that reasonable suspicion is required to justify strip searches and X-ray examinations of persons. An even higher level of suspicion is required to justify body-cavity searches.

The border search exception also applies to searches conducted at the “functional equivalent” of a border, which is defined as the first practical detention point after a border crossing or the final port of entry. The Eleventh Circuit has established three criteria to determine whether a search occurs at the functional equivalent of a border: (1) reasonable certainty that the person or thing crossed the border; (2) reasonable certainty that there was no change in the object of the search since it crossed the border; and (3) reasonable certainty that the search was conducted as soon as practicable after the border crossing. In addition, under the “extended border search” doctrine adopted by several circuits, government officials may conduct a warrantless search beyond the border, or its functional equivalent, if the following three factors are satisfied: (1) there is “reasonable certainty” or a “high degree of probability” that a border was crossed; (2) there is “reasonable certainty” that no change in the object of the search has occurred between the time of the border crossing and the search; and (3) there is “reasonable suspicion” that criminal activity is occurring.

The border search exception allows the government to conduct warrantless searches for illegal aliens. In United States v. Martinez-Fuerte, the Supreme Court established guidelines for permanent checkpoint stops and searches and held that government officials may stop vehicles at a permanent border checkpoint for brief questioning of the driver and passengers without individualized suspicion. The vehicle and occupants may also be selectively referred to a secondary checkpoint for further questioning without individualized suspicion. Any detention or search beyond this point must be justified by consent or probable cause.

Under certain circumstances, a border search for illegal aliens may justify use of a roving border patrol. A roving border patrol may stop a vehicle in the general area of the border and question its occupants if “specific articulable facts” give rise to reasonable suspicion that the vehicle may contain illegal aliens. The officer who stops the vehicle may inquire about citizenship, immigration status, and suspicious circumstances, but any further detention or search must be based on consent or probable cause.

Searches at Sea. Coast Guard and customs officers are authorized by statute to board any vessel in U.S. territorial waters to conduct routine document and safety inspections, without a warrant or suspicion of criminal activity, if the vessel is subject to the jurisdiction or operation of U.S. law. Such document and safety inspections are limited to examining documents, visiting the vessel's public areas, examining safety equipment, and entering the hold to obtain the main beam number. Once on board a vessel, if officers develop reasonable suspicion of illegal activity, the officers can expand the search or seize the vessel. Statutes authorizing searches at sea generally do not limit how frequently an individual vessel can be searched. Warrantless document and safety inspections may be conducted even if the inspectors also suspect criminal activity.

Because there is a reasonable expectation of privacy for nonpublic areas of the vessel with limited common access, warrantless searches that extend beyond document and safety inspections require some particularized suspicion of wrongdoing. Limited searches of domestic vessels beyond document and safety inspections require reasonable suspicion of criminal activity, while full “stem-to-stern” searches require probable cause.

Customs officials are authorized to conduct document and safety inspections of foreign or domestic vessels located (1) in the United States, (2) within customs waters, (3) within a “customs-enforcement area,” or (4) in any “other authorized place.” Customs officers are not generally authorized to search vessels on the high seas. However, they are authorized to board and examine a “hovering vessel” wherever it is found, including on the high seas. Customs officers may also pursue a fleeing vessel beyond customs waters if the vessel was originally hailed within customs waters.

Because Coast Guard officers are considered customs officers, they may act pursuant to the statutory authority granted to customs officials. Unlike other customs officials, however, the Coast Guard may conduct inspections of vessels under the jurisdiction of the United States on the high seas.

Foreign vessels within U.S. territorial waters may also be boarded for document and safety inspections without reasonable suspicion of criminal activity. Coast Guard officers may board and search a foreign vessel on the high seas if they have reasonable suspicion that the vessel is subject to U.S. jurisdiction and has violated U.S. law, or if the flag state of the vessel consents. Government officials may board a “vessel without nationality” to determine its true identity. Additionally, true “vessels without nationality” may be treated as if they are U.S. vessels, and they are subject to U.S. jurisdiction and laws.

Administrative Searches. Search warrants are generally required for administrative fire, health, or safety inspections of residential or private commercial property. The probable cause requirement for administrative warrants is less stringent than that for criminal investigations because the privacy interests at stake are deemed less critical. An administrative search is valid if there is evidence of an existing violation or if the search is pursuant to a general, neutral administrative plan. A warrant is not required if there are exigent circumstances or there is valid consent to the search.

An administrative search is invalid if its sole or primary purpose is to look for evidence of criminal activity. However, a combination of administrative and investigatory purposes is acceptable, so officials may still conduct an administrative search if they have some suspicion of criminal activity. Also, if a valid administrative search discloses evidence of criminal activity, the evidence may be seized under the plain view exception to the warrant requirement.

The Supreme Court has upheld warrantless administrative searches of closely (or “pervasively”) regulated businesses. The justification for this exception to the warrant requirement is that individuals doing business in a closely regulated industry have a reduced expectation of privacy. Whether an industry is closely regulated depends on the “pervasiveness and regularity of the ... regulation” and the effect of such regulation on the privacy expectations of persons doing business in the industry. A warrantless administrative search of a closely regulated business is reasonable if: (1) there is a substantial state interest behind the regulatory scheme; (2) the search is necessary to further that scheme; and (3) the authorizing statute is an adequate substitute for the warrant requirement because it gives notice to business owners and limits the discretion of those performing the search.

Special Needs Searches. The Supreme Court has held that certain programmatic searches do not require a warrant or probable cause when they are conducted in furtherance of a government “special need” other than investigation of criminal activity. These “special needs” searches are evaluated under a two-pronged approach. First, they must further a “special need[] , beyond the normal need for law enforcement,” that would be jeopardized by a warrant or probable cause requirement. To qualify as a special need, a government interest must be a real, current, vital problem that the proposed search can effectively address. Second, if there is a special need and the individualized suspicion requirement would jeopardize that need, then courts evaluate the reasonableness of the search by balancing the nature of the intrusion on the privacy interest at stake against the government interest served by the search. Determining whether special needs searches are permissible is therefore heavily fact- and case-specific.

Special needs searches have been permitted in several distinct areas. For example, the Supreme Court has upheld programmatic suspicionless drug testing of government employees as a special needs search. The interest in public safety served by testing employees often outweighs the intrusion on employee privacy interests. However, even unintrusive drug testing is invalid if the government does not show that there is an immediate public safety concern and that the search in question effectively addresses the concern.

The Supreme Court has also upheld suspicionless drug testing of public school students as special needs searches. These searches are permissible because the warrant and probable cause requirements are impracticable in the public school context, public school students have very reduced privacy expectations, and schools' pressing need to prevent student drug use outweighs the intrusion on the students' privacy interests. Nevertheless, more intrusive searches--such as those involving a student's person or property--require particularized suspicion of wrongdoing.

Warrantless searches of the homes and property of probationers and parolees have also been permitted under the special needs exception, and these searches are upheld if reasonable. Courts determine reasonableness by balancing the state's special need to supervise parolees and probationers against the intrusion on the parolees' and probationers' privacy interests, which are greatly reduced because of their ongoing supervisory relationship with the state. The searches do not require probable cause, but they must be conducted in furtherance of the state's special need to supervise parolees and probationers and thus must be related to parole or probation conditions.

The Supreme Court has also upheld searches of the offices or persons of public employees as special needs searches. Even if a public employee has a reasonable expectation of privacy in the particular workplace area searched and the Fourth Amendment applies, probable cause is not required for workplace searches conducted either for “noninvestigatory, work-related purposes” or in the course of “investigations of work-related misconduct.” These searches are upheld if they are reasonable “under all the circumstances.” The reasonableness test consists of two inquiries: (1) whether the “action was justified at its inception,” and (2) whether the search as actually conducted was “reasonably related in scope to the circumstances which justified the interference in the first place.”

Abandoned Property. Warrants are not required for searches and seizures of abandoned property. By voluntarily abandoning property, an individual forfeits any reasonable expectation of privacy in that property, even if he or she retains an ownership interest in it.

Prosecutorial Discretion

Reprinted from: Prosecutorial Discretion, 40 Georgetown Law Journal 227 (2011) (44 footnotes Omitted)

The government has broad discretion to initiate and conduct criminal prosecutions because of the separation of powers doctrine and because prosecutorial decisions are “particularly ill-suited to judicial review.” So long as there is probable cause to believe that the accused has committed an offense, the decision to prosecute is within the prosecutor's discretion. A prosecutor may also decide what charges to bring, when to bring them, and where to bring them. A prosecutor also has far-reaching authority to decide whether to investigate possible criminal conduct, grant immunity, negotiate a plea bargain, or dismiss charges. Finally, it is the prosecutor's prerogative to recommend downward departures from the Sentencing Guidelines for defendants who have provided substantial assistance to the government.

Although broad, prosecutorial discretion is not unlimited. Courts must protect individuals from prosecutorial decisions that are based on unconstitutional motives or executed in bad faith. Prosecutors may not engage in selective prosecution, which denies equal protection of the law, or vindictive prosecution, which violates due process rights. Most courts of appeals review factual findings related to a determination of selective and vindictive prosecution for clear error.

Selective Prosecution. In Wayte v. United States, the Supreme Court held that in order to demonstrate selective prosecution, a defendant must show disparate treatment and that the prosecution was improperly motivated. Because courts presume that the government undertakes a prosecution in good faith, a defendant challenging an indictment on selective prosecution grounds bears a heavy burden to prove facts sufficient to satisfy these two requirements. A defendant may prove disparate treatment by pointing to other similarly situated individuals who were not prosecuted. Improper motive exists only when the prosecution is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”

In United States v. Armstrong, the Supreme Court held that a defendant is entitled to discovery to help prove a selective prosecution claim if the defendant makes “a credible showing of different treatment of similarly situated persons.” To obtain an evidentiary hearing, a defendant generally must establish a prima facie case of selective prosecution. A defendant waives the defense of selective prosecution by not properly raising it before trial.

Vindictive Prosecution. The Due Process Clause prohibits a prosecutor from using criminal charges in an attempt to penalize a defendant's valid exercise of constitutional or statutory rights. To prevail on a claim of vindictive prosecution, a defendant must show either actual vindictiveness or facts sufficient to give rise to a rebuttable presumption of vindictiveness. A presumption of vindictiveness typically arises when a defendant is reindicted following a trial, but only if there has been an increase in the number or severity of charges. A presumption also arises when a defendant is subjected to additional charges after affirmatively exercising constitutional rights, but not when additional charges are filed after a mistrial or an acquittal. In Blackledge v. Perry, the Supreme Court held that the Due Process Clause prohibits a prosecutor from bringing a more serious charge against a defendant who has pursued a statutory right of appeal from a conviction on a lesser charge for the same offense. Although the defendant in Blackledge did not show actual vindictiveness on the part of the prosecutor, the Court held that due process is offended when increased punishment poses a “realistic likelihood of ‘vindictiveness.”’ A presumption of vindictiveness can be overcome by objective evidence that the prosecution was proper.

Presumptions of vindictiveness ordinarily do not arise pretrial. In Bordenkircher v. Hayes, for example, the Supreme Court found no presumption arising out of threats made by the prosecutor during plea negotiations. The Court reasoned that the “[s] tate's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction [is] ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense.”’ The Court concluded that if the accused is fully informed of the terms of the offer, is free to accept or reject the offer, and is legitimately subject to the threatened additional charge, the danger of retaliation is insufficient to justify a presumption of vindictiveness by the prosecutor in a plea bargaining setting.

Similarly, in United States v. Goodwin, the Supreme Court refused to create a presumption of vindictiveness when additional charges were filed after the defendant requested a jury trial. The Court noted that in the pretrial context, where “the prosecutor's assessment of the proper extent of prosecution may not have crystallized,” reindictment on a more serious charge is much less likely to be motivated by prosecutorial vindictiveness than when a charge is changed after a trial begins or after a conviction has been obtained and the state has had the opportunity to fully assess its case.


