Damages

1. State v. Strayhand, 184 Ariz. 571, 911 P.2d 577 (1995) rev. den. (1996)
   Promises that offer will ensure that the defendant goes to prison if he fails to cooperate are impermissible as means of obtaining confession.[8] threatening to inform prosecutor of suspects refusal to cooperate with violates her Fifth Amendment right to remain silent.
   
   
2. Bivens v. Six Unknown Agents, 403 US 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1970)
   When a government agent acts in an unconstitutional manner he becomes liable for money damages.
   
   
3. Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985)
   Joan v. City Of Chicago, 771 F.2d 1020 (7th Cir. 1985)
   Two women were strip searched and both collected large monetary damages.
   
   
4. Debiasio v. Illinois Cent. R.R., 52 F.3d 678 (7th Cir. 1995)
   Verdict of $4,201,000 awarded to injured railroad worker whose arm was amputated was not monstrously excessive, particularly as $1.2 million of damages represented lost earnings.
   
   
5. Deisler v. McCormack Aggregates, Co., 54 F.3d 1074 (3rd Cir. 1995)
   Compensatory damages serve to compensate for harm sustained by party.
   
   
6. Dunn v. Denk, 54 F.3d 248 (5th Cir. 1995)
   Award of $17,500 in attorney fees to civil rights defendant who had recovered only $10,000 in damages was not abuse of discretion.
   
   
7. Dunn v. Hovic, 1 F.3d 1371 (3rd Cir. 1993)
   

   1. Punitive damages were to be assessed with respect to harm defendant caused plaintiff and not other persons.
   2. Ability to pay is relevant factor in assessing award of punitive damages.

   
   
8. Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995)
   

   1. Punitive damages are appropriate in §1983 case only if judge finds conduct motivated by evil intent or callous indifference to plaintiff's federally protected rights.
   2. Trier of fact has considerable discretion in calculating damages under §1983, and damage award will not be reversed unless it is clearly erroneous.

   
   
9. Griffith v. State Of Colo., Div. Of Youth Services, 17 F.3d 1323 (10th Cir. 1994)
   Word "damages" is commonly understood to connote payment in money for defendant's losses caused by defendant's breach of duty.
   
   
10. Hafer v. Nielo, 502 US, 116 L.Ed.2d 301, 112 S.Ct. (1991)
    State officials held subject to personal liability for damages under 42 USCS §1983 based on official acts, where §1983 actions were brought against officials in their individual capacities.
    
    
11. Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991)
    Brunnemann v. Terr Intern, Inc., 975 F.2d 175 (5th Cir. 1992)
    Verdict is excessive as matter of law if shown to exceed any rational appraisal or estimate of damages that could be based upon evidence before jury.
    
    
12. Lester v. Resolution Trust Corp., 994 F.2d 1247 (7th Cir. 1993)
    Illinois law does not require lost profits to be proven with absolute certainty, but they must be established with reasonable degree of certainty.
    
    
13. Memphis Community School Dist. v. Stachura, 477 US 299, 91 L.Ed.2d 249, 106 S.Ct. 2537 (1986)
    Purpose of punitive damages is to punish the defendant for his willful or malicious conduct and to deter others from similar behavior.
    
    
14. Olympia Equip. Co. v. Western Union Telegraph Co., 797 F.2d 370 (7th Cir. 1986)
    Bounian v. Block, 940 F.2d 1211 (9th Cir. 1991)
    

    1. Speculation has its place in estimating damages, and doubts should be resolved against the wrongdoer.
    2. Reviewing court must uphold award of damages whenever possible and all presumptions are in favor of judgment.
       
       
15. Smith v. Wade, 461 US 30, 75 L.Ed.2d 632, 103 S.Ct. 1625 (1983)
    The Supreme Court held that a prison guard may be liable for "PUNITIVE" damages.
    
    
16. Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93 (2nd Cir. 1995)
    Punitive damages may not be so high as to shock judicial conscience.
    
    
17. US v. Balistrieri, 981 F.2d 916 (7th Cir. 1992)
    Punitive damages are appropriate in cases of reckless or callous disregard for plaintiff's rights or intentional violations of federal law.
    
    
18. Vasbinder v. Scott, 976 F.2d 118 (2nd Cir. 1992)
    Punitive damage award should not be so high as to result in financial ruin of defendant.
    
    

Back To Top

Defense to a Charge

1. State v. Davis, 206 Ariz. 377
   Defendant's 52-year sentence for four counts of sexual misconduct with a minor was grossly disproportionate to his crimes, because the post-pubescent victims were willing participants. They sought out defendant by voluntarily going to his home.
   
   
2. State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1998)
   Under the Gordon analysis, when two felonies are of the same class of felony and neither crime is clearly more serious than the other, court must look at the ultimate crime. Sexual conduct of a minor is a more serious of child molestation. When charged with sexual conduct the molestation is the lesser included offense and the jury should be instructed on that issue. In applying Gordon's second factor, must consider whether, given the entire transaction, it was factually impossible to commit the ultimate crime without also committing the secondary crime. If so then the likelihood will increase that the defendant committed a single act.
   
   
3. State v. Hunter, 142 Ariz. 88, 668 P.2d 980 (1984)
   It is a defense to a charge of molestation of a child that the defendant was not motivated by sexual interest.
   
   
4. State v. Klokic, 219 Ariz. 241
   In trial for aggravated assault, trial court erred in denying defendant's request to require the State to elect which particular act it was charging because defendant allegedly pointed a handgun on two separate occasions, which were not part of the same transaction.
   
   
5. State v. Machado, 138 P.3d 742
   Defendant was not entitled to spousal defense to sexual assault under Ariz. Rev. Stat. § 13-1401(4) because evidence did not support contention that defendant and wife were cohabitating. Renunciation of solicitation to murder was not admissible under Ariz. R. Evid. 803(3) because statement was not relevant as to state of mind.
   
   
6. State v. Sepahi, 204 Ariz. 185 (App. 2003)
   To constitute a dangerous crime against children within meaning of statute requiring penalties for certain enumerated offenses, the defendant's conduct must be focused on, directed against, aimed at, or targeted at a victim under the age of 15.
   
   
7. US v. Davis, 183 F.3d 231 (3rd Cir. 1999)
   Intoxication can negate specific intent.
   
   

Back To Top

Discovery

1. Banco De Credito Indus., Sa v. Tesoreria General, 990 F.2d 827 (5th Cir. 1993)
   Rules of Civil Procedure contemplate that parties will be afforded adequate time to conduct necessary discovery.
   
   
2. Charash v. Oberlin College, 14 F.3d 291 (6th Cir. 1994)
   Purpose of discovery after motion for summary judgment is to test truth of allegations of the pleadings.
   
   
3. Church Of Scientology Of San Francisco v. IRS, 991 F.2d 560 (9th Cir. 1993)
   Party may need to use discovery to establish whether adequate Freedom of Information (FOIA) search has occurred.
   
   
4. Doe v. Roe, 187 Ariz. 605
   Where an adult victim of child abuse suffered from a repressed memory of such abuse, the applicable statute of limitations began to run when the victim first remembered the alleged abuse.
   
   
5. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (11th Cir. 1985)
   Federal Rules of Civil Procedure strongly favor full discovery whenever possible.
   
   
6. Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422 (Fed. Cir. 1993)
   Federal Rules of Civil Procedure contemplate liberal discovery in interest of just and complete resolution of disputes.
   
   
7. Murray v. Carrier, 477 US 478, 106 S.Ct. 2639
   Petitioner filed petition for writ of habeas corpus. The United States District Court for the Eastern District of Virginia dismissed case, and petitioner appealed. The Court of Appeals for the Fourth Circuit, 724 F.2d 396, reversed and remanded. On rehearing en banc, the Court of Appeals, 754 F.2d 520, adopted panel majority's decision, and certiorari was granted. The Supreme Court, Justice O'Connor, held that petition for habeas review of procedurally defaulted discovery claim was subject to dismissal for failure to establish cause for default. Reversed and remanded.
   
   
8. State v. Armstrong, 208 Ariz. 345
   In a murder case, the prosecutor did not act in bad faith or engage in willful misconduct by entering into a last-minute plea agreement with defendant's girlfriend to obtain her testimony; the prosecutor's change of strategy was reasonable.
   
   
9. State v. Killean, 185 Ariz. 270
   The trial court did not abuse its discretion in precluding admission of corroborative documentary evidence as a sanction for defendant's violation of discovery rules by failing to reveal the existence of the evidence until trial.
   
   
10. State v. Krone, 182 Ariz. 319
    Defendant's murder conviction was reversed because the proper sanction for the state's last-minute disclosure of crucial videotape evidence against defendant should have been a continuance or preclusion of the evidence.
    
