Confrontation / Trial Rights Flashcards
what are ∆’s trial rights
- right to be present
- right to testify
- right to (some) control over arguments
- right to confront
when does a ∆ not have a right to be present
if disruptive or it’s not critical for a hearing
what is the right to control arguments
if ∆ acquiesces, counsel can pursue strategy of admitting guilt
if ∆ objects, counsel must not admit guilt. doing so would automatically be a violation for effective assistance
why do we respect right to confront
intrinsically important, jury can see, accountability, advances truth seeking
when does hearsay require confrontation
testimonial statements not during an ongoing emergency
when is confrontation not needed for hearsay
if the hearsay is not testimonial or ∆ personally ensure the witness couldn’t testify
what is testimonial hearsay under crawford
an out of court statement that the speaker expects will be used later on at trial
- statements to known officers during formal interrogation
- grand jury proceedings
- prior depositions
- any informal setting where the speaker reasonably believes their statement will be used later on at trial
what is the ongoing emergency exception
statements made to police during an ongoing emergency are non-testimonial (and don’t require confrontation) because the purpose is to render help
what is a Bruton problem
when one non-testifying co-defendant confesses after arrest, implicating other co-defendant
what could solve a Bruton problem
- severing ∆s and trying separately
- redacting statement for use in joint trial (but must fully redact it in a way that holds co ∆ harmless)
- have joint trial without using statement
can a defendant open the door to giving up his confrontation right by blaming a third party
no - defendant who faults third party for charged offense does not thereby open the door to admission of unconfronted statements by this third party
what counts as prejudicial comments by prosecutor
- can’t say that jury should make adverse inferences from ∆ not testifying
- can’t interject opinion about the strength of evidence or ∆’s guilt
hat is the test for prosecutor’s prejudicial comments
reversal is necessary if comments so infected the trial with unfairness as to make the resulting conviction a denial of due process
BUT invited error doctrine: if defense said it first, prosecutor isn’t at fault
is an Allen charge ok
yes
do verdicts have to be consistent
no
