International Symposium

"The Right to a Fair Trial"

Max Planck Institut für

Ausländisches öffentliches Recht und Völkerrecht

Heidelberg, Germany

31 January - 3 February 1996

"Fair Trial Standards in the

United States of America"

by Richard S. Frase

Professor of Law

University of Minnesota

REVISED VERSION, May 1996 A. Introduction

Most of the fair trial guarantees contained in the Covenant on Civil and

Political Rights and other international human rights instruments are protected by law in the United States. Nevertheless, a number of problem areas remain.

The following report first provides background information on the structure of courts and criminal laws in the U.S. It then addresses each of the issues of criminal justice identified in the U.N. Questionnaire on the

Right to Fair Trial. The impact of global and regional human rights instruments in the U.S. is then examined, followed by some concluding remarks on the strengths and weaknesses of the U.S. approach, and the lessons to be learned from the United States' two-hundred-year-long struggle to improve fair trial standards in criminal cases.

B. The Structure of Criminal Courts in the United States

1. State and Federal Courts and Crimes. The United States has a federal system of government, in which the power to define and punish criminal offences is exercised by each of the 50 states and also by the federal government. Each state is a sovereign entity, exercising broad police powers; the federal government is, in principle, a limited government exercising the

"enumerated" powers specified in the U.S. Constitution. The Constitution confers no general police power on the federal government, but does grant

Congress the authority to enact laws "necessary and proper" to carry out the central government's enumerated powers. Several of those enumerated powers

(especially the power to regulate "interstate commerce") have been broadly interpreted by the courts; in addition, federal government regulations and operations have grown substantially, especially since the 1930s, and Congress has found that the enactment of ever broader (and more severe) federal criminal laws is politically popular. Hence, federal criminal jurisdiction and federal criminal caseloads have grown steadily over the years, and have increased dramatically since a "war on drugs" was declared, in the 1980s. Despite this increase, however, the great majority of criminal cases continue to be prosecuted in state courts, under state criminal laws.

Some criminal acts (for example, customs violations) fall under exclusive federal jurisdiction, and may only be prosecuted in federal courts; others

(for example, burglary of a private residence) fall entirely within state jurisdiction; and many others (for example, interstate transport of stolen property; most drug crimes, and many fraud and weapons offences) may be prosecuted in either state or federal court. In practise, most of the cases falling within concurrent state and federal criminal jurisdiction are prosecuted by state authorities; federal prosecutors use their discretion to select and prosecute only the most serious crimes, or those which the states are unwilling or unable to handle effectively, for example: crimes involving interstate movement, organized crime, complex transactions, corruption of local law enforcement or political officials, and denial of civil rights guaranteed by the U.S. Constitution. 1

State and federal criminal justice systems are generally very similar in their major features, but quite diverse in their details. No particular state or group of states is widely regarded as "typical," and the specialized criminal jurisdiction of the federal courts precludes using that system to illustrate the entire country. To some extent, the choice of a particular

"sample" state is immaterial, since many aspects of state criminal justice are determined by the requirements of the U.S. Constitution 2; in comparison with

Civil Law systems (or even Canada and Great Britain), relatively few procedural matters are governed by statutes or codes. The remainder of this paper will focus on the procedural rules derived from federal constitutional

1 Richard S. Frase, "The Decision to File Federal Criminal Charges - A Quantitative Study of Prosecutorial Discretion," University of Chicago Law Review, vol. 47, pp. 246-330 (1980).

2 Richard S. Frase, "Criminal Justice System," Encyclopedia of the American Constitution, Supplement I, pp. 132-36 (1992).

2 requirements, with reference to more or less "typical" statutes, procedure codes, and practises found in most states. Specific examples of state criminal procedure rules, statutes, and non-constitutional decisional law are drawn primarily from the author's home state, Minnesota, which appears to be fairly typical in most respects.

2. Crime Classification and the Structure of Courts and Rules. As is true in most countries, the structure of state criminal courts and procedural rules reflects the legal categories of crime. U.S. criminal law traditionally recognizes three major classes of crime: felonies (the most serious category), misdemeanors, and a third category variously called violations, petty offences, or petty misdemeanors. The more serious categories of crime receive more elaborate procedural safeguards.

In most states, felonies are defined as offences punishable with more than one year of imprisonment. Such lengthy terms are normally served in large, state-run prisons, but felons may also receive shorter custodial terms to be served in smaller jails operated by local (county or city) political authorities. Common examples of felonies include murder, manslaughter, rape, robbery, kidnapping, aggravated assault, arson, burglary, other non-petty property crimes ( i.e., theft, possession of stolen property, and criminal damage to property), forgery, fraud, and non-petty violations of narcotics, weapons, gambling, or prostitution laws.

Misdemeanors include less serious versions of the above offences, various public order crimes (drunk in public or other disorderly conduct; violation of building or health codes), and serious moving traffic violations

(drunk driving; driving without a license). Many states recognize more than one category of misdemeanor offence. In Minnesota, "gross misdemeanors" are punishable with up to one year in jail, and are treated procedurally the same as felonies (except that the jury need only have six members, rather than

3 twelve). 3 Ordinary misdemeanors are punishable with up to 90 days in jail, and are handled under simpler, less demanding procedures (for example, defendants receive less detailed pretrial discovery of the prosecution's evidence). 4

The least serious category of offences (labelled "petty misdemeanors" in

Minnesota) is usually punishable with a fine or other non-custodial penalty.

This category includes lesser traffic violations and various minor regulatory offences. Such violations are not deemed to be "crimes" in Minnesota, but they are generally enforced by the police, and some (but not all) "criminal" procedures apply. Such defendants are presumed innocent and must be proved guilty beyond a reasonable doubt; there is no right to a jury trial, however, and indigent defendants do not automatically receive court-appointed counsel. 5

Most petty misdemeanor cases are handled by payment of scheduled fines, without any court appearance.

Many states (as well as the federal system) have two levels of trial court. The lower court (city or municipal court, magistrate's court, etc.) is a court of limited jurisdiction; it may try misdemeanor crimes, but in cases of felony it may only hold arraignments and certain other pretrial hearings.

Felony trials are held in the criminal division of the court of general jurisdiction (county court, district court, etc). Minnesota has a "unified" court system, in which all felony and misdemeanor hearings and trials are held in various divisions of the District Court. A judicial District may hear cases from a single large county, or from a group of several smaller counties.

3. Major Government Intrusions Outside of the Criminal Process. The

Questionnaire responses in Parts C through F, below, will refer solely to the processing of adults charged with felony and misdemeanor violations (with

3 Minn. Stat. §§ 593.01, 609.02.

4 Minn. Stat. § 602.02; Minn. Rules Cr. Proc. 7.03, 9.01.

5 Minn. Rules Cr. Proc. 5.02 and 23.

4 brief comments in Part G on juvenile and military courts). These procedures and courts are most often used in the U.S. to impose serious deprivations of liberty and property. But such deprivations are also sometimes imposed by means of non-"criminal" procedures, three of which deserve special mention.

First, persons can be seized and detained, sometimes for lengthy periods, under the civil and administrative procedures used to enforce immigration laws. 6 Second, state and federal law enforcement authorities are increasingly invoking civil forfeiture procedures which permit the confiscation of property alleged to be the fruit of criminal activity (especially drug trafficking), or to have served as an instrumentality of crime. 7 Some but not all criminal procedural safeguards apply in civil forfeiture actions. The Fifth

Amendment's Privilege against compelled self-incrimination and ban on Double

Jeopardy sometimes apply, as does the Fourth Amendment prohibition of unreasonable searches and seizures, and the Eighth Amendment ban on Excessive

Fines; but the Sixth Amendment rights of confrontation and jury trial do not apply, nor does the Due Process requirement of proof beyond a reasonable doubt. 8

A third very important non-criminal proceeding involves the involuntary civil commitment of persons found to be mentally ill and dangerous to themselves or others. Such a commitment can result in indefinite confinement in a secure mental health facility which, from the inmate's perspective, is not much different than a prison. There is no constitutional right to a jury trial in these proceedings, and the proof need only meet a standard of "clear and convincing evidence." 9 In recent years, a number of states have expanded

6 See generally, Frank C. Newman & David S. Weissbrodt, International Human Rights: Law, Policy, and Process (2nd ed. 1996).

7 Minn. Stat. §§ 609.531-.5318.

8 See, e.g., Austin v. United States, 509 U.S. 602, --, n. 4, (1993) (citing prior cases).

9 Addington v. Texas, 441 U.S. 418 (1979).

5 these procedures to make it easier to commit sex offenders who have completed their criminal sentences but who are believed to be too dangerous to release into the community; such proceedings are deemed "civil," and the use of compelled statements of the accused does not violate the Fifth Amendment

Privilege against compelled self-incrimination. 10 Minnesota has two such statutes, one for "psychopathic personalities" and one for "sexually dangerous persons." 11

C. Procedural Safeguards Applicable Prior to and During Trial

1. Treatment during detention; self-incrimination generally.

a. Several provisions of the U.S. Constitution protect detained persons from torture and other cruel, inhuman, and degrading treatment. The Eighth

Amendment ban on "cruel and unusual punishments" prevents imposition of a penalty which grossly exceeds the gravity of the current offence; it also prohibits certain forms of punishment which were deemed cruel in 1791, when the Amendment was adopted ( e.g., dismemberment), and some types of prison conditions or treatment of inmates, for example: denial of food, warmth, or exercise; deliberate indifference to an inmate's serious medical needs or risk of attack by other inmates; and excessive force by guards. 12 In addition, certain physically intrusive methods of extracting evidence from suspects have been found to violate either the general right of Due Process

(protected against the federal government by the Fifth Amendment, and against the states by the Fourteenth Amendment), or the Fourth Amendment ban on unreasonable searches and seizures. Such prohibited methods include the obtaining of a confession by whipping the suspect; 13 pumping out the contents

10 Allen v. Illinois, 478 U.S. 364 (1986).

11 Minn. Stat. § 253B.02, subds. 18a and 18b; id., § 253B.185.

12 See generally, Lynn S. Branham & Sheldon Krantz, Sentencing, Corrections, and Prisoners' Rights in a Nutshell, 4th Ed. (1994).

13 Brown v. Mississippi, 297 U.S. 278 (1936).

6 of the suspect's stomach to retrieve evidence; 14 and court-ordered surgical removal of a bullet from defendant's body (absent a compelling need for this evidence). 15

b. The accused person who refuses to testify against him- or herself has several federal constitutional protections, and a few non-constitutional ones.

In general, the U.S. Constitution prevents the accused from being "compelled" by physical force, psychological coercion, or legal compulsion ( e.g., contempt of court penalties) to create oral or written testimony, both before trial and at trial. A certain amount of pressure and deception is permitted, however, to encourage suspects to answer questions prior to trial, and a considerable degree of pressure is allowed to encourage suspects to confess at trial by entering a guilty plea.

Pretrial protections. Prior to any interrogation of a suspect under arrest or otherwise "in custody," the suspect must be given the four " Miranda" warnings. 16 In particular, such a suspect must be warned that he has the right to remain silent; that any statements he makes can be used in evidence against him; that he has the right to the presence of an attorney during any such questioning; and that an attorney will be provided at no cost, if he cannot afford to hire one. The defendant's silence following these warnings cannot be used against him at trial, even to impeach his trial testimony. 17

All of these rights can be waived (and usually are, in practise). The suspect may at any time decline to answer further questions, and this right to refuse or terminate questioning must be immediately and scrupulously honoured; after a passage of time, the police may attempt to ask further questions, after

14 Rochin v. California, 342 U.S. 165 (1952).

15 Winston v. Lee, 470 U.S. 753 (1985).

16 Miranda v. Arizona, 384 U.S. 436 (1966).

17 Doyle v. Ohio, 426 U.S. 610 (1976).

7 repeating the required Miranda warnings and meeting normal waiver standards. 18

But if a suspect asks to speak with an attorney, no further police-initiated questioning is permitted until the suspect has had an opportunity to consult with counsel; 19 even after such consultation, counsel must be present during any questioning. 20

Even when Miranda rights are waived (or are inapplicable), any statement must also be shown to be "voluntary" under "the totality of the circumstances." Key factors bearing on the latter determination include: actual or threatened physical abuse; length of questioning; promises of leniency; threats of financial or other non-physical harm; lies or other forms of deception; characteristics of the accused in general (age, education, intelligence, physical and mental health); the physical and emotional condition of the accused at the time of questioning (fatigue, hunger, effects of drugs); denial of contacts with family, friends, or counsel; presence or absence of advice or warnings of rights; and unnecessary delays in scheduling the suspect's initial court appearance. Except for threatened or actual physical harm, none of these factors is sufficient to make a confession involuntary per se.

A third level of federal constitutional protection is provided by the

Sixth Amendment right to effective counsel at trial. 21 Once formal charges have been filed, or the suspect has been arraigned in court on police-filed charges, he or she may not be interrogated without a waiver of the right to

18 Michigan v. Mosley, 423 U.S. 96 (1975).

19 Edwards v. Arizona, 451 U.S. 477 (1981).

20 Minnick v. Mississippi, 498 U.S. 146 (1990).

21 The right to counsel requirement under Miranda v. Arizona is not based on the Sixth Amendment; rather, it is designed to protect the Fifth Amendment Privilege against compelled self-incrimination, and applies only when the Privilege is seriously threatened, that is, during custodial interrogation not preceded by the required warnings and waiver.