    
11. State v. Riggs, 186 Ariz. 573
    In a forgery case, court held that defendant's inquiry into victim's exercise of right to decline a pre-trial interview was improper because victim had a constitutional right to decline a pretrial interview; thus, forgery conviction was affirmed.
    
    
12. State v. Tucker, 157 Ariz. 433
    An undisclosed witness was permitted to testify at defendant's murder trial. Because defendant knew of the existence of the witness prior to trial, he was not prejudiced thereby, and the testimony was properly allowed.
    
    
13. State v. Wilson, 152 Ariz. 127
    The federal crime of misprision of felony was not the equivalent to the state crime of hindering prosecution therefore the federal crime could not be used as a prior offense to enhance defendant's punishment.
    
    
14. US v. Drogoul, 1 F.3d 1546 (11th Cir. 1993)
    Depositions are disfavored in criminal cases.
    
    
15. US v. Kalter, 5 F.3d 1166 (8th Cir. 1993)
    Subpoena duces tecum must be reasonable and specific, and documents sought must be relevant.
    
    
16. US v. Nixon, 418 US 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (1974)
    The Supreme Court expounded on the rules of discovery.
    
    
17. Weatherford v. Bursey, 429 US 545, 51 L.Ed.2d 30, 97 S.Ct. 837 (1977)
    US v. Grier, 866 F.2d 908 (7th Cir. 1989)
    There is no general constitutional right to discovery in a criminal case.
    
    
18. Williamson v. US Dept. Of Agriculture, 815 F.2d 368 (5th Cir. 1987)
    If discovery could uncover one or more substantial issues, plaintiff was entitled to reasonable discovery prior to district court's granting of motion for summary judgment.
    
    

Back To Top

Division of Power

1. Allcarn v. Bailey, 104 Ariz. 250, 451 P.2d 30 (1969)
   It is essential that sharp separation of power be carefully preserved by courts so that one branch of government not be permitted unconstitutionally to encroach upon the functions properly belonging to another.
   
   
2. State ex rel. Corbin v. Superior Court, 138 Ariz. 500
   The presiding judge of a superior court was required to reassign several inmates' post-conviction relief petitions to the sentencing judges because the local rules, which provided otherwise, conflicted with the Rules of Criminal Procedure.
   
   
3. State v. Berger, 164 Ariz. 426
   Defendant's sentence for a conviction for a dangerous crime against children in second degree was modified to delete all reference to lifetime parole. Lifetime parole provision, as it related to second-degree offenders, violated separation of powers.
   
   
4. State v. Montes, 245 P.3d 879
   The Supreme Court of Arizona held that SB 1449, which made amendments to Arizona's self-defense statute, Ariz. Rev. Stat. § 13-205(A), retroactive, was a valid exercise of legislative authority and did not violate the separation of powers doctrine in Ariz. Const. art. 3.
   
   
5. Martinv. Moore, 61 Ariz. 92, 95, 143 P.2d 334, 335 (1943)
   By declaring the meaning of an “existing law”, the legislature violates separation of powers.
   
   
6. State v. Buonafede, 168 Ariz. 444
   No legal authority existed for the trial court to issue a "Certificate of Rehabilitation" for a defendant who had been convicted of a felony, completed probation, and was granted an order restoring his civil rights.
   
   
7. State v. Jones, 142 Ariz. 302 (App. 1984)
   The concept of separation of power is fundamental to constitutional government as we know it.
   
   
8. State v. Murray, 194 Ariz. 373
   Pursuant to the separation of powers doctrine the legislature did not have the authority to retrospectively change a court ruling to deny defendant eligibility for parole on defendant's conviction for sexual assault.
   
   

Back To Top

Double Jeopardy / Forfeiture

1. Arizona Constitution Article 2 § 10 Due Process.
   Hernandez v. Superior Court ex rel. Co. of Maricopa, 179 Ariz. 515, 880 P.2d7 35 (1994)
   The mere fact that petitioner could be subject to more than one sanction for the same conduct does not raise the double jeopardy bar to the present prosecution; the federal and state Constitution do not bar multiple prosecutions or multiple punishments for the same conduct as long as each charged offense requires proof of at least one element not required for the other offenses.
   
   
2. Abney v. US, 431 U.S. 651, 660-62 (1977)
   Double jeopardy challenges immediately appealable because double jeopardy clause protects against even at risk of conviction including personal strain, public embarrassment, and expense of a trial more than once for same offense.
   
   
3. Ashford v. Edwards, (1985, CA4 NC) 780 F.2d 405
   First inquiry in considering claim that multiple punishments were imposed for single offense must be directed to question of legislative intention as to whether continuing criminal episode should be treated as a single offense for which only one punishment may be imposed or as two or more units of prosecution based upon particular factors of time or other circumstances dividing hole into discrete parts.
   
   
4. Austin v. US, 509 U.S. 1125 L.Ed.2d 488, 113 S.Ct. (1993)
   

   1. Eighth Amendment excess fines clause held to apply to drug related forfeitures of property to United States under 21 U.S.CS §§881(a)(4) and 881(a)(7).
   2. Certain civil forfeiture actions constitute "punishment" under HALPER.

   
   
5. Baker v. Metcalf, CA5 (Tex) 1981, 633 F.2d 1180, reh denied, 638 F.2d 1234, cert. denied, 101 S.Ct. 2055, 451 U.S. 974, 68 L.Ed.2d 354
   Right not to be put twice in jeopardy of life and limb was a fundamental right applicable to the states through USCA 14 and therefore habeas corpus petition was proper to review state court adjudication of petitioners constitutional plea of double jeopardy.
   
   
6. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 206 to, 23 L.Ed.2d 707 (1969)
   McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1989)
   Article 2 § 10 of the Ariz. Constitution affords similar protection.  The double jeopardy clause provides three distinct guarantees to a criminal defendant, (1) freedom from reprosecution following acquittal (2) freedom from reprosecution following conviction, and (3) freedom from multiple punishments for the same offense.  The Fifth Amendment double jeopardy provision is applicable to state through fourteenth amendment. Defendant cannot be forced to waive valid double jeopardy plea.
   
   
7. Booker v. Phillips, (1969, CA10 Kan) 418 F.2d 424,cert. denied, (1970) 399 U.S. 910, 26 L.Ed. 564, 90 S.Ct. 2194
   If defendant is charged with first-degree murder and convicted of first-degree manslaughter, and conviction is later reversed and remanded for new trial, he cannot be prosecuted for first-degree murder in 2nd trial, since this would violate constitutional guarantee against double jeopardy.
   
   
8. Brown v. Alabama, (1980, CA5 Ala) 619 F.2d 376
   Double jeopardy test as to what constitutes same offense is satisfied if each offense requires proof of fact that the other does not, even though there may be substantial overlap in proof offered to establish crimes.
   
   
9. Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d 187, 194 (1977)
   If each provision requires proof of an additional fact that the other does not, they're not the same offense.
   
   
10. Brown v. State, (1986, Fla App. D5) 483 S.Ct..2d 743, 11 FLW to 71, 11 FLW 536
    If two statutory offenses have exact same essential constituent elements, or when one statutory offense includes all elements of other, those two offenses are constitutionally the same offense, and person cannot be put in jeopardy as to both such offenses unless two offenses are based on two separate and distinct factual events.
    
    
11. Burks v. US, 437 U.S. 1 (1978)
    For the purpose of determining whether the double jeopardy clause precludes a second trial after the reversal of a conviction, a reversal based on insufficiency of evidence is to be distinguished from a reversal for trial error.  In holding the evidence insufficient to sustain [437 U.S. 1, 2] guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt.  Given the requirements for entry of a judgment of acquittal, to permit a second trial would negate the purpose of the double jeopardy clause to forbid a second trial in which the prosecution would be afforded another opportunity to supply evidence that it failed to muster in the first trial.
    
    
12. Crist v. Bretz, 437 U.S. 28, 37-38 (1978)
    The double jeopardy limitations now apply to both federal and state governments and state rules on double jeopardy, with regard to such matters as when double jeopardy attaches, must be considered in light of federal standards.
    
    
13. Curry v. Superior Court of San Francisco, (1970) 2 Cal 3d 707, 87 Cal Rptr 361, 470 P.2d 345
    Decision of United States Supreme Court applying double jeopardy provision of the Fifth Amendment two states does not forbid state from according to greater degree of protection to defendants.
    
    
14. Dixon v. Dupnik, (1982, CA9 Ariz.) 688 F.2d 682
    State statute which prohibits commission of felony while released on bail or recognizance violates double jeopardy clause of the Fifth Amendment.  Since elements of conviction required for proof under statute subsumes elements of underlying felony.
    
