Trial Issues

Question 1

What are the requirements for an ineffective assistance of counsel claim?

Answer 1

1) Deficiency: Counsel’s performance fell below an OBJECTIVE standard of reasonableness, meaning he made errors SO serious that he was not functioning as counsel
2) Prejudice: But for the deficiency, the outcome of the trial WOULD HAVE BEEN DIFFERENT

THIS IS A VERY HARD CLAIM TO MAKE UNLESS THERE IS SOME COLORABLE ARGUMENT THAT ∆ IS NOT GUILTY

Question 2

What is the FEWEST number of jurors allowed in a criminal trial?

NOTE: NY Distinction

Answer 2

6

NY DISTINCTION: requires 12 person juries; HOWEVER, a ∆ can waive this requirement and proceed to verdict with only 11 jurors

Question 3

When is the Confrontation Clause of the 6A relaxed?

Answer 3

The ∆’s right to confront an adverse witness does NOT apply where face-to-face confrontation would contravene imp public policy concerns

Question 4

What is the prosecutor’s duty re: exculpatory evidence?

Answer 4

A prosecutor MUST disclose to a criminal ∆ ALL material, exculpatory evidence (Brady rule)

Question 5

What is the cross-sectional requirement for jury selection?

Answer 5

Requires that the pool from which the jury is drawn represents a cross-section of the community

NOTE: A jury that has all white women over the age of 60 does NOT violate the requirement, PROVIDED the POOL was appropriately diverse

Question 6

When does a criminal ∆ have a right to a jury?

Answer 6

A criminal has a right to a jury trial when the maximum authorized sentence is > 6 MONTHS

The jury must be FAIR and IMPARTIAL

Question 7

When must jury verdicts in criminal trials be unianimous?

NOTE: NY Distinction

Answer 7

Jury trials MUST be UNANIMOUSONLY IF 6 jurors are used
Verdicts in 12-person juries need NOT be unanimous

NY DISTINCTION: jury verdicts MUST be unianimous

Question 8

What is a peremptory challenge?

Answer 8

Permits BOTH sides to exclude jurors without stating their reasons for doing so, BUT they cannot be used by either side to exclude prospective jurors on account of RACE or GENDER

Question 9

What are the requirements for a judge to be deemed unbiased?

Answer 9

The judge…

1) has no FINANCIAL STAKE in the outcome of the case; AND
2) has no ACTUAL MALICE towards the ∆

Question 10

What are the requirements for a guilty plea?

Answer 10

A valid guilty plea MUST be…

1) Voluntary;
2) Intelligent; AND
3) There must be a “Plea-taking Colloquy”: the judge addresses ON THE RECORD:
(i) the nature of the charges, including the required elements of the charged offense; AND
(ii) the consequences of the plea

Question 11

Under what circumstances can a ∆ withdraw a guilty plea?

Answer 11

1) The plea is involuntary, due to a defect in the plea-taking colloquy;
2) There is a jurisdictional defect;
3) The ∆ prevails on a claim of ineffective assistance of counsel; OR
4) The prosecutor FAILS to fulfill his part of the plea bargain

Question 12

What is the 8A standard for punishment?

Answer 12

The 8A prevents cruel and unusual punishment

Criminal penalties that are GROSSLY disproportionate to the seriousness of the crime committed

Question 13

What are key limitations to the death penalty?

Answer 13

1) 8A: a death penalty statute would violate the 8A if it created an AUTOMATIC category for the imposition of the death penalty
2) Evidentiary: in deciding whether to impose the death penalty, jurors MUST be allowed to consider ALL potentially mitigating evidence

3) Categorical exclusions: can’t impose death penalty against:
- ∆s with mental retardation
- ∆s who are PRESENTLY insane
- ∆s who were under the age of 18 at the time the relevant offense occured

Question 14

Under what circumstances does double jeopardy attach?

Answer 14

1) Jury trial: when the jury is SWORN

NOTE: the state MAY retry a ∆ EVEN IF double jeopardy attaches when a jury trial ends in a hung jury

2) Bench tiral: when the first witness is SWORN
3) Guilty plea: when the court accepts the ∆’s plea UNCONDITIONALLY

Question 15

Does double jeopardy apply to civil proceedings?

Answer 15

NO!

E.g.: if the SEC prosecutes civilly for insider trading, the USAO can LATER prosecute the same individual for securities fraud w/o implicating double jeopardy

Question 16

What is double jeopardy?

NOTE: NY Distinction

Answer 16

Double Jeopardy = “…nor shall any person be subject for the SAME OFFENSE to be twice put in jeopardy of life or limb by the SAME SOVEREIGN”

1) Same offense
* * Federal rule: 2 offenses are NOT the “same” if EACH contains an element THAT THE OTHER DOES NOT
* * Greater and “lesser-included” offenses:2 offenses ARE the “same” offense if only ONE has an element not in the other. THUS, trial for greater offense bars retrial for lesser offense and vice versa

• • NY DISTINCTION: NY uses the “transaction test,” which reqs that a ∆ be charged with all offenses arising from a SINGLE TRXN UNLESS…
    
    • the offenses have substantially different elements;
    • each offense contains an element NOT in the other AND prevents different harms;
    • one is for criminal possession and the other is for criminal USE; OR
    • each offense involves harm to a different victim

2) Same sovereign: double jeopardy bars retrial for the same offense by the SAME sovereign ONLY, not same sovereigns
- State and federal governments
- Different states
- SAME sovereign = state and its municipalities

Question 17

What are exceptions to the double jeopardy rule that permit retrial?

Answer 17

1) a hung jury
2) a mistrial for “manifest necessity” (e.g. defect is found in the indictment during trial that couldn’t be cured)
3) a successful appeal, UNLESS the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial
4) a breach of the plea agreement BY THE ∆

Question 18

Who can plead the Fifth?

Answer 18

ANY ONE (who might later be subject to criminal prosecution)!

∆s, witnesses, parties in civil proceedings

Question 19

When can someone plead the Fifth?

NOTE: NY Distinction

Answer 19

The privilege can be assered in ANY proceeding in which an individual testifies UNDER OATH (i.e. sworn testimony)

** NY DISTINCTION: the privilege CANNOT be asserted in a grand jury proceeding

NOTE: if someone provides sworn testimony, they CANNOT LATER assert the Fifth in a SUBSEQUENT proceeding when asked the same question (i.e. it’s waived)

Question 20

What is the scope of the 5A privilege against self-incrimination?

Answer 20

This is a TESTIMONIAL privilege ONLY (i.e. it does NOT apply to our bodies and compelled sample analysis)

The prosecution cannot COMMENT on

(i) a ∆'s decision NOT to testify at trial; OR 
(ii) the invocation of his right to silence or counsel

Question 21

How can the 5A privilege against self-incrimination be eliminated?

NOTE: NY Distinction

Answer 21

1) Grant of immunity: bars the government from using the testimony or ANYTHING derived from it to convict you ** NY DISTINCTION: uses “transactional” immunity, which is broader, since is shields witnesses from prosecution for any transaction they testifies about
2) The ∆ taking the stand: by taking the stand the ∆ WAIVES the ability to plead the Fifth as to anything properly within the scope of cross examination
3) SOL: the privilege is not available IF the SOL has run on the underlying crime (since a witness’s testimony could NOT expose him or her to criminal prosectution)