a. Pre-Arrest Investigation (leads to arrest or grand jury) i.Reactive Investigations (govt/police/prosecutor arrests D in reaction) 1. Complaint is charging document 2. Must follow procedure outlined below ii.Proactive Investigations (prosecutor/govt gathering info) 1. Prosecutor can choose whether to bring the case to court by arresting the D or by grand jury iii.Prosecutorial Investigations (subpoenas, grand jury investigations, and so on) b. Arrest i.Warrant? ii.Booking iii.Lockup c. Post-Arrest Investigation i.Lineups, Interviews, and so on d. Decision to Charge i.Prosecutorial Discretion: prosecutor decides whether there is enough evidence to file charges. If so, the prosecutor prepares complaint. 1. Justifications for Prosecutorial Discretion (i) Legislative overcriminalization (ii) Limitations in available enforcement resources (iii) Need to individualize justice 1. Discretion makes it more likely that the crime will be charged based on specific offense conduct and specific offender characteristics. 2. But discretion creates a risk of discrimination and arbitrary unfairness. ii. General Rule: Huge Amount of Discretion 1. Discretion in whether to bring charges, what charges to bring, when to drop charges, what investigations to bring, etc. 2. Some offices restrict discretion of line prosecutors. iii.Model Rules of Professional Conduct limit pros actions 1. Prosecutor cannot bring charges he knows is unsupported by PC 2. Prosecutor should make timely disclosure of all exculpatory or mitigating evidence; 3. Prosecutor cannot seek unrepresented waiver of pretrial rights (e.g. PH) 4. Prosecutor should refrain from extrajudicial statements iv. Prosecutors overall duty: to do justice 1. ABA: Emphasis on prosecutor's responsibility to be a minister of justice, not just an advocate. 2. Conflict in goals: At odds w/ responsibility to win the case in an adversarial system 3. Means: obey rules, reduce disparities by treating similarly situated Ds the same and different Ds differently; give accused fair process; (at sentencing: advocate for sentence in proportion to crime) v. What may the prosecutor charge (which charge does the pro bring to the GJ?) 1. General rule: huge amount of discretion, but less discretion than the decision to charge initially (i) A presumption of regularity attaches to pros charging decisions, so courts presume pro is acting properly when charging (Armstrong) 2. Limits on the pros decision of what to charge (i) Prosecutorial guidelines 1. Most readily provable offense: a. USAM 27.300: The prosecutor must charge the most serious, readily provable offense (the highest sentence under the guidelines) b. But there is still flexibility in the USAM: pro can select charges based on an individualized assessment 2. Individualized assessment: a. Holder Memo: deciding what to charge should be govern by an individualized assessment b. Versus Ashcroft Memo: eliminated this message 3. Enhancement? a. If seeking enhancement, decision to seek enhancement must be based on an initial appearance 4. Low-level case? (Federal priority?) a. Holder 2013 Memo: federal pro should focus their energy on fewer, most significant cases (shift policy on drug cases, leave lower-level offenders to the state) (ii) Guidelines, however, expressly note they do not create any rights for the defendant
vi. Judicial Review of the decision to prosecute 1. General rule: courts are extremely reluctant to review pros decision to prosecute. Thus, judicial review of the decision is highly proscribed. See Armstrong (calling decision to charge a core executive constitutional function) (i) Indeed, a presumption of regularity attaches to all of a pros charging decisions, so court will assume the pro has acted properly (Armstrong) 1. Rationale: chill law enforcement, separation of powers, competence: courts not equipped to analyze things like strength of case or law enforcement priorities 2. Exceptions the general rule of no judicial review: D can attack the charging decision by alleging (i) Selective Prosecution: 1. Sounds in equal protection violationthe way the prosecutor is implementing the statute violates EP a. Suspect class and quasi suspect---religion, ethnicity, race, gender