Trial Rights

Question 1

Right to Evidentiary Disclosure

Answer 1

1. prosecutor must disclose to a criminal defendant all material and exculpatory evidence (Brady)

Question 2

Right to Unbiased Judge

Answer 2

1. Ds have the right to an unbiased judge, which means:
   
   1. he has no financial stake in the outcome of the case, and
   2. the judge has no actual malice towards the defendant

Question 3

When D has a right to jury

Answer 3

1. right to a jury trial when the maximum authorized sentence exceeds six months
   
   1. right linked to punishment/statutory maximum
2. Judge cannot sentence a defendant to more than six months if he had a right to a jury trial and did not receive one

Question 4

Minimum Number of Jurors Allowed in a Criminal Trial

Answer 4

6

Question 5

Unanimity of Jury Verdicts

Answer 5

1. Jury verdicts in criminal trials must be unanimous only if 6 jurors are used. Verdicts in 12 person juries need not be unanimous.

Question 6

Cross-Sectional Requirement

Answer 6

1. requires that the pool from which the jury is drawn represent a cross-section of the community.
2. Therefore, a jury that contained all white women over 60 does not violate the cross-sectional requirement if the jury pool was diverse.
3. But, if cannot get cross section not due to strategic plan or government policy, courts will likely uphold it.

Question 7

Peremptory Challenges

Answer 7

1. Peremptory challenges
   
   1. permit both sides to exclude jurors without stating their reasons for doing so
   2. but they cannot be used by either side to exclude prospective jurors on account of race or gender

Question 8

Number of jurors for VA felony trials

Answer 8

12

Question 9

Number of jurors for VA misdemeanor trials

Answer 9

7

Question 10

Sentencing Power in VA

Answer 10

Juries generally sentence if the trial is by jury.

Question 11

VA Jury Verdict Requirements

Answer 11

1. Criminal verdicts shall be:
   
   1. unanimous
   2. in writing; and
   3. returned by jury in open court.

Question 12

Challenging Jurors in VA

Answer 12

1. challenges for good cause are unlimited
2. peremptory:
   
   1. if felony- 4 challenges allowed
   2. 3 allowed for misdemeanor

Question 13

Right to Confront Adverse Witnesses

Answer 13

1. 6th Am right doesn’t apply if face-to-face confrontation would go against public policy
   
   1. e.g. traumatizing a child witness

Question 14

Right to effective assistance of counsel

2-prong test

Answer 14

1. requires proof that:
   
   1. counsel’s performance was deficient, and
   2. but for the deficiency, the outcome of the trial would have been different (the “prejudice” requirement).

Question 15

Effective Assistance of Counsel Examples

Answer 15

1. deficiency standard example
   
   1. insufficient showing of deficiency where attorney took “cat naps” during trial but was otherwise effective
2. prejudice standard example
   
   1. insufficient showing of prejudice where attorney slept through entire 15-minute testimony of a witness for the prosecution and thus could not engage in any cross-examination; no prejudice because the witness testified as to “non-contested matters” only.

Question 16

Effective Assistance of Counsel

Exam Tip

Answer 16

Because of the strictness of the two-prong test, unless there is some colorable argument that the defendant is not guilty, always deny relief under an ineffective assistance of counsel claim.

Question 17

Valid Guilty Plea Rule

Answer 17

1. for a guilty plea to be valid, the judge must establish that it is voluntary and intelligent.

Question 18

Valid Guilty Plea Requirements

Answer 18

1. to make this showing, the judge must address, in open court, and on the record:
   
   1. the nature of the charges, including required elements of the charged offense, and
   2. the consequences of the pleas, e.g. waiver of the right to plead not guilty/waiver of right to trial.

Question 19

Withdrawal of a Guilty Plea After Sentencing

Answer 19

1. D may withdraw a guilty plea after sentencing only if:
   
   1. the plea is involuntary, due to a defect in the plea-taking colloquy;
   2. there is a jurisdictional defect
      
      1. (wrong court took the plea, e.g. felony court took plea when misdemeanor court should have)
   3. the D prevails on an ineffective assistance of counsel claim, or
   4. the prosecutor fails to fulfill part of the bargain.

Question 20

Other Types of Pleas

Answer 20

1. Nolo Contendere
2. Conditional Guilty Plea
3. Alford Plea

Question 21

Nolo Contendere Plea

Answer 21

1. D agrees that the court may consider him guilty for purpose of imposing judgement and a sentence, but it is not a confession nor a declaration of innocence.
   
   1. in majority of jurisdictions, D can deny liability whereas he could not if he plead guilty
   2. Virginia: No contest plea is admissible against the D in civil litigation.

Question 22

Conditional Guilty Plea

Answer 22

1. defendant contests one issue of case, but agrees to plead guilty if he can appeal the issue he contests
2. Virginia: available in felony cases only

Question 23

Alford Plea

Answer 23

defendant concedes only that the prosecution has sufficient evidence to prove the case

Question 24

Withdrawal of guilty pleas in VA

Answer 24

1. D may withdraw a guilty/no contest plea:
   
   1. only before sentence imposed or imposition of sentence is suspended, or
   2. within 21 days of entry of a final order if court sets aside the judgement in order to correct a manifest injustice

Question 25

Right to A Speedy Trial Constitutional Standard

Answer 25

1. whether a D’s right to a speedy trial has been violated will be made by an evaluation of the totality of the circumstances.
2. 4 factors
3. almost impossible for defendant to successfully challenge under this right

Question 26

Right to Speedy Trial Factors

Answer 26

1. length of delay (no fixed term but see statutes)
2. reason for delay (innocent or intentional by government)
3. Whether D asserted his right (e.g. didn’t agree to a bunch of continuances), and
4. Prejudice to the defendant.

Question 27

Right to Speedy Trial Remedy

Answer 27

1. dismissal of the case with prejudice

Question 28

Attachment of Right to Speedy Trial

Answer 28

1. does not attach until the defendant has been arrested and formally charged.

Question 29

VA-Timing of Right to Speedy Trial

Answer 29

1. an accused will be permanently discharged from prosecution if the accused committed a felony and trial is not commenced within the following time periods:
   
   1. defendant in custody
      
      1. 5 months from prelim. hearing
   2. defendant not in custody
      
      1. 9 months from prelim hearing

Question 30

VA- Commencement of Trial for Speedy Trial Right purposes

Answer 30

1. for speedy trial purposes, a trial is deemed commenced at the point when double jeopardy attaches or when a plea of guilty or no contest is tendered by D.

Question 31

VA- Speedy Trial Right Tolling Events

Answer 31

1. insanity
2. escape
3. witness issues
4. separate trials
5. hung jury
6. natural disaster
7. continuance on motion by accused
8. appeal

Question 32

VA- Speedy Trial Right Waiver

Answer 32

1. an accused waives his right to a speedy trial by:
   
   1. failing to invoke until after final judgement, or
   2. failing to oppose motion for continuance

Question 33

Trial Publicity

Answer 33

1. due process entitles defendant to an impartial trier of fact
2. publicity may interfere with this right

Question 34

Solutions for Trial Publicity Issues

Answer 34

1. Judge may:
   
   1. delay the trial
   2. sequester the jury
   3. change of venue
   4. close the trial
      
      1. judge must leave trial open unless there is a compelling interest and no less restrictive alternative

Question 35

Cameras in the Court

Answer 35

not per se unconstitutional—ask whether they will adversely affect the trial.