Excerpted from: Bail, 40 Georgetown Law Journal Annual Review of Criminal Procedure 339 (2011) (86 footnotes Omitted)

The Eighth Amendment states that “[e] xcessive bail shall not be required,” a provision the Supreme Court has assumed applies to the states. This provision prohibits excessive bail where bail is offered, but does not create a right to bail. Bail is excessive when higher than reasonably necessary to ensure a defendant's appearance at trial or promote other compelling government interests.

The Bail Reform Act of 1984 governs release and detention determinations in federal criminal proceedings. The Bail Reform Act applies to defendants and material witnesses in criminal proceedings, but does not apply to extradition cases, where there is a presumption against bail. Courts have found that the Bail Reform Act creates a presumption against bail pending appeal, but allows release if certain conditions are met. Section 3143(b) of the Bail Reform Act has been applied to individuals requesting a writ of certiorari from the Supreme Court. Other statutes may govern release or detention determinations of alien defendants.

Under the Bail Reform Act, an authorized judicial officer may order the release or detention of a defendant pending trial. A detention hearing must be held when a defendant first appears before a judicial officer, unless the defendant or governmentseeks a continuance. Deviation from the statutory procedure for continuances, however, does not mandate release. On motion of the government, or sua sponte by the judicial officer, a detention hearing will also be held when a serious risk exists that the defendant will flee or will “obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.”

A judicial officer may release a defendant on personal recognizance, on unsecured appearance bond, or subject to conditions. Alternatively, the officer may temporarily detain a defendant pending revocation of a conditional release, deportation, or exclusion. The officer may also detain a defendant pending trial.

Pretrial Release. There is a presumption in favor of pretrial release. A judicial officer may impose conditions of release to reasonably ensure the defendant's appearance at trial or to protect the safety of the community or any person. Conditions of release may not be excessive within the meaning of the Eighth Amendment. Courts may set bail that defendants cannot meet but only if that particular financial condition is an indispensable term of release. As an exception, certain defendants may be temporarily detained for a maximum of ten working days to facilitate deportation or revocation of conditional release.

Pretrial Detention. The Bail Reform Act allows courts to detain an arrestee pending trial if the government demonstrates by clear and convincing evidence after an adversarial hearing that no release conditions will reasonably ensure the safety of the community. In United States v. Salerno, the Supreme Court held that pretrial detention of a defendant based solely on the risk of danger to the community does not violate due process. Nor does pretrial detention on the ground of dangerousness constitute “excessive bail” under the Eighth Amendment; the prohibition against excessive bail applies only to cases where it is appropriate to grant bail.

A judicial officer may also detain a defendant if the government proves by a preponderance of the evidence that the defendant poses a risk of flight such that no condition or combination of conditions will reasonably assure the defendant's presence at trial. In assessing risk of flight, courts consider a variety of factors, including the defendant's ties to the community, past criminal history, and availability of assets. To detain a defendant, a judicial officer must find the defendant to be either a risk of flight or a danger to the community; proof of both is not necessary.

Due Process challenges brought by pretrial detainees are properly reviewed under the Due Process Clause of the Fourteenth Amendment, not under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Because pretrial detainees by definition have not been found guilty of a crime, the power to punish under the Eighth Amendment has not been implicated. A detention long enough to constitute punishment may be held to violate due process. Due process requires statutes imposing pretrial detention to serve a compelling government interest and not impose punishment before adjudication of guilt. Moreover, government action that deprives an individual of life, liberty, or property must be implemented in a fair, nonarbitrary manner.

Mistreatment of detainees violates due process. The “deliberate indifference” standard determines whether a prison officials' alleged neglect or mistreatment violated a detainee's Fourteenth Amendment due process rights. An official acts with “deliberate indifference” by recklessly disregarding a risk of which the official was aware, thus jeopardizing a detainee's safety. A detention facility's policy implemented with “deliberate indifference” to the rights of detainees violates the detainees' due process rights.

Rebuttable Presumptions of Dangerousness. A rebuttable presumption of dangerousness arises when: (1) a judicial officer finds that a defendant is charged with a crime of violence, a capital offense, or a drug felony that carries a maximum term of imprisonment of ten years or more; and (2) the defendant was previously convicted of, or released from prison for, a similar offense not more than five years before the judicial finding. A rebuttable presumption of both dangerousness and risk of flight arises when: (1) a defendant is charged with a drug felony that carries a maximum term of imprisonment of ten years or more, or with the use or possession of a firearm during the commission of any crime of violence or drug trafficking; and (2) the judicial officer finds probable cause to believe the defendant committed the offense charged. An indictment for any other crime enumerated in the Bail Reform Act is also enough to trigger the presumption. The presumption shifts the burden of production to the defendant, but the government retains the burden of persuasion. If the defendant successfully rebuts the presumption, the presumption still may be considered in release or detention determinations.

Detention Hearings. The Federal Rules of Evidence do not apply at detention hearings. Evidence inadmissible at trial, such as hearsay, may be used in a detention hearing, but not all categories of evidence are admissible. A defendanthas the right to have counsel present, to testify on his or her own behalf, to cross-examine witnesses, and to present evidence. A defendant's remarks at a detention hearing are admissible in a subsequent trial on the same charge without violating the defendant's Fifth Amendment privilege against self-incrimination. Rule 9 of the Federal Rules of Appellate Procedure requires district courts to “state in writing, or orally on the record,” their reasons for detaining or releasing a defendant.

Amendment and Review of Detention and Release Orders. The judicial officer who originally imposed conditions of pretrial release may, at any time, amend the order and impose additional or different conditions. Pretrial conditions of release remain in effect during trial unless the court determines that custody or imposition of other conditions is necessary to assure the defendant's presence during the trial or to assure that the defendant's conduct will not obstruct the orderly and expeditious progress of the trial. The government or the defendant may appeal the entry of any such order by a district court.

When reviewing a contested pretrial order of a magistrate, a district court is not limited to the magistrate's findings and may conduct a second evidentiary hearing to make a de novo determination. Some circuits review the district court's decision under a deferential standard; others undertake an independent review with some deference to the district court's findings.

Release Pending Appeal. The Bail Reform Act creates a presumption against release pending appeal. Once a defendant is convicted, the court must order detention unless it makes two findings. First, the defendant must show by clear and convincing evidence that he or she is not likely to flee or pose a danger to the safety of any person or the community. Second, the court must find that the defendant's appeal is not for the purpose of delay and raises a “substantial question of law or fact” likely to result in a reversal, a new trial, a sentence with no imprisonment, or a sentence less than the total already served, including the expected length of the appeal process. Courts need only determine whether a new trial, reversal, or reduced sentence is likely if the defendant prevails; they need not determine whether it is likely that the defendant actually will prevail. Most circuits have interpreted a “substantial question of law or fact” to mean a close question that could be decided either way, not necessarily requiring the trial judge to determine whether the ruling is actually likely to be reversed.

For crimes of violence, capital offenses, and drug offenses with a maximum imprisonment of ten years or more, the Bail Reform Act directs the court to detain the defendant pending appeal. The court may release the defendant only if it finds “exceptional reasons” as to why the defendant's detention pending appeal would be inappropriate. The standard of review for bail determinations pending appeal is not specified in the Bail Reform Act, but courts that have considered the issue have used standards similar to those used in reviewing pretrial bail determinations.

Violation of Release Conditions. A defendant who violates a condition of release is subject to revocation of release, order of detention, or prosecution for contempt of court. If a defendant released on bond violates a bond condition, the government may begin a civil proceeding against the defendant by petitioning the court to declare a forfeiture of the bond. The bond forfeiture subsequently may be set aside or enforced, and the court may remit bail in whole or in part to the surety. Appellate courts review forfeiture orders for abuse of discretion.

A defendant who knowingly fails to appear as required is subject to fine, imprisonment, or both. The defendant may assert an affirmative defense for failure to appear by showing that: (1) uncontrollable circumstances prevented the defendant's appearance or surrender; (2) the defendant did not contribute to such circumstances in reckless disregard of the appearance requirement; and (3) the defendant appeared or surrendered as soon as these circumstances ceased to exist. The penalty for failure to appear depends on the severity of the punishment for the underlying offense with which the defendant is charged.

If the defendant commits a crime while on release, a mandatory additional sentence is imposed upon conviction with a maximum of ten years imprisonment for a felony and a maximum of one year for a misdemeanor. A finding of probable cause to believe that the defendant committed a felony while on release gives rise to a rebuttable presumption that no condition or combination of conditions will assure the safety of the community in a subsequent determination of pretrial detention.

Preliminary Hearings

Excerpted from: Preliminary Hearings, 40 Georgetown Law Journal Annual Review of Criminal Procedure 243 (2011) (57 footnotes Omitted)

A criminal defendant may encounter at least three types of pretrial proceedings: (1) a Gerstein hearing; (2) an initial appearance hearing; and (3) a preliminary hearing. These three hearings perform separate functions and are compelled by different mandates, although they may be combined. The purpose of a Gerstein hearing is to review the police determination that probable cause existed to make the arrest. Additionally, the Federal Rules of Criminal Procedure require both an initial appearance, held to advise an arrestee of his or her rights and the charges against him or her, and a preliminary hearing, held to determine whether probable cause exists to bind the arrestee for trial.

Gerstein Hearings. In Gerstein v. Pugh, the Supreme Court held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” The accused is entitled to a Gerstein hearing prior to being detained without bond or otherwise experiencing a significant restraint of liberty unless the arrest is supported by a warrant or grand jury indictment. Only “a brief period of detention to take the administrative steps incident to arrest” may precede the hearing. In County of Riverside v. McLaughlin, the Supreme Court held that jurisdictions with procedures providing a probable cause determination within forty-eight hours of arrest are generally immune from systemic challenges of undue delay. However, an individual may still argue that the probable cause determination in a particular case was “delayed unreasonably,” regardless of whether this forty-eight hour guideline was satisfied. If an individual is detained for more than forty-eight hours without a Gerstein hearing, the delay is presumed to be excessive and may be justified only by “a bona fide emergency or other extraordinary circumstance.”

The sole issue in a Gerstein hearing is whether there is probable cause to detain the arrestee pending further proceedings, and the standard is whether a reasonable person would believe that the suspect committed an offense. A judicial officer may conduct the Gerstein hearing in a nonadversarial fashion, without counsel or the suspect present. Hearsay and written testimony are admissible. Although a suspect can challenge the existence of probable cause for arrest and detention prior to trial, a subsequent conviction will not be vacated solely on the ground that the defendant was improperly detained.

Initial Appearances. Rule 5 of the Federal Rules of Criminal Procedure requires the arresting officer to bring the accused before a federal magistrate judge without unnecessary delay. Rule 5(d) establishes the procedures for an initial appearance in a felony case. The magistrate must inform the accused of the charge, the right to remain silent, the right to request or retain an attorney, the possibility that any statement made may be used against him or her, the right to a preliminary hearing, and the general circumstances under which pretrial release may be secured. Finally, the magistrate must allow the accused reasonable time to consult with an attorney and must set or deny bail. A defendant may be asked to plead only in an arraignment. The initial appearance may be conducted via video teleconferencing with the consent of the defendant.

An unnecessary delay between arrest and the initial appearance may violate due process. What constitutes “unnecessary delay” is determined in light of all the facts and circumstances. Courts will consider the amount of time that passed, as well as how and why the delay occurred.

Confessions obtained from defendants during periods of unnecessary delay prior to the initial appearance are generally inadmissible at trial. However, a voluntary confession that occurs within six hours of an arrest is admissible if the delay of the initial appearance would be the sole reason for suppression. In United States v. Alvarez-Sanchez, the Supreme Court held that delay is usually measured from the time the suspect is arrested on federal charges until his or her initial appearance. In the event that a defendant held in state custody demonstrates that an arrangement between state and federal authorities allowed federal officials to obtain information from the defendant before an initial appearance, delay may be measured from the commencement of state custody.