8 the presence of counsel. 22 This Sixth Amendment right to counsel applies in two situations not covered by the Miranda rule: indirect questioning by means of undercover agents or informers, 23, and police questioning of suspects who are not "in custody". 24

There are also several non-constitutional limitations on the admissibility of confessions: many states limit the permissible delays in taking suspects to court; 25 some states require that custodial questioning be tape-recorded; 26 and some states grant greater protections to suspects already represented by counsel than are required under the Miranda and Sixth Amendment cases. 27

In principle, any statement obtained in direct violation of the above rights is inadmissible at trial (although courts are much more willing to admit statements in violation of a statute or other non-constitutional rule).

A statement in violation of the Miranda rule is admissible, however, to impeach the defendant's trial testimony; 28 moreover, if such a statement leads to further evidence ( i.e., physical evidence, prosecution witnesses, or subsequent statements repeating or expanding upon the initial statement), such

"derivative fruits" are admissible. 29 But if the initial statement was

22 Brewer v. Williams, 430 U.S. 387 (1977).

23 Cf. Illinois v. Perkins, 496 U.S. 292 (1990) ( Miranda rule is based on the inherent coerciveness of custodial interrogation carried out by questioners who are known to be police officers).

24 Massiah v. United States, 377 U.S. 201 (1964).

25 Minn. Rule Cr. Proc. 5.

26 State v. Scales, 518 N.W.2d 587 (Minn 1994).

27 State v. Lefthand, 488 N.W.2d 799 (Minn. 1992) (custodial interrogation requires presence of or notice to counsel, which cannot be waived).

28 Harris v. New York, 401 U.S. 222 (1971).

29 Oregon v. Elstad, 470 U.S. 298 (1985).

9 involuntary, or in violation of the Sixth Amendment, then such derivative fruits are only admissible if the causal link to the initial statement is

"attenuated" ( i.e., remote in time, place, or otherwise).

Trial and hearing protections. The defendant in a criminal trial may refuse to face any questions, and such refusal may not be the subject of adverse comment or inference by the court or the prosecution. 30 Defendants make their decision whether or not to testify after the prosecution has presented its evidence. The defendant has a constitutional right to testify, as well as not to testify. 31 The free exercise of these rights requires that the defendant be allowed to chose to testify at any time during the presentation of the defence evidence; the defendant cannot be forced to testify, or give up that privilege, prior to the hearing of all other defence witnesses. 32 Once the defendant elects to testify, he or she takes an oath like any other witness, and is subject to penalties for perjury; but unlike other witnesses, the testifying defendant may not invoke the Fifth Amendment

Privilege and refuse to answer specific questions about the current crime, at least if those questions relate to matters about which defendant has already chosen to testify.

Any other (non-defendant) witness in a trial or hearing may invoke his or her Fifth Amendment Privilege against compelled self-incrimination, but such witnesses generally have no right to explicit warnings or advice as to the

Privilege. "Compulsion" is broadly defined ( e.g., including the threat of loss of government contracts), 33 but "incrimination" is defined quite narrowly. The latter term does include all potential state or federal

30 Griffin v. California, 380 U.S. U.S. 609 (1965).

31 Rock v. Arkansas, 483 U.S. 44 (1987).

32 Brooks v. Tennessee, 406 U.S. 605 (1972).

33 Lefkowitz v. Turley, 414 U.S. 70 (1973).

10 criminal penalties, but it excludes civil or administrative penalties, loss of social status or income, private acts of retaliation, and criminal penalties imposed in other countries. If the judge or other hearing officer determines that there is a realistic possibility that the proposed testimony would be incriminating, the defendant may refuse to answer the question objected to unless the prosecution obtains a grant of "use and derivative use" immunity.

Such an immunity grant prevents the witness's testimony, or any evidence derived from that testimony, from being used in any future state or federal criminal prosecution, other than one for perjury in connection with the immunized testimony. 34 Some state statutes require certain witnesses to answer all relevant questions, but provide an automatic grant of immunity for their testimony. 35

Despite the many protections surrounding confessions, and the very strict protections of the Fifth Amendment Privilege, much looser standards apply to confessions tendered in court, in the form of a guilty plea (usually negotiated in advance, as part of "plea bargaining"). Since a guilty plea constitutes a waiver of trial and all rights associated with trial, the plea must be found to be "knowing, intelligent, and voluntary." To satisfy the first two requirements, the court must advise the defendant of the nature of the crime to which he or she is pleading guilty (including the maximum and any mandatory minimum prison term), and the trial rights being waived. 36 These required warnings tend to be more strict than are required for a valid pretrial confession, 37 but the standards of voluntariness applied to guilty pleas are less exacting; guilty pleas have been upheld although they were

34 Minn. Annot. Stat. § 609.09(1).

35 Id. § 609.09(2)).

36 Minn. Rule Cr. Proc. 15.

37 Compare Colorado v. Spring, 479 U.S. 564 (1987), upholding a Miranda waiver and resulting confession by a suspect who was not told he was suspected of murder as well as firearms violations.

11 induced by threats and promises which would probably render a pretrial confession inadmissible (for example, a threat to seek the death penalty if the defendant refuses to admit guilt). 38

If a guilty plea has been induced by the prosecutor's promise of charging leniency and/or a favourable sentence recommendation, the defendant can enforce this promise (even against a replacement prosecutor), or must at least be allowed to withdraw the guilty plea. 39 Similar standards apply to confessions induced by a prosecutor's promise, but promises by the police (who are largely independent of the prosecution, in the U.S.) are less likely to be enforced.

c. Pretrial detainees are generally housed in jails run by the local police or county sheriff's department. Some jails in larger cities and highly urbanized counties are used exclusively for pretrial detention, whereas jails in less densely populated jurisdictions are typically also used for convicts serving short custodial terms. In the latter case, an effort is usually made to separate convicted and unconvicted inmates, but such separation is generally not legally required.

In most respects, inmates held in pretrial detention are treated similarly to convicted inmates, but in some respects they are treated worse.

The short-term nature of pretrial detention, combined with the fact that such detention usually occurs in overcrowded, under-funded local jails, means that fewer educational, treatment, and recreational programs are generally available than are offered to convicted prisoners in state prisons. Pretrial detainees also enjoy some practical advantages, however: visiting opportunities, and day-time release for work, education, or treatment, are usually more available in local jails than in prisons (many of which are located in remote, rural areas).

38 Brady v. United States, 397 U.S. 742 (1970).

39 Santobello v. New York, 404 U.S. 257 (1971).

12 In several respects, pretrial detainees enjoy greater legal rights than convicts. Whereas convicted inmates have only a rather vague Due Process right of "meaningful access" to courts and legal remedies (but often no right to counsel), pretrial detainees also have a Sixth Amendment right to counsel

(including, in most cases, a right to appointed counsel) in connection with their pending charges. 40 In addition, Due Process principles prevent

"punishment" prior to conviction, and an intent to punish may be inferred when detention conditions or requirements are not reasonably related to a legitimate, non-punitive government objective ( e.g., the maintenance of jail security). In practise, however, pretrial detainees rarely succeed in meeting the latter standard. 41

d. In principle, persons awaiting trial are to be released on bail or on their promise to appear ("recognizance"), unless no conditions of release will reasonably assure their appearance for trial and the safety of the community. 42 The Eighth Amendment to the U.S. Constitution prohibits

"excessive bail," but does not guarantee a right to have bail set in all cases

(although some state constitutions do guarantee such a right). 43

Traditionally, bail has generally been denied in capital cases, and the

Supreme Court has held that bail may also be denied to other high-risk defendants. 44 Such denial of pretrial release based solely on predictions of further crime (rather than flight risk) is known in the U.S. as "preventive detention;" statutes and rules permitting such detention now exist in many

40 Lynn S. Branham & Sheldon Krantz, Sentencing, Corrections, and Prisoners' Rights in a Nutshell, 4th Ed (1994), p. 163.

41 Id. pp. 152-57.

42 Minn. Rule Cr. Proc. 6.

43 See, e.g., Minn. Const. Art. I, § 5.

44 United States v. Salerno, 481 U.S. 739 (1987).

13 states (not including Minnesota), as well as in the federal system. 45 But preventive detention can occur, and often does, even without formal legal authorization. Courts wishing to detain a suspect believed to be dangerous simply set conditions of release which the defendant is unlikely to be able to meet -- in particular: very high bail requirements. Such "unaffordable" bail is not considered to be "excessive" under the Eighth Amendment, provided the suspect is charged with a serious crime, nor is the differential ability of poor and rich defendants to post high bails deemed a denial of Equal

Protection of the law.

In practise, about three-quarters of suspects charged by the police

(excluding minor traffic violations) are arrested and taken into police custody; the remainder are issued summonses or citations to appear in court.

Most arrested suspects are later released on bail or recognizance, either at the police station or jail, at their first court appearance, or at a later stage ( e.g., upon granting of a motion to reduce the amount of bail). About ten percent of suspects charged by the police are retained in custody until final disposition of the charges. 46 Of course, the proportions of defendants arrested and never released are much higher for serious offences, especially for violent crimes.

e. Defendants may challenge denial of release, the amount of bail, or other conditions of release by filing an interlocutory appeal. 47 If such an appeal is not available, or has been unsuccessful, a habeas corpus petition may be filed. Conditions of pretrial detention may be challenged by the filing of an individual or class action suit for damages and/or equitable relief (declaratory judgment and injunction), under the federal civil rights

45 See, e.g., 18 U.S. Code § 3142(e).

46 See Richard S. Frase, "Comparative Criminal Justice as A Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78 (1990), at p. 600.

47 Minn. Rule Cr. Proc. 28.02(2).

14 statute. 48 The failure to provide fair procedures prior to trial would normally only be subject to challenge (by appeal or habeas) after conviction, although some states give courts discretion to hear pre-conviction appeals. 49

Federal and state constitutions permit the writ of habeas corpus to be suspended during periods of emergency, 50 but such suspensions have very rarely been ordered ( e.g., during the Civil War, and during World War II in the state of Hawaii).

2. Notice of Charges and Evidence; Prompt Arraignment in Court.

a. Arrested suspects are often informed of the reasons for their arrest when they are first taken into custody, and are usually so informed when they arrive at the police station for "booking" (review by police supervisors; fingerprinting), but there does not seem to be any legal requirement of such notice.

State and Federal Rules of Criminal Procedure generally require that an arrested person be taken to court without "unnecessary" (or "unreasonable") delay, and some rules specify the maximum permissible period of pre- arraignment custody ( e.g., 36 hours, excluding the day of arrest, Sundays, and legal holidays. 51 In addition, the Fourth Amendment to the U.S. Constitution requires at least an ex parte judicial review of probable cause before, or

"promptly" after, any warrantless arrest. 52 "Prompt" review means no longer than 48 hours, with no exclusions. 53

At the defendant's first appearance, the court appoints an interpreter,

48 18 U.S. Code § 1983.

49 See, e.g., Minn. Rule Cr. Proc. 28.02(3).

50 U.S. Const. Art. I, Sec. 9(2); Minn. Const. Art. I, Sec. 7.

51 Minn. Rule Cr. Proc. 4.02(2).

52 Gerstein v. Pugh, 420 U.S. 103 (1975).

53 County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

15 if one is needed. 54 The defendant is then given a copy of any complaint or other formal charges already filed, and is advised of the nature of the charges alleged by the police or prosecution. In serious cases, defendants are also advised of certain key rights, especially the rights to remain silent, to the assistance of counsel, and to jury trial. In less serious cases, group warnings are given, at the beginning of the court session. If necessary, counsel is appointed for defendants determined to be indigent, and the conditions of bail or other pretrial release are set or reviewed. In less serious cases, defendant is asked to enter a plea of not guilty or guilty; in the latter case, sentence is often imposed at once. Cases may also be dismissed by the prosecutor, at this point ( e.g., because the arrest was mistaken). If no guilty plea or dismissal occurs, the defendant may be asked if he wishes to waive or to exercise certain rights (e.g., to trial by jury, a preliminary hearing (at which probable cause is subject to adversary challenge), and a hearing to challenge the admissibility of prosecution evidence. The court then schedules the next hearing (in serious cases, this would usually be the preliminary hearing; in less serious cases, the next step might the trial itself, unless additional pretrial hearings are needed ( e.g., to rule on pretrial motions).

b. In addition to notice and copies of the charges, defendants have certain rights to obtain "discovery" of prosecution evidence proposed to be introduced. In federal criminal cases, and in some states, defence discovery is still fairly limited (in particular: the names and pretrial statements of prosecution witnesses are not disclosed prior to trial). 55 In other states, felony prosecutors are required to turn over virtually everything which is proposed to be introduced (or even, in some states, everything in the prosecution's files), unless a special showing is made of the need for a

54 Minn. Rule Cr. Proc. 5.

55 Fed. Rule Cr. Proc. 16(a).

16 protective order for certain items. States which allow such broad defence discovery in felony cases usually provide much more limited discovery in less serious cases (or at least, give the court more discretion to limit discovery). 56 In general, the trend over the past two decades has been to expand the scope of pretrial discovery permitted to defendants (while also expanding the scope of information which the defendant must provide to the prosecution, e.g., notice of proposed defences and witnesses).

Most of the rules regarding defence discovery of prosecution evidence are based on statutes and procedure rules, but some disclosures to the defence are constitutionally required. In particular, Due Process requires the prosecution to turn over exculpatory or other pro-defence evidence in its possession whenever such evidence is "material" to either the determination of guilt or to sentencing. 57 In the post-conviction context, evidence is

"material" if there is a "reasonable probability" that the result (as to either guilt or sentencing) would have been different, had the evidence been disclosed. 58 A different rule applies when alleged exculpatory evidence has been lost or destroyed by the prosecution (and thus, is not available for assessment and use at trial or retrial); in such cases, defendants must show that comparable evidence is not reasonably available, and that the evidence was lost or destroyed in bad faith. 59

c. Due Process principles, and the right to effective assistance of counsel, require that the accused have adequate time and facilities to prepare his or her defence before trial, but there are very few specific guarantees or per se rules in this area. Delays in the appointment of and consultation with counsel are limited by the prompt-court-appearance rules, discussed under 2(a)

56 See, e.g., Minn. Rule Cr. Proc. 7.03; cf. id., Rule 9.01.

57 Brady v. Maryland, 373 U.S. 83 (1963).

58 United States v. Bagley, 473 U.S.667 (1985).

59 California v. Trombetta, 467 U.S. 479 (1984).

17 above. The accused's pretrial access to the evidence prepared for use against him or her, including witnesses' names, and protection against surprise evidence at trial, are discussed under 2(b) above.