    
15. Durrough v. State, (1981, Tex Crim) 620 SW.2d 134
    Defendant may be tried to second time for offense when prior conviction for that same offense is set aside on appeal; where reversal grants appellant new trial he may be tried on original indictment or are the new indictments charging same offense.
    
    
16. Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386 (5th Cir. 1995)
    Test for double jeopardy is whether each offense requires proof of additional fact which the other does not.
    
    
17. Grady v. Corbin, 495 U.S. 508, 109 L.Ed.2d 548, 110 S.Ct. 2084 (1990)
    US v. Easley, 942 F.2d 405 (6th Cir. 1991)
    The double jeopardy clause bars subsequent prosecution where to establish essential element of offense, prosecutor will prove conduct constitution previously prosecuted offense.
    
    
18. Green v. US, 355 U.S. 184, 2 L.Ed.2d 199, 87 S.Ct. 221 (1961)
    The Constitutional right not to be placed in double jeopardy, being a vital safeguard in American society, should not be given a narrow, grudging application.
    
    
19. Hernandez v. Superior Court, 179 Ariz. 515, 522, 880 P.2d 735, 742 (App. 1994)
    Arizona's courts generally interpret this clause in conformity to the interpretation given by the U.S. Supreme Court to the federal double jeopardy clause.
    
    
20.  Lemke v. Rayes, 213 Ariz. 232, TT 10, 141 P.3d 407, 411 (App. 2006)
    U.S. Constitution, amendment five, Arizona Constitution, Article 2 §10 multiplictious charges alone do not violate double jeopardy; only resulting multiple convictions or punishments are prohibited. The mere commencement of retrial can violate double jeopardy. The Double Jeopardy Clause also incorporates the additional protection of collateral estoppel. In criminal cases, collateral estoppel is not favored and therefore sparingly applied. See also: State v. Rodriguez, 198 Ariz. 139, 141, TT 6, 7 P.3d 148, 150 (App. 2000)
    
    
21. Lutes v. State, (1980) 272 Ind. 699, 401 NE.2d 671
    Defendant can waive constitutional rights against double jeopardy if he fails to raise it by objection in timely manner.
    
    
22. Montana Dept. Of Rev. v. Kurth Ranch, 511 U.S. 1 128 L.Ed.2d 767, 114 S.Ct. (1994)
    Montana's assessment of tax on possession and storage of dangerous drugs, in proceeding separate from state criminal prosecution on drug charges, held to violate Fifth Amendment's double jeopardy clause.
    
    
23. Morgan v. Devine, (1915) 237 U.S. 632, 59 L.Ed. 1153, 35 S.Ct. 712
    Defendant has been in jeopardy if on the first charge he could have been convicted of offense charged in 2nd proceeding.
    
    
24. North Carolina v. Pearce, 395 U.S. 711,717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)
    Illinois v. Vitale, 447 US 410, 415,100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)
    The Supreme Court has held that the double jeopardy clause contains three separate guarantees.  First it protects against a second prosecution for the same offense after acquittal.  Second, it protects against a second prosecution for the same offense after conviction.  Third it protects against multiple punishments for the same offense.
    
    
25. North Carolina v. Pearce, 395 U.S. 711, 23 L.Fd.2d 656, 89 S.Ct. 2072 (1969)
    US v. Mintz, 16 F.3d 1101 (10th Cir. 1994)
    

    1. Double jeopardy clause protects against second prosecution for same offense after acquittal, second prosecution for same offense after conviction, and against multiple punishments for same offense.
    2. Government violates double jeopardy clause if it divides single conspiracy into multiple prosecutions.

    
    
26. Note: In other words the prosecutor cannot reprove or use a crime you've already been prosecuted or convicted of to prove his current case.
    
    
27. Note:  The double jeopardy clause of the Fifth Amendment protects the defendant against multiple prosecution for the same offense, and applies to the state through the fourteenth amendment.
    
    
28. Ohio v. Johnson, (1984) 467 U.S. 493, 81L.Ed.2d 425,104 S.Ct. 2536, reh.  denied, (1984) 468 U.S. 1224, 82 L.Ed.2d 915, 105 S.Ct. 20
    Double jeopardy clause (1) protects against 2nd prosecution for same offense after acquittal, (2) protects against 2nd prosecution for same offense after conviction and (3) protects against multiple punishments for same offense. Double jeopardy clause protects against multiple punishments following retrial, defendant receives credit for time already served.
    
    
29. Price v. Georgia, (1970) 398 US 323, 26 L.ed.2d 300, 90 S.Ct. 1757
    Fifth Amendment's double jeopardy prohibition is not being twice punished, but against being twice put in jeopardy; "twice put in jeopardy" language relates to potential risk that accused for second time will be convicted of "same offense" for which he was initially tried.
    
    
30. Reimintz v. State's Attorney of Cook County, 761 F.2d 405, C.A. 7 (Ill.) 1985.
    State criminal defendant who has colorable double jeopardy claim is entitled to seek federal habeas corpus relief prior to retrial; burden of 2nd trial is one of the harms that double jeopardy clause is intended to prevent, and they harm that, unlike the harm of conviction, is irreparable once the 2nd trial has been conducted.
    
    
31. Schiro v. Farley, 510 US 222, 223, 114 S.Ct. 783, 127 L.Ed.2d  47 (1994)
    The defendant carries the burden of demonstrating that the issue whose re-litigation he seeks to foreclose was actually decided in the first proceeding.
    
    
32. State v. Brown, 217 Ariz. 617, TT 7, 177 P.3d 878, 881 (App. 2008)
    The double jeopardy clause of the US and Arizona constitutions protect criminal defendants from multiple convictions and punishments for the same offense. TT 13 at 882
    
    
33. State v. Cook, 185 Ariz. 358, 365, 916 P.2d 1074, 1081 (App. 1995)
    There is no indication that there is a different double jeopardy analysis under the Ariz. Constitution.
    
    
34. State v. Eagle, 196 Ariz. 188 TT 5, 994 P.2d 395, TT 5 (2000)
    We review de novo whether double jeopardy applies.
    
    
35. State v. Fero, (1987) 105 NM 339, 732 P.2d 866
    Double jeopardy does not barred consecutive sentencing where different elements are required to provide in order to sustain that multiple convictions and different evidence is admitted to prove different elements.
    
    
36. State v. Halper, 490 U.S. 435,109 S.Ct. 1892, 104 L.Ed.2d 489 (1989)
    To require remand, not dismissal on double jeopardy issue.
    
    
37. State v. Hill, (App. Div. 1, 1999) 26 Ariz. App. 37, 545 P.2d 999
    In order for principal of double jeopardy to apply, the two alleged crimes must have identical components, test to be applied in whether facts charged in later information would if found true, have justified conviction under earlier information.
    
    
38. State v. Leyva, (Ariz. App. Div. 1, 1995) 909 P.2d 506, C.A. 2 (Conn) 1995
    US v. Morgan, 51 F.3d 1105
    Double jeopardy clause safeguards individuals against three distinct abuses: (1) 2nd prosecution for same offense after acquittal; (2) 2nd prosecution for same offense after conviction; and (3) multiple punishments for same offense.
    
    
39. State v. Millanes, 180 Ariz. 41/8, 421, 885 P.2d can 106,109 (App. 1994)
    State v. Powers, 200 Ariz. 123, TT 5, 23 P.3d 668 TT 5 (App. 2001) approved, 200 Ariz. 363, 26 P.3d 1134 (2001)
    Prohibition against double jeopardy is fundamental right that is not waived by the failure to raise it in the trial court. TT10 district statutory provisions constitutes the same offense if they are comprised of the same elements.Judicial expansion of statutory language can violate defendants due process rights to a fair warning of proscribed conduct. See generally ARS 13-101
    
    
40.  State v. McGill, 213 Ariz. 147 TT 21, 140 P.3d 930, 936 (2006)
    A double jeopardy violation constitutes fundamental, prejudicial error.
    
    
41. State v. Ortega, 2008 WL 4571814 (Ariz.App. Div. 2)
    Both offenses, sexual conduct with a minor under fifteen and molestation of a child require the same mens rea, and both may only be committed against a victim who is under the age of fifteen. Furthermore, by penetrating the penis, vulva, or anus with a body part or object or by engaging in masturbatory contact with the penis or vulva, one has necessarily also touched, fondled, or manipulated the genitals or anus of that person. Therefore, one cannot commit sexual conduct with a minor under fifteen without also committing molestation of a child. Molestation is a lesser included offense of sexual conduct with a minor under the age of fifteen. Accordingly, Ortega's conviction of both the greater and the lesser offenses violates the Double Jeopardy Clause, Lemke, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413-14, and we must vacate his conviction for molestation of a child. See also State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).
    