legit b. Other categories---might mention 2. Standard for what D need to show to prevail on a selective prosecution claim differs based on the stage of the prosecution a. Discovery: If D trying to get discovery to prove a SP claim D must show some evidence tending to show the existence of both prongs to obtain discovery (Armstrong) i. Armstrong court: High/rigorous standard, b/c forcing a prosecutor to disclose discovery is similar to (and runs similar risks as) forcing a prosecutor to justify a prosecution. ii. McAdams: suggest discovery rule should be a showing of disparate impact (large disparity) (not adopted in Armstrong) b. MTD: If D files a MTD for SPD must make out a prima facie case of SP by showing clear evidence of both prongs (Armstrong) i. Higher evidentiary standard than some evidence (see Jones: D passed discovery standard but not prima facie standard) 3. Defendant needs to demonstrate both prongs of the Armstrong test, DE and DP a. Exceptions for discovery i. If govt in some way can choose who will become a D in a given case (sting)D need only show some evidence of DE (first prong) to get discovery (not need to show DP) (see Abraham Brown, class discussion) ii. If govt conduct is outrageous/obviously showing prosecution propelled by racial animusD need only show second prong, discriminatory purpose, to obtain discovery (see Jones) b. Exceptions for PF selective prosecution claim (MTD) i. DP onlyIf pro directly admits to discriminatory purpose, D could meet selective prosecution claim without showing discriminatory effect (suggested in Armstrong, FN 3) ii. BUT would need actual admission, not just egregious behavior in Jones (smoking gun) (e.g. emails, individual AUSA saying race is a factor to decide)
4. Armstrong hurdles: To obtain discovery/prevail on SP claim, D must demonstrate both: a. 1 st Discriminatory effect: To show discriminatory effect, the D must demonstrate different treatment of similarly situated persons. Elements: i. (1) Other people are similarly situated (they have committed roughly the same crime) (note: how broad is SS? Crack---heroine? govt will want to argue facts that distinguish this offense from other offenses, thus not SS) ii. (2) Those people who committed the same crime did not have the trait at issue (e.g. are not black, not Muslim, etc) iii. (3) Those people who committed the same crime are 1) not being prosecuted OR 2) not being prosecuted to the same degree as that people w Ds trait are being prosecuted (blacks, Episcopalians, etc)
(ii) 2 ways to prove that similarly situated Ds are treated differently (McAdams: virtually impossible, so most cases do not advance beyond DE) i. (1) Find SS (crack) people (white) who are being pro in state court and not federal court AND that those people are known to federal law enforcement ii. (2) Find SS people who are not being prosecuted at all (e.g. find who was arrested but never charged: Alison: really hard to find this information iii. (3) Abraham Brown: judge granted discovery b/c the government was in the unusual position of being able to proactively choose potential Ds (sting operation)---no need to show discriminatory purpose b. 2 nd Discriminatory purpose: D needs to show the government intentionally singled out Ds of that particular class for prosecution (e.g. black 2 WAYS prove SIMILAR situated Ds), i.e. that the prosecutor was motivated by racial/etc animus i. Hard to prove: typically need to rely on inferences b/c govt will rarely openly admit discriminatory motivation ii. Statistic evidence of disparate impact is insufficient iii. Typically needs showing of outrageous govt conduct (see Jones: DP found b/c police did discriminatory acts to black D but not white D (T-shirts))