3. Right to Counsel. Defendants have a constitutional right to retain counsel, or to have counsel appointed if they are indigent, under three different (and sometimes overlapping) theories. The first is the special right to counsel applicable to custodial interrogation, under the Miranda doctrine (see 1(b), above). The second is the Sixth Amendment right to counsel applicable, in all non-petty cases, at the trial, 60 sentencing, 61 the first level of appeal, 62 and certain stages of pretrial procedure. A third right to counsel covers proceedings not already subject to one of the two rights above ( e.g., probation revocation hearings). 63 This right is applied on a case-by-case basis under the Due Process Clause, whenever "fundamental fairness" requires the assistance of counsel (for example, because of the complexity of the issues, or the defendant's inability to speak effectively for himself).

The Sixth Amendment right to counsel does not apply in very minor cases.

In such cases, the Supreme Court has drawn a line based on the actual sentence imposed; a sentence of even one day in jail requires the assistance of counsel, whereas a sentence to a fine or other non-custodial penalty does not

-- even if a jail term was authorized (but not imposed) for that offence. 64

Since counsel must be retained or appointed at the outset of the case, when

60 Gideon v. Wainwright, 372 U.S. 335 (1963).

61 Mempa v. Rhay, 389 U.S. 128 (1967).

62 Douglas v. California, 372 U.S. 353 (1963); Ross v. Moffitt, 417 U.S. 600 (1974).

63 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

64 Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979).

18 the actual sentence is often unforeseeable, many state laws provide a broader, more automatic right to counsel (for instance: all offences for which a custodial sentence of any length is authorized by statute). 65 State laws also sometimes provide a right to appointed counsel in second-level appeals, post- conviction review (state habeas corpus), and probation or parole revocation hearings. Defendants generally have a right to be represented by retained

(i.e., privately-paid) counsel in any hearing, at least if the government is represented by counsel.

In order for the Sixth Amendment counsel right to apply prior to trial, two conditions must be met. First, the Sixth Amendment right must have

"attached" ( i.e., begun) by means of the filing of formal charges, arraignment or other appearance in court, or any other type of "adversary judicial proceeding." 66 Second, even after the Sixth Amendment right has begun, it only applies to "critical stages" of the prosecution, where important rights of the defendant may be irretrievably lost. The stages or procedures which have been held to be "critical" include: interrogation; 67 lineups or other identification procedures involving the display of the defendant's person to one or more witnesses; 68 and the preliminary hearing (adversary evaluation of probable cause). 69 In contrast, an identification procedure involving the display of a defendant's photograph (rather than his or her person) is not deemed to be a "critical stage." 70 In addition, a witness (even a "prime

65 Minn. Rule Cr. Proc. 5.02.

66 Kirby v. Illinois, 406 U.S. 682 (1972). The Sixth Amendment is inapplicable prior to the commencement of such proceedings because the Amendment, by its terms, applies only in a "criminal prosecution."

67 Massiah v. United States, 377 U.S. 201 (1964).

68 United States v. Wade, 388 U.S. 218 (1967).

69 Coleman v. Alabama, 399 U.S. 1 (1970).

70 United States v. Ash, 413 U.S. 300 (1973).

19 suspect") who is called before the grand jury has no right to counsel under either the Sixth Amendment or Miranda.71

Defendants have a Sixth Amendment right not only to receive the assistance of counsel, but also a right to refuse such assistance and defend themselves pro se.72 In this sense, counsel is never "mandatory." The trial court may, however, appoint "standby" counsel to take over in the event that the defendant changes his or her mind; even prior to that point, the "standby" counsel may play a fairly active role, despite the defendant's wishes. 73

Once the right to counsel has been determined to apply, the defendant must be specifically advised of this right (including the right to receive appointed counsel paid by the state, if defendant is indigent). Any purported waiver of the right must be "knowing, intelligent, and voluntary." 74

Defendants who hire counsel or receive appointed counsel must be given adequate opportunity to consult with counsel, and counsel must have sufficient time to prepare for trial; counsel cannot be appointed immediately before trial. 75 Defendants have considerable freedom to choose which counsel they will hire and pay for, but much less freedom to insist on a specific appointed counsel. 76

As noted above, indigent defendants have both constitutional and statutory rights to receive appointed counsel without cost. The remuneration paid to appointed counsel tends to be less than what counsel would normally expect to receive from a paying client. For

71 United States v. Mandujano, 425 U.S. 564 (1976). The grand jury is discussed in footnote 98, infra.

72 Faretta v. California, 422 U.S. 806 (1975).

73 McKaskle v. Wiggins, 465 U.S. 168 (1984).

74 Johnson v. Zerbst, 304 U.S. 458 (1938).

75 Powell v. Alabama, 287 U.S. 45 (1932).

76 Morris v. Slappy, 461 U.S. 1 (1983).

20 instance, the hourly rates paid in federal court (where crimes are often very complex), varies between $40 and $75 per hour, depending on the district and whether the hours were spent in court or out of court; 77 rates of compensation for appointed counsel in state courts is probably even lower, although precise data is not available.

The competence of counsel and the adequacy of counsel's representation are protected by constitutional law, civil liability (tort) rules, and state regulation of the practise of law ( i.e., requirements for admission to practie, continuing education, and avoidance of serious ethical or other misconduct). Whenever appointed counsel is constitutionally required, such counsel (whether retained or court-appointed), must meet minimum constitutional standards of effectiveness. To obtain reversal of a conviction on this ground, the defendant must show, first, that counsel's performance was

"outside the range of professionally competent assistance;" and second, that there is a "reasonable probability" that such acts and/or omissions resulted in prejudice to the outcome of defendant's case. 78

As for the adequacy of resources for the preparation of the defence, Due

Process principles provide some minimum standards, at least when the defendant can show that particular resources ( e.g., to hire an expert witness), are absolutely essential to a fair determination of key issues in the case. 79

Some state and federal statutes grant broader rights to obtain services other than counsel. 80 In general, however, the level of funding for defence services, and sometimes even counsel's legal competency and adversary zeal, are all too often inadequate, particularly in jurisdictions with rapidly rising criminal caseloads.

77 18 U.S. Code § 3006A(d).

78 Strickland v. Washington, 466 U.S. 668 (1984).

79 Ake v. Oklahoma, 470 U.S. 68 (1985).

80 See, e.g., Minn. Stat. § 611.21; 18 U.S. Code § 3006A(e).

21 The confidentiality of communication between the accused and counsel is guaranteed by the attorney-client privilege, which in most states prevents an attorney, any employee of the attorney, or any court-appointed interpreter from disclosing, without the client's consent, confidential information obtained from (or advice given to) the client. 81 Such confidentiality is probably also constitutionally required whenever one of the defendant's constitutional rights to counsel applies (discussed above). In particular, inmates have the right to consult their counsel in private, and mail sent by counsel to an inmate may not ordinarily be read (although it may be inspected for contraband, provided the inspection is done in the inmate's presence). 82

Confidential information and defence strategy are also protected by the rule prohibiting police from using undercover agents or informants to elicit incriminating statements from the accused once the Sixth Amendment right to counsel has "attached." 83

D. Trial Procedures.

1. Promptness. The right to be tried without undue delay is protected by the Sixth Amendment and Due Process "speedy trial" rights; by statutes and rules requiring prompt procedures; and by statutes of limitation. U.S. prompt-procedure rules tend to be quite complex, rather tolerant of government-caused delays, and very tolerant of delays requested by or acquiesced in by the defendant.

Prompt-procedure rules govern periods of delay between the commission of the offence and arrest or formal charging; between the latter stages and the start of trial; and between each of the remaining stages of procedure (trial, verdict, sentencing, and appeal). In theory, at least, a long and unjustified

81 Minn. Stat. §§ 595.02(1)(b), 611.33(4).

82 Wolf v. McDonnell, 418 U.S. 539 (1974).

83 Massiah v. United States, 377 U.S. 201 (1964).

22 period of delay prior to arrest or charging can be found to violate Due

Process. But the Due Process "clock" does not begin to run until the government has sufficient evidence to file charges; in addition, the defendant must show that the delay after this point caused substantial prejudice to defendant's fair trial rights, and that such delay "was an intentional device to gain tactical advantage over the accused." 84 Moreover, delays caused by the prosecutor's desire to gather additional evidence, or to evaluate whether prosecution is opportune, do not violate Due Process. 85 Statutes of limitation set much more precise limits on delay prior to the filing of formal charges. Such statutes begin to run when the offence is complete (or in some cases, when the offence is reported), and are "tolled" (temporarily suspended) when the suspect is not residing within the state. In Minnesota, the permissible periods of pre-charge delay range from three to seven years, depending on the offence (longer periods are permitted in more serious or complex cases), but there is no statute of limitations for murder. 86

The Sixth Amendment Speedy Trial Clause sets rather imprecise and flexible limits on the period of delay between arrest or formal charging and the commencement of trial. A motion for dismissal on this ground requires the court to consider four factors: 87 the length of the delay; the government's reasons for delay; the defendant's assertion or failure to assert his or her rights (by demanding a speedy trial); and the nature and degree of prejudice resulting to the defendant's interests (especially: lost defence evidence and extended pretrial detention). Applying these standards, courts often refuse to find a Sixth Amendment violation, despite rather lengthy pretrial delays.

84 United States v. Marion, 404 U.S. 307 (1971).

85 United States v. Lovasco, 431 U.S. 783 (1977).

86 Minn. Stat. § 628.26.

87 Barker v. Wingo, 407 U.S. 514 (1972).

23 Speedy trial rules or statutes supplement the constitutional standards on the permissible delay between arrest or formal charging and trial. Some statutes and rules are phrased very broadly ( e.g., requiring trial within six months of arrest; others are more restrictive ( e.g., 10 days for trial of defendants detained on misdemeanor charges; 60 days from the date of demand for trial, in other cases, "unless good cause is shown"). 88 The federal

Speedy Trial Act requires formal charging within 30 days after arrest, and trial within 70 days after charging; each of these time limits is subject to many exceptions and excludable time periods. 89

Delays during trial, and in the entry of judgment and/or in sentencing, are theoretically subject to the Sixth Amendment Speedy Trial Clause, but defendant claims on this ground are rarely successful. Delays in the appellate or correctional process are subject only to Due Process limits, and are almost never attacked successfully.

There are no national (or even state level) statistics for all criminal cases on the average amount of time which elapses between various stages of procedure. One recent study of a sample of state courts found that the average elapsed time between arrest and sentencing in felony cases in 1992 was

199 days, with a median figure of 138 days. 90 In federal criminal prosecutions, the proportion of cases meeting the required or recommended time limits in the 1993 fiscal year were as follows: 94% indicted within 30 days of arrest (net of excludable time periods); 91% of trials begun within 70 (net) days of formal charging; and 38% sentenced within 45 days of conviction. 91 In terms of "real time" elapsed (without exclusions) in federal criminal cases,

88 Minn. Rules Cr. Proc. 6.06, 11.10.

89 18 U.S. Code § 3161.

90 U.S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 1994 (1995), p. 492.

91 Id., p. 478.

24 the median period of delay from the filing of formal charges to final disposition (by trial, guilty plea, or dismissal) was 5.4 months, in fiscal

1994. 92 As for the length of criminal trials: in fiscal 1994, 44% of federal court or jury trials lasted one day or less; 30% lasted 2 or 3 days; 22% lasted 4 to 9 days; and 5% lasted 10 days or longer. 93 Since federal criminal cases are generally more complex than state cases, the length of state trials is probably shorter (even allowing for the fact that jury-selection procedures tend to be longer in state trials, because most questioning of prospective jurors is done by the attorneys rather than by the trial judge).

Other than delays related to case complexity and pretrial detention status, there are no systematic differences, in theory or in practise, in the delays which occur in different sorts of cases (offences or offenders).

Defendants held in pretrial detention receive priority under Speedy Trial statutes and rules, and under cases interpreting Sixth Amendment Speedy Trial rights. Constitutional and state speedy trial rights can be (and often are) waived by the defendant. As noted above, the defendant's assertion of his or her rights is an important factor in determining whether the Sixth

Amendment right has been violated, and most state speedy trial rules also readily permit defendant waivers. The federal Speedy Trial Act requires courts to consider the public interest in prompt adjudication, when ruling on prosecution or defence requests for a continuance of the trial date; 94 nevertheless, courts still tend to view the defendant's request for (or even acquiescence in) a continuance as strong evidence of waiver.

Delay in dismissal of weak charges. Although U.S. police and prosecutors are permitted to exercise very broad discretion in making charging

92 Id., p. 483.

93 Id., p. 481.

94 18 U.S. Code § 3161(h)(8).

