Ex Post Facto Laws

What is an ex post facto law, and what does it have to do with you?

Ex post facto, like most latin phrases, is legalese. Its something lawyers can throw around to make themselves seem brighter. But its also something that is a violation of your constitutional rights. Ex post facto means after the fact. So an ex post facto law is one which is enacted after the fact, or after the action the prosecutor is accusing someone of.

Ex post facto laws, when they fit two criteria, are a violation of your constitutional rights and create an unfair situation for a defendant. The ex post facto clause of the Constitution embodies the theory that criminal sanctions must not be applied retroactively. The two criteria to make an ex post facto law a problem are:

  1. the law must be retrospective, it must apply to events which occurred before the law was enacted
  2. the law must disadvantage the defendant affected by it.

The criteria seem straightforward, but sometimes the law creates confusion. For example, the United States Supreme Court is currently faced with a question as to whether the Federal Sentencing Guidelines can be retroactively applied to a defendant. The retroactive application occurs when a past crime is grouped with a new offense at the higher offense category for purposes of multiple offense sentencing. That is, if a person committed federal fraud in the past, and then commits it again now, the past offense is considered at the new level for the purpose of determining sentences. This can cause some extremely harsh penalties when compared to the penalty from the old law, but has not been declared an ex post facto problem. See how it can get murky?

The 2nd Circuit has found that it is not a problem because the defendant has had fair notice of the grouping and the higher penalties. The 3rd Circuit has determined the opposite because it applies a new rule to an old crime and seems to cause the completed sentence t be increased by a later court at a later date. Due to the circuit split, it is important for the Supreme Court to make a determination.

Personally, I agree with the 3rd and 9th Circuits. The sentences for the old crimes are being retroactively increased, which disadvantages the defendant, and therefore certainly causes an ex post facto problem.

The Confrontation Clause: What Is It, and How Do I Use It?

The confrontation clause is a provision in the Sixth Amendment of the United State Constitution which provides that “in all criminal proceedings, the accused shall enjoy the right… to be confronted with all witnesses against him.” What this means for  the defendant is that he/she has the right to fully cross examine any and all witnesses who testify against you at trial.

This only applies at criminal proceedings. There are a very small number of cases where the defendant will not be allowed to actually see the witness, or the witness may be permitted to be examined in a room away from the defendant. One example might be where the witness is a child who suffered sexual abuse. Then the child is generally kept in a separate room and the defendant watches the testimony from closed circuit television. Face to face confrontation is preferred but it must sometimes be replaced where public policy or issues of travel prevent it.

If a statement is “testimonial” the witness must be cross examined (testimonial means it tells a story,it  offers facts for the court’s consideration).  Generally to be cross-examined the witness must be available (i.e. in court). When witness is unavailable or becomes unavailable the court should not allow the testimony to come in. The defendant may object to any questions asked where he would not be permitted to cross examine due to a lack of availability of the witness. Unavailability may be: death, loss of memory, taking the Fifth, or simply not answering the questions and refusing to cooperate.

If a witness is unavailable and the defendant had no previous opportunity to cross examine the witness, then the witness’s testimony should not be permitted at trial. If you think you have an issue where a witness is unavailable and/or full cross examination was not possible, contact your attorney, or if you are unrepresented contact this firm.

There are two exceptions to the confrontation clause:

  1. A dying declaration- where the proposed testimony is made by a person when they believe they are dying and they are subsequently unavailable for cross examination (just unavailable, not necessarily dead) then their testimony is considered truthful and it is permitted.
  2. Wrongdoing- where the defendant deliberately make the witness unavailable through some form of wrongdoing, then the defendant gives up any right to confront the witness. The key is that the wrongful act was done specifically to prevent the witness form testifying. That is a new concept I will be discussing at my other blog, within a few weeks.

All other laws must give way to the confrontation clause because it is in the constitution. This means that hearsay rules and rape shield laws will not prevent you from cross-examining a witness.

Where the information the witness would have given is non-testimonial, the confrontation clause does not apply.

Relevant expansion in Wyoming:

–          In accusations of sexual assault, the defendant is permitted to cross examine the victim about other relevant sexual activities, so long as both parties are over the age of majority. Hannon v. State.

–          A pretrial deposition by the defendant can be sufficient cross-examination of a witness such that an unavailable witness’s testimony could be given at trial. Martinez v. State.

–          Where a testimonial statement is entered, the witness must be allowed confrontation, the mere fact that the statement is given under oath or as a confession of some sort is not sufficient protection and admission of such a statement without opportunity to cross is not permissible. Vigil v. State.

Relevant expansion in Pennsylvania:

–          Pennsylvania holds differently from Wyoming and states that sufficient protection by the hearsay exceptions can remove the necessity for confrontation of the witness, even when the statements are testimonial. Commonwealth v. Carter (I believe this will be challenged at some point, but for now, it is the law in Pennsylvania)

–          The confrontation clause does not guarantee access to pretrial discovery, it is only a trial right. Commonwealth v. Herrick.

–          A trial judge retains wide latitude to determine how far cross-examination may go in the face of concerns like harassment, prejudice, confusion of the issues, witness safety, etc. Commonwealth v. Handfield.

Six Hundred Words About Pennsylvania’s Rule 600

The Pennsylvania Rules of Criminal Procedure Rule 600 considers the issue of speedy trials, and places a limit on when the Commonwealth can prosecute prior to dismissal for violation of your right to a speedy trial.

Right to a Speedy Trial:

The Sixth Amendment enumerates rights in criminal procedure, including the right to a speedy trial (and this right was imposed upon the Commonwealth through the Fourteenth Amendment). The speedy trial provision means that a person, who is accused of a crime and filed against in court, has a right to a quick adjudication. The speed that is required does depend in part on the crime committed and other factors.

The U.S. Supreme Court set out a test of four factors, which determine whether the right to a speedy trial was violated.

  1. Length of delay- the passing of more than 365 days from the date of the indictment raises a presumption of prejudice
  2. Reason for the delay- the reason for the government’s delay on the trial is to be taken into account
  3. Time and manner which the defendant asserted his right to a speedy trial- the defendant has the burden of challenging the violation
  4. The degree of negative effect the delay has had on the defendant and his case

Pennsylvania’s Rule 600

The Commonwealth largely follows the federal right to a speedy trial. The right is addressed by Rule 600. The Rule provides that a defendant is entitled to have trial within 180 days, if he or she is incarcerated, or within 365 days if the person is on bail. If the person is facing a new trial because of an appeal or a defect in the previous trial, then the count of days is 120. The date the time begins to run is the day the complaint is filed by the prosecution. If the case was transferred from juvenile court then the date to begin counting is the date of transfer.

Certain time is excluded from the count of days:

–          The period between filing the complaint and actually apprehending the defendant if the defendant could not be found

–          Any period in which the defendant waives his right to a speedy trial

–          Any period in which delay is caused by unavailability of the defendant or the defendant’s attorney

–          Any period of time that was given due to a motion filed by the defendant’s attorney

The count of days ends on the day which the defendant pleads guilty/nolo contendere, or when the judge calls the case to trial.

When the count of days exceeds 365, the defendant may apply to the court to have the charges dismissed with prejudice. This will precipitate a hearing in court.

The court looks at whether the Commonwealth was diligent in its preparation for trial. If the court finds that the delay was beyond the Commonwealth’s control and that the defendant has not been prejudiced, then a trial date will be set and the case will proceed to trial.

If the court determines that the Commonwealth was not diligent in attempting to prepare for trial or that the Commonwealth was purposefully delaying in order to prejudice the defendant, then the court will dismiss all charges and let the defendant go free.

If you or someone you know, is facing a criminal charge and you feel there may be a violation of your constitutional right to a speedy trial, you should contact your attorney. You should not wait until appeal to address this violation.  If you are unrepresented, contact us for more information and to discuss a possible violation.