    
42. State v. Powers, 200 Ariz. 123, P.5, 23 P.3d  668, P.5 (App.2001) approved 200 Ariz. 936, 26 P.3d 1134 (2001) State v. Moody, 208 Ariz. 424, 437  P.18, 94 P.3d 1119, 1132 (2004)
    The court determines de novo whether the state violated a defendant’s right against double jeopardy.
    
    
43. State v. Price, 218 Ariz. 311, TT 5, 183 P.3d 1279, 1281 (2008)
    In determining whether offenses are the  “same” for the purpose of double jeopardy analysis, we look to the elements of the offenses and not to the particular facts that will be used to prove them.
    
    
44. State v. Salazar, (App. Div. 1, 1975) 24 Ariz. App. 472, 537 P.2d 946
    In determining whether facts are so intertwined as to preclude more than one charge, test is to eliminate elements in one charge in determining whether facts left with support other charge.
    
    
45. State v. Siddle, 202 Ariz. 512, 47 P.3d 1150 (Ariz. App. Div2, 2002)
    The state and federal double jeopardy clause is generally provide the same protection to criminal defendants.
    
    
46. State v. Soloman, (1980) 125 Ariz. 18, 607 P.2d 1
    Jeopardy attaches as soon as jury is impaneled.
    
    
47. Simpson v. US, (1978) 435 U.S. 6, 55 L.Ed.2d 70, 98 S.Ct. 909
    Double jeopardy clause of the Fifth Amendment protects and prohibits against multiple punishments for same offense and prohibits multiple prosecution for same offense.
    
    
48. Swisher v. Brady, (1978) 438 U.S. 204, 57 L.Ed.2d 705, 98 S.Ct. 2699, 25 FR Ser 2d 1463
    Ariz. v. Washington, (1978) 43 U.S. 497, 54 L.Ed.2d 717, 98 S.Ct. 824
    Constitutional protection against double jeopardy unequivocally prohibits second trial following acquittal, and so strong is public interest in finality of criminal judgments that acquitted defendant may not be tried even though acquittal was based upon egregiously erroneous foundation; if innocence of accused has been confirmed by final judgment, Constitution conclusively presumes that second trial would be unfair.
    
    
49. Swisher v. Brady, (1978) 438 U.S. 204, 57 L.Ed.2d 705, 98 S.Ct. 2699, 25 FR Ser 2d 1463
    Central purpose of double jeopardy clause is prohibition against successive trials is to bar prosecution from another opportunity to supply evidence which it failed to muster in the first proceeding.
    
    
50. Thomas v. Kerby, 44 F.3d 884 (10th Cir. 1995)
    Two checks forged and deposited on the same day gave rise to only one offense under New Mexico's single larceny doctrine and thus, separate convictions violated double jeopardy clause.
    
    
51. US v. $405,089.23 In US Currency, 33 F.3d 1210 (9th Cir. 1994)
    The Ninth Circuit held that the seizure and forfeiture of narcotics proceeds DOES constitute punishment, such that the Double Jeopardy Clause is implicated.
    
    
52. US v. Ball, (1896) 163 US 662, 41 Ed. 300,16 S.Ct. 1192
    Prohibition is not against being twice punished , but against being twice put in jeopardy , and accused whether convicted or acquitted is  equally put in jeopardy at first trial.
    
    
53. US v. Blockburger, 284 U.S. 299, 304 (1982)
    On post-trial double jeopardy review, the defendant alone carries the burden of proving double jeopardy. The Blockburger test determines whether multiple prosecutions for single act constitutes prosecution for the same offense.  Under Blockburger, double jeopardy has subsequent prosecutions for a single act unless the act can be prosecuted and punished under different statutory provisions that require proof of different elements.
    
    
54. US v. Boney, 977 F.2d 624 (1992)
    Neither due process nor the double jeopardy clause requires that a defendant convicted on multiple counts under the same statute received a different sentence from a defendant convicted of only one count.
    
    
55. US v. Bradford, (1975, D.C. App.) 344 A.2d 208
    Charging of different offenses in single count of indictment may infringe right to protection against double jeopardy because, if count is to pleasures and it is unclear of which crimes accused has been convicted, he may thereby be vulnerable to subsequent prosecution for offense for which he has once been tried.
    
    
56. US v. Chick, 61 F.3d 682 (9th Cir. 1995)
    Double jeopardy clause precludes government from bringing separate civil forfeiture action based on same offense for which claimant/defendant has already been criminally prosecuted; correspondingly, where claimant/defendant has been subjected to civil forfeiture that amounts to punishment and judgment has already been entered, double jeopardy clause precludes government from bringing separate criminal action for same offense.
    
    
57. US v. Christiansen, (1994, CA9 Cal.)  18 F.3d 822, CDOS 2360, 94 daily journal DAR 4446
    District Court committed reversible error by failing to conduct in-depth colloquy as to whether defendants written waiver of jury trial was voluntary, knowing and intelligent where there was reason to suggest that defendant suffered from mental and emotional instability.
    
    
58. US v. Dortch, 5 F.3d 1056, 1060 (7th Cir. 1993)
    Defendant has burden because lower standard in pretrial jeopardy based on concern with defendants limited access to information, which is not a problem in post trial review.
59. US v. Fiallo - Jacome, 784 F.2d 1064 ( CA11 Fla 1986)
    Double jeopardy clause barred imposing eight consecutive sentences on defendant for two counts of possession of cocaine where one count charging defendant with possession on specific date in Florida town was included with another count charging possession over four-month period in Miami and elsewhere in Southern district of Florida, in light of conclusion that defendant had  continuous possession.
    
    
60. US v. Garner, 32 F.3d 1305 (8th Cir. 1994)
    Double jeopardy clause does not bar federal prosecution of defendant who had been prosecuted for same acts in state court.
    
    
61. US v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989)
    Civil proceedings designed to impose "punishment" may implicate double jeopardy concerns.
    
    
62. US v. Keller, (1980, CA3 PA) 624 F.2d 1154
    Doctrine of collateral estoppel as applied in criminal case bar is not only reprosecution but also evidence of crime which defendant has been acquitted in prior prosecution.
    
    
63. US v. McCaslin, 863 F.Supp. 1299 (W.D. Wash. 1994)
    

    1. Double jeopardy clause is not limited to "life or limb" sanctions, and applies to imprisonment and monetary penalties as well.
    2. Label "civil" attached to penalty makes no difference in determining whether penalty is punishment for double jeopardy purposes. A Seattle court granted habeas corpus relief to a man convicted of narcotics trafficking on the grounds that a civil judgment of forfeiture which served to "punish" him under AUSTIN was entered prior to his conviction and the conviction was barred under the Double Jeopardy Clause and vacated. Mr. McCaslin was the first man to walk out the front door of a correctional facility on HALPER - AUSTIN grounds.

    
    
64. US v. McCormick, 992 F.2d 437 (CA2 VT 1993)
    Double jeopardy clauses protection against multiple punishment was violated by defendants prosecution for fraud related conduct that had already been used to determine his guideline offense level in prior prosecution, since defendants prosecution for conduct that was already incorporated into prior sentence would be second punishment within meaning of clause.
    
    
65. US v. Moos, (1981, CA9 Alaska) 660 F.2d 748
    Jeopardy attaches in double punishment context when defendant begins serving sentence; if defendant has not begun serving sentence pursuant to challenge to order, jeopardy has not attached and if Ct. reverses and remands for sentencing, sentence on remand would not constitute jeopardy.
    
    
66. US v. Nash, (1971, CA4 VA) 447 F.2d 1382
    Defendant is twice put in jeopardy when verdict at second trial depends upon resolution of any matter previously tested and found in favor of defendant when acquitted at first trial.
    
    
67. US v. Rivera, (1989, CA1 Mass) 872 F.2d 507, cert. denied, (1989) 493 U.S. 818, 107 L.Ed.2d 38,110 S.Ct. 71
    Defendant's failure to plead defense of double jeopardy did not constitute knowing and intelligent waiver of right, absent evidence of knowing and plain error was applicable since it would be absolute defense.
    
    
68. US v. Rodriguez, (1980, CA5 Fla,) 612 F.2d 906,reh denied, (1980, CA5 Fla) 617 F.2d 1214 and aff'd (1981) 450 U.S. 333, 67 L.Ed.2d 275, 101 S.Ct. 1137
    Test to determine whether there are two offenses or only one is whether each provision requires proof of fact which other does not and focus is on elements of offense charged, not on evidence adduced at trial.
    
    
69. US v. Salamone, (1989, CA3 PA) 869 F.2d 221, cert. denied, (1989) 493 US 895, 107 L.Ed.2d 196,110 S.Ct. 246 and motion gr., vacated on other grounds, remanded (1990) 493 US 1038,107 L.Ed.2d 826, 110 S.Ct. 830
    Where juries acquittal of defendant in the first prosecution necessarily was grounded upon its resolution of particular issue, reprosecution is constitutionally barred under principle of collateral estoppel where redetermination of issue would be essential to defendants conviction.
    