2. If D meets the Armstrong standard, (unclear exactly what happens) a. On a motion for Discovery: burden shift? (Unclear) i. (1) The burden shifts back to the govt to show: Pros decision was rationally related to a legitimate govt purpose (rational basis review) (see Castillo) ii. Alison: Unclear what would carry burden, but probably govt would need to show the different treatment among classes overall was rationally related to a legitimate govt purpose (e.g. increased deterrence) iii. E.g. young speeder singled out b/c more dangerous than older speeders, injury to black crack users greater (b/c more are customers) of black dealers iv. (2) No burden shift, and court grants discovery automatically (see Jones) b. MTD: burden shift? i. 6 th Cir Rule: once D makes a prima facie case of both Armstrong prongs, D has proven his claim for selective prosecution----No burden shift to govt (hard enough already for D to meet both prongs, so D has shown enough) 3. Remedy? (unclear, SCOTUS has never decided) a. McAdams: absence of statutory remedy explains why there is not much of a legal right in the first place b. Dismissal? i. McAdams/Alison think dismissal is appropriate ii. But strange b/c gives guilty windfall (but other rules work like this too, e.g. suppression of evidence) c. Alternatives to dismissal i. Force pro of similarly situated others (not realistic), civil damages, sanctioning pro (but no help to D)
(iii) Vindictive Prosecution: 1. VP happens when pro brings more serious charges against D for the same conduct in violation of due process a. Defense: argue pro bringing higher charges b. Pro: argue this is a new crime, not higher charges (see Smith: no VP b/c judge felt pro brought entirely new crime, not higher charges) 2. Likelihood of D prevailing on VP claim is largely affected by the timing of the more serious charge: are we in the post or pretrial context? (i.e. is the case pending?) a. Because actual vindictiveness is nearly impossible to prove, the issue of presumption is key b. Defense: argue we are in the post-trial context Blackledge appliesPOV i. Not give-and-take plea bargaining, which would suggest pre-trial, but post-trial ii. Right at issue is not a right exercised in a pending case, but one post-trial c. Pro: argue we are in the pre-trial context Goodwin/ Bordenkircher appliesno POV (need actual V) i. Pro has right to file new charges when law violated ii. Pro merely engaging in legitimate pre-trial bargaining for the new case (pre-trial context) iii. Bordenkircher allows the prosecutor to threaten additional charges against a D who asserts his constitutional rightsit is equally alright to add charges as it is to drop in exchange for guilty plea 3. Analyze both the post and pre-trial contexts (in the alternative) a. Defense: even if we are in pre-trial context, we can show actual vindictiveness b. Pro: even if we are in the post-trial context, we can rebut the presumption 4. Post-Trial (Blackledge presumption of V applies) a. Presumption of V attachesIf the prosecutor brings more serious charges after D exercises a constitutional right (seek new trial), the court will automatically presume the prosecutor brought the charges out of vindictiveness based on timing alone (Blackledge) i. Thus, due to this presumption, D does not need to demonstrate the prosecutor acted with actual vindictiveness (i.e. animus or bad faith) ii. Due process violation requires dismissal b. Rebutting the presumption: unclear what the standard is (circuit split) i. Blackledge FN 7: Govt has to show that it was impossible to proceed with the more serious charge at the outset. (e.g. only got enough NEW evidence after the trial/appeal) ii. Goodwin could have expanded the impossibility standard, making it easier for the govt to rebut the presumptionStandard for rebutting the presumption in Goodwin FN8 is "objective evidence justifying the prosecutor's action." Ct then quotes the "impossibility" language from Blackledge SO reading the standard in context, still appears timing is the key issue (so pro cannot rebut presumption with evidence of legit intent) iii. But circuit splite.g. 5 th Circuit: has held that prosecutor just needs a legitimate or non- vindictive reason for his action. 