CrimP 8 - Trial

Question 1

Right to Public Trial

Answer 1

The Sixth and Fourteenth Amendments guarantee the right to a public trial, but the right varies with the stage of the proceeding involved.

a. Pretrial Proceedings:
• Preliminary probable cause hearings are presumptively open to the public and press,
• as are pretrial suppression hearings, although the latter may be closed to the public under limited circumstances for example, the party seeking closure has an overriding interest likely to be prejudiced by disclosure and there is no reasonable alternative besides closure). • Similarly, a court must make “every reasonable effort” to accommodate public attendance at jury voir dire proceedings.

b. Trial: The press and public have a First Amendment right to attend the trial itself, even when the defense and prosecution agree to close it. The state may constitutionally permit televising criminal proceedings over the defendant’s objection.

Question 2

Right to Unbiased Judge

Answer 2

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a guilty verdict. Impermissible bias also is present when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

Question 3

Due process violated when?

Answer 3

Due process violated only if judge has actual malice against D or has financial interest in trial result.

It is NOT actual malice just bc judge threatens D.

Question 4

Must Judge Be Lawyer?

Answer 4

A defendant in a minor misdemeanor prosecution has no right to have the trial judge be a lawyer if upon conviction the defendant has a right to trial de novo in a court with a lawyer-judge, but for serious crimes, the judge probably must be law-trained.

Question 5

Due Process Rights - other:
Due process violated if:

Answer 5

Due process violated if:
• The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration
• The state compels the defendant to stand trial in prison clothing
• The state compels the defendant to stand trial or appear at penalty phase proceedings visibly shackled, unless the court finds the shackling justified by concerns about courtroom security or escape; or
• The jury is exposed to influence favorable to the prosecution.
Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction.

Question 6

RIGHT TO TRIAL BY JURY

Answer 6

Right to Jury Trial Only for “Serious” Offenses: There is no constitutional right to jury trial for petty offenses, but only for serious offenses. An offense is serious if imprisonment for more than six months is authorized. Also, there is no right to jury trial in juvenile delinquency proceedings.

Question 7

Right to Jury Trial Only for “Serious” Offenses

Answer 7

There is no constitutional right to jury trial for petty offenses, but only for serious offenses. An offense is serious if imprisonment for more than six months is authorized. Also, there is no right to jury trial in juvenile delinquency proceedings.

a. Contempt:
For civil contempt proceedings, there is no jury trial right.
For criminal contempt proceedings, cumulative penalties totaling more than six months cannot be imposed without affording the defendant the right to a jury trial.
If a judge summarily imposes punishment for contempt during trial, penalties may aggregate more than six months without a jury trial.

• Probation
A judge may place a contemnor on probation for up to five years without affording them the right to a jury trial, as long as revocation of probation would not result in imprisonment for more than six months.

Question 8

Jury must have….

Answer 8

Must have AT LEAST 6 Jurors.
There is no constitutional right to a jury of 12, but there must be at least six jurors to satisfy the right to a jury trial.

Question 9

Jury verdicts must be…

Answer 9

ALL jury verdicts must be unanimous.

Question 10

Does D have right to the final jury being a cross-section of the community?

Answer 10

A defendant has a right to have the jury selected from a representa- tive cross-section of the community. The defendant need only show the underrepresentation of a distinct and numerically significant group in the venire to show their jury trial right was violated.

Note that a defendant does NOT have the right to proportional representation of all groups on their particular jury.

Question 11

Peremptory challenges

Answer 11

Generally may use preremptory challenge for any reason.
BUT, cannot challenge jurors solely on basis of race or gender.

Question 12

a. Use of Peremptory Challenges for Racial and Gender- Based Discrimination.

Forbidden by what?

Steps for an attack on peremptory strikes…

Answer 12

Although generally a prosecutor may exercise peremptory challenges for any reason, the Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender.
An equal protection-based attack on peremptory strikes involves three steps:
(1) The defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender.
(2) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race-neutral).
(3) The judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination.
If the judge believes that the prosecutor was sincere, the strike may be upheld.

Question 13

Challenges for Cause

Answer 13

Juror should be excluded for clause if juror’s views would prevent or substantially impair performance of duties.