    
70. US v. Seley, 957 F.2d 717, 7 22-23 (9th Cir. 1992)
    Although double jeopardy analysis under Blockburger did not preclude retrial of defendant, evidence relating to charges for which defendant was acquitted barred by collateral estoppel and thus government could not retry defendant.
    
    If there is no relitigation of factual issues resolved at an earlier trial, a court will not go beyond the Blockburger test to consider collateral estoppel.
    
    
71. US v. Sutton, (1983, CA6 Ohio) 700 F.2d 1078
    Under double jeopardy clause, where same act or transaction constitutes violation of two distinct statutory provisions, test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of additional fact which the other does not.
    
    
72. US v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998)
    Defendant bears burden of proving double jeopardy on post-trial review.
    
    
73. Wade v. Hunter, 336 U.S. 684, 93 L.Ed.2d 974, 69 S.Ct. 934 (1949)
    Greyson v. Kellam, 937 F.2d 1409 (9th Cir. 1991)
    Ordinarily, when conviction is overturned because of trial error, state is free to retry defendant until he is convicted in error‑free trial, though once he is acquitted, whether or not in error free proceeding, that is the end and the bar of double jeopardy descends.
    
    
74. Walker v. Lockhart, (1980, CA8 Ark.)  620 F.2d 683, cert denied, (1981) 449 U.S. 1085, 66 L.Ed.2d 811,101 S.Ct. 874
    Defense counsel in criminal case cannot validly waive constitutionally protected right of defendant to be free from double jeopardy in absence of intelligent and involuntary consent by defendant to action that counsel proposes to take; however this rule does not apply in an unusual case in which exceptional circumstances exist which make it mandatory in interest of justice to permit waiver of constitutional claim over objection of defendant.
    
    
75. Willhauck v. Halpin, 953 F.2d 689 (1st Cir. 1991)
    US v. Butler, 41 F.3d 1435 (11 th Cir. 1995)
    Jeopardy attaches in a jury trial after the jury is empanelled and sworn, or in the case of a bench trial, when the court begins to hear the evidence.

Back To Top

Drugs

1. Gray v. Irwin, 195 Ariz. 273, 987 P.2d 759
   Defendant sought special action relief from prison sentence imposed by the Superior Court, La Paz County, No. CR 98-000244, Michael Irwin, J., for second conviction of possession of dangerous drugs. The Court of Appeals, Berch, J., held that: (1) for a second drug possession conviction, defendant who had prior felony conviction for non-violent, non-drug-related offense could only be placed on probation, subject to terms including treatment and up to a year in jail, and (2) sentencing court erred when it treated prior non-violent felony as prior drug possession conviction to boot-strap defendant into provision requiring prison sentence for defendants with three convictions for personal drug possession or use. Jurisdiction accepted; relief granted.
   
   
2. In Re Kurth Ranch, 986 F.2d 1308 (9th Cir. 1993)
   Montana's marijuana tax was unconstitutional on its face and, as applied, violated taxpayer's double jeopardy rights.
   
   
3. Smith v. US, 508 US 124 L.Ed.2d 138, 113 S.Ct. (1993)
   Exchange of gun for narcotics held to constitute use of firearm during and in relation to drug trafficking crime.
   
   
4. State v. Farley, 106 Ariz. 119, 471 P.2d 731
   State brought original proceeding request for special action following order by Superior Court that justice court lacked jurisdiction to enter judgment that defendant was guilty of driving while under influence of intoxicating liquor. The Supreme Court, McFarland, J., held that enactment of statute providing for imposition of additional 10% Of amount of fine for violation of statute prohibiting driving while under influence of alcoholic beverages or drugs was not intended to change maximum fine of $300 or thereby deprive justice court of jurisdiction, but was only intended to provide means of raising money, and maximum fine under each of the statutes, including additional 10% of fine, could not exceed $300 limit. Order of Superior Court vacated.
   
   
5. State v. Vargas-Burgos, 162 Ariz. 325, 783 P.2d 264
   Defendant pled no contest in the Superior Court, Pima County, Cause No. CR-24337, Thomas Meehan, J., to charge of unlawful possession of marijuana. State appealed from sentence imposed by trial court. The Court of Appeals, Howard, J., held that: (1) trial court's failure to impose mandatory fine raised question of subject matter jurisdiction which was not waived by State's failure to object below, and (2) sentence not in compliance with mandatory provisions of sentencing statute was illegal and appealable. Sentence vacated and matter remanded.
   
   
6. US v. $31,990 In US Currency, 982 F.2d 851 (2nd Cir. 1993)
   Possession of large amount of cash is not per se evidence of drug related illegal activity for forfeiture purposes.
   
   
7. US v. $53,082.00, 985 F.2d 245 (6th Cir. 1993)
   Evidence did not establish probable cause to justify forfeiture of cash; narcotics detection dog's reaction could not be used to establish probable cause, as it was illegally obtained and no other evidence showed substantial connection between cash and illegal drug activity.
   
   
8. US v. Crain, 33 F.3d 480 (5th Cir. 1994)
   Mere occupancy of place in which drugs are found is insufficient to establish constructive possession of the drugs.
   
   
9. US v. Crespo, 982 F.2d 483 (11th Cir. 1993)
   Negotiations between defendant and agents for five or three kilograms of cocaine which was never delivered, were insufficient in themselves to prove capability of defendant to actually produce either five or three kilos and thus, sentence for conspiracy to distribute cocaine and conspiracy to possess it with intent to distribute could not be based on five or three kilos.
   
   
10. US v. Delaney, 52 F.3d 182 (8th Cir. 1995)
    Ration of 100 - to - 1 between crack cocaine penalties did not violate equal protection rights of black defendant sentenced for crack cocaine offense.
    
    
11. Note: The Constitution only authorized 2 federal crimes; 1) treason; and 2) counterfeiting. All other crimes are matters of state jurisdiction which means that all federal drug crimes are unconstitutional. Congress got around this roadblock by simply writing the drug laws under CIVIL not CRIMINAL authority. All federal drug laws come under Title 21 USC. and are not part of the criminal code which is Title 18. In sum the Government is applying criminal sanctions to a civil law.
    
    
12. US v. Estrada, 42 F.3d 228 (4th Cir. 1994)
    When amount of drugs for which defendant should be held accountable at sentencing is disputed, district court must resolve factual question.
    
    
13. US v. Johnson, 26 F.3d 669 (7th Cir. 1994)
    US v. Hanif, 1 F.3d 998 (10th Cir. 1993)
    

    1. To establish constructive possession of a controlled substance, government must show ownership, dominion or control over drugs or premises or vehicle in which they were concealed.
    2. "Constructive possession" means that the defendant has some appreciable ability to guide destiny of drugs.

    
    
14. US v. Johnson, 46 F.3d 1166 (D.C. Cir. 1995)
    To prove crime of use of a firearm during crime of drug trafficking, government must show: (1) that defendant used or carried firearm, and (2) that use or carrying of firearm was during and in relation to predicate offense.
    
    
15. US v. Lindsey, 47 F.3d 440 (D.C. Cir. 1995)
    Mere proximity to drugs or guns is not sufficient to establish possession; constructive possession requires that defendant knew of, and was in a position to exercise dominion and control over, the contraband.
    
    
16. US v. Martinez, 44 F.3d 148 (2nd Cir. 1995)
    Simple possession of cocaine is not a "felony" under federal law and thus will not provide basis for conviction of use of a firearm during a drug trafficking crime.
    
    
17. US v. McOuagge, 787 F.Supp 637 (E.D. Texas 1992)
    Reasonable suspicion that defendant is involved in illegal drugs cannot, standing alone, justify protective search of auto.
    
    
18. US v. McMurray, 34 F.3d 1405 (8th Cir. 1994)
    To enhance defendant's sentence for possession of firearm in connection with drug offense, government must prove preponderance of evidence connection between gun and criminal activity; mere possession of firearm is not sufficient of trigger enhancement.
    
    
19. US v. Morrison, 991 F.2d 112 (4th Cir. 1993)
    Mere joint tenancy of residence in which narcotics are found is insufficient to prescribe possession to all occupants.
    
    
20. US v. Premises Known As R,R. No. 1, 14 F.3d 864 (3rd Cir. 1994)
    Mere possession of cocaine on property for property owner's own personal use was insufficient, standing alone, to support civil forfeiture of the property.
    
    
21. US v. Robinson, 35 F.3d 442 (9th Cir. 1994)
    Until marijuana cutting develops roots of its own, it is not a plant itself but a mere piece of some other plant and therefore. marijuana cuttings are not "plants" for sentencing purposes unless there is readily observable evidence of root formation.
    
