Trial Rights & Procedures

Question 1

Define

grand jury

Answer 1

Group of people who act as an investigative body to determine whether there is sufficient probable cause to bring charges against a suspect. Required for all criminal felonies charged by the federal government.

More info: Grand Juries

Question 2

Define

grand jury indictment

Answer 2

Issued by the grand jury upon a finding of probable cause in light of all the evidence presented. Formally charges D with the crime.

Question 3

Are witnesses entitled to Miranda warnings in a grand jury proceeding?

Answer 3

No, because witnesses are not in a custodial interrogation. This is true even when the witness is the defendant.

Question 4

Are grand jury proceedings conducted in secret?

Answer 4

Yes, complete secrecy. There is no judge present, only the prosecutor and witnesses called by the grand jury are present.

Question 5

Does D have a right to present evidence or confront witnesses in a grand jury proceeding?

Answer 5

No

Question 6

Is the prosecutor required to disclose exculpatory evidence in a grand jury proceeding?

Answer 6

No

Question 7

What rights does a witness have in a grand jury proceeding?

Answer 7

Permission to leave the grand jury room and consult with their lawyer outside before answering a grand jury question.

⚠️ Remember: There is no right to counsel in a grand jury room, because the proceedings are closed and secret.

Question 8

Does double jeopardy apply in grand jury proceedings?

Answer 8

No, failure for one grand jury to issue an indictment does not preclude another jury from issuing an indictment for the same crime later on.

Question 9

Can a grand jury hear evidence that would be inadmissible at trial?

Answer 9

Yes, can hear evidence that would be inadmissible at trial, including hearsay or illegally obtained evidence.

Question 10

What actions can a grand jury take pursuant to its investigatory powers?

Answer 10

• Subpoena witnesses
• Subpoena documents

Question 11

What is the purpose of bail?

Answer 11

To secure the presence of the accused at trial, and to ensure the safety of the community (and witnesses).

Question 12

What is the constitutional right to bail?

Answer 12

There is no absolute constitutional right to bail, but the decision to deny bail must comply with Due Process, which requires the denial is not arbitrary.

Any decision to deny bail is immediately appealable.

Question 13

At what relative amount should bail be set?

Answer 13

No higher than is necessary to ensure D appears at trial. Excessive or arbitrary bail is unconstitutional.

Question 14

When is a pretrial hearing to determine if probable cause exists required?

Answer 14

1. There has been no grand jury indictment or judicial issuance of probable cause;
2. D has been arrested or released on bail; and
3. It is within 48 hours of D’s arrest (hearing must be held within 48 hours)

Question 15

What are the elements of a valid guilty plea?

Answer 15

Must be voluntarily and intelligently made. D must understand:

• The nature of the charge and its elements;
• The maximum authorized sentence and any mandatory sentencing;
• They have a right to plead not guilty; and
• They are waiving their right to a jury trial

Question 16

What is the right to a speedy trial?

Answer 16

Guarantees that D is entitled to a speedy trial under the 6^th Amendment.

⚠️ Note: If government deliberately delayed trial to harass D, and the delay resulted in prejudice, this is also a Due Process violation

Question 17

When does the right to a speedy trial “attach” or begin?

Answer 17

When the defendant is arrested or charged, whichever is first

Question 18

What factors do courts balance in determining whether D’s right to a speedy trial has been violated?

Answer 18

Courts balance the following:

1. Length of delay;
2. Reason for the delay;
3. Whether D asserted his right to a speedy trial; and
4. Amount of prejudice to D resulting from the delay

Question 19

What is the remedy if D’s right to a speedy trial is violated?

Answer 19

Dismissal of charges with prejudice

Question 20

The prosecution is required to disclose what type of evidence?

Answer 20

Material evidence that is exculpatory for the defense (including evidence that would impeach a prosecution witness) that is known to the prosecution or police.

Brady v. Maryland

Question 21

What is the consequence if a prosecutor fails to disclose materially exculpatory evidence?

Answer 21

D is entitled to a reversal if:

1. Evidence was exculpatory; and
2. Failure to disclose likely affected the outcome of the trial and prejudiced D

Question 22

When does the right to a jury trial exist?