25 decisions, 95 there are several limits on the filing and retention of weak or otherwise unmeritorious charges. First, some states require that arrest warrants or summonses sought by the police be approved by the prosecutor, in advance. 96 Second, the Fourth Amendment requires at least ex parte judicial review of probable cause before arrest, or at least promptly (within 48 hours) afterwards; if such review does not occur, the defendant must be released from custody. 97 Third, defendants charged with a felony, whether or not they are in custody, are entitled to a later, adversary determination of probable cause

(the "preliminary hearing"), unless a Grand Jury indictment has already been filed; in federal courts, and in some states, felony defendants are also entitled to a non-adversary ( ex parte) Grand Jury review of probable cause. 98

As a practical matter, however, the principal limitation on the filing of unmeritorious cases is neither the preliminary hearing nor the Grand Jury, but rather the prosecutor's desire (in light of heavy caseloads, and limited

95 See generally Richard S. Frase, "The Decision to File Federal Criminal Charges - A Quantitative Study of Prosecutorial Discretion," University of Chicago Law Review, vol. 47, pp. 246-330 (1980). See also Richard S. Frase, "Comparative Criminal Justice as A Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78 (1990), at pp. 610-26.

96 Minn. Rule Cr. Proc. 2.02.

97 County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

98 The Fifth Amendment to the U.S. Constitution requires grand jury review and charging via "indictment" for prosecution of all "infamous" crimes (i.e., felonies). This provision, however, only affects federal criminal cases, not state cases. The Supreme Court has held that the first ten amendments to the Constitution (the Bill of Rights, see appendix) were only intended to apply against the federal government. Barron v. Baltimore, 32 U.S. (7 Peters) 243 (1833). Over the years, the Court has gradually recognized that most of the procedural guarantees in the Bill of Rights are implicit in the concept of Due Process, which is applicable in state criminal cases under the Fourteenth Amendment; however, the Court has refused to so apply the Fifth Amendment Grand Jury Clause, Hurtado v. California, 110 U.S. 516 (1884). Laws in about half the states require prosecution by indictment for some or all felonies; in Minnesota, only crimes punishable with life in prison require a grand jury indictment. Minn. Rule Cr. Proc. 17.01.

26 resources) to screen out weak cases as soon as possible. 99 2.

Public and media access. The Sixth Amendment to the U.S. Constitution

guarantees defendants the right to a public trial. This guarantee also

includes collateral hearings such as adjudication of contempt of court, 100 and

certain pretrial proceedings such as hearings on motions to suppress

evidence. 101 Additional assurances of public and media access to trials and

most pretrial hearings are derived from First Amendment free-speech

guarantees. 102 If proper safeguards are followed, defendants may not prevent televised and still-photography coverage of the trial; 103 televised trials were once widely prohibited, but are now permitted in many states.

Proceedings may be closed to the public when, and to the extent that, closure is required in a particular case to serve a "compelling state interest" such as protection of a child victim of sexual abuse, 104 or avoidance of pretrial publicity which poses a substantial risk to the defendant's right to a fair trial. 105 Partial or total closure of trial is very rare, however. Two recent examples include: 1) U.S. v. Doe,106 holding that refusal to grant a defence request for a closed trial of a former government informer may have prevented defendant from raising certain claims, which would deny fair trial; and 2)

99 See Richard S. Frase, "The Decision to File Federal Criminal Charges - A Quantitative Study of Prosecutorial Discretion," University of Chicago Law Review, vol. 47, pp. 246-330 (1980).

100 In re Oliver, 333 U.S. 257 (1948).

101 Waller v. Georgia, 467 U.S. 39 (1984).

102 Richmond Newspapers, Inc. v. Virginia , 448 U.S 555 (1980).

103 Chandler v. Florida, 449 U.S. 560 (1981).

104 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

105 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).

106 U.S. v. Doe, 63 F.3d 121 (2nd Cir. 1995).

27 People v. Martinez & Pearson,107 upholding closure (in Pearson's case) where a key prosecution witness feared for her safety if she were exposed as an undercover narcotics agent. Courts also sometimes order that the names of trial jurors be kept secret, when there is reason to fear retaliation by fellow gang members or other defence sympathizers. 108

Aside from trial closure or juror anonymity, defendants can and must be protected in other ways from media coverage which might prejudice the verdict.

The location or timing of the trial can be moved, at the defendant's request

(change of venue; 109 postponement of trial). 110 In addition, the jury selection

(voir dire) process (challenges for cause and peremptory challenges), 111 can

eliminate potential jurors who are unable to set aside their prior beliefs

about the case; jurors can be instructed to disregard news media accounts of

the trial, and can be removed from the jury if they violate this order; the

jury can be sequestered; and the trial court can issue a "gag order"

restraining the parties and witnesses (but not the news media) from making

extra-judicial statements about the trial. 112

3. Location of the trial. The Sixth Amendment jury trial right includes

the right to have the jury drawn from "the State and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law." The related concept of "venue" determines where, within

each state or the federal system, the trial (to the court or jury) will be

held. Venue is almost entirely determined by statutes or rules of procedure,

107 People v. Martinez & Pearson, 82 N.Y.3d 436 (Ct.App. 1993).

108 State v. Bowles, 530 N.W.2d 521, 530 (Minn. 1995).

109 Groppi v. Wisconsin, 400 U.S. 505 (1971).

110 Sheppard v. Maxwell, 384 U.S. 333 (1966).

111 Irvin v. Dowd, 366 U.S. 717 (1961).

112 Sheppard v. Maxwell, 384 U.S. 333 (1966); Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976).

28 not by constitutional law. 113 Except for special venue rules applicable to

certain crimes, venue lies in the judicial district "in which the offence was

committed". 114 Both state and federal rules often permit trial in more than one place. In particular, "continuing" offences ( e.g., kidnapping) and

inchoate crimes (especially conspiracy) may have occurred in several places,

and special rules often expand the number of permissible venues, in order to

avoid uncertainty and litigation over exactly where certain key events took

place. When multiple venue is permitted, the prosecution can be filed in any

of the allowed districts, but the defendant may then request a change of

venue.

As noted under D.2 above, change of venue is often requested by the

defence, in order to counteract prejudicial pretrial publicity and to obtain a

fair and impartial jury and/or judge. Another common ground for transfer is

the convenience of the parties or witnesses. 115

4. Presence of the defendant. Trial in absentia is disfavoured. The

Defendant has a Constitutional right to be present at all pretrial, trial, and

sentencing proceedings at which his presence has a "reasonably substantial"

relation to the "fullness of his opportunity to defend against the charge." 116

The constitutional right to be present can be forfeited if defendant persists in disrupting the orderly progress of the trial, 117 or if the defendant absconds during a mid-trial recess. 118 Some lower state and federal courts have also affirmed convictions obtained when the defendant fled before the

113 United States v. Johnson, 323 U.S. 273 (1944).

114 Minn. Rule Cr. Proc. 24.01; Federal Rule Cr. Proc. 18.

115 Minn. Rule Cr. Proc. 24.03.

116 United States v. Gagnon, 470 U.S. 522 (1985).

117 Illinois v. Allen, 397 U.S. 337 (1970).

118 Taylor v. United States, 414 U.S. 17 (1973).

29 start of trial; such cases appear to require stricter standards than those

applicable when the defendant flees during trial. 119

Trial in absentia is also limited by state and federal rules of

procedure. 120 The federal rules are particularly strict, barring both the commencement of trial and sentencing, in the absence of the defendant. 121 Some state rules and caselaw permit trial and sentencing in defendant's absence, at least for less serious charges. 122

When trial in absentia is allowed, defendant's counsel must be allowed to be heard unless the defendant has made a "knowing, intelligent, and voluntary" waiver of his right to counsel. Absent defendants may learn about trial evidence and decisions by means of their counsel's observations, as well as from the verbatim transcript which is made of most trial proceedings. Normal rules of appeal apply to such trials.

5. Defendant competency. The standards of competency to stand trial are whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," and "whether he has a rational as well as factual understanding of the proceedings against him." 123 Defendants not meeting this standard may not be tried, but they may be involuntarily detained for a "reasonable" period, to see if they regain sufficient competency to be tried; if there is not a substantial probability of regaining competency "in the foreseeable future," the state must either release the defendant or proceed under normal civil commitment rules

119 Richard S. Frase, "Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78 (1990), at 607.

120 Minn. Rule Cr. Proc. 26.03, Subd. 1; Fed. Rule Cr. Proc. 43.

121 Crosby v. United States, 506 U.S. 255 (1993).

122 Minn. Rule Cr. Proc. 26.03, subd. 1 (3).

123 Dusky v. United States, 362 U.S. 402 (1960).

30 (discussed under I, above). 124

6. Interpreters. The constitutional guarantees of Due Process and

effective assistance of counsel require the provision of interpreters to

defendants whose mental or physical disability, or limited ability to

communicate in English, prevents them from fully understanding the proceedings

against them. 125 State and federal statutes also provide for the assistance of an interpreter. 126 Some state statutes specifically require interpreters at all preliminary court proceedings and interrogations, and also direct arresting officers to begin the process of obtaining a qualified interpreter who is "readily able to communicate" with the defendant 127. Defendants have also been held to have a right to translation of not only oral proceedings, but also the principal written documents in the case, such as the charges, applicable statutes, any written guilty plea agreement, and the pre-sentence investigation report. 128 Defendants are not, however, entitled to a bilingual attorney. 129

7. Defence witnesses. Under the Sixth Amendment, all defendants are guaranteed the right of "compulsory process" to compel the attendance and testimony of witnesses for the defence (and the production of documents or things in possession of a witness). In formal terms, this right is the same as the prosecution's right to summon trial witnesses and obtain the production of physical evidence. But the prosecution has additional powers, both before and during trial, which are not available to the defence. Prior to trial, the

124 Jackson v. Indiana, 406 U.S. 715 (1972).

125 United States v. Mosquera et al., 816 F.Supp. 168 (E.D.N.Y. 1993).

126 Minn. Stat. §§ 611.30 to .33; 28 U.S. Code §§ 1827, 1828.

127 Minn. Stat. §§ 611.30 to .33.

128 United States v. Mosquera et al., supra.

129 Hernandez v. Wainwright, 634 F.Supp. 241, 249 (S.D. Fla. 1986, affirmed without opinion, 813 F.2d 409 (11th Cir. 1987).

31 prosecution can "summon" potential witnesses by using its arrest and pretrial detention powers, and by exploiting the general tendency of citizens to cooperate with the police (out of feelings of civic responsibility, vengeance, and/or fear). The prosecution also has power to summon witnesses to testify before the grand jury, whereas the defence has no legal power to compel witnesses to appear and answer questions except at trial and certain trial- related hearings ( e.g., to determine probable cause). Moreover, the prosecution can strongly "encourage" witness cooperation, both prior to and at trial, by offering charging leniency and/or a formal grant of immunity, in return for testimony aiding the prosecution. Defendants have no such leverage, and courts have thus far held that the government has no obligation to request a grant of testimonial immunity for defence witnesses who fear self-incrimination.

8. Prosecution witnesses. The defence attorney or pro se defendant may directly question ("cross-examine") all adverse witnesses as to any issue raised in that witness's prior ("direct-examination") testimony. This right, and the related limitations on the use of documentary evidence and second-hand oral testimony ("hearsay"), are guaranteed both by the Sixth Amendment

Confrontation Clause and by state and federal rules of evidence law. In recent years, the U.S. Supreme Court has relaxed constitutional requirements, so the latter now add few limitations to those imposed by evidence law.

Under state and federal evidence laws, 130 hearsay is defined as a prior

(usually, out-of-court) statement which is offered into evidence at the trial

(by means of oral testimony or documents) in order to prove the truth of the matter asserted in the statement (as opposed, for example, to proving simply that the statement was heard by a certain person and affected his actions).

"Statements" include not only oral or written assertions by the speaker

("declarant"), but also non-verbal conduct which was intended by as an

130 See, e.g., Minn. Rule Evid. 801; Fed. Rule Evid. 801.

32 assertion. In principle, all hearsay statements are inadmissible, but there are many exclusions and exceptions to this rule. Hence, the following types of statements are generally excluded from the definition of hearsay, and are therefore admissible at trial: 131 prior consistent or inconsistent statements of a trial witness; prior statements identifying a suspect, or describing an event or condition while it was being observed, or immediately afterwards; and prior admissions of an opposing party (including the criminal defendant), or that party's agent or co-conspirator.

In addition, statements falling into the following hearsay "exception" categories are sometimes admissible: 132 statements made in immediate response to a startling event or condition; statements describing the current mental, emotional or physical condition of the declarant; statements made in order to obtain medical diagnosis or treatment; reliable recorded versions of a declarant's knowledge, if the declarant can no longer remember the matter sufficiently; certain entries (or absence of entry) in business records; public records and reports (other than police reports), or absence of entry; certain religious, family, or property records; certain statements in ancient documents or treatises; and any other statement having "equivalent circumstantial guarantees of trustworthiness" to the specific exceptions listed above, and found to be more probative on the relevant point than any available non-hearsay evidence.

The following types of hearsay are sometimes admissible, provided the declarant is "unavailable" to testify at the trial due to a testimonial privilege or refusal to testify, lack of memory, death or infirmity, etc.: 133 in a retrial, testimony from the prior trial; in a homicide trial, statements of the cause or circumstances of what the declarant believed was his or her

131 Minn. Rule Evid. 801(d).

132 Id., Rule 803.

133 Id., Rule 804.

33 impending death; certain statements contrary to the declarant's pecuniary, proprietary, or legal interest; certain statements of personal or family history; and other statements having "equivalent circumstantial guarantees of trustworthiness" to the specific exceptions listed above.

