Trial Rights & Procedures

Question 1

What are two ways a person may be formally charged with a crime?

Answer 1

A person may be formally charged with a crime by:
1. grand jury indictment; OR
2. “information”

Remember: An information is more commonly used as a charging device than an indictment

Question 2

Define: grand jury

Answer 2

Group of people who act as an investigative body to determine whether there is sufficient probable cause to bring charges against a suspect. Required for all criminal felonies charged by the federal government.

More info: Grand Juries

Question 3

What is a grand jury indictment?

Answer 3

A grand jury indictment is a written accusation that a person has committed a crime, which a prosecutor submits to the grand jury for a decision on whether to issue the formal indictment

Remember: The indictmenet also serves to notify the accused of the charges brought against them

Question 4

What is the difference between an information and a grand jury indictment used to charge an accused?

Answer 4

• An information is a written accusation of charges against someone, initiated by a police officer or prosecutor
• By contrast, a prosecutor may submit charges against someone to a grand jury, which may choose whether to issue an indictment charging the accused with the crime

Remember: In most states, an information may be used instead of an indictment to charge someone

Question 5

What constitutional right is not binding on the states in the criminal legal system?

Answer 5

The Fifth Amendment right to indictment by grand jury in criminal cases is NOT binding on the states

Remember: All other constitutional rights have been selectively incorporated to the states (e.g., right to jury trial, counsel, privilege against self-incrimination)

Question 6

Are grand jury indictments required in state criminal proceedings?

Answer 6

No. There is no constitutional right to an indictment by grand jury in state proceedings
Remember: There is a fifth amendment right to indictment by grand jury in federal felony cases, but most states allow charging by information instead of indictment

Question 7

Define: grand jury indictment

Answer 7

Issued by the grand jury upon a finding of probable cause in light of all the evidence presented. Formally charges D with the crime.

Question 8

Does a suspect have the right to receive notice that a grand jury proceeding is happening?

Answer 8

No. A grand jury proceeding investigating someone for a crime may be conducted without the suspect’s knowledge.

Remember: The suspect has no right to be present or confront witnessess at a grand jury proceeding

Question 9

Are witnesses entitled to Miranda warnings in a grand jury proceeding?

Answer 9

No, because witnesses are not in a custodial interrogation. This is true even when the witness is the defendant.

Question 10

Are grand jury proceedings conducted in secret?

Answer 10

Yes, complete secrecy. There is no judge present, only the prosecutor and witnesses called by the grand jury are present.

Question 11

Does D have a right to present evidence or confront witnesses in a grand jury proceeding?

Answer 11

No

Question 12

Is the prosecutor required to disclose exculpatory evidence in a grand jury proceeding?

Answer 12

No

Question 13

What rights does a witness have in a grand jury proceeding?

Answer 13

Permission to leave the grand jury room and consult with their lawyer outside before answering a grand jury question.

⚠️ Remember: There is no right to counsel in a grand jury room, because the proceedings are closed and secret.

Question 14

Does double jeopardy apply in grand jury proceedings?

Answer 14

No, failure for one grand jury to issue an indictment does not preclude another jury from issuing an indictment for the same crime later on.

Question 15

Can a grand jury hear evidence that would be inadmissible at trial?

Answer 15

Yes, can hear evidence that would be inadmissible at trial, including hearsay or illegally obtained evidence.

Question 16

What actions can a grand jury take pursuant to its investigatory powers?

Answer 16

• Subpoena witnesses
• Subpoena documents

Question 17

What is the purpose of bail?

Answer 17

To secure the presence of the accused at trial, and to ensure the safety of the community (and witnesses).

Question 18

What is the constitutional right to bail?

Answer 18

There is no absolute constitutional right to bail, but the decision to deny bail must comply with Due Process, which requires the denial is not arbitrary. Any decision to deny bail is immediately appealable.

Question 19

At what relative amount should bail be set?

Answer 19

No higher than is necessary to ensure D appears at trial. Excessive or arbitrary bail is unconstitutional.

Question 20

What is the purpose of a pretrial hearing immediately following a suspects arrest?

Answer 20

A preliminary hearing is an initial hearing conducted to determine whether probable cause exists to justify holding a person for trial

Remember: A probable cause hearing can also be used for a probable cause finding to ensure they have probable cause to hold a suspect in custody

Question 21

When is a pretrial hearing to determine if probable cause exists required?