5. Pre-Trial (Goodwinno presumption) a. To prevail in the pretrial context, D needs to produce evidence of actual vindictiveness i. Actual vindictiveness: D must show that the only reason the prosecution is bringing the charges is to punish D. ii. Evidence needed: a smoking gun, i.e. admission that pro brought new charge to punish D for exercising right iii. D could point to the TOC (if previous trial) iv. It's almost impossible to show. b. Pro only needs a legitimate reason to believe the defendant committed the crime c. e. Filing the Complaint i.Must be filed prior to initial appearance f. Magistrate Review of the Warrantless Arrest (Probable Cause hearing) i.Gerstein v Pugh probable cause review (for warrantless arrests) judge determines whether, on the basis of the complaint, the govt had PC to arrest the D 1. Takes place ex parte, on basis of complaint, soon after arrest 2. Must take place within a reasonable time from the arrest (Gerstein) 3. Must occur within 48 hours of warrantless arrest (McLaughlin) (?) g. Initial Appearance i. To keep D detained and to get a detention hearing, the prosecutor must move for detention/continuance and demonstrate one of section 3142s seven (f) factors. 1. Crime of violence (f)(1)(A) (i) + Terrorism offense, sex trafficking of minors by force, fraud, or coercion 2. Crime with maximum punishment of life or death (f)(1)(B) 3. Federal drug offense punishable by stat max >/= 10 years from 21 USC 801 et seq (Controlled Substances Act of 1970), 21 USC 951 et seq, 46 USC 70501 (trafficking with vessel) (f)(1)(C) 4. Felony case + client has 2 priors that are especially serious (crime of violence, crime punishable by life or death, or drug case with 10 year maximum) (f)(1)(D) (i) Prior convictions can be in state or local offenses if they would have been offenses described above if there had been federal jurisdiction. (f)(1)(D)(b) 5. A non-violent crime that involves a minor victim, possession of a firearm or destructive device, or failure to register as a sex offender (f)(1)(E) 6. Serious risk of persons flight (f)(2)(A) (i) Risk must be serious (ii) Judge can motion for hearing if prosecutor fails to motion under (f)(2)(A)(B). 7. Serious risk that person will or attempt to obstruct justice or threaten a witness or juror (f)(2)(B) (i) Risk must be serious (ii) Judge can motion for hearing if prosecutor fails to motion under (f)(2)(A)(B). ii. Dangerousness 1. Dangerousness alone will not grant detention hearing---in addition, prosecutor must show one of the seven (f) factors iii.Judge has discretion to motion for detention hearing in some circumstances: 1. No detention hearing if prosecutor fails to motion under numbers (1) through (5) above ((f)(1)(A)(E)). 2. Judge can motion for hearing if prosecutor fails to motion under (6) or (7) above ((f)(2)(A)(B)). iv. Outcome 1. If (f) factor the hearing will take place 3 (govt) to 5 (defense) days after the IA (i) Does not include weekends/holidays (ii) No remedy if rule is violated 2. No (f) factor judge will deny govts motion for a hearing and release the person h. Bail Hearing/Detention Hearing i. Under the Bail Reform Act, there is a presumption of release. ii. The judge shall order release UNLESS the prosecution demonstrates that 1. The D is flight risk such that no condition or combination of conditions will reasonably assure the defendants appearance in court as required (e)(1) OR (i) Must prove appearance by POE (ii) Opportunity (funds) alone insufficient 2. The D is a danger to the community such that no condition or combination of conditions will reasonably assure the safety of the community (any other person) (e)(1) (i) Must prove dangerousness by clear and convincing evidence (see (f)(2)) iii. Does Ds crime trigger a rebuttable presumption of flight/danger? 1. (e)(2) Rebuttable presumption of dangerousness attaches when (i) Ds alleged crime is: a 1. Crime of violence (f)(1)(A), 2. Crime with maximum punishment of life or death (f)(1)(B), 3. Federal drug offense punishable by stat max >/= 10 years (f)(1)(C), or 4. Felony case + client has 2 priors that are especially serious (crime of violence, crime punishable by life or death, or drug case with 10 year maximum) (f)(1)(D) AND (ii) AND Judicial officer finds that in the last five years D was convicted of a prior (f)(1) crime (+ non-violent crime involving minor victim, firearm/DD possession, or fail to register as sex offender) that the D committed while on release pending trial 2. RP of dangerousness and flight attaches for (i) offense is drug offense with stat max of at least 10 years, or (ii) offense is for carrying or using gun during a felony, or (iii) offense