Answer 22

For any crime that authorizes a sentence of greater than 6 months (regardless of the actual sentence imposed)

Question 23

Can D waive their right a jury trial?

Answer 23

Yes, as long as D voluntarily waives the right. Will result in a bench trial.

Question 24

A jury must have ______ jurors

Answer 24

At least 6

Question 25

Do jury verdicts need to be **unanimous**?

Answer 25

Yes, after [*Ramos v. Louisiana*](https://www.oyez.org/cases/2019/18-5924) (2020), all criminal trials require unanimous jury verdicts.

Question 26

How is the **jury pool** assembled?

Answer 26

Must consist of a representative cross-section of the ethnic and gender demographics of the community ## Footnote ⚠️ Note: jury itself does not need to be representative, only the jury pool.

Question 27

How do you establish a prima facie case that the jury pool was **not** from a representative cross-section?

Answer 27

Must show that: 1. Excluded group was "**distinctive**" in the community; 2. Group was **not fairly represented** in the venire; and 3. Underrepresentation resulted in **systematic exclusion** of the group from jury-selection process

Question 28

What is a **peremptory challenge** to **strike** a potential juror?

Answer 28

Allows parties to disqualify potential jurors, as long as the reason is **race and gender neutral.** If the judge believes the party was attempting to strike the juror based on race, the party will be **precluded** from making the strike and the potential juror will be seated on the jury.

Question 29

If the defendant has proved that the facts give rise to an **inference of racial or gender discrimination**, what is the prosecution required to do?

Answer 29

Provide a **non-discriminatory** (race-neutral) **explanation** for the strike or withdraw the strike

Question 30

When is D entitled to question jurors on **racial biases?**

Answer 30

Whenever race is “inextricably bound up in the case"

Question 31

Can you strike a juror for cause who opposes the **death penalty**?

Answer 31

Yes, if the potential juror has stated they **never** impose the death penalty and it would intefere with their ability to properly sentence D ## Footnote (*[Witherspoon v. Illinois](https://supreme.justia.com/cases/federal/us/391/510/)*)

Question 32

What is the **Confrontation Clause**?

Answer 32

6^th Amendment gives D right to **confront** (meaningfully cross-examine) all witnesses presenting evidence against him. ## Footnote *More info:* [Confrontation Clause](https://www.law.cornell.edu/wex/right_to_confront_witness)

Question 33

Is D guaranteed the right to **in-person confrontation** under the Confrontation Clause?

Answer 33

No, if: 1. There is an important **public policy reason** for excluding D from the courtroom; and 2. **Reliability** of testimony is otherwise assured

Question 34

The **Confrontation Clause** only applies to witnesses that are offering _______ evidence

Answer 34

Testimonial evidence

Question 35

# Define testimonial evidence

Answer 35

Written or spoken communications whose primary purpose is to **establish or prove past events** potentially relevant to later **criminal prosecution** (e.g. affidavits, prior testimony) ## Footnote [*Davis v. Washington*](https://supreme.justia.com/cases/federal/us/547/813/)

Question 36

Are statements made during an **emergency** considered testimonial?

Answer 36

Likely no. Statements made to law enforcement or 911 operators to assist in an **ongoing emergency** are not considered testimonial. But, statements made **after the emergency** has ceased, or statements to **further** the investigation, will be considered testimonial.

Question 37

Why does **testimonial hearsay** violate the Confrontation Clause?

Answer 37

Since testimonial hearsay is an **out-of-court** statement, D did not have the opportunity to confront or cross-examine the declarant, thereby violating his 6^th Amendment right to confrontation.

Question 38

When does **testimonial hearsay NOT** violate the Confrontation Clause?

Answer 38

If D had the opportunity to **cross-examine** the declarant during a previous trial, and the declarant is now **unavailable**.

Question 39

Is a **non-testifying co-defendant's** confession that implicates D admissible at a joint-trial?

Answer 39

No, unless: 1. Trial is a **bench trial**; 2. Co-D **testifies** and is subject to **cross-examination**; 3. Each D has a **separate** trial (i.e. not a joint trial); and 4. Confession is **redacted** to eliminate **all references to D** ## Footnote [*Bruton v. United States*](https://supreme.justia.com/cases/federal/us/391/123/)