The Sixth Amendment right to confront prosecution witnesses also prevents the use of hearsay statements against the accused, unless the statement bears sufficient "indicia of reliability," and the declarant is "unavailable" to testify at the trial. 134 In recent years, however, the U.S. Supreme Court has dispensed with the unavailability requirement for statements admitted under certain "firmly rooted" exceptions to the hearsay rule ( e.g., statements made to obtain medical diagnosis or treatment). 135

The Sixth Amendment Confrontation Clause also guarantees defendants the right to meaningfully cross-examine witnesses who appear at the trial, but who cannot or will not fully respond to questions. Hence, defendant's inability to cross-examine a witness on important matters because that witness has invoked a testimonial privilege or witness "shield" law violates the Sixth

Amendment. 136 But a witness's inability to remember key details ( e.g., the tests used by an expert as grounds for reaching a particular conclusion) does not violate the Amendment. 137

The Sixth Amendment further guarantees the defendant the right, not only to be present during the trial, but also the right to be seen by the witnesses for the prosecution. Hence, the use of a one-way screen or closed-circuit video image, preventing a child sex abuse witness from seeing the defendant, violates the Sixth Amendment unless the trial court specifically finds that

134 Ohio v. Roberts, 448 U.S. 56 (1980).

135 White v. Illinois, 502 U.S. 346 (1992).

136 Olden v. Kentucky, 488 U.S. 227 (1988).

137 Delaware v. Fensterer, 474 U.S. 15 (1985).

34 full face-to-face confrontation would cause the child serious emotional

distress. 138

Under some circumstances, defendants may be found to have forfeited their

constitutional and evidence-law rights to confront and cross-examine a

prosecution witness, if that witness is unavailable for trial due to threats

or other misconduct of the defendant, or due to misconduct of others to which

defendant acquiesced. 139 As noted previously under D.4, defendants who are physically disruptive in the courtroom may also forfeit their right to be present.

9. Presumption of innocence and prosecution burden of proof. Under

constitutional Due Process standards, the accused is presumed innocent and the

prosecution must prove every element of the charge beyond a reasonable

doubt. 140 This rule prohibits the state from placing the burden of proof on

the defendant as to any element of the offence, or conclusively presuming any

element, 141 and also places some limits on the use of "permissive inferences"

which juries are permitted to make in finding that a particular element has

been sufficiently proven. 142

Defendants can, however, be required to prove the existence of certain

"affirmative defences," that is, defences which are not merely the opposite of some required element of act, intent, or attendant circumstance. The defendant's burden of proof is usually a "preponderance of the evidence" (that is, "more likely than not"), which is also the standard applied in civil

138 Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497 U.S. 836 (1990).

139 People v. Geraci, 649 N.E.2d 817 (N.Y. Ct. App. 1995).

140 In re Winship, 397 U.S. 358 (1970).

141 Mullaney v. Wilbur, 421 U.S. 684 (1975).

142 County Court v. Allen, 442 U.S. 140 (1979).

35 suits. Most states require defendants to prove the defence of insanity; 143 at the other extreme, only a few states require the defendant to prove self defence. 144 States also have some leeway to shift the burden of proof to defendants on certain element-related issues, by revising the statutory definition of the offence so that such issues are no longer included within the "elements." 145

Defendants are protected from government attempts to prejudice the outcome of the trial, through manipulation of the media, by the court's powers described under D.2, above. Manipulation of the judicial system itself is prevented by the independence of judges, and by the independence and manner of selection of the members of the jury (discussed below).

The right to have the judgment based solely on the evidence adduced at trial is protected in several ways: by jury-selection procedures which give the defendant considerable power to identify and exclude jurors with strong preconceptions about the case; by the trial court's power to sequester the jury or otherwise limit the extrajudicial information available to jurors

(D.2, above); by procedures for examining and excluding inadmissible evidence prior to trial, or at least out of the jury's presence; and by the defendant's right to argue at trial, and on appeal, that the admissible evidence is legally insufficient to permit a jury to find that all elements of the charge have been proven beyond a reasonable doubt. Most appeals are based on a verbatim transcript of the trial, reporting all evidence received and all proceedings and arguments "on the record." As discussed below, however,

143 Rivera v. Delaware, 429 U.S. 877 (1976).

144 Martin v. Ohio, 480 U.S. 228 (1987).

145 Compare Mullaney v. Wilbur, 421 U.S. 684 (1975) ("malice" is a necessary element of murder, which defendant cannot be required to disprove in order to reduce intentional killing to manslaughter) with Patterson v. New York, 432 U.S. 197 (1977) ("malice" is no longer an element of murder in New York state, so defendant can be required to prove the mitigating factors -- similar to those at issue in Mullaney -- which would justify reducing the offense to manslaughter).

36 juries are not asked to give reasons for their verdicts; moreover, court-trial verdicts do not require very detailed statements of reasons, and jury or court findings of fact are almost never appealable except on a claim of legal insufficiency of the evidence (which is rarely successful).

10. Witnesses in civil trials. Parties in civil suits have the same powers to obtain and examine relevant witnesses at trial as are given to criminal defendants (D.7 above). Prior to trial, however, civil parties have greater rights to obtain statements from witnesses and opposing parties, by means of recorded interviews under oath ("depositions"), written requests to admit certain facts, and other pleading and "discovery" procedures.

11. Interference with privacy, etc.; exclusionary rules. Defendants have the right to demand exclusion of certain evidence obtained in violation of their constitutional or statutory rights of privacy, property, and freedom of movement. Although the courts have stated a strong preference that arrests and searches be conducted pursuant to a warrant issued by a neutral judge and based upon probable cause, there are many exceptions to this rule, and in practise most arrests and searches are warrantless.

The Fourth Amendment guarantees citizens the right to be secure in their

"persons, houses, papers, and effects, against unreasonable searches and seizures;" the Supreme Court has extended the latter terms to include surveillance of telecommunications and other activities and forms of expression as to which the citizen has a "reasonable expectation of privacy." 146 In the area of telecommunications, state and federal statutes add numerous additional requirements for valid surveillance. 147 However, electronic or nonelectronic monitoring of conversations with the consent of one of the participants ( e.g., an undercover police officer or informant) is permitted under both constitutional and statutory law. In addition, searches

146 Katz v. United States, 389 U.S. 347 (1967).

147 Minn. Stat. § 626A.01 et seq.; 18 U.S. Code § 2510 et seq.

37 and seizures of all kinds are permissible if "voluntary" consent is obtained from the defendant or another person with a joint interest in the place searched or the thing seized. In practise, consent searches are very common.

All direct "fruits" of a violation of the defendant's constitutional rights (and important statutory rights) must be excluded from the prosecution's case at trial, 148 but there are several major exceptions. First, evidence is fully admissible where the police have reasonably relied on the factual and/or legal conclusions of a third party. Examples of the latter include reliance on: 1) a defective warrant issued by a neutral judge; 149 2) a statute which was later held unconstitutional; 150 3) computerized arrest- warrant records which court officials have failed to properly update; 151 or 4) a third party's erroneous claim to have authority to give binding consent to search a given area. 152 Second, the defendant himself is not a suppressible

"fruit" of an illegal arrest; he cannot move to dismiss the charges, and has no exclusionary or other remedy in criminal court, if the arrest did not involve the seizure of anything other than his body. 153 Third, defendants may only exclude evidence derived from a violation of their own rights; evidence resulting from the violation of the rights of another person (including a codefendant in the same case) will be admitted. 154 Fourth, illegal evidence can be used to impeach the defendant's testimony, if he or she takes the stand

148 Mapp v. Ohio, 367 U.S. 643 (1961).

149 U.S. v. Leon, 468 U.S. 897 (1984).

150 Illinois v. Krull, 480 U.S. 340 (1987).

151 Arizona v. Evans, -- U.S. --, 115 S.Ct. 1185 (1995).

152 Illinois v. Rodriguez, 497 U.S. 177 (1990).

153 Frisbie v. Collins, 342 U.S. 519 (1952).

154 Rakas v. Illinois, 439 U.S. 128 (1978).

38 at trial and makes statements inconsistent with the illegal evidence. 155

"Derivative fruits" (that is, evidence indirectly derived from

constitutional and statutory violations) will be admitted if the discovery of

such evidence was remote in time, place, or otherwise from the violation

("attenuated" fruits), 156 or if the evidence would "inevitably" have been

discovered by lawful means. 157 Courts are particularly unwilling to exclude

the testimony of a witness discovered as a result of an earlier constitutional

violation; 158 courts are also quite willing to find that evidence had an

"independent source" or was otherwise not the "product" of an earlier illegality. 159

Other than the testimonial privilege of spouses and former spouses, 160

there are no evidentiary limitations related to interference with the

accused's family.

12. Victims' rights. During the past fifteen years, victims of crime in

the U.S. have increasingly been given statutory rights to participate in the

criminal process. Such rights include the right to receive notice of the

trial date and other key hearings; rights to be heard at sentencing or to

comment on proposed plea bargaining; and rights to request an order of

restitution from the defendant, or to make an application under a state-paid

victim compensation system. Victim-offender mediation is also an increasingly

155 Walder v. United States, 347 U.S. 62 (1954).

156 Wong Sun v. United States, 371 U.S. 471 (1963).

157 Nix v. Williams, 467 U.S. 432 (1984).

158 United States v. Ceccolini, 435 U.S. 268 (1978).

159 See, e.g., New York v. Harris, 495 U.S. 14 (1990), admitting a confession obtained in the police station one hour after defendant's illegal arrest in his home. The Court held the confession was not the product of the illegal aspect of the arrest (the absence of a warrant authorizing entry of the home). Since the police appeared to have had probable cause to arrest, defendant was "lawfully" in custody when he confessed.

160 Minn. Stat. § 595.02(1)(a).

39 popular component of sentencing (as well as earlier dispositions by means of

pretrial diversion).

Unlike many other countries, however, U.S. victims have no formal rights

to participate as a party in the pretrial, trial, and appellate processes, nor

may victims compel prosecution or conduct a private prosecution. 161 Victims

seeking to exercise the formal rights of a party must file a separate civil

suit against the offender, for damages or other relief. Such suits may be

filed even if the defendant has been acquitted. Acquittal may only mean that

the jury had a "reasonable doubt" as to one or more elements of the criminal

charge; it does not necessarily mean that such elements were not proven by the

lower, "preponderance of the evidence" standard applied in civil cases.

13. Composition of the Court.

a. The independence and impartiality of judges is protected by both

constitutional and non-constitutional law. Due Process principles require an

impartial judge, without pecuniary, personal, or other substantial interest in

the outcome of the case. 162 But Due Process does not necessarily prevent a

judge who previously approved an arrest warrant, or presided at the

preliminary hearing to assess probable cause, from presiding at trial, with or

without a jury. 163 Judges may be challenged for cause (for example, based on their familial relationship to defendant, the victim, or counsel), and are required under canons of judicial ethics to recuse themselves whenever their impartiality could be reasonably questioned. Some states give both parties a limited right to obtain transfer to a different judge without stating specific reasons. 164

161 Richard S. Frase, "Comparative Criminal Justice as A Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78 (1990), at pp. 669-72.

162 Tumey v. Ohio, 273 U.S. 510 (1927).

163 Withrow v. Larkin, 421 U.S. 35 (1975).

164 Minn. Rule Cr. Proc. 26.03, subd. 13.

40 The independence of the judiciary is assured by the manner of appointment, tenure, and jurisdiction of judges. Although many judges are initially appointed by executive authority ( e.g., the President, for federal judges; the governor, for state judges), they then serve either life-time terms (subject only to the rarely-used power of impeachment and removal, for serious misconduct), or fixed terms specified by law. All judges remain independent of the executive branch during their tenure, and their decisions may only be reviewed as part of appeals, habeas corpus, or clemency processes specified by law. State and federal constitutions prevent reduction of judges' salaries during their terms of office. At the conclusion of their fixed terms, state judges must run for re-election, usually on a non-partisan ticket (that is, with no political party designation or affiliation).

Promotion to a higher court is treated the same as an initial appointment: executive appointment (or, occasionally, election) to the initial term, followed by retention election. As explained in Parts I and II.D.3 above, the jurisdiction, venue, and procedure of criminal trial and appellate courts is specified by law, according to offence severity and the geographic location of the offence; when these matters are disputed, the issue is initially decided by the trial court where the case was filed, subject to normal appeal procedures.

b. U.S. juries determine issues of guilt or innocence, and occasionally make or recommend sentencing decisions (especially in Southern states, and in capital cases); issues of law, and most sentencing decisions, are made by the presiding trial judge (who instructs the jurors as to the law, but does not participate in their deliberations and verdict). The jury right is almost always waivable by the defendant, but many states require the further consent of the court and/or the prosecution, to a non-jury trial. When the jury right is waived, or is inapplicable ( e.g., in petty offences, discussed below), a single trial judge determines all issues of fact, law, and sentencing.

41 "Mixed" courts of professional judges and lay assessors have only been used in one state (Vermont); 165 "collegial" trial courts (two or more professional judges) have never been used in criminal cases.

The Sixth Amendment to the U.S. Constitution guarantees the right to jury trial for all non-petty crimes. The latter are defined as those crimes punishable with more than six months of incarceration. 166 State constitutions and rules often grant broader jury trial rights, for example, including all offences punishable by any period of incarceration. 167 In felony cases, juries usually consist of 12 jurors; misdemeanor juries often consist of only six jurors. In almost all states, the jury's verdict must be unanimous, although the U.S. Constitution permits verdicts of 10-2 or 11-1. 168 Jurors normally serve for a single trial, or a fixed period of eligibility to be chosen for one or more trial juries ( e.g., two weeks, in urban areas; several months in rural areas), whichever is longer. 169

The qualifications and selection of jurors are regulated by both constitutional and non-constitutional law. Under state laws, jurors are generally drawn from lists of registered voters, supplemented in many states by driver's license and other public records. Each juror must generally be a

U.S. citizen, at least 18 years old, a resident of the court's geographic jurisdiction, and possessing the minimum linguistic, physical, and mental ability to render satisfactory service. 170 Convicted felons are often deemed

165 Richard S. Frase, "Comparative Criminal Justice as A Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78 (1990), at p. 676.

