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Flashcards in Guarantees of a Fair Trial Deck (12):

What is the right of severance?

When two Ds are tried together, if either co-D is unfarily prejudiced at any stage of a joint trial, a right of severance may be granted.


What is a co-D's right to another Ds confession?

In a joint trial where a co-D's confession implicates the other D, the right to confrontation prohibits the use of such a confession and dictates that the Ds are entitled to separate trials.

The traditional approach of giving the jury instructions to consider the confession only against the confessing D is constitutionally inadequate, unless:
1. incriminating portions of the confession can be adequately deleted;
2. the co-D takes the witness stand after making a confession and is subject to cross-examination; or
3. the co-D's statement is subject to the harmless error rule.


What is a D's right to impartiality?

The due process right to an unbiased judge requires the D to be tried before a magistrate who is neither prejudiced against the D nor financially interested in the outcome.


What is the right to counsel to trial?

The sixth amendment provides that the accused shall enjoy the right to have the assistance of counsel for his defense.

This means the right to effective counsel. Under a claim of ineffective assistance of counsel, the D must prove both:
1. that counsel was ineffective - deviated from prevailing norms; and
2. there is a reasonable probability that the verdict would have been not guilty had counsel been effective.

Where there is a conflict of interest, reversal is proper. Where a defense attorney indicates to the court that such a conflict exists, the defense must be severed.

The D has a right to represent himself.
The court may, over D's objection, appoint a stand-by counsel as long as the D keeps control.
A D may not then divide the actual representation.

Competence to stand try is not necessarily competence to defend oneself.

There is no absolute right to waive counsel at the appellate level.

Absent waiver, a D may not be actually imprisoned unless he was represented by counsel. This includes a suspended sentence. An uncounselled conviction cannot be used in recidivist sentencing.

An indigent has the right to free counsel.

It is not effective counsel for one to represent more than one D whenever a conflict of interest is shown to exist that jeopardizes the rights of any D or adversely affects the attorney's performance.

Failure to provide counsel at trial results in an automatic reversal. However, harmless error rule applies to the denial of counsel at criminal proceedings other than trial.

The right to counsel attaches to all critical stages of the proceedings that affect the D's right to a fair trial, including custodial interrogations, post-indictment lineups, preliminary hearings, arraignments, felony trials, sentencing, and appeals as a matter of right.

These are not critical: prelim. ID, pre-indictment lineups, nonadverserial detention hearings, grand jury proceedings, discretionary appeals, parole revocations, and habeas corpus proceedings.


What is the D's competency requirements?

A D must be able to understand the nature of the charges against him and have the capacity to consult with his lawyer in preparing his defense.

The D must be oriented as to time and place and also must have a fair recollection of the events surrounding the charge.

The D has a right to a hearing by a judge to determine competency, but it is often determined by a jury.

A D found to be incompetent is generally committed for treatment, but cannot remain indefinitely in a mental hospital. The criminal proceedings are suspended until the D regains competence.

The G may administer antipsychotic drugs to a mentally ill D against the D's will to render the D competent to stand trial on serious criminal charges.


What is the right to a jury trial?

The right to a jury trial attaches in any criminal proceeding where the D faces a potential sentence of longer than six months.

There is no right to a jury trial in a civil contempt case.


What is the size of the jury?

A six member jury is upheld in noncapital cases as long as the jury functions as a representatives cross-section of the community.

A unanimous verdict is required with a six person jury.

Federal trials require unanimous verdicts from twelve member juries.

State criminal trials having twelve member juries need not be unanimous; 10-2 and 9-3 verdicts have not been found to violate the Sixth Amendment.


What is the makeup of the jury?

The D has a right to a jury selected from a cross-section of the community; this cross-section, however, need not include members of all minority groups.

A prosecutor generally may exercise preemptory challenges for any rational and irrational reason (other than gender or race).

The exclusion of prospective jurors based on race and gender violates the Equal Protection Clause.

A prima facie showing of purposeful racial discrimination in jury selection can be established solely on the prosecutor's exercise of peremptory challenges at the D's trial, placing the burden on the state to prove otherwise. A pretextual reason for exercising a preemptory challenge given by the prosecution gives rise to an inference of discriminatory intent.

The underrepresentation of a distinct and significant racial group from the number of individuals sequestered fro jury selection provides adequate grounds for a prima facie showing of discriminatory jury selection.

To rebut a charge of racial discrimination, the state must show it followed racially neutral selection procedures.

It is reversible error to exclude jurors merely because they have misgivings about imposing capital punishment.


What is the right to a public trial?

Under the Sixth Amendment, the D has the right to a public trial in all criminal prosecutions.

The D may choose to waive this right and exclude the press and public.

Members of the press and general public have a Sixth Amendment right to be present at all criminal proceedings except the grand jury, unless the judge specifically finds some overriding interest to necessitate a closed trial. This right can supersede the D's waiver of a public trial.

The trial judge has the right to place limitations on the public media, and public media exclusion must be to protect the D's right to a fair trial.

With preliminary hearings instead of grand juries, there is no general right for the media to be present at those proceedings.


What is the right of confrontation?

Out-of-court testimonial statements are not admissible unless the declarant is unavailable and the D had an opportunity to cross-examine.

The D has a fundamental right of confrontation, meaning he may confront all witness against him in any criminal prosecution, federal or state.

The right to confrontation means the witness's testimony is provided under oath and subject to cross-examination.

This right is not absolute. A waiver of the right to confrontation occurs when a D voluntarily leaves the trial. The court may first warn and then physically remove a disorderly D from the courtroom.

Excluding the D from the presence of the child-victim and transmitting the child's testimony to him via television is permissible.

Out-of-court statements that are testimonial in nature are inadmissible under the Confrontation clause. Testimonial statements are when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events relevant to later criminal prosecution. Nontestimonial statements are statements made in the course of police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.


What is the right to compulsory process?

It gives a D the power to present his own witnesses and a fair opportunity to present a defense free from intimidation or prejudicial exclusion of material evidence.


What are the procedural rights for conviction?

The prosecution must prove beyond a reasonable doubt that the D is guilty of each element of the crime charged to satisfy the due process requirement of a fair trial.

The D may be required to prove an affirmative defense by a preponderance of the evidence. However, in insanity cases in federal court, the D must prove it by clear and convincing evidence. In state courts, the D must prove by a preponderance of the evidence.

There is no absolute right to a jury instruction on the presumption of innocence, and the failure to so instruct cannot amount to a denial of a fair trial.

A mandatory presumption is unconstitutional in a criminal case because it violates the D's right to due process.

A permissive presumption is allowed in criminal proceedings only when a rational connection exists between the prosecution's proof of the basic fact and the jury's inference of the ultimate fact or element of the crime.