    
22. US v. Teffera, 985 F.2d 1082 (D.C. Cir. 1993)
    It is not a crime simply to travel, even knowingly, with someone who is carrying drugs.
    
    
23. US v. Thorne, 997 F.2d 1504 (DC Cir. 1993)
    US v. Dunlap, 28 F.3d 823 (8th Cir. 1994)
    Mere presence is not sufficient to support conviction for narcotics possession.
    
    
24. US v. Vaandering, 50 F.3d 696 (9th Cir. 1995)
    US v. Butler, 41 F3d 1435 (11th Cir. 1995)
    Finding as to quantity of drugs for which defendant was responsible, for purposes of computing sentence, must be supported by preponderance of the evidence.

Back To Top

Due Process

1. 5 USC § 556(d), 557, 706
   Once due process is denied all jurisdiction ceases. The above US code is made applicable in the state by instrumentality rule with:
   28 USC § 3001/3002 (15)(A)(C)
   Wherefore any alleged jurisdiction has already been voided by the denial of due process.
   
   
2. Arizona Constitution, article 2 § 4
   In deciding whether a person has been deprived of a protected liberty or property interest without due process of law, a three tier analysis is used. 1) Does the states action implicate a protected liberty interest; 2) if so does the states interest justify the degree of infringement on the liberty interest; and 3) if so, is appropriate process provided to assure that liberty is not arbitrarily deprived? 
   
   
3. A.R.S. 21-412 Evidence on behalf of person under investigation.
   The person under investigation shall have the right to advice of counsel during the giving of any testimony by him before the grand jury, provided that such counsel may not communicate with anyone other than his client.
   
   Without notification of the date, time and place of the grand jury proceedings, it is impossible to exercise this right. Therefore due process has been denied.
   Owen v. City of Independence, 100 S. Ct. 1398
   Maine v. Thiboutot, 100 S. Ct. 2502
   Hafer v. Melon, 502 US 21
   42 USC § 1983
   18 USC § 241/242
   28 USC § 1746
   
   
4. Arnstrong v. Monzo, 380 US 545, 552, 14 L.Ed.2d 62, 85 S.Ct. 1187 (1965)
   Matthews v. Eldridge, 424 US 319, 333, 47 L.Ed.2d 18, 96 S.Ct. 892 (1976)
   Kelm v. Hyatt, 44 F.3d 415 (6th Cir. 1995)
   

   1. Due process requires as general matter opportunity to be heard at meaningful time and in a meaningful manner.
   2. Citizens must be afforded due process before deprivation of life, liberty or property.

5. Blaylock v. Schwinden, 856 F.2d 107 (9th Cir. 1988)
   Judges have no immunity.
   
   
6. Rochin v. California, 342 US 165, 96 L.Ed 183, 72 S.Ct. 205 (1952)
   Substantive due process refers to certain actions that the government may not engage in, no matter how many procedural safeguards it employs.
   
   
7. Broyles v. Lewis, 66 F.3d 334
   The federal district court denied the inmate's petition for habeas corpus relief from his child molestation conviction. On appeal, the inmate argued that relief was warranted because numerous errors had deprived him of a fair trial in violation of the due process clause and his trial and appellate attorneys' errors had deprived him of effective assistance of counsel. The court reversed the denial and directed a writ of habeas corpus be issued unless the inmate was given a new trial or allowed to appeal his conviction. The court concluded that the inmate had been denied effective assistance of appellate counsel during his direct appeal to the state appellate court. The court found that appellate counsel's various errors and omissions, his failure to investigate key portions of the trial record, and his misunderstanding of the judicial appellate process constituted deficient performance. The inmate had been prejudiced because there was a reasonable probability that the outcome of the appeal would have been different absent the errors and omissions.
   
   
8. Buttons v. Nevin, 44 Ariz. 247, 257
   Public officials may not violate the plain terms of a statute because in their opinion, better results will be obtained by doing so. They have a duty, and that is to enforce the law as it is written, and, if the effect of their action is disastrous, the responsibility is upon the Legislature, and not upon them. But if they knowingly, even with the best intentions in the world, violate the law, they and their bondsmen must take the consequences.
   
   
9. Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986)
   Liberty interest protected under due process clause may be either interest protected by due process clause itself or interest created by state or federal law.
   
   
10. Carroll v. Robinson, 1 CA-Cv. 91-0593, COURT OF APPEALS OF Ariz.ONA, DIVISION ONE, DEPARTMENT D, 178 Ariz. 453; 874 P.2d 1010; 1994 Ariz. App. LEXIS 98; 164 Ariz. Adv. Rep. 76, May 12, 1994, Filed. AFFIRMED IN PART; REVERSED IN PART; REMANDED
    Accusations of child molestation leading to former school director's termination implicated his Fourteenth Amendment liberty interest, which required that he be afforded procedural due process from State of Ariz.ona, state agencies, and employees.
    
    
11. Chambers v. Mississippi, 410 US 284 (1973)
    A defendant has a due process right under the federal and state constitutions to present a defense. There is a fundamental concern of due process which is that a defendant be allowed to present any defense that needs a minimal standard of reliability. For example it is established by federal law that when a hearsay statement bears persuasive assurance of trustworthiness and is critical to a defense, preclusion of the statement may rise to the level of a due process violation. See also: Chia v. Cambra, 360 F.3d 997 (9th Cir.2004)
    
    
12. Chiah v. Cambra, 360 F.3d 997 (9th Cir.2004)
    Trial court erred in excluding the hearsay statements by alleged co-conspirator exonerating defendant and inculpated co-conspirator because the evidence was sufficiently reliable and due process required admissibility of evidence.
    
    
13. Curry v. Secretary of Army, (1979) 194 US App. D.C. 66, 595 F.2d 873
    Showing of actual prejudice is not prerequisite to finding conviction constitutionally invalid on due process grounds.
    
    
14. DeWeese v. Town Of Palm Beach, 812 F.2d 1365 (11th Cir. 1987)
    Citizen's liberty interest in personal dress is protected by due process.
    
    
15. Fowler v. Sacramento CO Sheriffs, 421 F.3d 1027
    Defendant-Appellant Jeff Fowler was convicted of annoying or molesting Charla Lara in violation of California Penal Code § 647.6 following a jury trial in which he was precluded from cross-examining Lara regarding two prior incidents in which she alleged that other men had molested her. We conclude that the proffered cross-examination sufficiently bore upon Lara's reliability or credibility such that the jury might reasonably have questioned it and, thus, that the cross-examination implicated Fowler's Sixth Amendment [**2] right to confrontation. We further conclude that the trial court's implicit determination -- that precluding the proffered cross-examination, rather than limiting it, was not unreasonable, arbitrary or disproportionate given the trial court's concerns about waste of time, confusion of the issues, and prejudice -- was itself objectively unreasonable. Finally, because Lara's testimony was crucial to the State's case, which, in any event, was not strong, we conclude that this error had substantial and injurious effect or influence in determining the jury's verdict. We therefore reverse the district court's order denying Fowler's petition for a writ of habeas corpus, and remand for issuance of a conditional writ.
    
    
16. Fushek v. State, 215 Ariz. 274
    The State charged defendant with the misdemeanors of assault and contributing to the delinquency of a minor. A justice court ruled that these offenses were not jury eligible. Defendant brought a special action in Maricopa County Superior Court (Ariz.ona) challenging the denial of a jury trial, and the superior court granted relief. The State appealed. The appellate court reversed the superior court's ruling and remanded the case to the justice court for further proceedings.
    
    
17. Harmon v. Marshall, (1995 CA9 Cal) 57 F.3d 763, 95 CDOS 4296, 95 daily journal DAR 7442
    Defendants due process rights were violated by courts failure to instruct jury on any of elements constituting two counts out of 12 on which prisoner was convicted and era required automatic reversal even though evidence establishing defendants guilt on charges was overwhelming.
    
    
18. In re Appeal in Maricopa County Juvenile Action etc., No. 15389-PR, Supreme Court of Arizona, 131 Ariz. 25; 638 P.2d 692; 1981 Ariz. LEXIS 266, December 7, 1981. Reversed and remanded. Court
    A father was denied due process when he was not given the opportunity to challenge his daughter's testimony in chambers because the testimony was to establish parental misconduct, giving him the right under an adversary process to cross-examine her.
    
    
19. Lambert v. California, 355 US 225, 2 L.Ed.2d 228, 78 S.Ct. 240 (1957)
    US v. Layne, 43 F.3d 127 (5th Cir. 1995)
    Prosecution of citizen who is unaware of any wrongdoing for "wholly passive conduct" violates due process.
    