166 Baldwin v. New York, 399 U.S. 66 (1969).

167 Minn. Constitution, Art. I. Sec. 6; Minn. Rule Cr. Proc. 26.01(1).

168 Apodaca v. Oregon, 406 U.S. 404 (1972).

169 Minnesota General Rules of Practice for District Courts, Rule 811.

170 Minnesota General Rules of Practice for District Courts, Rule 808.

42 ineligible to serve on a jury, as are judges.

The Sixth Amendment to the U.S. Constitution requires that the jury

"venire" ( i.e., the panel of prospective jurors from which specific trial jurors are selected) must represent a "fair cross-section of the community."

No "large, distinctive groups" or "identifiable segments playing major roles in the community" (e.g., women, racial minorities) may be arbitrarily excluded or grossly underrepresented, and this rule applies even if the defendant is not a member of the excluded group. 171 In addition, the Equal Protection

Clause of the Fourteenth Amendment prohibits deliberate exclusion of racial minorities or women from the jury venire or from the trial jury, in the trial of a member of one of these groups. 172

The "voir dire" procedure for selection of trial jurors from the venire varies. Generally, any juror can be challenged "for cause," and each side has a certain number of "peremptory" challenges, which do not require the statement of any reasons. In federal courts and in some states, the trial judge asks most of the questions of prospective jurors (although the parties may suggest specific questions to be asked); but in most state courts, the attorneys play a very active role in the questioning.

14. Decision, Sentencing, and Punishment.

a. Jury verdicts are generally limited to a simple "guilty" or "not guilty" response, for each offence charged. When courts dismiss charges for insufficient evidence, or render judgments of conviction or acquittal after trial, they are often required by rules of procedure to state "findings of fact and conclusions of law," either routinely or upon the request of a party. 173 Such rules do not, however, specify the degree of detail required in these findings, and interpretive caselaw is scarce. Stricter standards of

171 Taylor v. Louisiana, 419 U.S. 522 (1975).

172 J.E.B. v. Alabama ex rel. T.B., -- U.S. --, 114 S.Ct 1419 (1994).

173 Minn. Rule Cr. Proc. 26.01, subd. 2; Fed. Rule Cr. Proc. 23(c).

43 detail and appellate review apply to certain decisions, for example, orders

excluding the public from all or part of the trial, 174 and decisions to depart

from sentencing guidelines. 175

b. Findings of fact and conclusions of law are required in all civil

cases tried without a jury. 176

c. Defendants who have already been lawfully convicted or acquitted are

protected against retrial by the Fifth Amendment prohibition against Double

Jeopardy, and by statutory joinder and merger requirements. Constitutional

Double jeopardy limits apply when the earlier and later proceedings involve

the "same offence." In general, two offences will fall within the latter

definition if either one is a lesser included offence of the other;

conversely, if each offence requires proof of an element which the other does

not, then they are not the "same offence" for Double Jeopardy purposes. 177

Jeopardy "attaches" at the beginning of the trial, that is, when the jury

is sworn, or, in a non-jury trial, when the first witness is sworn. If a

mistrial is declared after that point, retrial is permitted only upon a

showing of "manifest necessity" for interrupting the first trial, for example,

because of a "hung jury" which was unable to unanimously agree on a verdict. 178

Once a verdict of conviction or acquittal has been entered, the defendant may not be retried for the same offence (except in certain cases where the conviction has been reversed following an appeal filed by the defendant).

The federal Double Jeopardy rules only bar reprosecution by the same state or federal "sovereign"; 179 they do not prohibit successive prosecutions

174 Minn. Rule Cr. Proc. 25.01(5).

175 Minn. Stat. § 244.10(2).

176 Minn. Rule Civ. Proc. 52.

177 Blockburger v. United States, 284 U.S. 299 (1932).

178 United States v. Perez, 22 U.S. 579 (1824).

179 Bartkus v. Illinois, 359 U.S. 121 (1959).

44 by two different states having criminal jurisdiction over a particular offence

(e.g., a crime begun in one state and completed in another), or by state and

federal prosecutors having concurrent jurisdiction ( e.g., certain frauds, and

most drug crimes). 180 This exception to Double Jeopardy rules reflects the

U.S. theory of federalism; state and federal governments are all deemed to be independent entities, each with their own sovereign rights and powers, including the power to define and punish crimes threatening their citizens, government operations, or other interests. It should also be noted that federal prosecution following acquittal in state court has sometimes served to protect human rights, when state criminal laws protecting those rights were not being adequately enforced. For example, during the 1960s all-white southern juries in state courts often refused to convict white defendants who murdered or assaulted blacks and civil rights workers; conviction sometimes could be obtained in federal court, where judges are appointed by the

President, and juries are chosen from a larger district.

Double Jeopardy rules do not bar cumulative punishment in a single trial for two versions of the "same offence," provided there is clear legislative intent to permit this result. 181 But statutory "merger" provisions in many states limit cumulative punishment in such cases, and also bar serial prosecutions by requiring joinder of certain closely-related offences arising in the same incident or criminal course of conduct. 182

State statutes also sometimes bar reprosecution if the defendant has been convicted or acquitted in another jurisdiction for the same offence. 183

Similarly, the U.S. Department of Justice has adopted regulations discouraging

180 See discussion of state and federal criminal jurisdiction, Part I supra.

181 Missouri v. Hunter, 459 U.S. 359 (1983).

182 Minn. Stat. § 609.035.

183 Minn. Stat. § 609.045.

45 federal prosecution of defendants previously tried in state courts. 184

d. The U.S. Constitution forbids both state and federal legislatures from enacting ex post facto laws. This protection covers laws which: 1) criminalize conduct previously unpunished; or 2) increase offence severity or the authorized punishment; or 3) permit conviction upon less or different evidence than was previously required. 185 If the penalty, offence class, or required evidence are reduced, however, defendants will not be given the benefit of this change unless the legislature provides for statutory

"retroactivity."

e. Imprisonment for debt or failure to fulfill contractual obligations has generally been abolished, but fraudulent acts, in connection with a debt or contract, may be punished if they fall within criminal fraud or false pretenses statutes. 186 Under certain circumstances, prosecution and imprisonment can be ordered for failing to make required spouse- or child- support payments, 187 or for willfully failing to pay a fine. 188 Contempt of court powers, backed up by imprisonment, are also sometimes used in connection with a debt or other monetary obligation. 189

f. The guarantees of public trial and media access (D.2 above) assure that criminal judgments are made public.

g. Collective punishment, per se, is not imposed, but defendants are often held liable for the criminal acts of their accomplices or co- conspirators. In addition, vicarious liability is sometimes imposed without

184 Petite v. United States, 361 U.S. 529 (1960).

185 Calder v. Bull, 3 U.S. 386 (1798).

186 Minn. Constitution Art. I, Sec. 12.

187 Minn. Stat. § 609.375.

188 Bearden v. Georgia, 461 U.S. 660 (1983).

189 See, e.g., Minn. Stat. §§ 575.03, 588.01.

46 proof of complicity or conspiracy. For example, employers may be found liable

for acts of employees, either by explicit statutory provision 190 or by

positing a legal duty to prevent certain harms or acts. 191 Some state

constitutions have been interpreted to prohibit conviction and imprisonment

for liability which is both vicarious (based on another's actions) and

"strict" (that is, not requiring any proof of intent or other mental state). 192

h. The death penalty is authorized in over three-quarters of the states

(not including Minnesota), and for certain federal crimes. About 3,000 inmates are currently under sentence of death, and several hundred new "death row" inmates are received each year, in state prisons. In 1995, 56 death sentences were carried out. Only a few southern states carry out executions with any regularity.

Although state and federal death penalties are authorized for a variety of serious crimes, all of the inmates currently on death row were convicted of murder. Moreover, capital punishment has been found to be constitutionally excessive, in violation of the Cruel and Unusual Punishment Clause of the

Eighth Amendment, where no death resulted from the defendant's crime, 193 or where a death occurred but was not a direct result of defendant's act, and there was no evidence that the defendant had collaborated in a design to kill or use lethal force against the victim. 194

The Supreme Court has invalidated a death sentence imposed on a defendant

190 In re Marley, 175 P.2d 832 (Cal. 1946).

191 United States v. Park, 421 U.S. 658 (1975).

192 State v. Guminga, 395 N.W.2d 344 (Minn. 1986).

193 Coker v. Georgia, 433 U.S. 584 (1977) (rape of adult victim).

194 Enmund v. Florida, 458 U.S. 782 (1982) (defendant, an accomplice to an armed robbery, waited in the "get-away" car and was not physically present when the robbery victim was killed).

47 who was only 15 years old at the time of the murder, 195 but has allowed execution of juvenile offenders who were 16 or 17 years old. 196 The Court has also held that convicts may not be executed if, at the time of execution, they are so mentally ill as to be "unaware of the punishment they are about to suffer and why they are to suffer it." 197 The Court has, however, permitted execution of a retarded man with the reasoning capacity of a seven-year-old. 198

It is unclear whether there are any constitutional limits on executing very old defendants, pregnant women, 199 or mothers of young children.

Defendants are informed of the death sentence at the time of sentencing

(which occurs at the end of the trial, or in a later sentencing hearing). The actual date of execution would usually be set later, and may be postponed many times as a result of appeals and requests for clemency. Pardon or commutation is usually available by petition to the governor of the state.

The current methods of execution include hanging, firing squad (if chosen by the accused), electrocution, lethal gas, and lethal injection. The U.S.

Supreme Court has not considered whether certain methods violate the ban on cruel and unusual punishment, but several lower court cases have raised the issue. Hanging was recently held constitutional (by a vote of 6 judges to

5); 200 lethal gas has been upheld by all but one lower court. 201

195 Thompson v. Oklahoma, 487 U.S. 815 (1988).

196 Stanford v. Kentucky, 492 U.S. 361 (1989).

197 Ford v. Wainwright, 477 U.S. 399 (1986).

198 Penry v. Lynaugh, 492 U.S. 302 (1989).

199 In ratifying the ICCPR, however, the U.S. Senate reserved only the right to continue to impose capital punishment on minors, and explicitly did not reserve any such right as to execution of a pregnant woman. "International Covenant on Civil and Political Rights," 138 CONG. REC. S4781-01 (daily ed., April 2, 1992).

200 Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994).

201 Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996).

48 i. As noted in C.1(a) above, state and federal constitutions contain prohibitions on "cruel and unusual" punishment which limit both the form and severity of criminal penalties.

j. As previously discussed under C.1(b), defendants who plead guilty often receive sentence and/or charging leniency which is denied to defendants who go to trial and are found guilty. Leniency may also be extended to defendants who partially waive their trial rights, in particular, the right to trial by jury.

The differential treatment of defendants who plead guilty and those who insist on trial has often been criticized in the U.S., and may violate international fair trial norms. Among other problems, plea-related charge and sentencing disparities give the appearance of penalizing the assertion of constitutional trial rights. Such disparities may also be so great as to constitute compulsion to waive trial rights and confess, yet the legal standards of coercion are so loose that guilty pleas are almost never found to be "involuntary" -- for example, the Supreme Court has upheld a plea which was motivated by fear of the death penalty, and which was entered by a defendant who strongly protested his innocence. 202 In such cases, the Court implied that the trial court must establish a very strong "factual basis" for the plea, showing that defendant is very likely to be provably guilty, despite his denial of guilt. Nevertheless, there is a danger that some innocent persons will falsely plead guilty, to avoid the risk of conviction and more severe punishment following a trial. The risk is especially great when the defendant has spent a long time in pretrial detention, and is offered immediate release and a sentence of "time already served," if he agrees to plead guilty.

Defendants who provide information or testimony helpful in convicting

202 North Carolina v. Alford, 400 U.S. 25 (1970). The defendant in Alford pled "nollo contendere," a procedure under which the defendant waives trial and agrees not to contest the charges, but does not admit guilt. Such pleas are usually entered by defendants facing civil claims, who do not want their criminal plea to be taken as an admission of liability.

49 other suspects are also frequently given charge and/or sentencing leniency, or

even complete immunity from prosecution. When such defendants are prosecuted,

they usually plead guilty, thus raising many of the same problems noted above.

A further problem is that such "testimony-bargaining" is only available to the

prosecution, not the defence. This inherent "inequality of arms" means that

defendants do not, in practise, have the same power to obtain witnesses as

does the prosecution (see section D.7, above).

E. Appeal procedures

1. Appeal rights. Although the Supreme Court has suggested that there is

no federal constitutional right to any appeal process, 203 some form of

appellate review of conviction is available in all states, and in the federal

system. All states provide for at least one appeal of right, and many states

(as well as the federal courts) provide a second level of review subject to

the appeal court's discretion. In systems with two levels of appeal, the

first appeal is to an intermediate appellate court, and the second is to the

state supreme court. 204 These states sometimes also provide that very serious

cases ( e.g., first-degree murder) may be appealed of right directly to the

highest court. 205

It is important to recognize that an "appeal" in the U.S. means a review on issues of law (including legal sufficiency of the evidence to support a finding of proof beyond a reasonable doubt), but rarely on issues of fact.

Sentence appeals were traditionally not available, but the trend is to broaden appellate review of sentencing, especially in states (and in the federal courts) which have sentencing guidelines. 206

203 Jones v. Barnes, 463 U.S. 745 (1983).

204 Minn. Rules of Cr. Proc. 28.02, 29.04.

205 Id. Rule 29.02.

206 Id. Rule 28.05.

50 The period after sentencing during which an appeal may be filed varies according to the crime ( e.g., 10 days, in lesser misdemeanor cases; 90 days for felonies and gross misdemeanors. 207 As noted earlier in Part C.3, defendants have a federal constitutional right to counsel through the first level of appeal. State laws often provide for additional rights to appointed

(state-paid) counsel in subsequent appeals and post-conviction remedies, at least in cases of conviction for a felony or serious misdemeanor.