Preliminary Hearings. Rule 5.1(a) of the Federal Rules of Criminal Procedure entitles a defendant charged with a non-petty offense to a public preliminary hearing before a federal magistrate. This right is guaranteed only in federal court and allows a judicial officer to determine whether probable cause exists to believe that the defendant committed the offense. The hearing must occur “within a reasonable time, but no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody.” The preliminary hearing is required unless it is waived by the defendant or an indictment or information is filed before the hearing. In such cases, securing the indictment or information provides a determination of probable cause that renders the preliminary hearing unnecessary.

Unlike the Gerstein hearing and the initial appearance, the preliminary hearing is a formal, adversarial hearing at which the defendant is entitled to be represented by an attorney, to cross-examine witnesses, and to introduce evidence. The magistrate judge may restrict the scope of cross-examination to focus on the issue of probable cause. Moreover, the magistrate judge may base a finding of probable cause entirely on hearsay or unlawfully obtained evidence. Although the hearing is not designed to provide the defendant with discovery, some discovery may occur as a byproduct.

The magistrate judge will bind the defendant for trial upon finding probable cause to believe the defendant committed the offense. In the absence of probable cause, the magistrate judge will dismiss the complaint and discharge the defendant. Dismissal does not preclude subsequent prosecution for the same offense, and witness testimony at preliminary hearings may be admitted in a subsequent criminal trial. The magistrate judge must make available a record or summary of the proceeding after the preliminary hearing. Although defense counsel may obtain a transcript or recording of the proceeding, the unavailability of a transcript does not provide a basis for reversal of a conviction unless the defendant demonstrates a significant risk of prejudice.

Speedy Trial

Excerpted from: Speedy Trial, 40 Georgetown Law Journal Annual Review of Criminal Procedure 401 (2011) (64 footnotes Omitted)

The Due Process Clause and federal statutes of limitations protect defendants from intentional and prejudicial preaccusation delay. The Sixth Amendment's speedy trial guarantee, the Speedy Trial Act of 1974, the Federal Rules of Criminal Procedure, and other federal statutes protect defendants from undue postaccusation delay.

Safeguards Against Preaccusation Delay. Statutes of limitations are the primary safeguards against prejudicial preaccusation delay. The Sixth Amendment “right to speedy trial” is not implicated before arrest, and, even after arrest, only applies to charges actually made. However, the Due Process Clause may be violated even if an indictment is brought within the prescribed statute of limitations. To establish a due process violation based on preaccusation delay, a defendant must show that the government's delay was an intentional device employed to gain a tactical advantage or to harass the defendant, and that the delay resulted in actual and substantial prejudice.

Courts generally refuse to find the requisite degree of prejudice based on unsubstantiated claims that the delay caused the defendant's or witness's memories to diminish, precluded the discovery of witnesses, resulted in the loss of evidence or death of witnesses, or caused witnesses to refuse to testify.

Constitutional Safeguards Against Post-Accusation Delay. The Sixth Amendment provides a fundamental right to a speedy trial that serves to: (1) prevent undue and oppressive incarceration prior to trial; (2) minimize “anxiety and concern accompanying public accusation”; and (3) limit the possibility that a long delay will impair the ability of an accused to present a defense.

The right to a speedy trial attaches at the time of arrest or formal charge, whichever comes first. The remedy for a violation of this right is to dismiss the indictment and vacate any sentence that has been imposed.

To determine whether a defendant has been deprived of the right to a speedy trial, courts consider the conduct of the defendant and the prosecution, focusing on the four factors articulated in Barker v. Wingo: (1) length of delay; (2) reason for delay; (3) whether, when, and how the defendant asserted the speedy trial right; and (4) whether the defendant was prejudiced by the delay.

The first Barker factor, the length of delay, is “a triggering mechanism” because “[u] ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors.” Courts generally hold that a delay in excess of one year is presumptively prejudicial. To determine how the first factor affects the overall speedy trial inquiry, courts consider the peculiar circumstances of the case because “the delay that can be tolerated for an ordinary street crime is considerably less than [that] for a serious, complex conspiracy charge.”

The second Barker factor is the “reason for the delay,” and “different weights [are] assigned to different reasons” for the delay. The reasons for each period of delay are considered in the aggregate, with consideration given to the effect of earlier delays in causing later delays. Deliberate attempts to hamper the defense weigh heavily against the government, while neutral reasons such as overloaded courts and negligence weigh less heavily. Delays resulting from valid reasons such as case complexity, good-faith interlocutory appeals, or the defendant's actions do not weigh against the government at all.

The third Barker factor focuses on whether and how the defendant asserted his right to a speedy trial.

The fourth and final Barker factor is prejudice. Courts assess prejudice “in the light of the interests of defendants which the speedy trial right was designed to protect”: oppressive pretrial incarceration, anxiety and concern, and impairment of the defense. Although prejudice is not a necessary prerequisite “to the finding of a deprivation of the right of speedy trial,” lower courts have been reluctant to find a violation of the speedy trial right absent a showing of prejudice.

Statutory Safeguards Against Post-Accusation Delay. The Speedy Trial Ac of 1974 establishes specific time limits for completing key stages of a federal criminal prosecution. The information or indictment must be filed within thirty days of the arrest or the service of a summons on the defendant. The trial must begin within seventy days of the fof the information or indictment, or within seventy days of the date the defendant first appears before a judicial officer, whichever is later. Trial must generally begin within ninety days of the government's detaining a defendant who is solely awaiting trial. To provide a defendant with an adequate opportunity to prepare, a trial may not begin earlier than thirty days after the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se, unless the defendant consents in writing to an earlier date for trial.

If a charge against the defendant is dismissed or dropped, the Speedy Trial Act's time limits restart upon a subsequent prosecution for the same offense. If the indictment is dismissed at the government's request, however, the seventy-day clock tolls during the period in which no indictment is outstanding and continues upon the filing of the second indictment. When a mistrial or an order for a new trial is granted, the second trial must begin within seventy days of the date when “the action occasioning the retrial becomes final.” The circuits are split regarding whether the relevant action is the issuance or the receipt of the appellate court's mandate for a new trial.

Certain types of pretrial delay are automatically excluded from (i.e., not counted towards) the Act's time limits without regard to the reasonableness of the delay. For instance, the Act specifically excludes any delay caused by the absence or unavailability of a defendant or an essential witness. The Act also provides a broad exclusion for delays due to a defendant's involvement in “other proceedings.” The Act offers several examples of delays considered to be “other proceedings,” including transportation of the defendant, pretrial motions requiring a court hearing, and limited periods while courts consider pretrial motions that do not require a hearing, although this list is not exhaustive. The Act does not automatically allow exclusion of time for the preparation of pretrial motions.

Other categories of excludable delay are subject to judicial discretion. For example, courts may exclude reasonable periods of time to align the Speedy Trial Act deadlines of codefendants. The trial judge may also exclude delays caused by continuances granted by the court where the “ends of justice ... outweigh the best interest of the public and the defendant in a speedy trial.” The complexity of the case can also be grounds for delay. The court must state its reasons in the record for excluding such a delay no later than when it rules on the defendant's motion to dismiss.

A defendant may not prospectively waive his or her rights under the Speedy Trial Act, such as by agreeing to a continuance. However, the defendant loses the right to seek relief for a violation of the Act by failing to move for dismissal of the charges before the start of trial or before the entry of a plea of guilty or nolo

A court must dismiss the charges if the defendant is not indicted within the Speedy Trial Act's time limits, or after the filing of a timely motion seeking relief, if the defendant is not brought to trial within the Act's time limits. A defendant bears the burden of proving a violation of the Act, but the government has the burden of producing evidence concerning an exclusion of time under § 3161(h)(3). In either of these circumstances, the court has the discretion to dismiss with or without prejudice. In exercising this discretion, the trial court must weigh three factors: (1) the seriousness of the offense; (2) the circumstances leading to dismissal; and (3) the effect of reprosecution on the administration of justice and the Act.

In addition to the Speedy Trial Act, other federal statutes and the Federal Rules of Criminal Procedure contain speedy trial provisions to prevent post-accusation delay. The Interstate Agreement on Detainers Act limits the time available for state or federal prosecutors to pursue outstanding charges against a prisoner in another jurisdiction. The Federal Juvenile Delinquency Act requires that all trials involvingjuvenile defendants begin within thirty days, if the defendant is being detained pending trial, unless any additional delay is caused by the juvenile defendant, consented to by the juvenile defendant, or in the interest of justice. Additionally, Rule 48(b) of the Federal Rules of Criminal Procedure grants trial courts the discretion to dismiss a case for “unnecessary delay” after an accused's arrest.

Guilty Pleas

reprinted from: Guilty Pleas, 40 Georgetown Law Journal Annual Review of Criminal Procedure 424 (2011) (92 Footnotes Omitted)

Plea Bargaining System. Under Rule 11(a)(1) of the Federal Rules of Criminal Procedure, a defendant may plead not guilty, guilty, or, with the court's consent, nolo contendere. The court must enter a plea of not guilty if a defendant refuses to enter a plea. Alternatively, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to appeal specified pretrial motions. Conditional pleas require the consent of the court and the A defendant prevailing on appeal may later withdraw the conditional plea.

The Constitution requires that a defendant's plea be made voluntarily, knowingly,and intelligently. A defendant must be competent in order to enter a guilty plea. A guilty plea may be set aside as involuntary if the defendant can establish prejudice resulting from prosecutorial misconduct. Ineffective assistance of counsel may also prevent a defendant from entering a knowing and voluntary plea. To demonstrate ineffective assistance of counsel, a defendant must show that: (1) counsel's assistance was not “within the range of competence demanded of attorneys in criminal cases”; and (2) a reasonable probability exists that he or she would not have pleaded guilty had counsel been competent.

If a defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the prosecutor has the discretion to agree that the government will: (1) “not bring, or will move to dismiss, other charges”; (2) “agree that a specific sentence or sentencing range is the appropriate disposition of the case”; or (3) “recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate.” The terms of a plea agreement must be disclosed to the judge in open court when the plea is offered unless the court-upon a showing of good cause--“allows the parties to disclose the plea agreement in camera.” The court is prohibited from participating in plea agreement discussions. If under the agreement the prosecutor promises to not bring or to dismiss certain charges, or agrees that a specific sentence is the appropriate disposition of the case, the court has discretion to accept or reject the agreement or to defer its decision until it has reviewed the presentence report. If the government promises to recommend that a particular sentence or sentencing range is appropriate, “the court must advise the defendant that [he or she] has no right to withdraw the plea if the court does not follow the recommendation.”

If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), it must: (1) “inform the parties that the court rejects the plea agreement”; (2) “advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea”; and (3) “advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.”

Under Rule 11(b)(1), before accepting a plea of guilty or nolo contendere, a judge must address the defendant personally in open court to inform the defendant of, and determine that the defendant understands: (1) “the right to plead not guilty”; (2) “the right to a jury trial”; (3) “the right to be represented by counsel”; (4) “the nature of the charge to which the defendant is pleading”; (5) “any mandatory minimum penalty”; (6) “any maximum possible penalty”; (7) “the defendant's waiver of [certain trial or appeal] rights if the court accepts [the defendant's plea] ”; and (8) “the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that [he or she] gives under oath;” among other factors. However, the court is not required to inform the defendant of all possible collateral consequences of pleading guilty. Additionally, the court must ensure that the plea is “voluntary and did not result from force, threats, or promises (other than [those included in the] plea agreement).” Finally, before entering judgment, “the court must determine that there is a factual basis for the plea.” For the plea to be valid, an adequate factual basis needs to be established only for the elements of the substantive criminal offense.

If the defendant enters a guilty plea while continuing to assert his or her innocence, then the plea is only constitutionally acceptable if there is strong evidence of guilt. The court reporter must keep a verbatim record of the plea proceedings, and if there is a plea of guilty or nolo contendere, the record must include all inquiries and advice that the court made to the defendant. Technical violations of Rule 11 that do not affect substantial rights constitute harmless error and will not provide a basis for relief.

