Trial Flashcards
(46 cards)
1
Q
BASIC RIGHT TO A FAIR TRIAL: Order of Arguments
A
- Trial begins w/ prosecution’s opening argument
followed by defense’s opening argument. - Closing arguments:
(1) Gov argues,
(2) Defense argues, and
(3) Gov rebuts.
2
Q
Right to Public Trial
A
- 6th & 14 Am guarantee right to public trial, but right varies w/ stage of proceeding involved.
3
Q
Right to Public Trial:Pretrial Proceedings
.
A
- Prelim PC hearings are presumptively open to public & press, as are pretrial suppression hearings, but the latter may be closed to public under limited circumstances (ex. party seeking closure has overriding interest likely to be prejudiced by disclosure & there is no reasonable alternative besides closure).
- Similarly, ct must make “every reasonable effort” to accommodate public attendance at jury voir dire
proceedings
4
Q
Right to Public Trial: Trial
A
- Press & public have 1st Am right to attend trial itself, even when defense & prosecution agree to close it.
- State may constitutionally permit televising
criminal proceedings over D’s objection.
5
Q
Right to Unbiased Judge
A
- Due process is violated if judge is shown to have
actual malice against D/ to have had a financial
interest in having trial result in a guilty verdict. - Bias is present when judge earlier had significant, personal involvement as prosecutor in a critical decision regarding D’s case.
6
Q
Must Judge Be Lawyer?
A
- D in minor misdemeanor prosecution has no
right to have trial judge be a lawyer if upon conviction D has a right to trial de novo in a ct w/ a lawyerjudge,
but for serious crimes, judge probably must be
law-trained.
7
Q
Other Due Process Rights
A
Due process is violated if:
(1) Trial is conducted in manner making it unlikely jury gave evidence reasonable consideration
(2) State compels D to stand trial in prison clothing
(3) State compels D to stand trial/appear at penalty phase proceedings visibly shackled, unless ct finds shackling justified by concerns about courtroom security/escape; or
(4) Jury is exposed to influence favorable to prosecution
- Due process does not require police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction
8
Q
RIGHT TO TRIAL BY JURY: Right to Jury Trial Only for “Serious” Offenses
A
- No con right to jury trial for petty offenses, only serious offenses.
- Offense is serious if imprisonment for more than 6 months is authorized.
- No right to jury trial in juvenile delinquency proceedings.
9
Q
Contempt
A
- For civil contempt proceedings, no jury trial right.
- For criminal contempt proceedings, cumulative penalties totaling > 6 months D has right to jury trial.
- If judge summarily imposes punishment for contempt during trial, penalties may aggregate > 6 months w/o a jury trial.
10
Q
Probation
A
- Judge may place a contemnor on probation for up to 5 years w/o giving them right to a jury trial, if revocation of probation would not result in imprisonment for >6 months
11
Q
Number and Unanimity of Jurors
A
- No con right to a jury of 12, there must be at least 6 jurors to satisfy right to a jury trial.
- Jury verdicts must be unanimous.
12
Q
Right to Venire Selected from Representative Cross-Section of Community
A
- D has right to have jury selected from a representative cross-section of community.
- D need only show underrepresentation of a distinct & numerically significant group
- D does not have right to proportional representation of all groups
13
Q
Use of Peremptory Challenges for Racial and Gender-Based Discrimination
A
- Generally prosecutor may exercise peremptory challenges for any reason, Equal Protection Clause forbids use of peremptory challenges to exclude potential jurors solely on race/gender.
- An equal protection-based attack on peremptory strikes involves 3 steps:
(1) D must show facts/circumstance that raise an inference that exclusion was based on race/gender.
(2) Upon showing, prosecutor must come forward w/ race-neutral explanation for the strike (even an unreasonable explanation is sufficient if race-neutral).
(3) Judge then determines whether prosecutor’s explanation was genuine reason for striking juror, or merely pretext for purposeful discrimination. - If judge believes that prosecutor was sincere, strike may be upheld.
14
Q
Right to Impartial Jury: Standard—Impair or Prevent Performance
A
- The standard for determining when prospective juror should be excluded for cause is whether juror’s views would prevent/substantially impair performance of their duties in accordance w/ their instructions & oath.