Under constitutional Double Jeopardy rules (discussed under D.14(c)), the prosecution may not appeal if the requested relief would require a new trial, but it may appeal pretrial orders (see below), as well as post-conviction orders setting aside a guilty verdict. 208 Prosecution appeals of sentence are also permitted under Double Jeopardy rules, 209 and are increasingly available in state and federal courts as part of sentencing guidelines reforms.

An appeals court judge who sat on the same case at the trial or a first- level appeal would probably be expected to recuse him-or herself.

2. Civil appeals. At least one appeal of right from a civil judgment is generally permitted, after which discretionary review by a higher court may be available. 210 As in criminal cases, appeal is generally limited to issues of law.

3. Appealable orders. As a general rule, appeals in criminal and civil cases are only permitted after a final judgment has been entered. The prosecution may, however, appeal certain pretrial orders ( e.g., suppressing evidence); this exception reflects the fact that, once trial has begun, double jeopardy rules generally prevent prosecution appeal of adverse judgments

207 Id., Rules 28.02, 29.03.

208 United States v. Wilson, 420 U.S. 332 (1975).

209 United States v. DiFrancesco, 449 U.S. 117 (1980).

210 Minn. Rules Civ. App. Proc. 103.03, 117.

51 (i.e., acquittals and orders of dismissal). A criminal defendant may appeal pretrial and trial orders related to pretrial detention. Under limited circumstances, civil plaintiffs and defendants may appeal important preliminary orders.

F. Other Remedies

1. Habeas. Habeas corpus remedies for state and federal prisoners are specified in federal statutes; 211 state laws grant additional habeas rights and other post-conviction remedies. 212 Habeas corpus rights of pretrial detainees have previously been discussed in section C.1(e).

2. Pardon, Amnesty, and Expungement. Pardons are generally available from the state governor (or, for federal crimes, the President), or from a

Pardons Board created by statute, composed of the governor and one or more other high state officials. 213 U.S. jurisdictions do not make use of the type of broad amnesty statutes frequently enacted in France and certain other Civil

Law countries. But state laws sometimes provide that certain defendants (for example, youthful offenders) may, after a given period of lawful behavior, apply to the sentencing court for an order setting aside the conviction. 214

In addition, certain types of probationary sentences permit automatic reduction in the grade of the conviction offence ( e.g., from felony to misdemeanor) if the defendant successfully completes probation and is discharged from the sentence. 215

3. Compensation. Compensation for unlawful detention or conviction is

211 28 U.S. Code §§ 2241 to 2255.

212 Minn. Stat. chaps. 589 and 590.

213 Minn. Stat. chap. 638.

214 Id. § 609.166.

215 Id. § 609.13.

52 generally not provided by the government. Detainees sometimes will be able to bring a civil claim for damages against the complainant and/or police, based on a theory of false arrest or imprisonment, abuse of process, or malicious prosecution, at least if malice or bad faith can be shown.

G. Specialized Courts

1. Procedures for Juveniles. Juvenile delinquency proceedings are held in a separate Juvenile Court. 216 Juvenile offenders are entitled to most of the procedural rights accorded in adult criminal trials, including the right to counsel. 217 Jury trials are not, however, constitutionally required in juvenile court, 218 and most states do not provide them under state law either.

Also, juveniles have no right to reasonable bail, or indeed a right to have any bail set at all. 219

Detained juvenile offenders are generally held in separate institutions, and must be separated from adults if held in the same facility. 220 As with adults, convicted and unconvicted juveniles should be kept separate, but such separation is not always feasible in small or very crowded facilities.

2. Military Courts. Military courts in the U.S. have almost no peacetime jurisdiction over non-military personnel. They do, however, have very broad jurisdiction over service members, including crimes committed against civilians while off-duty and not on military property. 221

The major sources of military law are the Uniform Code of Military

216 Minn. Stat. chap. 260.

217 In re Gault, 387 U.S. 1 (1967).

218 McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

219 Schall v. Martin, 467 U.S. 253 (1984).

220 Minn. Stat. § 641.14.

221 Solorio v. United States, 483 U.S. 435 (1987).

53 Justice, 222 the Manual for Courts-Martial, 223 and the Federal Rules of Criminal

Procedure. Military convictions are appealable first to the Court of Military

Review, then to the Court of Military Appeals, and finally to the U.S. Supreme

Court. Military convictions may also be collaterally attacked in federal habeas corpus proceedings.

Military prosecutions are subject to the U.S. Constitution, except where specifically exempt (for example, the Fifth Amendment right to grand jury review and indictment, applicable in federal criminal trials, expressly excludes the military). Although some effort is made to separate the investigation and adjudication functions from command influence, such influence is much more substantial than the role permitted, in civilian justice, to analogous executive branch officials.

Informal, non-adversary procedures ("non-judicial punishment," and

"summary court martial") are used to dispose of minor violations. 224 More formal adjudications are handled by Special Court Martial or (to impose the most severe penalties) General Court Martial. Court Martial panels are smaller (three or five members) and differently constituted than civilian juries, and they determine the sentence as well as guilt. Determinations of guilt may be based on a two-thirds vote. As for sentencing decisions, death sentences require unanimous approval; sentences to life or more than ten years require a three-fourths vote; and less severe penalties require a two-thirds vote. Court Martials must be preceded by a formal investigation and report by an independent (non-accusing) officer, 225 a procedure similar to the judicial investigation (by the juge d'instruction) used in some Civil Law countries.

Suspects have a right to counsel at this stage, and receive a copy of the

222 10 U.S. Code §§ 801-940.

223 Executive Order No. 11476.

224 Middendorf v. Henry, 425 U.S. 25 (1976).

225 10 U.S. Code § 832.

54 report. In this and other ways, military defendants receive more pretrial

"discovery" of prosecution evidence than is provided in many U.S. civilian

criminal justice systems. Guilty pleas and plea bargaining often occur in

Court Martial cases. 226

3. Emergency or other Special Courts. Such courts do not exist in the

United States.

4. Administrative Courts. U.S. administrative law and civil courts

generally do not impose serious consequences comparable to those resulting

from criminal proceedings, except for the cases noted in Section I above

(immigration procedures, civil forfeiture actions, and involuntary civil

commitment of mentally ill persons and sex offenders).

H. Application of Global and Regional Human Rights Instruments

1. Influence on U.S. law. International human rights norms are sometimes

incorporated into U.S. statutes or administrative regulations, 227 and such

norms have occasionally been relied upon in judicial opinions interpreting

U.S. laws. 228 On the whole, however, international norms have not yet had much impact on U.S. criminal procedures.

The U.S. Supreme Court has rarely based its decisions on international norms. In Thompson v. Oklahoma,229 several justices of the Supreme Court cited

such norms in support of the Court's holding that the Eighth Amendment ban on

cruel and unusual punishment forbids imposing the death penalty on a defendant

226 United States v. Care, 18 U.S. Ct. Military App. 535 (1969).

227 See, e.g., Lareau v. Manson, 507 F.Supp. 1177 (D. Conn. 1980), modified on appeal, 651 F.2d 96 (2d Cir. 1981), dealing with standards for housing of prisoners.

228 See, e.g., Williams v. Coughlin III, 875 F.Supp. 1004, 1013 (W.D.N.Y. 1995), relying in part on U.N. standards for feeding of prisoners. See also Thompson v. Oklahoma, infra.

229 Thompson v. Oklahoma, 487 U.S. 815 (1988).

55 who was only 15 years old at the time of the crime. Yet one year later, the

Court upheld death sentences imposed on 16- and 17-year-old juvenile

offenders, and rejected arguments based on international norms and

comparisons. 230 In other cases, such norms and comparisons have not even been mentioned by the parties or by any of the justices; this was the case, for example, in decisions permitting corporal punishment of public school children, 231 and upholding criminal penalties for private homosexual conduct by

consenting adults. 232

After the above cases had been decided, the U.S. ratified the Covenant on

Civil and Political Rights (effective in the U.S. as of September 8, 1992).

But the U.S. Senate attached five "reservations," five "understandings," four

"declarations," and one "proviso." 233 In particular, the reservations

stipulated that U.S. courts could continue to impose the death penalty on

persons under the age of 18; limited the ban on "cruel, inhuman or degrading

treatment or punishment" to the "cruel or unusual treatment or punishment

prohibited by the Fifth, Eighth, and/or Fourteenth Amendments" to the U.S.

Constitution; preserved the U.S. rule allowing legislatures to deny defendants

the benefit of post-offence penalty reductions; and reserved the right to

treat some juveniles as adults. The Senate's "understandings" included the

view that compensation for unlawful arrest, detention, or miscarriage of

justice "may be subject to reasonable requirements of domestic law." Other

significant understandings were that prisons may serve punishment goals other

than rehabilitation, and that double jeopardy limits only apply to prior

proceedings in courts of "the same governmental unit" (state or federal).

230 Stanford v. Kentucky, 492 U.S. 361 (1989).

231 Ingraham v. Wright, 430 U.S. 651 (1977).

232 Bowers v. Hardwick, 478 U.S. 186 (1986).

233 "International Covenant on Civil and Political Rights," 138 CONG. REC. S4781-01 (daily ed., April 2, 1992).

56 The Senate further declared that the provisions of Articles 1 through 27

of the Covenant are not self-executing. In its broadest form, the latter

limitation means that the international norms in question are not directly

applicable in U.S. courts; rather, their provisions may only be applied when

they reflect customary international law, or when courts find them persuasive

in interpreting open-ended provisions of domestic law, such as "due process,"

"compulsion," or "unreasonable search and seizure" 234 There is reason,

however, to question both the validity and the scope of the Senate's

reservation. Such a limitation is arguably not binding on courts because it

violates the object and purpose of the treaty itself. Moreover, the

limitation may only mean that civil suits ( e.g., for damages) are not

authorized in the absence of enabling legislation; courts could still take

guidance from the Covenant, particularly in deciding whether to permit

criminal defendants to raise certain defensive claims. 235

In arguing for application of international norms directly in U.S.

courts, or indirectly by means of customary international law or

interpretation of open-ended domestic law, attorneys confront a serious

practical problem: most U.S. judges view the United States as a leader in the

human rights field, and believe that current U.S. law incorporates all

necessary human rights protections -- in other words, "if U.S. law doesn't

already recognize this right, it's for a good reason." 236 Hence, the best

strategy is usually to suggest a very indirect application of international

norms -- for example, arguing that U.S. Due Process standards already

implicitly incorporate a particular safeguard, while also pointing out that

234 Frank C. Newman & David S. Weissbrodt, International Human Rights: Law, Policy, and Process (2nd ed. 1996), at p. --.

235 Id. at --; John Shattuck, "Works in Progress: Human Rights and Domestic Law After the Cold War," Emory International Law Review, vol. 9 (1995), at pp. 384-5.

236 Frank C. Newman & David S. Weissbrodt, International Human Rights: Law, Policy, and Process (2nd ed. 1996), at p. --.

57 the safeguard is recognized by countries we admire, and often disregarded by countries we do not.

2. Impact of the Optional Protocol to the Covenant. There would probably not be much impact on U.S. law and practise, if Articles 2(3), 9(3), 9(4) and

14 were made nonderogable in periods of emergency. As noted above, there is some doubt whether the Covenant's provisions are directly binding on U.S.

Courts. Even if courts were to consider these provisions binding, at least for some purposes, the impact on practise would not be great. Most of the rights enumerated in Articles 2(3), 9(3), 9(4) and 14 of the Covenant are protected by federal and state constitutions, and these protections are generally not subject to suspension in times of unrest. State and federal constitutions do permit the writ of habeas corpus to be suspended during such periods, but this has very rarely occurred in the nation's history. Appellate review of sentences may not be constitutionally protected, but such review is available by statute in the federal courts and in all states, and seems unlikely to be suspended even in times of unrest.

I. Conclusion

Most of the criminal procedure guarantees in the Covenant on Civil and

Political Rights are protected in the United States, under federal and state constitutional provisions, statutes, rules of evidence and procedure, and/or caselaw. In a very real sense, the United States "wrote the book" on due process standards in criminal cases.

This strong commitment to fair trial ideals has deep historical roots.

The Bill of Rights of the U.S. Constitution, adopted in 1791, drew upon Common

Law and Enlightenment ideals of justice, and was written by colonial citizens who had recent experience with abuses of the criminal law. Human rights protections were further strengthened in the 1860s, following the Civil War, with the adoption of the Thirteenth Amendment (abolishing slavery) and the

Fourteenth Amendment (requiring the states to respect principles of Due

58 Process and Equal Protection). A third wave of reform was similarly inspired by reaction to human rights abuses: Nazi atrocities in World War II, together with the active role played by Blacks and women in the war effort, accelerated the movements for racial and gender equality. In the 1950s and 1960s, the

U.S. Supreme Court finally gave concrete meaning and effective enforcement to most of the criminal procedure guarantees in the Bill of Rights, and Congress enacted a series of landmark Civil Rights statutes. Although the Supreme

Court and Congress later retreated from some of these ideals, the U.S. remains very strong in its commitment to civil and political rights. Yet the U.S. has been slow to recognize the application of international human rights norms in

U.S. courts. Ironically, the United States' early "lead" in the provision of human rights now stands as a barrier to development of an international perspective on these problems.

Given the unique historical factors noted above, it is not clear whether the U.S. experience provides any specific clues on ways to improve the protection of fair trial rights in other countries today. Certain elements in the U.S. political, legal, and cultural context and tradition may be as important, or more important, than the formal text of constitutions and rules.