Question 14

Right to Impartial Jury

a. Standard—

b. Right to Questioning on Racial Bias

c. Juror Opposition to Death Penalty

d. Juror Favoring Death Penalty

e. Use of Peremptory Challenge to Maintain Impartial Jury

Answer 14

a. Standard—Impair or Prevent Performance
The standard for determining when a prospective juror should be excluded for cause is whether the juror’s views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath.

b. Right to Questioning on Racial Bias
A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or the defendant is accused of an interracial capital crime.

c. Juror Opposition to Death Penalty
In capital punishment cases, a state may not automatically exclude for cause all those who express a doubt or scruple about the death penalty; it must be determined whether the juror’s views would prevent or substantially impair performance of their duties in accor- dance with their instructions and oath. A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal.

d. Juror Favoring Death Penalty
If a jury is to decide whether a defendant is to be sentenced to death, on voir dire the defendant must be allowed to ask potential jurors if they would automatically give the death penalty upon a guilty verdict. A juror who answers affirmatively must be excluded for cause because such a juror cannot perform their duties in accordance with instructions as to mitigating circumstances.

e. Use of Peremptory Challenge to Maintain Impartial Jury
If a trial court refuses to exclude for cause a juror whom the court should exclude, and the defendant uses a peremptory challenge to exclude the juror, there is no constitutional violation.

Question 15

Inconsistent Verdicts

Answer 15

Inconsistent verdicts (for example, finding the defendant guilty and co-defendant not guilty on the same evidence) are not reviewable.

Question 16

Sentence Enhancement

Answer 16

If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts (other than prior conviction) are proved, proof of the facts must be submitted to the jury and proved beyond reasonable doubt; the defendant’s right to jury trial is violated if the judge makes the determination.

The same general rule applies to setting the amount due on a fine. If the amount is based on facts, there is a right to have a jury find those facts. The same rule also applies to sentencing enhancements after guilty pleas. In deciding whether to overturn a sentence for failure to submit a sentencing factor to the jury, the harmless error test is applied.

a. Distinguish—Judge May Decide Whether Sentences Run Consecutively
A state legislature may give to its judges (rather than the jury) the power to decide whether sentences for multiple crimes are to run consecutively or concurrently, even though the decision is based on the facts of the case.

Question 17

RIGHT TO COUNSEL

Answer 17

TRIAL: A defendant has a right to counsel. Violation of this right at trial, including erroneous disqualification of the defendant’s privately retained counsel, requires reversal.

NONTRIAL: For nontrial denials, the harmless error test is applied.

Question 18

The right to counsel is available in misdemeanor cases WHEN?

Answer 18

The right to counsel is available in misdemeanor cases only if imprisonment is actually imposed.
Thus, if an exam question involves a nonfelony and the defendant asks for counsel, is denied, and is convicted, whether the right to counsel has been violated depends on the defendant’s sentence: if they receive no imprisonment, their right has not been violated; if they receive prison time, their right has been violated.

Question 19

D may waive right to counsel if:

Answer 19

• Waiver is KNOWING AND INTELLIGENT
• D is competent to proceed pro se.

Question 20

Waiver of Right to Counsel at Trial and Right to Defend Oneself

Answer 20

A defendant has a right to defend themself at trial if, in the judgment of the judge, their waiver is knowing and intelligent and, based on the trial judge’s consideration of the defendant’s emotional and psycho- logical state, the defendant is competent to proceed pro se.

Note that a defendant does not have a right to self-representation on appeal.

Question 21

Indigence and Recoupment of Cost

Answer 21

The state generally provides counsel in close cases of indigence, but may then seek reimbursement from those convicted defendants who later become able to pay.

Question 22

Effective Assistance of Counsel

Answer 22

The Sixth Amendment right to counsel includes the right to effective counsel.

This right extends to the first appeal.

Effective assistance of counsel is generally presumed.

Question 23

Ineffective assistance of counsel: KEY

Answer 23

• Deficient performance by counsel
• But for the deficiency, result of proceeding would have been different.

Question 24

Circumstances Constituting Ineffective Assistance
An ineffective assistance claimant must show:

Answer 24

An ineffective assistance claimant must show:
• Deficient performance by counsel; and
• But for the deficiency, the result of the proceeding would have been different (for example, the defendant would not have been convicted or the sentence would have been shorter)

The defendant must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel.

Note: If counsel admits their client’s guilt in the face of the defendant’s clearly articulated desire to maintain their innocence during the sentencing phase of trial, this structural error mandates a new trial without any need to first show prejudice.

Plea Bargain Cases
To make out a Sixth Amendment ineffective assistance claim in a plea bargain case, the defendant must show deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice.
An attorney’s failure to notify a defendant of a plea offer can constitute deficient performance if the defendant can show that:
(1) had the plea agreement been communicated, the defendant likely would have accepted; and
(2) the plea likely would have been entered without the prosecutor’s canceling it. The fact that the defendant subsequently has a fair trial (after turning down a plea offer) does not prevent the ineffective assistance claim.