involving terrorism, or (iv) offense involving conspiracy to kill, kidnap, maim, or injury outside of US, or (v) offense of holding person in position of peonage; or (vi) offense involving a minor victim is one of various listed offenses 3. If RB, of dangerousness/fight attaches, D must rebut the presumption of dangerousness/flight by producing evidence he will not flee or endanger community. Dominguez. (i) Burden of production is not heavyD can produce anything that would militate against presumption of flight or dangerousness (anything in 3142(g)) (ii) Burden of persuasion always rests with the govt iv. Factors judge will consider under section (g) 1. Concerning present offense (i) Nature of offense (ii) Weight of evidence (least important b/c not much info) (iii) Whether person was on parole, probation, or release at time of offense, 2. Ds own characteristics/history (i) Character (ii) Physical and mental condition (iii) Family ties (iv) Employment, (v) Financial resources, (vi) Length of residence in community (vii) Community ties (viii) Past conduct (ix) Drug or alcohol history (x) Criminal history (arrests insufficient: Dominguez) (xi) Record concerning appearance at prior proceedings), 3. Nature and seriousness of the danger to any person or the community that would be posed by the persons release v. Limits 1. Every bail determination must be made on the particular facts of the case and defendant (Stack v Boyle) (i) Suggests that bail schedules unconstitutional 2. Cannot impose a financial condition that results in detention (i) Bandy: unconstitutional to fix excessive bail to assure D does not gain freedom i. Preliminary Hearing i. Purpose: 1) allows a neutral judge to screen the case, and 2) ensures the wrongfully charged are released promptly 1. Screening function dubious in federal system b/c Govt can bring indictment anyway (but see Sutter: PH mattered) ii. Right to the Preliminary Hearing (statutory right under fed rules) 1. Under FRCP 5.1(a), a preliminary hearing is required unless (i) D waives the right to PH (ii) Prosecutor indicts D (goes to Grand Jury) 1. ABA Standard says prosecutor shouldn't obtain a continuance solely for the purpose of mooting the preliminary hearing by taking the case to the grand jury for an indictment. 2. Prosecutors do sometimes try to take a case to the Grand Jury very quickly in order to avoid a preliminary hearing, but they don't often ask for continuances to sneak stuff to the Grand Jury (iii) D agrees to proceed by information (if felony) 1. D gives up right to both PH and indictment 2. I.e. D basically acknowledges govt has PC (rare) (iv) For misdemeanor, Prosecutor brings information 1. PH are not required for misdemeanors 2. There is no constitutional right to a preliminary hearing under the 4 th , 5 th , or DPC (i) 4th Am does require judicial review of PC to detain, but that determination does not require a full-blown adversarial or evidentiary proceeding. 1. Can be done either ex parte or by reviewing the complaint (Gerstein review) iii. If preliminary hearing held, 1. Timing (i) If D is in custody, w/in 14 days of arrest (ii) IF D is out on bond, w/in 21 days of arrest 2. Right to Counsel (i) D has a 6 th Am right to appointed counsel to assist D at all critical stages of the prosecution (Coleman) 1. Critical stage a stage where the presence of counsel is necessary to preserve the Ds basic right in a fair trial (cross witness and have assistance of counsel at trial) (ii) In Coleman, the Supreme Court held the preliminary hearing is a critical stage once a jurisdiction grants the right to a preliminary hearing (by statute, etc.), the right to council is constitutionally required 1. I.e. 6th Am requires indigent defendants to have appointed counsel to assist them at preliminary hearings. 