Withdrawal of Pleas. A defendant may withdraw a plea of guilty or nolo contendere “for any reason or no reason” before the court accepts the plea. A defendant may withdraw a plea of guilty or nolo contendere after the court accepts the plea but before the court imposes a sentence only if: (1) the court rejects a plea agreement under Rule 11(c)(5), or (2) the defendant provides “a fair and just reason for requesting the withdrawal.” In determining whether “a fair and just reason” exists, courts consider several factors, including: (1) whether there has been an assertion of legal innocence; (2) the amount of time between the plea and the motion to withdraw; and (3) whether the government would be prejudiced by withdrawal of the plea. If the motion to withdraw is granted, the defendant must live with the consequences of the request. The denial of a motion to withdraw a plea, whether presentence or post-sentence, is reviewed under an abuse of discretion standard. Rule 11 states that “[a] fter the court imposes a sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.” Courts will set aside a plea of guilty on collateral attack only if doing so is necessary to correct a miscarriage of justice.

Breach of the Agreement. The determination of whether a party has breached a plea agreement is governed by the law of contracts. However, concerns unique to the criminal justice system lead to greater scrutiny by courts than would be afforded to general questions of contract law. The party claiming a breach of a plea agreement must prove the breach by a preponderance of the evidence. Due process requires that the agreement be interpreted in keeping with a defendant's reasonable understanding and that any ambiguity be construed against the government.

The government may not unilaterally declare that the defendant breached the plea agreement; a court must confirm the breach. If the defendant breaches or rescinds a plea agreement, the government may reinstate the original charges or seek specific performance. The government is generally barred from reinstating the original charges if the statute of limitations has run.

A defendant who alleges that the government breached a plea agreement is entitled to an evidentiary hearing unless the allegations are incredible, frivolous, or false. Appeals courts apply plain error review when a defendant alleges on appeal that the government breached a plea agreement but fails to raise the challenge in the district court. If the government breaches a plea agreement, the court will generally remand for a determination of the appropriate remedy. However, if the government's breach is insignificant, the defendant may not be entitled to a remedy. A federal court may enforce constitutional guarantees when a state government breaches a plea agreement but should remand the case to the state court for the determination of remedy.

Circuit courts are split on whether plea agreements in federal prosecutions are binding on federal districts other than the one in which the plea agreement is entered and on whether plea agreements bind other federal governmental bodies who were not parties to the agreement. Plea agreements in state prosecutions are generally not binding on federal jurisdictions without the federal prosecutor's consent.

Admissibility of Evidence Related to Plea Bargaining. Under Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence, evidence of withdrawn guilty pleas, pleas of nolo contendere, and statements made in the course of plea discussions --even if those discussions do not result in a guilty plea or the guilty plea is later withdrawn --are inadmissible at trial. Statements made during plea negotiations are also inadmissible for impeachment purposes. However, this evidentiary bar does not apply to statements made in plea discussions to government agents who are not prosecuting attorneys, unless they are acting with authority delegated by federal prosecutors, and evidence of a prior plea agreement is admissible if introduced to bolster or attack a witness's credibility. In addition, a statement covered by 11(f) of the Federal Rules of Criminal Procedure may be admissible if another statement made in the course of the same plea or plea discussions is introduced into evidence and fairness requires consideration of contemporaneous statements. The defendant may waive the protection of Rule 11(f), as long as the waiver is knowing and voluntary.

Effect of a Guilty Plea. A guilty plea waives most nonjurisdictional constitutional rights, such as the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Courts have generally held that a guilty plea also waives the right to challenge nonjurisdictional defects brought about by government conduct prior to entry of the plea, including challenges based on: (1) illegal search and seizure; (2) coerced confession; (3) improper grand jury selection; (4) denial of the due process right to a speedy trial; (5) entrapment; (6) sufficiency of arrest; (7) various prosecutorial defects; and (8) certain statutory claims. Additionally, in some circumstances, the defendant may affirmatively waive the right to appeal his or her sentence as part of a guilty plea. An affirmative waiver of the right to appeal a conviction or sentence usually cannot be invalidated by a court's words or actions.

A guilty plea does not foreclose a subsequent claim by the defendant under 42 U.S.C. § 1983, nor does it waive jurisdictional challenges to conviction, such as lack of subject matter or territorial jurisdiction. In some circumstances, a guilty plea does not waive the right to challenge the constitutionality of the statute under which the defendant was charged. Entry of a guilty plea does not normally foreclose a double jeopardy challenge against an indictment that, on its face, violates the Double Jeopardy Clause. However, a guilty plea does waive a double jeopardy challenge if a defendant pleads guilty to separate offenses. Circuit courts are split on whether a guilty plea waives the right to appeal based on alleged partiality by the sentencing judge.

Right to a Jury Trial

reprinted from: Right to a Jury Trial, 40 Georgetown Law Journal Annual Review of Criminal Procedure 559 (2011) (76 Footnotes Omitted)

Under the Sixth Amendment, criminal defendants have a right to trial by an impartial jury drawn from the state and district in which the crime allegedly occurred. The right to a jury trial exists only in prosecutions for serious crimes, as distinguished from petty offenses. In determining whether a crime is “serious” for Sixth Amendment purposes, courts look to the severity of the maximum authorized penalty. Any crime punishable by a prison sentence greater than six months triggers the right to a jury trial regardless of the sentence ultimately imposed. For crimes punishable by a sentence of six months or less, the right to a jury trial attaches only if additional statutory or regulatory penalties “are so severe that the legislature clearly determined that the offense is a ‘serious' one.” In the absence of a maximum statutory penalty, appellate courts will consider the penalty actually imposed. A defendant charged with multiple petty offenses does not have a right to a trial by jury even when the combined total of potential sentences exceeds six months.

The Sixth Amendment also requires that a jury make the factual findings necessary to impose a death sentence. In addition, facts that increase a sentence beyond the maximum authorized by the facts established by a guilty plea or jury verdict must be proved to a jury beyond a reasonable doubt, unless admitted by the defendant. However a sentencing judge may make factual findings pursuant to his or her consideration of sentencing factors that are part of the advisory Federal Sentencing Guidelines scheme. A sentencing judge may also make the findings of fact necessary for the imposition of consecutive, as opposed to concurrent, sentences when the defendant has been tried and convicted of multiple offenses.

Waiver of Right to a Jury Trial. A defendant may waive the right to a jury trial by: (1) obtaining the court's approval and the government's consent; (2) waiving the right voluntarily; (3) expressing the waiver knowingly and intelligently; and (4) recording the waiver in writing. To ensure that a waiver is voluntary, knowing, and intelligent, the trial court should inform the defendant on the record of the nature of the right to a jury trial and the consequences of waiving the right. In any subsequent challenge, the defendant bears the burden of proving that the waiver was not valid.

Jury Composition and Unanimity. Juries have historically been composed of twelve persons, but the Supreme Court has held that juries of six or more satisfy the Sixth Amendment. Rule 23(b) of the Federal Rules of Criminal Procedure requires a twelve-member jury. However, Rule 23(b) also permits parties to waive the twelve-member jury at any time before verdict, provided that the agreement is in writing and approved by the court. Although the Supreme Court has recognized the defendant's right to a unanimous verdict in federal jury trials, Rule 23(b)permits a federal court, at its discretion and without the parties' consent, to accept a verdict by eleven jurors if the twelfth juror is excused for good cause after the jury begins deliberations.

Constitutional Challenges to Jury Selection Procedures. Jury selection procedures implicate due process, Sixth Amendment, and equal protection principles. First, in limited situations, a defendant may challenge the jury selection process on the ground that it violates fundamental fairness under the Due Process Clause.

Second, the Sixth Amendment forbids racial discrimination in the selection of jurors and requires that the jury venire from which the petit jury is selected represents a fair cross-section of the community. However, the petit jury itself need not represent a fair cross-section of the community. To establish a prima facie violation of the fair-cross-section requirement, the defendant must show that: (1) the group allegedly excluded is a “distinctive” group in the community; (2) the group was not fairly represented in the venire from which the petit jury was chosen; and (3) the underrepresentation resulted from a systematic exclusion of the group in the jury selection process. A criminal defendant need not be a member of the underrepresented group to have standing to raise the claim. To rebut a prima facie showing of a fair-cross-section violation, the prosecution must show that the disproportionate exclusion manifestly and primarily advances a significant government interest.

Finally, a defendant may challenge a venire on equal protection grounds by demonstrating that the venire was selected in an intentionally discriminatory fashion. To establish a prima facie case of intentional discrimination against a particular group, the defendant must demonstrate that: (1) the group is a recognizable class; (2) the selection procedure resulted in substantial underrepresentation of the group over a significant period of time; and (3) the selection procedure is susceptible to abuse or is not racially neutral. To rebut the prima facie showing, the government must prove an absence of discriminatory intent.

Statutory Challenges to Jury lection Procedures. The Jury Selection and Service Act of 1968 (JSSA) sets forth guidelines for selecting grand and petit juries in federal courts. The JSSA requires that each judicial district devise a plan for randomly selecting jurors based on voter registration rolls or lists of actual voters.

To prove a violation of the JSSA, a defendant must show that the district's plan substantially failed to comply with the JSSA. Violation of the JSSA may also constitute a violation of the constitutional fair-cross-section requirement. Similar to a fair-cross-section claim, the government can rebut a prima facie showing of a JSSA violation by showing that the disproportionate exclusion of a distinctive group manifestly and primarily advances a significant government interest. A defendant must follow statutory procedures before a court will entertain a challenge to the jury selection system under the JSSA.

Voir Dire. The trial court must conduct a voir dire examination of prospective jurors in order to reveal potential bias. The trial court has broad discretion over the voir dire procedure and the questions to be asked. Either the trial court or the parties may conduct voir dire. Errors in voir dire are subject to harmless error analysis.

Where the defendant requests that the court inquire into potential jurors' racial bias, the court is constitutionally required to do so if there is a reasonable possibility that racial prejudice may influence the jury. Where a defendant is charged with an interracial violent crime, “the possibility of racial prejudice” is presumed, and the duty to inquire is automatic.

If publicity threatens to prejudice the proceedings at any point, the judge must ensure that prospective jurors have not formed preconceptions of the defendant's guilt. To accomplish this, the court may be required to grant a defendant's request for individual questioning of each prospective juror.

The trial court may impanel an anonymous jury if necessary to protect the jurors and the integrity of their deliberations. The court must mitigate the potential prejudicial effects of an anonymous jury by conducting a careful voir dire designed to uncover juror bias and provide the jurors with plausible, nonprejudicial reasons for their anonymity.

Challenges for Cause. The trial court may exclude for cause any prospective juror who is not statutorily qualified or who otherwise will be unable to render an impartial verdict. The trial court's determination of removal for cause will be reversed only for clear error. Jurors are required by statute to be: (1) United States citizens; (2) at least eighteen years old; (3) residents of the United States for at least one year in the district where the trial is held; (4) able to read, write, understand, and speak English; (5) mentally and physically capable of performing jury service; and (6) free from criminal conviction of, or pending charges for, an offense punishable by more than one year in prison. The trial court need not excuse a juror for cause if the juror indicates an ability to set aside opinion and render a verdict based on the evidence.

An appellate court may consider a juror's deliberate concealment of information during voir dire to be evidence of bias and grant a new trial. Appellate courts may also reverse convictions when a juror's mistaken but honest response to a material voir dire question prevented the trial court from discovering actual bias.

Peremptory Challenges. Parties to federal criminal proceedings have a limited number of peremptory challenges, which are requests to disqualify potential jurors made without showing cause for the requests. Rule 24(b) of the Federal Rules of Criminal Procedure allows a certain number of peremptory challenges based on the gravity of the charged offense. The trial court may grant additional peremptory challenges in cases with multiple defendants.