An especially important factor in the U.S. is the existence of a vigorous and independent bar, strongly committed to goals of procedural fairness. Lawyers contribute to, and are the products of, independent law schools. These schools have traditionally given strong emphasis to the ideals of justice; in the past thirty years, they have also provided extensive training (through

"clinical" and other practise-oriented courses) in the legal and practical skills of criminal and civil rights litigation.

Other important factors in the U.S. include a tradition of politically independent judges (and, to some extent, prosecutors); strong traditions of freedom of press and travel; and a wide-spread "rights consciousness"

(awareness of legal rights, and a willingness to assert them) among the citizenry. Such consciousness has been fostered by public education on

59 historical and contemporary civil rights issues, and by frequent treatment of law and justice issues in literature, movies, television, and other mass media.

U.S. non-compliance with the Covenant. Despite its strong historical and contemporary commitment to fair trial standards, there remain a number of respects in which the United States does not appear to fully comply with international fair trial standards. The following is a summary of these problem areas, arranged in the order of the relevant provisions of the ICCPR:

Art. 2(3)(b) [effective remedy]: There are major limitations on the rights of U.S. defendants to obtain redress for certain procedural violations, particularly violations of Miranda and Fourth Amendment rights. Offending police officers rarely face effective departmental or externally-imposed discipline, civil liability, or other personal sanctions, and evidentiary fruits are often admitted at trial under one of the many exceptions to the

Exclusionary Rule. When no evidentiary fruits result from an illegal arrest, detention, interrogation, or search, the victim often has no practical remedy whatsoever.

Art. 6(7) [death penalty]: Persons under the age of 18 can be, and have been, sentenced to death.

Art. 9(1) [liberty and security of person]: Most suspects are subjected to custodial arrest, rather than issued a notice to appear in court, and arrests are almost always warrantless.

Art. 9(2) [prompt notice of charges, after arrest]: There is no established legal right to such notice prior to appearance in court; even during custodial interrogation, police need not disclose all crimes they suspect.

Art. 9(3) [pretrial detention]: Many suspects are held under bails they clearly cannot afford to post, or under broad preventive detention statutes; release and detention decisions routinely consider the defendant's future

60 dangerousness, not just his risk of nonappearance in court.

Art. 9(5) [compensation for unlawful arrest or detention]: There is no system of government compensation, as such, and civil (tort) remedies are limited.

Arts. 10(2)(b) and 10(3) [separate and appropriate treatment of juveniles]: Increasingly, juveniles charged with violent or other serious crimes are being tried as adults.

Art. 10(3) [treatment and rehabilitation shall be the essential aim of prisons]: In recent years, imprisonment in the U.S. has primarily been imposed for reasons of retribution ("just deserts") or deterrence, or to achieve incapacitation of high risk offenders; in-prison treatment and early-release options have been curtailed or eliminated in most states and in the federal system. As a result, U.S. prison populations have increased dramatically (far faster than increases in crime or arrest rates), and U.S. incarceration rates are much higher relative to crime rates than in other developed countries. 237

Art. 14(1) [equality of all persons before courts and tribunals]:

Although all U.S. defendants enjoy formal equality, indigents are often seriously handicapped in the exercise of their rights, and most criminal laws have a significantly greater impact on indigents and racial minorities (who therefore are incarcerated at rates far out of proportion to their numbers in the general population). Equality goals are also threatened by the broad discretion granted to U.S. prosecutors as to both initial charging decisions and plea negotiation. 238

237 See Richard S. Frase, "Comparative Criminal Justice as A Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78 (1990), at pp. 648-58; Richard S. Frase and Thomas Weigend, "German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?" Boston College International & Comparative Law Review, vol. 18 (1995), at pp. 346-8.

238 See generally Richard S. Frase, "The Decision to File Federal Criminal Charges - A Quantitative Study of Prosecutorial Discretion," University of Chicago Law Review, vol. 47, pp. 246-330 (1980).

61 Art. 14(2) [presumption of innocence]: Defendants are generally required to carry the burden of proof as to insanity, and sometimes also as to other affirmative defences.

Art. 14(3)(a) [prompt and detailed notice of the nature and cause of the charge]: The defendant's right to obtain pretrial discovery of prosecution evidence is still quite limited in federal courts, and in some states.

Arts. 14(3)(b) & (d) [adequate defence facilities and appointed counsel]:

Levels of funding, competence, and adversary zeal are too often lacking, even in death penalty and other very serious cases.

Art. 14(3)(e) [right to obtain and examine defence witnesses]:

Prosecutors have several important means of obtaining witness testimony which are not available to the defence (use of police arrest powers, grand jury supoenas, charging leniency, testimonial immunity powers, and witness protection programs).

Art. 14(3)(g) [right not to be compelled to testify against one's self or to confess guilt]: U.S. defendants are subjected to considerable pressure to confess, both before and at trial. Miranda rights to silence and counsel are almost always waived at the outset of police interrogation, by suspects who do not truly understand their rights, or fear to exercise their rights; post- waiver backup safeguards, to prevent or detect coercive practises during the interrogation itself, are not well developed. At later pretrial stages and at trial, the charge and sentencing differentials between defendants who plead guilty and those who insist on trial can exert very heavy pressure to confess.

Art. 14(5) [right to have conviction and sentence reviewed by a higher tribunal]: U.S. jury verdicts contain no statements of reasons, and are subject to very limited appellate review as to issues of fact. The requirements for reasoned findings in court trial verdicts and orders are not well developed, and such judgments are subject to limited review on issues of fact or sentencing.

62 Art. 14(6) [compensation for miscarriage of justice]: There is no system of government compensation, as such, and civil (tort) remedies are limited.

Art. 14(7) [double jeopardy]: There is no constitutional prohibition of successive trials on identical charges in different states, or in state and federal courts. As shown in the O.J. Simpson case, there can also be successive trials on closely related civil and criminal allegations.

Art. 15(1) [post-offence penalty reductions]: U.S. defendants do not receive the benefit of such reductions unless the legislature specifically grants retroactivity.

Lessons of the U.S. experience. The long list of problem areas above risks giving a false impression of the U.S., and may seem discouraging to fair trial advocates in other countries. It is therefore important to keep in mind that the U.S. has made remarkable progress in improving fair trial standards in the past thirty-five years. Moreover, significant progress is undoubtedly possible in other lands. But the remaining shortcomings of the U.S. system do suggest that there are limits to the ability of any nation to achieve full compliance with the highest ideals of procedural fairness. In addition, it may be that the U.S. has relied too heavily on adversary procedures, to implement fair trial goals; some of the problems of the current U.S. system might be lessened (or avoided, in other countries) if a few elements of the

Civil Law model could be incorporated.

As to the first point: what are the practical limits of procedural fairness? One lesson of the U.S. experience is that certain procedural safeguards are very difficult to enforce, at least by means of court- administered rights and remedies. This is particularly true in two areas: limitations on search and seizure of physical evidence, and Miranda-type limits on interrogation practises. The fatal defect of procedures designed to limit search and seizure lies in the available remedies: as a practical matter, police supervisors and the courts will most often learn about those

63 illegal procedures which have resulted in seizure of incriminating evidence

(not the procedures which found no evidence). Yet the evidentiary fruits of illegal searches are almost always highly reliable, and usually show that the victim of the illegality is a criminal; police supervisors are unwilling to discipline officers who have caught guilty suspects by illegal means, and the courts (whose only practical remedy is exclusion of evidence) are likewise often unwilling to grant undeserved leniency to such suspects. Similar problems arise when attempts are made to limit pretrial interrogation practises; unfair questioning often produces very reliable evidence ( e.g., physical evidence, prosecution witnesses, or a corroborated confession).

In the U.S., the result of the dilemma described above is a set of legal rules for police investigatory conduct which cannot and will not be meaningfully enforced. Courts remain strongly ambivalent, and issue rulings of law which are dishonest and contradictory. Frequent dismissal of charges against clearly guilty defendants can also produce a backlash of popular and political reaction, and diminish support for fair trial rights generally. Moreover, an excessive concern with court-administered rules and remedies may deflect attention away from the need to develop broader, and more effective, preventive measures ( e.g., stricter internal regulation of search and seizure, by the police themselves; videotaping of all custodial interrogation procedures). Such measures often require action by legislators and/or administrative agencies. But heavy emphasis on judicially-defined rights and remedies may instead cause these key officials to take a "back seat" to the courts and adopt a reactive rather than a pro-active stance toward fair trial issues. 239 Other countries must therefore consider carefully whether it is wise to emulate the United States' heavy emphasis on judicially-enforced rights, particularly in areas where the enforcement of such rights often

239 Kent Roach & M.L. Friedland, "The Right to a Fair Trial in Canada" [initial Symposium draft, at pp. 32-3]

64 appears to be unrelated to factual guilt or important issues of human dignity.

At the same time, other countries should give greater attention than has the U.S. to certain procedures which have a high potential for causing the arrest and conviction of innocent persons. In particular, U.S. pretrial detention and plea bargaining practises interact with each other to produce very strong pressure to confess, and an unacceptably high risk that innocent defendants will plead guilty to obtain release from jail (in return for a

"time-already-served" sentence). The availability of the death penalty and other severe sentencing laws in the U.S. further increases the severity of the legal pressure which the police and prosecution can exert on uncooperative suspects, and thus also increases the risk of false conviction. Despite its very strong commitment to fair pretrial and trial standards in criminal cases,

U.S. law has failed to address adequately these important problems.

Is the adversary system itself to blame? Up to a point, adversary procedures are a very useful means to implement fair trial standards; systems should not rely solely on the competence and good will of police, prosecution, court, and correctional officials. But the adversary system has some major weaknesses. It can easily lead to the excesses of plea bargaining and punitiveness, noted above. More generally, the U.S. model encourages police and prosecutors to adopt an adversary posture mirroring that of the defence; but such officials sometimes ought to moderate their views, or even support the defence, in order to best serve the public interest -- including the protection of fair trial values for all citizens. The adversary system also sometimes relies too heavily on the effectiveness of defence counsel, and discourages courts from stepping in to protect the rights of the defendant.

Victims' rights are also difficult to fully implement in a system dominated by the attorneys for the prosecution and defence.

The challenge for all advocates of fair trial in the years to come -- in the U.S. and elsewhere -- is to find ways to combine the best features of the

Common Law and Civil Law models of criminal justice. Such procedural hybrids

65 already exist in certain countries. 240 As the world grows smaller and more inter-connected, the convergence and hybridization of legal systems will undoubtedly accelerate. In the process, there is reason to hope that the quality and fairness of criminal procedures will continue to improve.

240 See generally, Richard S. Frase and Thomas Weigend, "German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?" Boston College International & Comparative Law Review, vol. 18, pp. 317-60 (1995), especially pp. 352-60.

66 RELEVANT U.S. CONSTITUTIONAL PROVISIONS

Art. I, Sec. 9 (2): The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it.

Art. I, Sec. 9 (3): No bill of attainder, or ex post facto law, shall be passed.

Art. I, Sec. 10 (1): No state shall ... pass any bill of attainder, ex post facto law, ...

Art. III, Sec. 1: ...judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

Art. III, Sec. 2: ... The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Art. III, Sec. 3: Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of the blood, or forfeiture, except during the life of the person attained.

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment IV: 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.

67 Relevant U.S. Constitutional Provisions (continued)

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.

Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment XIV, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

68 STATUTES AND RULES CITED

Federal Rules of Criminal Procedure, contained in: Federal Criminal Code and Rules (West Publishing Co., 1995)

Minnesota Constitution, contained in: Minnesota Statutes, vol. 1

Minnesota General Rules of Practise for District Courts, contained in: Minnesota Rules of Court, State and Federal, 1996 (West Publishing Co., 1995)

Minnesota Rules of Civil Appellate Procedure, contained in: Minnesota Rules of Court, supra.

Minnesota Rules of Civil Procedure, contained in: Minnesota Rules of Court, supra.

Minnesota Rules of Criminal Procedure, contained in: Minnesota Rules of Court, supra.

Minnesota Rules of Evidence, contained in: Minnesota Rules of Court, supra.

Minnesota Statutes ["Minn. Stat."]

United States Code ["U.S. Code"]

69 OTHER REFERENCES

Lynn S. Branham & Sheldon Krantz, Sentencing, Corrections, and Prisoners' Rights in a Nutshell, 4th Ed. (1994).

U.S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 1994 (1995).

Martin J. Costello, Richard S. Frase & Stephen M. Simon, Minnesota Misdemeanors and Moving Traffic Violations, 2nd Ed (1990, and 1995 Cumulative Annual Supplement).

Richard S. Frase, "The Decision to File Federal Criminal Charges - A Quantitative Study of Prosecutorial Discretion," University of Chicago Law Review, vol. 47, pp. 246-330 (1980).

Richard S. Frase, "Comparative Criminal Justice as A Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?" California Law Review, vol. 78, pp. 539-683 (1990).

Richard S. Frase, "Criminal Justice System," Encyclopedia of the American Constitution, Supplement I, pp. 132-136 (1992).

Richard S. Frase and Thomas Weigend, "German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?" Boston College International & Comparative Law Review, vol. 18, pp. 317-60 (1995).

Wayne R. LaFave & Jerold H. Israel, Criminal Procedure (1984) [three-volume treatise].

Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, 2nd Ed. (1992, and 1995 pocket part) [one-volume treatise].

Wayne R. LaFave & Austin W. Scott, Criminal Law, 2nd Ed. (1986, and 1995 pocket part).

Frank C. Newman & David S. Weissbrodt, International Human Rights: Law, Policy, and Process (2nd ed. 1996).

John Shattuck, "Works in Progress: Human Rights and Domestic Law After the Cold War," Emory International Law Review, vol. 9, pp. 377-87 (1995)

70