Answer 21

1. There has been no grand jury indictment or judicial issuance of probable cause;
2. D has been arrested or released on bail; and
3. It is within 48 hours of D’s arrest (hearing must be held within 48 hours)

Question 22

What are the 4 elements/admonishments of a valid guilty plea?

Answer 22

Must be voluntarily and intelligently made.
D must understand:
1. The nature of the charge and its elements;
1. The maximum authorized sentence and any mandatory sentencing;
1. They have a right to plead not guilty; and
1. They are waiving their right to a jury trial

Question 23

What is the right to a speedy trial?

Answer 23

Guarantees that D is entitled to a speedy trial that is free from unreasaonble delay between the time charges are filed and the start of the trial

⚠️ Note: If government deliberately delayed trial to harass D, and the delay resulted in prejudice, this is also a Due Process violation

Question 24

When does the right to a speedy trial “attach” or begin?

Answer 24

When the defendant officially accused. This is when he is arrested or charged, whichever is first

Remember: As a result, this right is not violated if the prosecution delays filing charges against someone who has not yet been arrested

Question 25

What is the balancing test to determine whether D’s right to a speedy trial has been violated?

Answer 25

Courts balance the following:
1. Length of delay;
2. Reason for the delay;
3. Whether D asserted his right to a speedy trial; and
4. Amount of prejudice to D resulting from the delay

Question 26

What is the remedy if D’s right to a speedy trial is violated?

Answer 26

Dismissal of charges with prejudice

Question 27

What is the prosecution’s duty to disclose under Brady?

Answer 27

Material evidence that is exculpatory for the defense (including evidence that would impeach a prosecution witness) that is known to the prosecution or police.

Remember: Even the government’s inadvertent failure to disclose Brady material is unconstitutional

Brady v. Maryland

Question 28

What are the two requirements for establishing a Brady violation?

Answer 28

Brady violation occurs when the prosectution willfully OR inadvertently fails to disclose exculpatory, material information to the defendant, and will be a basis for reversal IF the defendant proves:
1. such evidence is favorable because it is either impeachment material or exculpatory; AND
2. the failure to disclose the evidence caused prejudice (i.e., ahd the government turned over the evidence, there is a reasonable probability that the outcome would have been different)

Question 29

What is the consequence if a prosecutor fails to disclose materially exculpatory evidence?

Answer 29

D is entitled to a reversal if:1. Evidence was exculpatory; and2. Failure to disclose likely affected the outcome of the trial and prejudiced D

Question 30

When does the right to a jury trial exist?

Answer 30

For any crime that authorizes a sentence of greater than 6 months (regardless of the actual sentence imposed)

Remember: The right applies to federal and state proceedings; it does NOT apply to juvenile proceedings

Question 31

Which three constitutional rights do NOT apply to juvenile proceedings?

Answer 31

Juvenile offenders do NOT have the right to:
1. trial by jury
2. prohibition against double jeopardy (in some circumstances); OR
3. public proceedings

Remember: Juveniles may also be subject to warrantless searches and seizures by school officials based on reasonable suspicion

Question 32

Can D waive their right a jury trial?

Answer 32

Yes, as long as D voluntarily waives the right. Will result in a bench trial.

Question 33

A jury must have ______ jurors

Answer 33

At least 6

Question 34

Do jury verdicts need to be unanimous?

Answer 34

Yes, after Ramos v. Louisiana (2020), all criminal trials require unanimous jury verdicts.

Question 35

How is the jury pool assembled?

Answer 35

Must consist of a representative cross-section of the ethnic and gender demographics of the community

Jury selection is also called voir dire

⚠️ Note: jury itself does not need to be representative, only the jury pool.

Question 36

How do you establish a prima facie case that the jury pool was not from a representative cross-section?

Answer 36

Must show that:
1. Excluded group was “distinctive” in the community;
2. Group was not fairly represented in the venire; and
3. Underrepresentation resulted in systematic exclusion of the group from jury-selection process

Question 37

What is a peremptory challenge to strike a potential juror?

Answer 37

Allows parties to disqualify potential jurors, as long as the reason is race and gender neutral.
If the judge believes the party was attempting to strike the juror based on race, the party will be precluded from making the strike and the potential juror will be seated on the jury.

Question 38

If the defendant has proved that the facts give rise to an inference of racial or gender discrimination, what is the prosecution required to do?