Peremptory challenges are not constitutionally required, and impairment of a defendant's use of peremptory challenges on its own is not unconstitutional. In federal cases, a defendant's exercise of peremptory challenges is not improperly impaired when the defendant uses a peremptory challenge to remove a juror who should have been excused for cause.

Peremptory Challenges: Equal Protection Issues. The use of peremptory challenges to exclude persons from the petit jury based on their race or gender violates the Equal Protection Clause of the Fourteenth Amendment. In Batson v. Kentucky, the Supreme Court outlined a three-step test for evaluating whether a prosecutor's use of peremptory challenges is a constitutional violation. First, the defendant must establish a prima facie case of intentional racial discrimination by showing that: (1) he or she is a member of a cognizable racial group; (2) the group's members have been excluded from the defendant's jury; and (3) the circumstances of the case raise an inference that the exclusion was based on race. Since Batson, the Court has loosened the requirements for establishing a prima facie case in three respects: (1) a criminal defendant may object to race-based peremptory challenges on equal protection grounds regardless of whether the defendant and the excluded juror are of the same race; (2) the prosecution may challenge the defendant's use of peremptory challenges on equal protection grounds; and (3) either party may challenge gender-based exclusion.

Second, to rebut a prima facie showing of intentional discrimination, the proponent of the peremptory challenge must offer a race-neutral explanation. This explanation does not have to be “persuasive, or even plausible,” but must be more than a mere affirmation of good faith or assumption that the challenged juror would be “partial to the defendant because of their shared race.”

Finally, the court must determine whether the explanation is facially race-neutral and whether the opponent of the peremptory challenge has proven purposeful racial discrimination. Appellate courts will uphold the trial court's finding unless it is clearly erroneous.

Prosecuitorial Misconduct

Excerpted from: Prosecutorial Misconduct, 40 Georgetown Law Journal Annual Review of Criminal Procedure 628 (2011) (45 footnotes Omitted)

The prosecutor's duty in a criminal prosecution is to seek justice. Therefore, the prosecutor should “prosecute with earnestness and vigor,” but may not use “improper methods calculated to produce a wrongful conviction.” Prosecutorial misconduct justifies declaring a mistrial where it “so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.” A claim of prosecutorialmisconduct requires proof of improper conduct by the prosecutor that, taken in the context of the trial as a whole, violated the defendant's due process rights.

Improper Conduct. Courts review de novo whether a challenged statement by a prosecutor is improper. Although the line between proper and improper advocacy is not always clear, courts have consistently found certain types of prosecutorial conduct improper. A prosecutor may not elicit information from a defendant outside the presence of the defendant's counsel. A prosecutor may not express personal opinions about the defendant's guilt or credibility, and must avoid making potentiallyunfair or improper remarks about the defendant, defense counsel, or a defense witness. Nor may the prosecutor express opinions about matters requiring personal experience or expert knowledge. The prosecutor may not comment on the defendant's failure to testify at trial and, with certain exceptions, may not refer to previous convictions, current guilty pleas, or other bad acts of the defendant, codefendants, or coconspirators. The prosecutor may not vouch for the credibility of government witnesses or allude to his or her own personal integrity or oath of office to bolster the government's case. In addition, “[i] t is an almost universally frowned upon practice for a prosecutor to testify at the trial of the case” he or she is prosecuting. The prosecutor may not appeal to jurors to act as a conscience for the community or make other remarks likely to inflame the passions of the jurors if the remarks are intended to lead to conviction for an improper reason.

The prosecutor may not prosecute a defendant for vindictive reasons. In addition, the prosecutor may not knowingly present false testimony and has a duty to correct testimony that he or she knows to be false. Further, the prosecutor must disclose evidence favorable to the defendant if the defendant so requests. Although inconsistent testimony by a government witness is usually not improper, a prosecutor may not use staged testimony to attempt to introduce inadmissible evidence.

The prosecutor may not make material misstatements of law or fact. A prosecutor must confine his or her opening statement to evidence that he or she intends to offer and believes will be admissible. The prosecutor must similarly limit his or her trial statements and closing argument to evidence that has been admitted into the record and permissible inferences therefrom. A prosecutor may not use a defendant's post-arrest, post-Miranda silence for impeachment purposes, because the Miranda warnings implicitly assure a defendant that he or she will not be penalized for remaining silent. Nonetheless, a prosecutor may impeach a testifyingdefendant with prearrest silence or post-arrest, pre-Miranda silence, because the defendant could not have relied on Miranda's implicit assurance. It is improper for a prosecutor to question a third-party witness knowing the witness will reply by validly invoking his or her Fifth Amendment privilege against self-incrimination, because the jury might improperly infer guilt from the witness's silence. The prosecutor may not suggest that the defendant's retention of counsel indicates guilt.

Appellate Review. Although appellate courts review the propriety of prosecutorial conduct de novo, they usually defer to the trial judge's conclusions about the effects of prosecutorial misconduct on trial fairness. To preserve a claim of improper conduct by the prosecutor for appeal, the defendant generally must make a timely objection. Even where the objection is timely, prosecutorial misconduct is subject to harmless error review, under which courts consider a variety of factors to evaluate whether the alleged misconduct prejudiced the defendant. If, however, a timely objection is not made, an appellate court will reverse the conviction only if the lower court's allowance of the prosecutor's conduct constituted plain error that both impaired the defendant's rights and harmed the integrity of the proceedings. Habeas corpus relief for trial errors involving prosecutorial misconduct will be granted only if the error “‘had substantial and injurious effect or influence in determining the jury's verdict”’ or otherwise “infect[ed] the integrity of the proceeding.”

Appellate courts consider a number of factors in evaluating the seriousness of misconduct, including whether the prosecutor's misconduct was deliberate or accidental, the degree to which the prosecutor's conduct may have prejudiced the defendant, the effect of curative instructions to the jury, and whether the weight of the evidence made conviction certain absent the improper conduct. Courts generally do not reverse convictions when a prosecutor's misconduct was “invited” by arguments advanced by the defendant.

Sentencing Guidelines

Reprinted from: Sentencing Guidelines, 40 Georgetown Law Journal Annual Review of Criminal Procedure 711 (2011) (152 Footnotes Omitted).

The Sentencing Reform Act of 1984 created the U.S. Sentencing Guidelines (“Guidelines”), which require a federal district court judge to consider each of the factors in 18 U.S.C. § 3553(a) when crafting a sentence. However, because the Sixth Amendment requires a jury to make all findings of fact, the sentencing range determined through a judge's application of the Guidelines must be treated as an “advisory” recommendation, not a mandatory range.

The factors courts must consider in crafting a sentence are: (1) the “nature and circumstances of the offense” and the defendant's “history and characteristics”; (2) the general purposes of the Sentencing Reform Act; (3) the “kinds of sentences available”; (4) the “pertinent policy statements issued by the U.S. Sentencing Commission”; (5) the “need to avoid unwarranted sentence disparities” between defendants convicted of similar conduct; (6) the “need to provide restitution to any victims”; and (7) the applicable sentence range recommended by the Guidelines. Sentencing courts are required to consider the § 3553(a) factors and may not presume that a sentence within the Guidelines range is automatically reasonable. However, sentencing courts have considerable discretion in deciding how the factors apply to the case and in setting a sentence accordingly. For further discussion, see APPELLATE REVIEW OF SENTENCES in Part V.

The U.S. Sentencing Commission (“Commission”) promulgates the Guidelines. The Guidelines contain a sentencing table that consists of forty-three offense levels and six criminal history categories that, when considered together, provide the recommended sentencing range for any federal offense. The table guides judges in identifying the recommended sentencing range and type of sentence applicable to a defendant.

Offense Level. To determine a defendant's offense level under the Guidelines, the judge selects the offense guideline applicable to the defendant's conviction, determines the base offense level from that guideline, and adjusts that offense level for specific offense characteristics and special instructions contained in the guideline.

The judge may adjust a defendant's offense level based on: (1) the defendant's role in the offense; (2) the defendant's role in any obstructive conduct; (3) the relationship between the counts of which the defendant was convicted; (4) the defendant's acceptance of responsibility for the offense; and (5) the level of victim harm.

In determining the defendant's role in the offense, the court will consider the number of participants and the extensiveness of the offense, as well as whether the defendant was a leader, middleman, or minor participant. The court will also consider whether the defendant abused a position of public or private trust, whether the defendant used any “special skills,” and whether the defendant used or attempted to use a person under the age of eighteen to help commit the crime.

Obstructive conduct includes actions that obstruct or impede the investigation, prosecution, or sentencing of the defendant, such as testifying falsely under oath. Recklessly endangering others while fleeing from a law enforcement officer also warrants sentencing enhancement.

If a defendant is convicted of multiple counts, those involving “substantially the same harm” are “grouped,” or treated as a single offense for sentencing purposes. Counts are also “grouped” when the sentence calculations are interdependent or cumulative.

The sentencing judge may reduce the defendant's offense level if the defendant accepts personal responsibility for the offense, depending on the degree and timeliness of the acceptance. Pleading guilty does not guarantee a reduction, although a conviction at trial does not automatically preclude a reduction. The government may move for a further one-level reduction if: (1) prior to the initial two-level acceptance of responsibility reduction, the combined offense level is sixteen or greater; and (2) the defendant has signaled his or her intention to plead guilty in a timely fashion, thereby assisting authorities in their investigation or prosecution, permitting the government to avoid preparing for trial, and enabling the court to allocate its resources efficiently. The court also considers continuing criminal behavior and any obstruction of the government's investigation in evaluating reductions. Reductions based on acceptance of responsibility have withstood challenges that they violate defendants' Fifth Amendment right against selfincrimination, Fifth Amendment right to due process, and Sixth Amendment right to a jury trial.

Five possible victim-related adjustments may apply to a wide variety of offenses. First, if it can be determined beyond a reasonable doubt that the defendant intentionally selected the victim or property as the object of the offense based on race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation, the base offense level is increased three levels. Second, if the defendant knew or should have known of the victim's unusual vulnerability due to age, physical or mental condition, or other particular susceptibility to criminal conduct, the base offense level is increased two levels. Third, if the victim was a state or federal official or a member of the official's immediate family, the base offense level is increased three levels. Fourth, a two-level increase is applied if a victim was physically restrained during the course of the offense. Fifth, a twelve-level increase is applied if the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.

Criminal History. After determining the “total offense level,” the judge determines the defendant's criminal history category. Prior sentences generally increase a defendant's criminal history category. Prior sentences may be excluded because they occurred in the distant past or for other reasons. Extra points are also assessed when the defendant commits an offense while serving any criminal justice sentence. When the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood of recidivism, the Guidelines instruct courts to consider imposing sentences outside of the recommended range.

Career Offenders. Under the Guidelines, “career offenders” must be assigned the highest criminal history category (category VI) and enhanced offense levels. A defendant is a career offender if: (1) the defendant was at least eighteen years old at the time of the instant offense; (2) the instant offense is a felony that is a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Career offenders must be at least eighteen years old when committing the instant offense. An offense committed before age eighteen is counted if the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month.

In determining whether an offense is a “crime of violence,” courts consider policy statements and commentary in the Guidelines unless doing so “violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Crimes of violence include murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. In addition, other offenses are included where an element of the offense involves the use, attempted use, or threatened use of physical force. The defendant's conduct may also establish a crime of violence if the conduct, by its nature, presented a serious potential risk of physical injury.

“Controlled substance offenses” are those “under federal or state law [prohibiting] the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, export, distribute, or dispense.”

A defendant's third felony conviction establishes the defendant as a career offender. A defendant's prior conviction need not have been classified as a crime of violence under state law at the time of conviction.

If the instant conviction is a violation of 18 U.S.C. § 922(g) and the defendant has at least three prior convictions for “violent felon[ies] ” or “serious drug offense[s] ,” the defendant is an armed career criminal.

