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Flashcards in Trial Rights Deck (35)
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Right to Evidentiary Disclosure

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


Right to Unbiased Judge

  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


When D has a right to jury

  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


Minimum Number of Jurors Allowed in a Criminal Trial



Unanimity of Jury Verdicts

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


Cross-Sectional Requirement

  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.


Peremptory Challenges

  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


Number of jurors for VA felony trials



Number of jurors for VA misdemeanor trials



Sentencing Power in VA

Juries generally sentence if the trial is by jury.


VA Jury Verdict Requirements

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


Challenging Jurors in VA

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


Right to Confront Adverse Witnesses

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


Right to effective assistance of counsel

2-prong test

  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).


Effective Assistance of Counsel Examples

  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.


Effective Assistance of Counsel

Exam Tip

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.


Valid Guilty Plea Rule

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


Valid Guilty Plea Requirements

  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.


Withdrawal of a Guilty Plea After Sentencing

  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.


Other Types of Pleas

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


Nolo Contendere Plea

  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.


Conditional Guilty Plea

  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


Alford Plea

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


Withdrawal of guilty pleas in VA

  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


Right to A Speedy Trial Constitutional Standard

  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


Right to Speedy Trial Factors

  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.


Right to Speedy Trial Remedy

  1. dismissal of the case with prejudice


Attachment of Right to Speedy Trial

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


VA-Timing of Right to Speedy Trial

  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


VA- Commencement of Trial for Speedy Trial Right purposes

  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.