Answer 38

Provide a non-discriminatory (race-neutral) explanation for the strike or withdraw the strike

Question 39

When is D entitled to question jurors on racial biases?

Answer 39

Whenever race is “inextricably bound up in the case”

Question 40

Can you strike a juror for cause who opposes the death penalty?

Answer 40

Yes, if the potential juror has stated they never impose the death penalty and it would intefere with their ability to properly sentence D

(Witherspoon v. Illinois)

Question 41

Which four rights does a defendant have around confronting witnesses?

Answer 41

The defendant has the right to:
1. be present at trial
2. be informed of the identities of opposing witnesses
3. confront opposing witnesses face-to-face; AND
4. cross-examine opposing witnesses

Remember: The righ tmay be limited in the event of a conflicting public purpose

Question 42

What is the Confrontation Clause?

Answer 42

6^th Amendment gives D right to confront (meaningfully cross-examine) and observe the demeanor of all witnesses presenting evidence against him.

More info: Confrontation Clause

Question 43

Is D guaranteed the right to in-person confrontation under the Confrontation Clause?

Answer 43

No, if:1. There is an important public policy reason for excluding D from the courtroom; and 2. Reliability of testimony is otherwise assured

Question 44

The Confrontation Clause only applies to witnesses that are offering _______ evidence

Answer 44

Testimonial evidence

Question 45

Define: testimonial evidence

Answer 45

Written or spoken communications whose primary purpose is to establish or prove past events potentially relevant to later criminal prosecution (e.g. affidavits, prior testimony)

Davis v. Washington

Question 46

Are statements made during an emergency considered testimonial?

Answer 46

Likely no. Statements made to law enforcement or 911 operators to assist in an ongoing emergency are not considered testimonial.
But, statements made after the emergency has ceased, or statements to further the investigation, will be considered testimonial.

Question 47

What is the difference between testimonial and non-testimonial statements for the purposes of the Confrontation Clause?

Answer 47

A statement is testimonial when the purpose of the interrogation is to establish past events potentially relevant to a later criminal prosecution

Whereas a statemetn is NON-testimonial when the primary purpose of the interrogation is to enable the police to assist in an ongoing emergency

Question 48

Why does testimonial hearsay violate the Confrontation Clause?

Answer 48

Since testimonial hearsay is an out-of-court statement, D did not have the opportunity to confront or cross-examine the declarant, thereby violating his 6^th Amendment right to confrontation.

Question 49

When does testimonial hearsay NOT violate the Confrontation Clause?

Answer 49

If D had the opportunity to cross-examine the declarant during a previous trial, and the declarant is now unavailable.

Question 50

Is a non-testifying co-defendant’s confession that implicates D admissible at a joint-trial?

Answer 50

No, unless:
1. Trial is a bench trial;
2. Co-D testifies and is subject to cross-examination;
3. Each D has a separate trial (i.e. not a joint trial); and
4. Confession is redacted to eliminate all references to D

Bruton v. United States

Question 51

What is the competency to stand trial?

Answer 51

A defendant’s competency to stand trial is about their mental state at the time of trial; if they are found incomptentent, the trial may not proceed

Remember: A defendant’s competence may be reassessed at a later time and if competency is regained the trial may proceed

Question 52

What is the due process standard of incompetence?

Answer 52

Under the due process standard, a defendant is incompetent to stand trial if due to their present mental condition they either:
1. lack a rational and factual understanding of the charges and proceedings; OR
2. lack sufficient present ability to consult their lawyer with a reasonable degree of understanding

Question 53

What is the purpose of a right to a public trial?

Answer 53

A defendant has a right to a public trial to safeguard their due process rights by opening certain stages of the proceedings to the public (including the media).

Remember: Even if the defendant, prosecutor, and judge all agree to a closed trial, the media may assert the right to attend.

Question 54

When can the judge disallow the press and general public to be present at a criminal proceeding besides the grand jury?

Answer 54

If the judge specifically finds some overriding interest to necessitate a closed trial, they may revoke the press and general public’s Sixth Amendment right to be present at all criminal proceedings except the grand jury

Question 55

What does a right to a fair trial ensure regarding the trier of fact?

Answer 55

A criminal defendant has the right to trial by an impartial judge or jury that is not biased or prejudiced.

Remember: A judge may NOT be prejudiced or have a financial stake in the outcome; a jury may NOT be sujbect to outside influences.