    
20. Lambright v. Lewis, 932 F.SUPP. 1547 (Ariz. 1996)
    State trial courts violation of state law constitutes violation of Federal constitutional right to due process.
    
    
21. Large v. Superior Court ex rel. County of Maricopa, 148 Ariz. 229, 714 P.2d 399 (1986)
    State v. Flower, 159 Ariz. 469, 768 P.2d 201 (1989)
    Where a defendant has been denied an essential component of due process, such denial constitutes fundamental air.
    
    
22. Main v. Gibson, 287 F.3d 1224 (10th Cir. 2002)
    Conviction upon charges not made in charging instrument constitutes denial of due process.
    
    
23. Marco v. Superior Court, 17 Ariz. App. 210, 496 P.2d 636 (1972)
    Due process contemplates that no citizen shall be deprived of life, Liberty, or property without reasonable notice and a reasonable opportunity to be heard according to the regular and established rules of procedure.
    
    
24. Marquez v. Rapid Harvest Co., 1 Ariz. 562, 565, 405 P.2d 814 (1965)
    Protection of the rights of individuals is the bedrock of our nation and we cannot judicially depart from the Constitution, all rights preserved therein. It is our absolute duty to protect constitutional rights.
    
    
25. Matter Of Special March 1981 Grand Jury, 753 F.2d 575, 580 (9th Cir. 1985)
    Even temporary deprivation of property entitled property owner to due process which means, as a general rule, reasonable notice and opportunity for fair hearing.
    
    
26. McKinney v. Boles, N.D. W.VA. 1966, 254 F.Supp. 433
    Court must be guided in federal habeas corpus cases by federal due process standards rather than by state criteria.
    
    
27. McSherry v. City of Long Beach, No. 06-55837, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 560 F.3d 1125; 2009 US App. LEXIS 6911, February 14, 2008, Argued and Submitted, Pasadena, California, March 30, 2009, Filed. AFFIRMED in part, REVERSED in part, VACATED
    Officer was denied qualified immunity on § 1983 claim he fabricated evidence, as victim denied providing description of home where rape occurred that officer ascribed to victim. Fabricating evidence would violate plaintiff's due process right not to be subjected to criminal charges based on false evidence that government deliberately fabricated.
    
    
28. Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995)
    Conviction of accused who is legally incompetent violates due process.
    
    
29. Muse v. Sullivan, 925 F.2d 785 (5th Cir. 1991)
    Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995)
    Due process requires that litigant claim be heard by fair and impartial fact finder applies to administrative as well as judicial proceedings.
    
    
30. Olson v. Walker, 162 Ariz. 174, 781 P.2d 1015 (Ct. App. 1989)
    A person may be punished or deprived of property only after due process has been accorded.
    
    
31. Osborne v. Ohio, No. 88-5986 , SUPREME COURT OF THE UNITED STATES, 495 US 103; 110 S. Ct. 1691; 109 L. Ed. 2d 98; 1990 US LEXIS 2036; 58 USL.W. 4467, December 5, 1989, Argued , April 18, 1990, Decided
    Although a statute prohibiting possession or viewing of child pornography was constitutional under the First Amendment, the Due Process Clause required the state to prove each element of the statute to sustain a conviction.
    
    
32. Pearson v. City Of Grand Blanc, 961 F.2d 1211 (6th Cir. 1992)
    Fourteenth Amendment substantive due process requires that both state legislative and administrative actions that deprive citizens of life, liberty and property must have some rational basis.
    
    
33. Price v. Barry, 53 F.3d 369 (D.C. 1995)
    Liberty interest may arise from either due process clause itself or from state law.
    
    
34. Roviaro v. US, 353 US 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)
    The problem of balancing competing interests, privilege versus a proper defense, is a difficult one, but the balance always weighs in favor of achieving a fair determination of the cause. A state’s rules of evidence cannot deny and accused’s right to present a proper defense.
    
    
35. State v. Brady, 122 Ariz. 228, 230, 594 P.2d 94, 96 (1979)
    Exclusion of witnesses testimony violated due process because it went to the heart of the defense and was material.
    
    
36. State v. Dann, 205 Ariz. 557, 568 TT30, 74 P.3d 231, 242 (2003)
    An appellate court reviews the trial court’s refusal to allow evidence of a third-party defense for abuse of discretion.
37. State v. Espinosa, 200 Ariz. 503
    Because Espinosa's Rule 32 claim was precluded, the trial court abused its discretion in granting post-conviction relief. We therefore grant review and grant relief. The trial court's order giving Espinosa an opportunity to accept the plea agreement is vacated.
    
    
38. State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 236, 836 P.2d 445, 449 (App.1992)
    Subsumed within the right to present a defense is a defendant’s ability to show that another person committed the crime for which he is charged.
    
    
39. State v. Garcia, 2009 Ariz. App. LEXIS 807
    Defendant argued there was insufficient evidence to support ten of his convictions and that the trial court imposed illegal sentences for three of his convictions. The appellate court found that sufficient evidence supported the jury's conclusion defendant had taken steps that he had intended to culminate in touching his daughter sexually and the daughter touching his penis, thereby committing attempted child molestation and attempted sexual conduct with a minor. Given the evidence, the jury could have concluded defendant's touching of a victim's leg was a step planned to culminate in molesting the victim. A reasonable jury could have concluded defendant intentionally fondled his daughter's buttocks, planning to progress to fondling her vagina or anus. Ariz. Rev. Stat. § 13-1404(A) proscribed sexual contact with the female breast, regardless of its developmental stage, of a person under fifteen years of age. For count six, attempted sexual conduct with his daughter, the jury did not determine the victim's precise age, and the case had to be remanded for that determination and any necessary alteration to defendant's sentence. The judgment was affirmed except for defendant's sentence for attempted sexual conduct with a minor as alleged in count six; the case was remanded to the trial court for the state to establish the victim's age and for defendant to be resentenced on that count if necessary.
    
    
40. State v. Getz, Supreme Court No. CR-96-0595-PR, SUPREME COURT OF Ariz.ONA, 189 Ariz. 561; 944 P.2d 503; 1997 Ariz. LEXIS 93; 250 Ariz. Adv. Rep. 10, August 14, 1997, Filed , As Corrected November 25, 1997.. AFFIRMED IN PART REVERSED IN PART. Memorandum
    Giving a sexual abuse statute its plain meaning, one would clearly believe that a person between the ages of 14 and 17 could consent to a sexual touching and thus, the state should have been required to prove a victim's lack of consent.
    
    
41. State v. Gibson, 202 Ariz. 321, 323 TT12, 44 P.3d 1001, 1003 (2002)
    To be relevant, the evidence need only tend to create a reasonable doubt as to the defendant’s guilt, Id at 324, TT16, 44 P.3d at 1004. To be relevant the evidence need only tend to create a reasonable doubt as to the defendant’s guilt.
    
    
42. State v. Johnson, No. 1 CA-CR 7517, Court of Appeals of Ariz.ona, Division One, Department B, 145 Ariz. 482; 702 P.2d 711; 1985 Ariz. App. LEXIS 537, April 16, 1985 , Review Denied July 2, 1985. REVERSED AND REMANDED
    Although it was an especially grave step to require a new trial when to do so made it necessary for children to testify again, there was no valid conviction without due process of law.
    
    
43. State v. McCumber, 112 Ariz. 569, 573, 544 P.2d 1084, 1086 (1976)
    It is basic that an accused has the right to present a defense to a criminal charge and to accomplish this right the accused has the right to compel the attendance of witnesses and the right to present their testimony.
    
    
44. State v. Mejas, 163 Ariz. 531, 532, 789 P.2d 398, 399 (App.1990)
    Error to exclude accomplices here say confession that exculpated defendant, but lacked corroborating evidence, “on the grounds that confession might be false.”
    
    
45. State v. Noble, No. 1 CA-CR 88-1281, Court of Appeals of Ariz.ona, Division One, Department C, 167 Ariz. 440; 808 P.2d 325; 1990 Ariz. App. LEXIS 399; 75 Ariz. Adv. Rep. 61, December 13, 1990 , Review Granted April 23, 1991. Affirmed in part; Reversed in part
    Requirement that defendant register as sex offender after conviction and sentence for child molestation and sexual conduct with minor violated Ex Post Facto Clause of Ariz.ona constitution where it was a criminal penalty applied retroactively.
    