2. BUT Lower courts have held violations of the right to counsel is reversible error only where D can point to specific aspects of the trial where he was adversely impacted by his lack of counsel at the preliminary hearing 3. Procedures / requirements (i) 5.1 (e) D can cross-examine witnesses and introduce evidence (to defeat finding of PC) (ii) Rules of evidence do not apply 1. D cannot argue evidence was unlawfully obtained to defeat a finding of PC 2. I.e. finding of PC can be based entirely on hearsay (iii) 5.1(g) proceeding but be recorded, and parties can request transcripts (iv) Rule 26.2 applies 1. Govt must turn over to D statements made by testifying witnesses 4. Objectives of the parties (i) PC Standard: (tie all questions to PC) 1. Under FRCP 5.1(e), the judge must ensure the prosecution has a. PC on each element of crime to show that crime has been committed and b. PC that defendant has committed the crime 2. PC is easy to meet/mushy/loose a. See E.g. Sutter PH: 2 Ws ID = PC 3. If no PC found (rare)doesnt matter, really a. Under 5.1(f) if magistrate finds no probable cause to believe offense was committed or D committed it, must dismiss complaint and release i. BUT government can still later prosecute D for same offense (via indictment) (second bite at apple) (usually happens in federal cases) (ii) Govt: establish PC (primary) 1. Note: in practice, govt does not want a PH (b/c must turn over statements of Ws, locks Ws in for impeachment) 2. In practice, pro will exchange early discovery for a waiver of PH (iii) Defenses objectives during the PH (from Coleman) 1. Primary objective: negating PC a. I.e. D will want to expose weaknesses in Govts case through cross-examination 2. Discover the Govts case (under the table reason) a. Courts often object that this is an illegitimate objective b. Naked discovery forbidden: Courts sometimes cut off questioning that seems more about discovery than about negating PC i. I.e. it is obvious D is gathering evidence through cross, e.g. asking for names of Ws or types of police investigating methods (which would help with later suppression arguments) ii. Admissibility of evidence is not relevant except as it relates to PC iii. D will need to link all questions to ultimate PC question (or improper) 3. Create impeachment for trial by locking witnesses in (or can preserve the testimony of a witness who later becomes unavailable) a. Defense can even lock in witnesses who arent present by getting case agent to tell Court what Witness X said. 4. Evidence can aid counsel in bail arguments. a. E.g. counsel can use information that D did not flee when approached by police, which goes to risk of flight j. Grand Jury Review i.Mandatory only when jurisdiction requires indictment ii.Sword and Shield 1. Shield of screening mechanism (i) Shield against arbitrary prosecution: GJ Stands between accuser and accused; prevents govt from unfounded allegations. (ii) S Ct has unrealistic idea of the shield role (see Costello, Williams) 2. But (i) Ex parte (so not much shield function) (ii) Prosecutor works with GJ, explains law, brings witnesses in (iii) Little constitutional protections (5th double jeopardy/6 th right to counsel) (iv) Lack of rights and structure of GJGJ refuses to indict in only ~2% of cases. 3. Sword for govt because of investigatory function iii.PC standard for indictment: To indict, the GJ must find the govt has enough PC to show a all the elements of a crime committed and that this D committed the crime 1. Indictment is necessary for the case to move forward (i) So here, D is trying to get the indictment dismissed via any evidentiary challenges/misconduct (limited) 2. If GJ finds no PC, govt can bring indictment over and over iv. FRCP 6 v. To make a showing of PC (any evidentiary challenges?) 1. GJ decision is unreviewable on the merits: D cannot challenge the quality/sufficiency of the evidence (Costello) (i) Otherwise, mini-merits trials before the actual trial (ex parte; efficiency) (ii) GJ is a separate entity from the courts (accusatory, not adjudicative) (Williams) 1. Courts dont have supervisory powers to proscribe the standards of prosecutorial conduct. 2. No 6 th Am right to counsel at this stage 3. Exculpatory evidence: not required to present to GJ (i) Prosecutors are not required to present exculpatory evidence to the grand jury (Williams) 1. So D cannot ask the Dis court to dismiss an otherwise valid indictment because the government failed to disclose exculpatory evidence to the grand jury. a. But see: i. USAM: prosecutors have to present significant exculpatory evidence to GJ. ii. Stevens dissent: failure to produce EE is prosecutorial misconductadvocates for USAM rule iii. -----Pro has duty not to do anything that would bring about a wrongful conviction, and by extension, also a duty not to do anything that would lead to a wrongful prosecution. 