15
Q
Right to Questioning on Racial Bias
A
- D is entitled to questioning on voir dire specifically
directed to racial prejudice whenever race is bound up in the case/ D is accused of interracial capital crime.
16
Q
Juror Opposition to Death Penalty
A
- In capital punishment cases, state may not automatically exclude for cause all those who express a doubt/scruple about death penalty; it must be determined whether juror’s views would prevent/ substantially impair performance of their duties in accordance w/ their instructions & oath.
- Death sentence imposed by jury from which juror
was improperly excluded is subject to automatic reversal.
17
Q
Juror Favoring Death Penalty
A
- If jury is to decide whether D is to be sentenced
to death, on voir dire D must be allowed to ask
potential jurors if they would automatically give death penalty upon guilty verdict. - A juror who answers yes must be excluded for cause b/c such juror cannot perform their duties in accordance w/ instructions as to mitigating circumstances.
18
Q
Use of Peremptory Challenge to Maintain Impartial
Jury
A
- If trial ct refuses to exclude for cause juror whom the ct should exclude, & D uses a peremptory challenge to exclude juror, there is no con violation
19
Q
Inconsistent Verdicts
A
- Inconsistent verdicts (ex. finding D guilty & co-D not guilty on same evidence) are not reviewable.
20
Q
Sentence Enhancement
A
- If substantive law provides that sentence may be increased beyond statutory max for a crime if additional facts (other than prior conviction) are proved, proof of facts must be submitted to jury & proved beyond reasonable doubt; D’s right to jury trial is violated if judge makes determination.
- Same general rule applies to setting amount due on a fine.
- If amount is based on facts, there is right to have jury find those facts.
- 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 jury, harmless error test is applied.
21
Q
Distinguish—Judge May Decide Whether Sentences
Run Consecutively
A
- A state legislature may give to its judges (rather than jury) power to decide whether sentences for multiple crimes are to run consecutively/concurrently, even though decision is based on facts of case.
22
Q
RIGHT TO COUNSEL
A
- D has right to counsel.
- Violation of this right at trial, including erroneous disqualification of D’s privately retained counsel, requires reversal.
- For nontrial denials, harmless error test is applied.
23
Q
tip
A
Remember that right to counsel is available in misdemeanor cases only if imprisonment is actually imposed. Thus, if exam question involves a nonfelony & D asks for counsel, is denied, & is convicted, whether right to counsel has been violated depends on D’s sentence: if they receive no imprisonment, their right has not been violated; if they receive prison time, their right has been violated.
24
Q
Waiver of Right to Counsel at Trial and Right to
Defend Oneself
A
- D has right to defend themself at trial if, in judgment of judge, their waiver is knowing & intelligent &, based on trial judge’s consideration of D’s emotional & psychological state, D is competent to proceed pro se.
- D does not have a right to self-representation on appeal.
25
Indigence and Recoupment of Cost
- State generally provides counsel in close cases of
indigence, but may then seek reimbursement from those convicted Ds who later become able to pay.
26
Effective Assistance of Counsel
- 6th Am right to counsel includes right to effective counsel.
- This right extends to 1st appeal.
- Effective assistance of counsel is generally presumed.
27
Circumstances Constituting Ineffective Assistance
An ineffective assistance claimant must show:
(1) Deficient performance by counsel; and
(2) But for deficiency, result of proceeding would
have been different (ex. D would not have been convicted/sentence would have been shorter)
- D must point out specific deficiencies & cannot
base claim on inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel.
- Note: If counsel admits their client’s guilt in the face of D’s clearly articulated desire to maintain their innocence during sentencing phase of trial, this structural error mandates a new trial w/o any need to first show prejudice.
28
Plea Bargain Cases
- To make out a 6th am ineffective assistance claim in a plea bargain case, D must show deficient performance & a reasonable possibility that outcome of plea process would have been different w/ competent advice.
- Attorney’s failure to notify D of plea offer can constitute deficient performance if D can show that:
(1) had plea agreement been communicated, D likely would have accepted; and
(2) plea likely would have been entered w/o prosecutor’s canceling it.