A defendant engaged in a “criminal livelihood” will also receive an enhanced sentence. A defendant is engaged in a “criminal livelihood” if he or she “committed an offense as part of a pattern of criminal conduct engaged in as a livelihood.”

Sentencing Range. The court arrives at the recommended sentence by identifying the range in the Guidelines' sentencing table that corresponds to the defendant's total offense level and criminal history category. Depending on the minimum term of imprisonment contemplated by the Guidelines, the judge has several different punishment options, including imprisonment, probation, and supervised release. For certain crimes, the judge must order restitution. In all cases, the court must impose a fine unless the defendant is currently, and will likely remain, unable to pay.

Departures. Judges have discretion to depart from the recommendations of the Sentencing Guidelines upon finding that the case includes an aggravating or mitigating circumstance “of a kind not adequately taken into consideration” by the Commission. Depending on the nature of such circumstances, either an upward or downward departure may be justified. In either case, the Guidelines require the judge to state the specific reasons for imposing a sentence outside the applicable sentencing range.

Except in exceptional cases, the Guidelines discourage downward departures based on a defendant's personal attributes. Although some factors are precluded from being used as grounds for downward departure, the Guidelines encourage a judge to depart downward based on mitigating factors such as the victim's conduct, lesser harm, coercion and duress, voluntary disclosure of an undiscovered offense, or diminished capacity in the commission of a nonviolent offense.

The Guidelines also allow courts to depart downward if the government moves for a downward departure based on the defendant's substantial assistance in another case. The government's refusal to file a substantial assistance motion is subject to limited judicial review and can be challenged only if a defendant shows that the government breached a plea agreement or that the refusal was motivated by unconstitutional considerations.

Under limited circumstances, a judge may depart upward in the face of aggravating factors associated with the defendant's conduct such as death, physical injury, extreme psychological injury, abduction or unlawful restraint, property damage or loss, possession or use of weapons or dangerous instrumentalities, disruption of a government function, extreme conduct, facilitation or concealment of the commission of another offense, danger to the public welfare, participation in a violent street gang, or possession of a high-capacity semiautomatic firearm in connection with a crime of violence or controlled substance offense. The court cannot consider a defendant's refusal to assist authorities in the investigation of others as an aggravating factor.

Presentence Investigation Reports. Prior to sentencing, the court's probation officer must investigate the defendant and file a presentence investigation report (“PSR”) with the court. A defendant may not waive the PSR, even with the permission of the court. The PSR must contain: (1) the history and characteristics of the defendant, including prior criminal record, financial condition, and any circumstances affecting the defendant's behavior that may be helpful in sentencing; (2) the probation officer's conclusions regarding the defendant's offense level and criminal history category under the Guidelines, the types of sentences available and the applicable sentencing range, and an explanation of any factors that may warrant departure; (3) the impact of the crime on the victim; (4) the nature and extent of nonprison programs available, if appropriate; (5) where the law provides for restitution, information sufficient for a restitution order; (6) any report and recommendation resulting from a court-ordered study of the defendant; and (7) any other required information, including factors listed under 18 U.S.C. § 3553. If the court desires more information than the PSR contains, it may order a complete study of the defendant. Upon request, the defendant's counsel is entitled to notice and a reasonable opportunity to attend any presentence investigation interview.

To prevent the contents of the PSR from influencing the adjudication of guilt or innocence, Rule 32(e)(1) prohibits the probation officer from disclosing the contents of the report to the trial court unless the defendant has pleaded guilty or no contest, been convicted, or given written consent. Subject to certain exceptions, the court must disclose the PSR to the defendant, the defense counsel, and the attorney for the government at least thirty-five days before the sentencing hearing unless the defendant waives this minimum period. Although Rule 32 is silent regarding disclosure of the PSR to third parties, courts are reluctant to disclose a PSR to anyone except the defendant, defense counsel, and the attorney for the government absent a demonstrated need to meet the ends of justice.

Before imposing a sentence, the court must give the defendant, defense counsel, and the attorney for the government an opportunity to comment on the PSR, according to strict timetables. The district court must notify the parties if it is considering departing on a basis not identified as grounds for upward departure in either the PSR or the prehearing submission by the government. If the defendant alleges that the PSR contains factual inaccuracies, the court may choose to hold an evidentiary hearing, allowing the defendant to introduce evidence related to the alleged factual inaccuracy. The court must either make a finding as to the truth of the disputed portion of the PSR or determine that no finding is necessary because the court will not consider the disputed portion of the PSR in sentencing.

Generally, resentencing is required when the sentencing judge fails to make explicit findings, when the sentencing judge fails to disclaim reliance on controverted matters, or when the sentence imposed in a post-Booker case rests on the previously mandatory nature of the Guidelines.

Imposition of Sentence. “A court must impose a sentence without unnecessary delay.” Before imposing a sentence, the court must determine that the defendant and his or her counsel have had an opportunity to read and discuss the PSR or a summary of the report. Furthermore, the court must allow defense counsel the opportunity to speak on the defendant's behalf. Subject to certain exceptions, the defendant must be present at the imposition of the sentence. In addition, the court must address the defendant personally and ask the defendant if he or she wishes to make a statement on his or her own behalf or present any mitigating information. Finally, the victim of the crime has the right to address the court if the victim wishes to speak or present evidence.

In United States v. Watts, the Supreme Court held that a sentencing court may consider conduct underlying charges on which a defendant has been acquitted “if the Government establishes that conduct by a preponderance of the evidence” and the final sentence is within the statutory range. The sentence that a trial judge imposes generally determines the length of imprisonment, although prison terms may be shortened by credits awarded for satisfactory behavior after the first year. In addition, a sentence may be modified or corrected on review.

After the court imposes the sentence, it must advise the defendant of any right to appeal. In addition, the court must advise the defendant of the right to apply for leave to appeal in forma pauperis if the defendant is unable to pay appeal costs.

Improper Considerations. Several constitutional provisions limit the information the sentencing judge may properly consider in determining a sentence. The Due Process Clause forbids the judge to rely on materially false or unreliable information or to vindictively inflict a harsher punishment on the defendant for exercising his or her constitutional right to trial or privilege against self-incrimination. When a judge imposes a more severe sentence after retrial than was initially imposed in the first trial, a rebuttable presumption of vindictiveness may arise. To over come this presumption, a judge must justify his or her action by identifying newly discovered conduct of the defendant about which the judge was unaware at the original sentencing proceeding. A sentencing judge may impose a harsher sentence based on conduct or events subsequent to the first trial such as an intervening conviction of the defendant for an offense committed before imposition of the original sentence. The judge may also impose an increased sentence based on new evidence and testimony relating to events that occurred prior to the first trial. The judge must, however, state on the record the rationale for the increased sentence.

Other constitutional considerations limit the information that may be considered during sentencing. The First Amendment precludes a sentencing judge from considering the defendant's political or religious beliefs, but the judge may consider a racial, ethnic, or religious motivation for a crime. The Fifth Amendment prevents a judge from considering statements obtained from the defendant in violation of the privilege against self-incrimination. The Fourth Amendment exclusionary rule, however, does not automatically prohibit the court from considering evidence obtained in violation of the Fourth Amendment, even though the evidence would be inadmissible at trial.

Statements elicited in violation of the Sixth Amendment right to counsel are generally barred from consideration at sentencing. A sentencing court may, however, consider a previous, uncounseled misdemeanor conviction when sentencing the defendant for a subsequent offense if the previous conviction did not result in a sentence of imprisonment or if the defendant waived the right to counsel.

A sentencing judge may not rely on prosecutorial recommendations in violation of a plea agreement or on prosecutorial communications to the judge in the absence of defense counsel.

Credit for Time Served. The Fifth Amendment prohibition of multiple punishments for the same offense requires that a defendant convicted on retrial receive credit for time served under the original sentence. Defendants also receive credit for time spent in “official detention” prior to the date the sentence commences. This requirement applies whether detention results from the offense for which the sentence was imposed or from arrest on another charge as long as that time has not been credited to some other sentence. An imprisonment sentence commences on the date the defendant voluntarily arrives at the official detention center where the sentence is to be served or when the defendant is placed in custody to await transportation to that location.

A defendant may receive credit toward a federal sentence for time spent in state custody prior to federal custody if (1) the state confinement was solely the result of the state's detention in order to subsequently turn the defendant over to federal authorities at the end of the defendant's term (a federal detainer) and (2) the defendant has not already received credit for that time toward a state sentence. The defendant may not, however, receive credit for serving the federal sentence concurrently with the state sentence. The Attorney General, through the Bureau of Prisons, is responsible for computing credit for time served in official detention.


Excerpted from: Probation, 40 Georgetown Law Journal Annual Review of Criminal Procedure 784 (2011) (85 footnotes Omitted)

Imposition of probation is governed by the Sentencing Reform Act of 1984 (“Act”), which applies to all federal defendants convicted of crimes committed on or after November 1, 1987. The Act treats probation as a sentence in its own right rather than as a sentence suspension. The Act limits a court's discretion to grant probation by explicitly prohibiting probation for specified categories of offenses. The Act covers probation impositions and durations, specifies mandatory and discretionary conditions to impose on probationers, and dictates when probation may be revoked. For cases to which United States v. Booker applies, § 3553(b)(1) is invalidated and the Guidelines are advisory; however, courts must still consider the factors listed in the Guidelines.

Imposition and Duration of Probation. The Act prohibits imposing probation when: (1) the defendant is convicted of a Class A or Class B felony; (2) probation is expressly precluded by the statute defining the offense committed; or (3) the defendant is sentenced simultaneously to a term of imprisonment for the same or a different offense. The Act requires the sentencing court, when imposing probation, to consider several factors: (1) the nature of the offense and history and characteristics of the defendant; (2) the need for just punishment, deterrence, or public protection; (3) the need to provide the defendant with educational or vocational training, medical care, or other correctional treatment; (4) the types of sentences available; (5) the Sentencing Guidelines established by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities between defendants with similar records for similar conduct; and (7) the need to provide restitution to victims. Additionally, the Sentencing Commission (“Commission”), through the Sentencing Guidelines (“Guidelines”), may further address the availability of probation for crimes not listed in the Act. The sentencing court must also consider the Guidelines and state in open court the reasons for imposing the sentence. In cases in which the sentence departs from the Guidelines' recommended sentencing range, the court should include the reason for the departure in a “written order of judgment and commitment.”

The Guidelines permit a court to impose probation if the minimum prison term in the applicable Guidelines is zero months, but the court is not required to offer probation. If the minimum prison term in the applicable Guidelines ranges from one to six months, the court may order probation if intermittent confinement, community confinement, or home detention is imposed as a condition of probation. If the minimum prison term in the applicable Guidelines is greater than eight months, the Guidelines “do not authorize a sentence of probation.” However, the Guidelines are advisory, and circumstances may warrant a sentence outside the suggestions of the Guidelines.

The Guidelines suggest limits on the court's discretion to determine the length of probation. The Guidelines also allow for the imposition of probation in order to enforce other court sanctions. However, the prosecution may request a downward departure from the Guidelines' minimum if the defendant provided substantial assistance in the investigation or prosecution of another person.

Imposing probation is generally governed by the same procedures that govern imposing any sentence. The Act specifies that a term of probation, unless otherwise ordered by the court, begins on the day it is imposed, runs concurrently with other probation terms, and tolls when the probationer is serving any prison sentence longer than thirty days. Under the Act, probation is final except under a narrow set of circumstances. The sentence may be reduced only if the defendant successfully appeals or if the defendant cooperates in other prosecutions within one year of sentencing.

Conditions of Probation. The Act prohibits a defendant from committing another federal, state, or local crime, or from unlawfully possessing a controlled substance while on probation. It also requires defendants to pay restitution and to notify the court of economic changes that might affect their ability to pay restitution, fines, or special assessments. If probation results from a felony conviction, the court must also require that the probationer: (1) pay a fine; (2) make restitution to a victim of the offense; or (3) perform community service work. If probation results from a first-time domestic violence conviction, the probationer must attend a rehabilitation program for domestic violence offenders. A defendant convicted of a sexual offense must report his address to a probation officer and register with the state as a sex offender. The Guidelines contain a list of standard conditions that are recommended in all cases of probation and a list of special conditions that should be imposed in certain circumstances. Additionally, a court may impose one or more of the Act's twenty-two discretionary conditions or a court-created condition that is reasonably related to the nature and circumstances of the offense, the history and characteristics of the defendant, and the goals of sentencing. Courts have upheld conditions that impinge on constitutional rights, including freedom of speech, freedom of association, freedom of religion, freedom from warrantless searches, and the right to counsel. Courts have also upheld probation conditions limiting a probationer's ability to participate in a given occupation or to run for political office. In all cases, the court must provide the probationer with written notice of the conditions and may, after a hearing, modify them.

The condition that a probationer report his or her activities to a probation officer does, however, raise Fifth Amendment self-incrimination concerns. A probationer may invoke his Fifth Amendment privilege against self-incrimination if he faces revocation of probation or another penalty. The state may compel a probationer to answer, but such answers may not be admitted in criminal proceedings against the probationer. If there is no coercion, however, the probationer must specifically invoke the privilege and remain silent. Otherwise, any incriminating responses to the probation officer may be used against the probationer.

Revocation. Under the Act, probation may be revoked at any time before the end of the probationary period for any violation of a probation condition that occurs during that period. In the case of such a violation, the sentencing court may revoke probation and impose a prison sentence or continue probation with or without extending the term or modifying the conditions. A court may not automatically revoke probation merely because the probationer is unable to pay restitution.

Probation revocation hearings are governed by Rule 32.1 of the Federal Rules of Criminal Procedure. If a probationer is in custody, both due process and Rule 32.1(b)(1) require a prompt preliminary hearing before a magistrate judge to determine if probable cause exists to hold the probationer pending the final revocation hearing. Before the preliminary hearing, the probationer must be notified of the hearing, its purpose, the alleged violation, and the right to be represented by counsel. The probationer must be allowed to appear at the hearing and to present evidence on his or her own behalf. Upon request, the probationer must be granted an opportunity to question witnesses, unless the magistrate finds that justice does not require the appearance of the witness. If the magistrate finds probable cause that the probationer has violated the probation conditions, the probationer must be held for a revocation hearing.

Regardless of whether the probationer is in custody, a final revocation hearing must be held within a reasonable time to determine whether probation should be revoked or whether the terms and conditions of probation are to be made more restrictive. Before the final hearing, the probationer must receive written notice of both the alleged violation and his or her right to counsel. In addition, the government must disclose its evidence against the probationer. The revocation proceedings may be initiated at the probation officer's recommendation or on the court's own initiative. Because this hearing ultimately will determine whether probation is actually revoked, the probationer is entitled to greater protection than he or she received at the preliminary hearing. The probationer may, however, waive this final hearing.

Probation revocation hearings are not criminal proceedings, so not all constitutional procedural protections apply. The probationer has no right to a jury determination at a revocation hearing. Double jeopardy does not apply to revocation hearings because a sentence of probation is always subject to revocation and is not considered final. Also, Fourth Amendment, self-incrimination, and Miranda protections do not fully apply in these proceedings. Not all defenses are available to probationers during probation revocation hearings. The government has the burden of persuasion at probation revocation hearings, but is not required to prove probation violations beyond a reasonable doubt. Finally, admissions of probation violations do not receive the same protections as guilty pleas, and the rules of evidence generally do not apply in revocation hearings.

Despite the absence of some constitutional protections, due process safeguards apply during probation revocation hearings. Due process requires that revocation hearings satisfy the Fourteenth Amendment's guarantee of fundamental fairness. The probationer must have the opportunity to appear in court and present evidence. The probationer also has a constitutional right to question adverse witnesses who appear. Finally, the court must provide a written statement informing the probationer of the reasons that his or her probation was revoked.

The Death Penalty

Excerpted from: Capital Punishment, 40 Georgetown Law Journal Annual Review of Criminal Procedure 817(2011) (114 footnotes Omitted)

Proportionality. Under the Eighth Amendment, which prohibits cruel and unusual punishment, defendants sentenced to death must be convicted of a crime for which the death penalty is a proportionate punishment. Courts employ a two-pronged approach to determine whether the death penalty is a proportionate punishment for a particular crime. First, courts examine society's views of the challenged punishment as expressed by objective evidence of community values, including legislative judgments, sentences imposed by juries, professional and public opinion, and international practices. In examining societal views, courts seek to give effect to “the evolving standards of decency that mark the progress of a maturing society.” Second, courts considering capital sentences engage in independent proportionality review to determine whether a sentence of death “is nothing more than the purposeless and needless imposition of pain and suffering [or] is grossly out of proportion to the severity of the crime.” As part of the independent review, courts should evaluate the individual circumstances of each case, while keeping in mind the goal of consistency in application of the death penalty.

The Supreme Court has concluded that the death penalty is a disproportionate punishment for certain offenses, such as rape of an adult woman, rape of a child, or robbery. In addition, a plurality of the Court has declared that death is an excessive punishment when the victim is not killed.

The death penalty is also a disproportionate punishment in felony-murder cases where the defendant lacked intent to kill. In Tison v. Arizona, however, the Court modified this rule by declaring that the death penalty was not a disproportionate punishment for someone who did not intend to kill but exhibited a “reckless disregard for human life” and played a major role in the crime. The Tison Court found that society has approved the death penalty for defendants with such a culpable mental state and that the goals of criminal sentencing--retribution and deterrence--are served by executing this subset of felony-murderers.

The death penalty may also constitute a disproportionate punishment when imposed on certain individuals. In Roper v. Simmons, the Supreme Court held that the imposition of the death penalty on persons under age eighteen at the time of their crimes violates the Eighth Amendment because such a sentence would offend contemporary standards of decency. The Court has also held that the Eighth Amendment prohibits execution of mentally retarded persons and persons who become insane while awaiting execution.

Statutory Capital Punishment Schemes. The Supreme Court has required heightened reliability in the adjudicative process leading to a death sentence but has not mandated that states adopt any particular statutory approach. To minimize the risk of arbitrary action, the Court imposed two general requirements on the capital sentencing process. First, courts must channel or limit the sentencer's discretion in order to “genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Second, courts must allow sentencers to consider any relevant mitigating evidence that might prevent the sentencer from imposing the death penalty.

Narrowing Eligibility for Death Penalty. Whether a statutory scheme effectively channels a sentencer's discretion depends on whether the scheme provides: (1) “clear and objective standards”; (2) “specific and detailed guidance”; and (3) an opportunity for rational review of the “process for imposing a sentence of death.”

A statute may channel the sentencer's discretion at either the guilt or sentencing phase of a capital trial. Narrowing occurs at the guilt phase when the legislature narrows the definition of capital offenses “so that the jury finding of guilt” necessarily includes certain aggravating circumstances. Narrowing occurs at the sentencing phase when the sentencer is required to determine whether aggravating circumstances justify imposing the death penalty.

A defendant in a homicide case cannot be sentenced to death unless the trier of fact convicts the defendant of murder and finds at least one “aggravating circumstance” at either the guilt or penalty phase. The aggravating circumstance must meet two requirements. First, it must not apply to every defendant convicted of murder. Second, the aggravating circumstance must not be unconstitutionally vague. For example, the Court invalidated an aggravating circumstance of “especially heinous, atrocious, or cruel” conduct because it was unconstitutionally vague, no guiding instruction had been given to the jury, and the appellate court did not adopt a narrowing construction. Unconstitutional vagueness may be cured by either an appropriate narrowing instruction to the jury or a narrowing construction applied on appellate review. In states where both the judge and jury play a role in sentencing, unconstitutional vagueness is cured when the judge weighs the properly narrowed aggravating circumstance independent of the jury.

The sentencer may consider both statutory and nonstatutory aggravating circumstances, but the death penalty may not be imposed without one or more statutorily defined aggravating factors. Some courts have held that aggravating circumstances may not be duplicative but that the unconstitutional use of duplicative aggravating circumstances is subject to harmless error analysis. A defendant's prior criminal history may be presented to the jury as an aggravating circumstance in and of itself. An invalid conviction, however, is not an aggravating circumstance.

States differ in their consideration of aggravating circumstances in capital sentencing. “Weighing” states require the sentencer to weigh the aggravating circumstances against the mitigating circumstances. In “nonweighing” states, once an aggravating circumstance is found, sentencers may consider all circumstances of the case in determining whether a death sentence is warranted.

In Brown v. Sanders, the Court announced that “[a] n invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.”

Prior to Brown, the Court vieed the distinction between weighing and nonweighing schemes as one of “critical importance.” Because weighing states require sentencers to balance aggravating circumstances against mitigating circumstances, one invalid aggravating circumstance required the reviewing court to remand the case for a new sentencing determination, reweigh the evidence itself, or conduct harmless error analysis to decide whether, beyond a reasonable doubt, the sentence would have been the same despite the invalid aggravating circumstance. In nonweighing states, by contrast, if the reviewing court concluded that the sentencer found at least one valid aggravating circumstance and that the invalid factor did not affect the sentencer's determination in imposing the death penalty, the sentence could stand despite an invalid aggravating circumstance. Even in a nonweighing state, however, a death sentence would not always be upheld on the basis of the sentencer finding a valid aggravating circumstance.

Consideration of Relevant Mitigating Evidence. States must allow sentencers in capital cases to hear, consider, and give full effect to all relevant mitigating evidence. Sentencing judges and juries in capital cases must give independent weight to evidence of the defendant's character, record, and background, as well as any circumstances of the offense that might justify a penalty less severe than death. Courts will reverse a death sentence for violation of the Eighth or Fourteenth Amendment if the sentencing judge refused to review or admit relevant mitigating evidence. Mitigating evidence is admissible and must be considered by the sentencing jury if it meets a low threshold test for relevance.

To establish that a sentencing jury has been constrained impermissibly, the defendant must show a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” In Penry v. Lynaugh (Penry I), the Supreme Court vacated a death sentence because the jury was instructed that it could give effect only to statutory mitigating circumstances. The Court held that the trial court's improper instructions deprived the jury of a “vehicle for expressing its ‘reasoned moral response”’ to mitigating evidence of the defendant's mental retardation and childhood abuse. In Graham v. Collins and Johnson v. Texas, the Court limited the reach of Penry I by concluding that the lack of an explicit instruction to consider age as a mitigating factor did not prevent the jury from doing so. In addition, the absence of a jury instruction on the specific concept of mitigation or particular mitigating factors does not violate the Constitution. In 2001, the Supreme Court clarified Penry I in Penry v. Johnson (Penry II), holding that special jury instructions concerning mitigating evidence must allow the jury to “consider and give effect” to the evidence, not merely mention the mitigating evidence.

When considering mitigating circumstances, the sentencer may legitimately be constrained from exercising unfettered discretion. In California v. Brown, the Supreme Court upheld a trial court's instruction that warned the jury to remain unswayed by “mere sympathy” in determining whether to impose a death sentence, concluding that a reasonable juror would interpret the instruction to mean that he or she should “ignore emotional responses that are not rooted in the aggravating and mitigating evidence” and that states may “prohibit [] juries from basing their sentencing decisions on factors not presented at the trial.”

States may also establish standards for proving mitigating evidence as long as the burden of proof allows consideration of relevant evidence. For example, the Court upheld a statute requiring defendants to prove mitigating circumstances by a preponderance of the evidence. In addition, the Court has not required state courts to give mitigating circumstance instructions when the defendant has offered no evidence at trial to support such instructions. However, the Court invalidated a statute that required a jury to unanimously find that a mitigating factor exists before weighing it, reasoning that allowing one “holdout juror” to prevent the other eleven from considering mitigating evidence would violate the constitutional requirement to consider all such evidence in capital cases.

A statute may authorize mandatory death sentences when the sentencer finds at least one statutory aggravating circumstance and determines that no mitigating evidence exists because such statutes fully protect a defendant's right to individualized sentences. Statutes may also mandate the death penalty when aggravating circumstances equal or outweigh mitigating circumstances.

Improper Influences in Capital Cases. A death sentence may be reversed if the sentencing jury was influenced or misled by improper evidence, arguments, or instructions. The Court has refused, however, to create a per se barrier against the introduction of evidence concerning membership in an association. Sentencers may properly consider a defendant's race, religion, sexual orientation, or membership in an association only if it is relevant to show motive; to rebut a charge that such evidence was used impermissibly, the state may present evidence that such factors demonstrate motive.

The Eighth Amendment does not prohibit admission of “victim impact” evidence and related prosecutorial argument at the sentencing phase of a capital trial. Evidence and argument relating to the victim's personal characteristics and the impact of the victim's death on his or her family are legitimate means of informing the sentencer about the specific harm caused by the defendant's acts. The Court has, however, suggested that when admission of such evidence is unfairly prejudicial, the defendant may obtain relief under the Fourteenth Amendment's Due Process Clause. Furthermore, the victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence are inadmissible.

If jurors are potentially misled concerning their roles in sentencing, the Eighth Amendment's heightened “need for reliability” may require reversal because the jury does not “have before it all possible relevant information about the individual defendant whose fate it must determine.” For the jury to possess all relevant information, it must receive an accurate description of its role in the sentencing process and receive accurate instruction regarding its sentencing choices.

In Caldwell v. Mississippi, the jury did not receive an accurate description of its role in the sentencing process due to the prosecutor's suggestion that the jury's decision to impose the death penalty would not be final because the appellate court would review the sentence for correctness. The Court concluded that the comment unconstitutionally “led [the jury] to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” When a defendant claims a Caldwell violation occurred, he or she “must show that the remarks to the jury improperly described the role assigned to the jury by [state] law.”

Juries must also receive an instruction that accurately characterizes sentencing choices. California v. Ramos involved a jury instruction informing the jury of the governor's ability to commute a life sentence without parole but not a death sentence. The Court found no due process violation because the instruction accurately characterized the sentencing choices: it supplied information correcting any possible juror misimpression that a defendant sentenced to life without parole could not have his or her sentence commuted by the governor to include the possibility of parole.

If circumstances make a defendant ineligible for parole, however, accurate characterization of the sentencing choices requires juror awareness of those circumstances. In Simmons v. South Carolina, the defendant's future dangerousness made him ineligible for parole. The trial judge's refusal to instruct the jury about the defendant's parole ineligibility “had the effect of creating a false choice between sentencing [the defendant] to death and sentencing him to a limited period of incarceration.” Because this inaccurate information about sentencing options may have induced the jury to impose a sentence of death rather than risk the defendant's eventual release from prison, the jury instruction violated due process.

Courts must instruct juries that the defendant may be convicted of a lesser-included offense instead of the capital offense only “if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the [capital offense] .” A defendant is not entitled to an instruction on every lesser-included offense supported by the evidence; courts need only provide juries with a “third option” in addition to acquittal or capital conviction. States may not, however, prohibit judges from instructing juries on lesser-included offenses.

Although the Court has sought to direct and limit the discretion of capital sentencing bodies, it has stated that “the requirement of heightened rationality in the imposition of capital punishment does not ‘plac[e] totally unrealistic conditions on its use.”’ For example, statistical evidence of racial discrepancies in capital sentencing does not demonstrate arbitrary, capricious, or discriminatory application of the death penalty without a showing that purposeful discrimination produced an unfair sentence in a particular case. Once the method for imposing the death penalty possesses sufficient procedural safeguards, any discretion exercised by the jury is constitutionally permissible.

Jury Qualifications in Death Penalty Cases. As with any criminal penalty, a death sentence may be reversed if the jury fails to meet the due process requirements of fairness and impartiality. Potential jurors who are opposed to the death penalty may be excluded for cause from jury service in a capital case because they might otherwise frustrate a state's legitimate interest in administering its capital sentencing statute. Such views “would prevent or substantially impair the performance of [a juror's] duties ... in accordance with his instructions and his oath.” Similarly, potential jurors who would automatically vote for the death penalty for every eligible defendant must be excluded for cause.

A jury is considered “death qualified” upon exclusion of jurors opposed to the death penalty. The Court has rejected claims that “death qualified” juries violate the defendant's right to have his guilt or innocence determined by an impartial jury selected from a cross-section of the community, finding that “an impartial jury consists of nothing more than ‘jurors who will conscientiously apply the law and find the facts.”’

Supreme Court Stays and Holds. An individual Supreme Court Justice may grant a stay of execution while a prisoner seeks Supreme Court review of a denial of habeas corpus relief but should issue such stays only in extraordinary circumstances. An individual Justice should not grant a stay unless he or she finds “a reasonable probability that four Members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; ... a significant possibility of reversal of the lower court's decision; and ... a likelihood that irreparable harm will result if that decision is not stayed.” A majority of the Court may set aside a stay granted by a lower court or an individual Justice.

The Federal Death Penalty Act of 1994. The Federal Death Penalty Act of 1994 provides a statutory mechanism for imposing and reviewing death sentences for certain federal crimes. Specifically, the Act establishes statutory aggravating and mitigating circumstances for the jury to consider, a special hearing to determine whether a death sentence is justified, and a system of appeal and review to examine the appropriateness of the death sentence in individual cases.

In addition, the Act requires courts to instruct juries not to consider “the race, color, religious beliefs, national origin, or sex of the defendant or any victim.” Finally, the Act mandates the assignment of two counsel to defendants in capital cases and exempts from death eligibility pregnant women, persons with mental retardation, and persons incapable of comprehending the meaning of the death penalty.


Excerpted from: Parole, 40 Georgetown Law Journal Annual Review of Criminal Procedure 852 (2011) (45 footnotes Omitted)

Parole Release From Incarceration. Parole is a system of release from prison before the completion of a sentence, on condition that the prisoner abides by certain rules for the balance of the sentence. The purpose of parole is to help imprisoned individuals become constructive members of society, without confinement for their full sentence. Parole may also be used to reduce prison overcrowding.

In 1984, Congress abolished parole for federal prisoners and moved to a system of fixed prison terms. However, federal prisoners whose offenses were committed prior to November 1, 1987, remain eligible for early release.

States are free to create their own parole systems. State prisoners do not have a constitutionally protected interest in receiving parole unless a statute contains mandatory language requiring the parole board to grant parole in certain situations. When such mandatory language exists, a prisoner has a legitimate expectation of parole, or “liberty interest,” that cannot be denied without due process. For example, statutes providing that the parole board “shall” release an inmate if certain conditions are met usually create a protected liberty interest. Conversely, state statutes and regulations that merely state that the parole board “may” release an inmate if certain criteria are met do not create a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.

When a statute gives an inmate a liberty interest in parole, an informal hearing where the inmate has an opportunity to present letters and statements on his behalf satisfies due process. In contrast, other types of hearings, such as disciplinary or parole revocation hearings, require heightened due process protections.

Changes to parole guidelines may violate the Ex Post Facto Clause if prisoners are “unquestionably disadvantaged” by changes that create a “significant risk” of increased incarceration. For example, in Lynce v. Mathis, the Supreme Court held that retroactive cancellation of early release credits having the effect of returning the parolee to prison violated the Ex Post Facto Clause because it “prolonged his imprisonment” and, therefore, “unquestionably disadvantaged” the parolee. But in California Department of Corrections v. Morales, the Supreme Court held that amended parole procedures allowing triennial, instead of annual, parole suitability hearings for a certain class of prisoners did not violate the Ex Post Facto Clause because the statute created only a “speculative [and] attenuated” risk of increasing the prisoner's punishment.

Parole Revocation. Minimal due process protections apply to parole revocation proceedings for both federal and state prisoners. Although parolees are subject to many restrictions, they enjoy a protected liberty interest in conditional freedom. That interest in continued liberty is significant enough to fall within the scope of the Fourteenth Amendment's Due Process Clause. Moreover, parolees rely on an implicit promise that their parole will be revoked only if they violate their parole conditions. Therefore, due process requires that parole be revoked only through a procedure designed to ensure that the finding of a violation is factually correct and that the discretionary decision to recommit the parolee to prison is based on an accurate assessment of the parolee's behavior.

There are two stages in a typical parole revocation proceeding: a preliminary hearing and a revocation hearing. Due process requirements apply to each stage. A preliminary hearing or interview is held to determine whether probable cause exists to believe that the parolee violated parole conditions. A preliminary hearing after a parolee is recaptured on a federal parole commissioner's warrant or summons must be held “without unnecessary delay,” but delay only violates due process when it prejudices a parolee. However, the parolee may choose to postpone the preliminary hearing to obtain counsel. At this preliminary hearing, the parolee is entitled to appear and present evidence and to confront and cross-examine adverse witnesses, unless the hearing officer determines that the witness may be harmed if his or her identity is disclosed. If the hearing officer determines that probable cause exists to hold the parolee pending a final revocation decision, the officer must summarize the proceedings and state the reasons and evidence supporting the probable cause finding, though the summary need not include formal findings of fact or law. If the parolee has been convicted of a crime while on parole, however, no preliminary hearing is required because the conviction itself establishes probable cause to believe that there has been a parole violation. The parolee may also elect to waive the right to a preliminary hearing, which is the functional equivalent of a finding of probable cause.

Once probable cause has been established, the parole authority must hold a revocation hearing within a reasonable time after the parolee has been taken into custody. The revocation authority must give the parolee notice of the alleged parole violation before the actual hearing. The decision to revoke parole must be based upon a retrospective factual inquiry into whether the parolee violated the conditions of his or her release and an assessment of whether the parolee should be recommitted to prison or made subject to additional parole conditions aimed at protecting society and improving rehabilitation. At the hearing, evidence against the parolee must be disclosed, and the parolee must be allowed to present witnesses and documentary evidence. The parolee must also be allowed to cross-examine witnesses unless the hearing officer finds cause for preventing such confrontations. At the revocation hearing, the parolee may show that the violation did not occur, and, if the parole board has discretion whether to revoke parole in a given fact situation, the parolee may also show that mitigating circumstances should preclude revocation. [FN2534] A “neutral and detached” body, which may include the parole board and need not include judges or lawyers, [FN2535] must make the revocation decision and issue a written statement of the evidence and the reasons supporting revocation of parole. [FN2536] Due process does not generally require the appointment of counsel for indigent parolees in revocation hearings, [FN2537] but in federal cases the appointment of counsel is required by statute. [FN2538]

Prisioner's Rights

Excerpted from: Prisoners' Rights, 40 Georgetown Law Journal Annual Review of Criminal Procedure 1007 (2011) (8 footnotes Omitted)

Criminal convictions and lawful imprisonment permit proper limitations on citizens' freedom and other constitutional rights, but prisoners retain those substantive rights compatible with the objectives of incarceration. Federal courts are reluctant to intervene in internal prison administration, and they accord wide-ranging deference to the judgment of prison officials, particularly regarding the policies and actions needed to preserve or restore a prison's internal order.

A prison regulation that infringes on a prisoner's constitutional rights must be “reasonably related to legitimate penological interests.” Reasonableness is deter-mined by whether: (1) a “valid, rational connection” exists between the regulation and the legitimate interest that would be advanced by its enactment; (2) alternative means of exercising the asserted right would remain available; (3) accommodation of the asserted right would adversely affect guards, other inmates, or the allocation of prison resources; and (4) an obvious alternative to the regulation exists “that fully accommodates the prisoner's rights at de minimis cost to valid penological interests.” The Supreme Court specifically rejected a test that would have required all prison regulations to be the “least restrictive alternative.” However, the existence of an alternative regulation better suited to accommodate a prisoner's rights may be evidence that the regulation is an unreasonable, “exaggerated response” to penological concerns.