    
46. State v. Oliver, 169 Ariz. 589, 590, 821 P.2d to 50, 251 (1991)
    State v. Tankersley, 191 Ariz. 359, 369 TT38, 956 P.2d 486, 496 (1998)
    The appropriate evidentiary analysis to determine if a defendant is entitled to make a third-party defense is found in Rules of Evidence rule 401, 402 and 403
    
    
47. State v. Tibbetts, 281 N.W.2d 499
    We are of the opinion that the charge as given obscured and diluted the time-honored rule that in a criminal case the state must prove all facts beyond a reasonable doubt, and accordingly we hold that defendant was denied due process [**4] of law and is entitled to a new trial. By instructing the jury that "the touching could reasonably be construed as being for the purpose of satisfying the defendant's sexual impulses" the degree of proof was shifted from acts which must be proved beyond a reasonable doubt to acts which could reasonably be construed or interpreted to be for an improper purpose. In ordinary parlance the use of the word "could" means something which is "possible," here suggesting to a jury that it had the right to convict if it found that an improper purpose was only one of several reasonable alternatives. It was tantamount to charging that if this purpose could reasonably be inferred, to reach a verdict of guilty the jury need not exclude other reasonable inferences which might lead to an opposite conclusion. In other words, by failing to charge that proof of guilt must be beyond a reasonable doubt and by charging instead that it could merely be a reasonable construction of the evidence the protection afforded an accused is emasculated and the jury is invited to select one of several possible conclusions if each of them can be logically supported.
    
    
48. State v. Von Reeden, 9 Ariz. 190, 450 P.2d 702 (1969)
    Requires state to inform defendant of nature and cause of the charges against him.
    
    
49. US v. Augen Blick, (1969) 393 US 348, 21 L.Ed.2d 537, 89 S.Ct. 528
    Apart from criminal trials conducted in violation of express constitutional mandates, constitutionally unfair trial takes place where barriers and safeguards are so relaxed or forgotten that proceeding is more spectacle or trial by ordeal than disciplined contest.
    
    
50. US v. Baker, 999 F.2d 412 (9th Cir. 1993)
    Due process requires that defendant's be able to exercise their constitutional right to remain silent and not be penalized at trial for doing so.
    
    
51. US v. Barker Steel Co., Inc., 985 F.2d 1123 (1st Cir. 1993)
    US v. Nevers, 7 F.3d 59 (5th Cir. 1993)
    

    1. When a person of ordinary intelligence does not receive fair notice that his contemplated conduct is forbidden, prosecution for such conduct deprives him of due process.
    2. "Fair warning doctrine" invokes due process rights and requires that criminal statute at issue be sufficiently definite to notify persons of reasonable intelligence that their planned conduct is criminal.

    
    
52. US v. Bodiford, (1985, CA5 Tex) 753 F.2d 380
    "No punishment without law to authorize it." Is requisite of due process; and defendant may be convicted only for offense defined by statute, not because his conduct is reprehensible.
    
    
53. US v. Boothe, 994 F.2d 63 (2nd Cir. 1993)
    Due process bars prosecutor from making knowing use of false evidence and conviction may not stand if such evidence has any reasonable likelihood of affecting judgment of jury.
    
    
54. US v. Conkins, 987 F.2d 564 (9th Cir. 1993)
    Due process of law is violated when government vindictively attempts to penalize a person for exercising protected statutory or constitutional rights.
    
    
55. US v. Deters, 143 F.3d 577 (10th CIR. 1998)
    When government action deprives a person of life, liberty or property without fair procedures it violates procedural due process.
    
    
56. US v. Guthrie, 789 F.2d 356 (5th Cir. 1986)
    For the government to punish a person because he had done what the law plainly allows him to do is a due process violation of the most basic sort.
    
    
57. US v. Henderson, 19 F.3d 917 (5th Cir. 1994)
    When hearing is necessary to protect defendant's due process rights, then failure to hold hearing would be abuse of discretion.
    
    
58. US v. Ienco, 92 F.3d 564, 570 (7th Cir. 1996)
    Failure to submit element of crime to jury not subject to harmless error analysis.
    
    
59. US v. Uchimura, 92 F.3d 564, 570 (9th Cir. 1997) (en Banc)
    Removal of an element from the jury is a structural error that cannot be harmless.
    
    
60. US v. Williams, 998 F.2d 258 (5th Cir. 1993)
    Prosecutor's suppression of evidence which would tend to exculpate defendant or reduce his sentence violates due process.
    
    
61. Washington v. Texas, 388 US 14, 87 S.Ct. 1920, 18 L. Ed. 2d 1019 (1967)
    Even a claim of privilege may have to give way when faced with the necessity by the accused to present a defense.
    
    
62. Weimer v. Amen, 870 F.2d 1400 (8th Cir. 1989)
    Cornerstone of due process is prevention of abusive governmental power.
    
    
63. Weaver v. Graham, 450 US 24, 101 S.Ct. 960
    State prisoner sought writ of habeas corpus challenging application to him of change in state law with respect to good time or gain time credits. The Supreme Court of Florida, 376 So.2d 855, denied the application and certiorari was granted. The Supreme Court, Justice Marshall, held that: (1) for a criminal or penal law to be ex post facto, it must be retrospective and it must disadvantage the offender affected by it; (2) the effect, not the form, of the law, determines whether to ex post facto; (3) fact that statute reducing good time credits was enacted in conjunction with other statutes providing additional bases for credits against sentence did not save it from an ex post facto challenge; and (4) as applied to a prisoner whose crime was committed before its effective date, the statute reducing the amount of good time credit violated the ex post facto clause. Reversed and remanded.

Back To Top

Duress

1. State v. Herrera, 174 Ariz. 387
   An 18-year old who shot a police deputy at his father's direction had his death sentence reduced to life imprisonment because the trial court failed to consider the mitigating circumstance of duress during the sentencing phase of defendant's trial.
   
   
2. State v. Kinslow, 165 Ariz. 503
   Defendant, who was convicted for crimes committed during his escape from a penitentiary, was not entitled to assert his duress offense because he failed to show that he feared imminent physical injury from a governor's "shoot to kill" order.
   
   
3. State v. Sands, 145 Ariz. 269
   A promise of immunity given by a sheriff to defendant was unenforceable because it was obtained by duress while defendant held the sheriff at gunpoint.
   
   
4. State v. Starks, 122 Ariz. 531
   Defendant charged with armed robbery was not entitled to the admission of testimony regarding his subjective state of mind where his defense of duress required the application of the objective standard that his actions were reasonable.
   
   
5. State v. Strayhand, 184 Ariz. 571, 911 P.2d 577 (1995) rev. den. (1996)
   Promises that offer will ensure that the defendant goes to prison if he fails to cooperate are impermissible as means of obtaining confession.[8] threatening to inform prosecutor of suspects refusal to cooperate with violates her Fifth Amendment right to remain silent.
   
   
6. US v. Sixty Acres In Itowah Co., 930 F.2d 857 (11th Cir. 1991)
   General concern that conspirator might retaliate does not establish duress defense.
   
   
7. US v. Bailey, 444 US 394, 62 L.Ed.2d 575, 100 S.Ct. 624 (1980)
   The availability of a duress and necessity defense held to depend on there being a bona fide effort to surrender or return.
   
   
8. US v. Bifielo, 702 F.2d 342 (2nd Cir. 1983)
   Defendant appealed on the grounds that the court did not allow him a duress defense on an escape charge. (Authors Note: this case explains the criteria for a duress defense)
   
   
9. US v. Contento - Packon, 721 F.2d 691 (9th Cir. 1984)
   The district court refused to allow a defense of duress. The appellate court reversed and said that the defendant presented a triable issue of the fact.
   
   
10. US v. Johnson, 956 F.2d 894 (9th Cir. 1992)
    There are 3 elements of a duress defense; immediate threat of death or serious body injury, well grounded fear that threat will be carried out, and no reasonable opportunity to escape threatened harm.
    
    
11. US v. LaFleur, 971 F.2d 200 (9th Cir. 1991)
    When defendant commits a criminal act under the direct threat of another person, defendant commits crime under "duress."
    
    
12. US v. Mitchell, 725 F.2d 832 (2nd Cir. 1983)
    In federal trials once a defendant introduces evidence sufficient to warrant jury instruction on duress defense, government must disprove at least one element of that defense beyond reasonable doubt.
    
    
13. US v. Rawlings, 982 F.2d 590 (D.C. Cir. 1993)
    Defendant cannot claim defense of duress when he had, but passed up, opportunity to seek aid of law enforcement officials.
    
    
14. US v. Riffe, 28 F3d 565 (6th Cir. 1994)
    Defendant has preliminary burden to introduce some evidence to trigger consideration of duress defense, although that burden is not a heavy one.
    
    
15. US v. Veilleux, 40 F.3d 9 (1st Cir. 1994)
    Uncontrollable duress, to excuse defendant's failure to appear for sentencing must be sufficient to produce unavoidable fear of serious bodily injury or death.
    
    
16. US v. Webb, 747 F.2d 278 (5th Cir. 1984)
    Necessity or duress may excuse conduct that is otherwise criminal.

Back To Top

For questions or comments about this website contact: jcoghill2@cox.net