- The fact that D subsequently has a fair trial
(after turning down plea offer) does not prevent ineffective assistance claim.
29
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30
Deportation Risk
- It is constitutionally deficient for counsel not to inform client whether their plea carries risk of deportation.
31
Circumstances Not Constituting Ineffective
Assistance
.
- Circumstances not constituting ineffective assistance include trial tactics & failure to raise a con defense that is later invalidated
32
Conflicts of Interest
- Joint representation is not per se invalid.
- However, if attorney advises trial ct of a resulting conflict of interest at/before trial, & ct refuses to appoint separate counsel, D is entitled to automatic
reversal.
33
Conflict with Attorney
- D’s conflict of interest w/ their attorney is rarely a
ground for relief.
34
No Right to Joint Representation
- D has no right to be jointly represented / their co-Ds if gov can show a potential conflict of interest.
35
Right to Support Services for Defense
- Where D has made prelim showing they are likely to be able to use insanity defense, state must provide a psychiatrist for preparation of defense.
36
Seizure of Funds Constitutional
- Right to counsel does not forbid seizure of drug
money & property obtained w/ drug money, even where D was going to use such money/property to pay attorney.
37
Right Limited While Testifying
- D has no right to consult w/ their attorney while testifying & may be isolated from their attorney
during short breaks (ex. 15 minutes as opposed to
overnight).
38
RIGHT TO CONFRONT WITNESSES
- 6th am grants to D in a criminal prosecution right to confront adverse witnesses.
- Right is not absolute: Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (ex. protecting child witnesses from trauma).
- Also, judge may remove a disruptive D, & D may voluntarily leave courtroom during trial.
39
Introduction of Co-Defendant’s Confession
- If 2 persons are tried together & one has given a confession that implicates the other, right of confrontation prohibits use of that statement, even where confession interlocks w/ D’s own confession, which is admitted.
- However, such a statement may be admitted if:
(1) All portions referring to other D can be eliminated
(2) Confessing D takes the stand & subjects
themself to cross-examination w/ respect to the truth/falsity of what statement asserts; or
(3) Confession of nontestifying co-D is being used to rebut D’s claim that their confession was obtained coercively
40
Prior Testimonial Statement of Unavailable
Witness
Under Confrontation Clause, prior testimonial evidence (ex. statements made at prior judicial proceedings) may not be admitted unless:
(1) Declarant is unavailable, and
(2) D had opportunity to cross-examine declarant at time statement was made
41
What Is Testimonial?
-“Testimonial,”: at minimum, statements from prelim hearing, grand jury hearing, former trial, or police interrogation to establish/prove past acts.
- Statements from police interrogations to aid police in an ongoing emergency are not testimonial.
- Statements to individuals who are not principally
charged w/ uncovering & prosecuting crimes are subject to Confrontation Clause, but they are significantly less likely to be testimonial than statements given to police
42
Results of Forensic Lab Testing
- If results of forensic lab tests are offered for proof of the matter asserted (ex. testimony from a lab tech that powder found on D is coke), they are testimonial & inadmissible unless person who did testing is available for cross.
- No CC issue when lab test results are not offered to prove validity of test results (ex. testimony that results from a private lab matched results from a state lab offered to show results match—not that private lab results are correct).
43
Forfeiture by Wrongdoing
- D can be held to have forfeited a CC claim by wrongdoing.
- Ct will not find forfeiture by wrongdoing unless wrongdoing was intended to keep witness from testifying
44
BURDEN OF PROOF, SUFFICIENCY OF EVIDENCE, AND JURY INSTRUCTIONS
- DPC requires in all criminal cases that state prove guilt beyond a reasonable doubt
- The presumption of innocence is a basic component of a fair trial.
- However, state may generally impose burden of proof upon D in regard to an affirmative defense, like insanity/self-defense.
45
Presumptions
- A mandatory presumption/presumption that shifts burden of proof to D violates 14th am's req that state prove every element of crime beyond a reasonable doubt.
46
Jury Instructions
- A judge is to give a jury instruction requested by D/prosecution if instruction is correct, has not
already been given, & is supported by some evidence.