2. Williams: pro did not present exculpatory evidence that negated the Ds intent to defraud (loan) 4. It is permissible for the govt to bring to the GJ: (i) Evidence obtained in violation of Ds 4 th Am rights (i.e. D cannot invoke the exclusionary rule to forbid the GJ from hearing evidence/no 4 th Am challenges) (Calandra) 1. Calandra: Costello rationale also bars a challenge to an indictment issued on the basis of unconstitutionally obtained evidence; grand jury can question a witness about suppressed evidence (obtained via unconstitutional search) a. GJ is allowed to question a witness about evidence that has been suppressed because of a 4th Am violation b. See outline for reasons why Calandra is wrong 2. BUT see USAM: prosecutors can use hearsay but cant use evidence that was obtained in violation of constitutional rights (manual is not binding) (ii) Statements obtained in violation of 5th Am are admissible (see Williams) (iii) Hearsay evidence (Costello) 1. Permissible under the USAM also 2. Costello: Sustained a conviction where a defendant was indicted only on the basis of hearsay evidence presented to the grand jury. (iv) Inadequate and incompetent evidence (Costello citing Hold v United States: indictment cant be quashed because evidence is incompetent) 1. Alternative rule: Burton concurrence in Costello: a. Majority rule is too broad b. Need to allow indictment to be challenged when there is no persuasive evidence for indictment, otherwise the 5th Am GJ clause isnt serving its protecting purpose. (v) Previously suppressed evidence in order to obtain a superseding indictment (Puglia) (vi) (vii) (not read) Bracey an indictment need not be dismissed b/c a witness admittedly committed perjury before the grand jury 5. Potential limits on the GJ (for the D to assert to defeat PC) (i) 5 th Am right to silence: govt cannot force a W with a valid 5 th
Am right to testify at the GJ 1. In this vein, govt cannot force W to turn over incriminating documents 2. BUT if govt offers immunitycan force W to testify (ii) GJ itself (as opposed to the police) cannot violate const (dicta in Calandra/Puglia (7 th Cir)) 1. Subpoenas: GJ cannot issue a subpoena that invades a legitimate privacy interest under the 4 th Am or otherwise violates a property interest under the 4th Am. (See Silverthorne) 2. But GJ are not themselves violating witness's rights when they use evidence that was obtained by someone else in violation of the 4th Am. (iii) Silverthorne: 1. Held: 4 th Am prevents use of illegally seized evidence at GJ stage (opposite from Calandra) (GJ cant issue subpoena based on evidence obtained illegally under 4th Am) 2. key facts Calandra used to distinguish a. Silverthorne: Ds were already charged (indicted), while Calandra was only a witness (immunity), so C does not have standing b. In S, govt sought evidence for ongoing trial (not for pre-indictment investigation); C: pre-indictment 3. BUT Alison: there was no difference b/w the facts of Puglia and Silverthorne, yet the GJ heard the evidence in Puglia anyway (so Silverthorne wont help Ds) a. Also distinctions in Calandra do not make a difference, so Calandra really overruling Silverthorne (if Silverthornes facts repeated, result would be GJ heard evidence) vi. k. Filing of Indictment or Information i.When is indictment unnecessary? 1. Misdemeanor 2. Felony, but prosecutor and defendant agree it can be prosecuted by Information l. Arraignment on Information or Indictment i.Acknowledge receipt of indictment ii.Waive formal reading of indictment iii.Enter a plea of not guilty 1. No discovery yet! m. Pretrial Motions n. Guilty Plea Negotiation and Acceptance o. Trial p. Sentencing q. Appeals r. Collateral Remedies
Reynold Leone, as Administrator of the Estate of Andrea Leone, Also Known as Andrea Held, Deceased, Frances S. Costigan (Now Known as Costigan-Leeds), as of the Estate of George B. Costigan, Jr., Deceased v. United States, 910 F.2d 46, 2d Cir. (1990)