Deportation Risk
It is constitutionally deficient for counsel not to inform a client whether their plea carries a risk of deportation.

Question 25

Circumstances NOT Constituting Ineffective Assistance

Answer 25

Circumstances not constituting ineffective assistance include trial tactics and the failure to raise a constitutional defense that is later invalidated.

Question 26

Conflicts of Interest

Answer 26

Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defen- dant is entitled to automatic reversal.
a. Conflict with Attorney: A defendant’s conflict of interest with their attorney is rarely a ground for relief.
b. No Right to Joint Representation
A defendant has no right to be jointly represented with their co-de- fendants if the government can show a potential conflict of interest.

Question 27

Right to Support Services for Defense

Answer 27

Where a defendant has made a preliminary showing that they are likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.

Question 28

Seizure of Funds Constitutional

Answer 28

The right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where defendant was going to use such money or property to pay an attorney.

Question 29

Right Limited While Testifying

Answer 29

A defendant has no right to consult with their attorney while testifying and may be sequestered from their attorney during short breaks (for example, 15 minutes as opposed to overnight).

Question 30

CONFRONTATION CLAUSE

Answer 30

The Sixth Amendment grants to a defendant in a criminal prosecution the right to confront adverse witnesses.

The right is NOT ABSOLUTE: Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (for example, protecting child witnesses from trauma).

Also, a judge may remove a disruptive defendant, and a defendant may voluntarily leave the court- room during trial.

Question 31

CC Clause: Introduction of Co-Defendant’s Confession

Answer 31

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted.

However, such a statement may be admitted if:
• All portions referring to the other defendant can be eliminated
• The confessing defendant takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; or
• The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 32

Co-Defendant’s confession may be admitted if:

Answer 32

• All portions referring to other D can be eliminated.
• Confessing D takes stand and is subject to Cross-examination, OR
• Confession used to rebut D’s claim that confession was obtained coercively.

Question 33

Prior Testimonial Statement of Unavailable Witness

Answer 33

Under the Confrontation Clause, prior testimonial evidence (like statements made at prior judicial proceedings) may NOT be admitted,
UNLESS:
• The declarant is unavailable, and
• The defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Question 34

What Is Testimonial?

a. Results of Forensic Lab Testing:

b. Forfeiture by Wrongdoing

Answer 34

The Court has not provided a comprehensive definition of the term “testimonial,” but has held that it includes, at a minimum, statements from a preliminary hearing, a grand jury hearing, a former trial, or police interrogation conducted to establish or prove past acts.

However, statements from police interrogations intended to aid the police in responding to an ongoing emergency—such as answering a 911 operator’s question while reporting a crime in progress—are not testimonial.

Statements to individuals who are not principally charged with uncovering and prosecuting crimes are subject to the Confrontation Clause, but they are significantly less likely to be testimonial than statements given to police officers.

a. Results of Forensic Lab Testing: If results of forensic lab tests are offered for proof of the matter asserted (for example, testimony from a lab technician that powder found on the defendant is cocaine), they are testimo- nial in nature and inadmissible unless the person who did the testing is made available for cross-examination. However, no Confrontation Clause issue is raised when the lab test results are not offered to prove the validity of the test results (for example, testimony that the results from a private lab matched results from a state lab offered to show the results match—not that the private lab results are correct).

b. Forfeiture by Wrongdoing
A defendant can be held to have forfeited a Confrontation Clause claim by wrongdoing. However, the Court will not find a forfeiture
by wrongdoing unless the wrongdoing was intended to keep the witness from testifying (for example, a statement made to the police by a victim who was later killed by the defendant cannot be admitted in the defendant’s murder trial absent evidence that the defendant murdered the victim to keep them from testifying).

Question 35

BURDEN OF PROOF, SUFFICIENCY OF EVIDENCE, AND JURY INSTRUCTIONS

Answer 35

• State must prove guilt beyond a reaosnable doubt.
  The Due Process Clause requires in all criminal cases that the state prove guilt beyond a reasonable doubt.
  The presumption of innocence is a basic component of a fair trial.
• Burden may be on DEFENDANT to prove AFFRIMATIVE DEFENSES (insanity).
  The state may generally impose the burden of proof upon the defendant in regard to an affirmative defense, such as insanity or self-defense.
• Presumption that shifts burden of proof to D violates 14th Amendment.

Question 36

Presumptions

Answer 36

A mandatory presumption or a presumption that shifts the burden of proof to the defendant violates the Fourteenth Amendment’s requirement that the state prove every element of the crime beyond a reasonable doubt.

Question 37

Jury Instructions

Answer 37

A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence.