Civil Litigation vs. Criminal Litigation Forum

[utlaw2007]

There is criminal litigation. There are collateral proceedings (post-conviction relief, habeas corpus, etc.) and direct appeals. Neither are prosecution or defense. Collateral proceedings actually function like civil trials, to make the distinction even more confusing. PCR can have discovery, summary judgment motions etc. just like a normal civil trial. Direct appeals are...well, appeals. I don't know if the AG offices act as prosecutors in that position or not.

I agree with you there. Yes, any rulings of law and the proceedings required to make such rulings are very similar in both civil and criminal. There's not much difference here.

[A. Nony Mouse]

utlaw - ah, the litigation/trial distinction, that makes sense, I got it now. Yes, there's way more pre-trial stuff on the civil side (often that's the only stuff) - you and kalvano are absolutely right that they're definitely very different worlds.

Scotusnerd - I've never seen summary judgment motions on PCR, but I've mostly worked on appeals of denials of PCR, and it may just be that the cases I dealt with didn't happen to have them. I would say all that stuff is still prosecution and defense in that the Prosecutors and Defense Attorneys are still representing the same parties - on appeals, the AG offices defend the conviction, and they oppose the defendant in the collateral proceedings (although I know in certain stages of post-conviction stuff the defendant doesn't get counsel by right). But it is a different part of criminal practice (that's largely ignored in law school, except maybe in some crim pro classes, I guess).

[Scotusnerd]

utlaw - ah, the litigation/trial distinction, that makes sense, I got it now. Yes, there's way more pre-trial stuff on the civil side (often that's the only stuff) - you and kalvano are absolutely right that they're definitely very different worlds.

Scotusnerd - I've never seen summary judgment motions on PCR, but I've mostly worked on appeals of denials of PCR, and it may just be that the cases I dealt with didn't happen to have them. I would say all that stuff is still prosecution and defense in that the prosecutors and defense attorneys are still representing the same parties - on appeals, the AG offices defend the conviction, and they oppose the defendant in the collateral proceedings (although I know in certain stages of post-conviction stuff the defendant doesn't get counsel by right). But it is a different part of criminal practice (that's largely ignored in law school, except maybe in some crim pro classes, I guess).

I think whoever represented the State varies depending on what state you're in. In my state, the AG's office handles the PCR, both at the trial court and supreme court. There are definitely summary judgment motions: the State files them all the time when the applicant misses a filing date or just doesn't have a justiciable issue. For example: they complain that their food is horrible in jail and file a PCR about it. That's obviously not what PCR is about, and gets kicked out of the system by a summary judgment motion. Rarely, an applicant will file one as well, but I've never seen them granted.

[A. Nony Mouse]

utlaw - ah, the litigation/trial distinction, that makes sense, I got it now. Yes, there's way more pre-trial stuff on the civil side (often that's the only stuff) - you and kalvano are absolutely right that they're definitely very different worlds.

Scotusnerd - I've never seen summary judgment motions on PCR, but I've mostly worked on appeals of denials of PCR, and it may just be that the cases I dealt with didn't happen to have them. I would say all that stuff is still prosecution and defense in that the prosecutors and defense attorneys are still representing the same parties - on appeals, the AG offices defend the conviction, and they oppose the defendant in the collateral proceedings (although I know in certain stages of post-conviction stuff the defendant doesn't get counsel by right). But it is a different part of criminal practice (that's largely ignored in law school, except maybe in some crim pro classes, I guess).

I think whoever represented the State varies depending on what state you're in. In my state, the AG's office handles the PCR, both at the trial court and supreme court. There are definitely summary judgment motions: the State files them all the time when the applicant misses a filing date or just doesn't have a justiciable issue. For example: they complain that their food is horrible in jail and file a PCR about it. That's obviously not what PCR is about, and gets kicked out of the system by a summary judgment motion. Rarely, an applicant will file one as well, but I've never seen them granted.

I think what those motions are called varies by state, too. At least, I've never seen those kind of motions in the criminal context called motions for summary judgment - I think they're just responses to defendant's motion for post-collateral relief. I agree that they pretty much serve the same purpose, in the sense of saying "this bozo doesn't have a claim as a matter of law."

(And yes, I mixed things up - our AG usually handles the PCR, too, I think. I should have said it's still state v. defendant rather than prosecutors specifically. I tend to think prosecution = whoever's representing the state.)

[Scotusnerd]

I think what those motions are called varies by state, too. At least, I've never seen those kind of motions in the criminal context called motions for summary judgment - I think they're just responses to defendant's motion for post-collateral relief. I agree that they pretty much serve the same purpose, in the sense of saying "this bozo doesn't have a claim as a matter of law."

(And yes, I mixed things up - our AG usually handles the PCR, too, I think. I should have said it's still state v. defendant rather than prosecutors specifically. I tend to think prosecution = whoever's representing the state.)

Yeah that makes sense, especially since PCR is so statutory. I bet different states have different approaches. I think AGs are misunderstood in how they represent the state. When an AG prosecutes, they are acting in a law enforcement role, prosecuting a crime committed against the laws of the state. They are bound by the ethical rules binding prosecutors, and are a part of the executive branch. But when an AG defends the State, whether against a post-conviction relief application or a constitutional action, I believe that AGs act as a normal lawyer who just happens to represent the State. I could be wrong though, it's a grey area.

[kalvano]

I did a ton of research into post-conviction stuff across all 50 states and districts, and not one called anything in a criminal trial a summary judgment.

[Scotusnerd]

I did a ton of research into post-conviction stuff across all 50 states and districts, and not one called anything in a criminal trial a summary judgment.

First, that might be because you looked for criminal not civil trials. At least in my state, the name of the trial is reversed (State v. John because John v. State) and the case is tried in the civil division rather than in criminal court. Second, the sorts of cases that have a summary judgment motion will very likely be unrecorded. States get thousands of PCR applications every year. Almost none of them result in reversals, and even less are published.

And in any case, I just finished working on a case where one occurred.

[kalvano]

I did a ton of research into post-conviction stuff across all 50 states and districts, and not one called anything in a criminal trial a summary judgment.

First, that might be because you looked for criminal not civil trials. At least in my state, the name of the trial is reversed (State v. John because John v. State) and the case is tried in the civil division rather than in criminal court. Second, the sorts of cases that have a summary judgment motion will very likely be unrecorded. States get thousands of PCR applications every year. Almost none of them result in reversals, and even less are published.

And in any case, I just finished working on a case where one occurred.

Very well may be, but I was looking at all kinds of stuff, and I had to look through cases that were barely a blip in a recorder. It's just weird to call it that.

[A. Nony Mouse]

Yeah that makes sense, especially since PCR is so statutory. I bet different states have different approaches. I think AGs are misunderstood in how they represent the state. When an AG prosecutes, they are acting in a law enforcement role, prosecuting a crime committed against the laws of the state. They are bound by the ethical rules binding prosecutors, and are a part of the executive branch. But when an AG defends the State, whether against a post-conviction relief application or a constitutional action, I believe that AGs act as a normal lawyer who just happens to represent the State. I could be wrong though, it's a grey area.

Hmm. In my state, I'm pretty sure the appellate division of the AG handles PCR as well as direct appeals, and it's all seen as part of the state's role of prosecuting crime.

Wait... are you thinking of prisoners' allegations of deprivations of civil rights? That's not the same as PCR. So when a prisoner complains because he wasn't given gluten-free vegan food in prison, that's a civil rights allegation, it's not a collateral attack on his conviction. Because these guys are always pro se, they may well couch it as something it's not, but it's still not the same. Yes, AGs who defend the state against these kinds of allegations are like the state's in-house counsel, and these are civil claims, and so they have discovery and summary judgment and so on. But PCR is specifically alleging that there was something about the sentence or the conviction that needs to be addressed, and that's all still part of the criminal justice system.

[Scotusnerd]

Hmm. In my state, I'm pretty sure the appellate division of the AG handles PCR as well as direct appeals, and it's all seen as part of the state's role of prosecuting crime.

Wait... are you thinking of prisoners' allegations of deprivations of civil rights? That's not the same as PCR. So when a prisoner complains because he wasn't given gluten-free vegan food in prison, that's a civil rights allegation, it's not a collateral attack on his conviction. Because these guys are always pro se, they may well couch it as something it's not, but it's still not the same. Yes, AGs who defend the state against these kinds of allegations are like the state's in-house counsel, and these are civil claims, and so they have discovery and summary judgment and so on. But PCR is specifically alleging that there was something about the sentence or the conviction that needs to be addressed, and that's all still part of the criminal justice system.

We have a similar system, but the direct appeals and PCR attorneys are distinct from each other. I guess it really depends.

Also, no I'm not thinking of prisoner's allegations or anything like that. I purposefully choose an example of what was clearly not a PCR claim and didn't belong in a PCR action. I know it's about ineffective assistance of counsel etc. Sorry if I was confusing.