Crim Pro - Pretrial Identifications, Pretrial Detentions, Trial Rights and Rights to Effective Counsel

Question 1

Three Types of Pretrial Identifications

Answer 1

(1) LINE-UPS -witness is asked to identify the perpetrator from a group
(2) SHOW-UPS - One-on-one confrontation between the witness and the suspect
(3) PHOTO ARRAYS - witness is shown a series of photos and is asked if she sees the perpetrator among them

Question 2

What are the substantive challenges to Pretrial Identifications?

Answer 2

(1) DENIAL of the RIGHT TO COUNSEL
- Fifth Amendment - there is no 5th amendment right to counsel under the Miranda Doctrine for pretrial identifications
- Sixth Amendment - A right to counsel exists under the 6th Amendment at LINE-UPS and SHOW-UPS that take place AFTER FORMAL CHARGING;
* however, there is no 6th amendment right to counsel at photo arrays (MBE favorite!!)

• **NEW YORK - NY provides greater protection for suspects. In NY, you have the right to have an attorney present at a line-up conducted BEFORE the filing of formal charges if
  (i) the police are AWARE that you have counsel AND
  (ii) you REQUEST that counsel be present

(2) VIOLATION OF DUE PROCESS
A pretrial identification procedure violates the DUE PROCESS CLAUSE of the 14th amendment when it is SO UNNECESSARILY SUGGESTIVE that it creates a very substantial likelihood of irreparable misidentification

Question 3

When does a pretrial identification violate DUE PROCESS?

Answer 3

A pretrial identification procedure violates the DUE PROCESS CLAUSE of the 14th amendment when it is SO UNNECESSARILY SUGGESTIVE that it creates a very substantial likelihood of irreparable misidentification

Question 4

REMEDIAL CONSIDERATIONS for constitutional violations during PRETRIAL IDENTIFICATIONS

Answer 4

(1) The remedy for constitutional violations in pretrial identifications is the exclusion of a witness’s IN COURT IDENTIFICATION

HOWEVER, even if there is a constitutional violation in a pretrial identification procedure, an in-court identification WILL STILL BE ALLOWED if the prosecution can prove that it is based on observations of the suspect OTHER THAN the unconstitutional show-up, line-up or photo array
….to make this showing, prosecution can point to factors such as
(1) witness’s OPPORTUNITY TO VIEW the D at crime scene
(2) the CERTAINTY of the witness’s identification; and
(3) the SPECIFICITY of the description given to police

Question 5

What do GRAND JURIES do?

Answer 5

They issue INDICTMENTS

• *NY Indictments must:
  (i) establish ALL ELEMENTS of the offense AND
  (ii) provide reasonable cause to believe that the accused COMMITTED the offense

Question 6

Are Grand Jury Proceedings Public?

Answer 6

NO, they are SECRET

Question 7

Do states have to use Grand Juries as part of their charging process?

Answer 7

NO

**NY Indictments must establish ALL ELEMENTS of the offense AND provide reasonable cause to believe that the accused COMMITTED the offense

Question 8

What is the standard of proof for PRETRIAL DETENTION?

Answer 8

The government needs PROBABLE CAUSE both to

(i) bind the defendant over for trial AND
(ii) to detain him in jail before trial

Detention Hearings - a hearing to determine PROBABLE CAUSE (sometimes called a Gerstein Hearing) is UNNECESSARY to justify pretrial detention IF

(1) the grand jury has issued an indictment; or
(2) the magistrate has issued an arrest warrant

Question 9

The “First Appearance”

Answer 9

soon after arrest, a Defendant must be brought before a magistrate who

(1) ADVISES him of his rights
(2) SETS BAIL
(3) APPOINTS COUNSEL, if necessary

Decisions regarding BAIL are IMMEDIATELY APPEALABLE

Question 10

What are a Defendant’s TRIAL RIGHTS?

Answer 10

(1) EVIDENTIARY DISCLOSURE - A prosecutor must disclose to a criminal defendant ALL material, exculpatory evidence (the BRADY rule)

(2) JUDGES - The Right to an UNBIASED JUDGE means 2 things
- –(a) the judge has NO FINANCIAL INTEREST in the outcome of the case; and
- –(b) the judge has NO ACTUAL MALICE towards the defendant

(3) JURIES-
(a) fundamental protections - all D’s have a right to a FAIR and IMPARTIAL jury
(b) RIGHT TO A JURY TRIAL - criminal Ds have right to a jury trial when the maximum authorized sentence exceeds 6 MONTHS
(c) Requisite number of Jurors - fewest number of jurors allows in a criminal trial = 6
* *NY requires 12-person juries. However, a D can waive this requirement and proceed to verdict with only 11 jurors participating in the deliberations
(d) Unanimous jury verdicts (NY requires this)

Question 11

For a Trial, what are D’s rights concerning a JURY?

Answer 11

(a) fundamental protections - all D’s have a right to a FAIR and IMPARTIAL jury
(b) RIGHT TO A JURY TRIAL - criminal Ds have right to a jury trial when the maximum authorized sentence exceeds 6 MONTHS

(c) Requisite number of Jurors - fewest number of jurors allows in a criminal trial = 6
- —***NY requires 12-person juries. However, a D can waive this requirement and proceed to verdict with only 11 jurors participating in the deliberations

(d) UNANIMITY OF JURY VERDICTS - Jury verdicts in criminal trials must be unanimous ONLY IF 6 jurors are used; verdicts in 12-person juries need not be unanimous
but NY*** jury verdicts must be unanimous

(e) “Cross-Sectional” Requirement - jury must be drawn from POOL that represents a cross-section of the community;
- -therefore, a jury that contains all white women over the age of 60 does NOT violate the cross-sectional requirement provided the POOL from which it was drawn was appropriately diverse

(f) Peremptory Challenges - cant exclude for reasons of RACE OR GENDER

Question 12

When does a criminal D have a right to a jury trial?

Answer 12

when the authorized sentence exceeds 6 months

Question 13

What are the requisite number of jurors allowed in a criminal case?

Answer 13

6 , but NY*** requires 12

Question 14

When must a jury verdict be unanimous in a criminal trial?

Answer 14

when the jury consists of 6 jurors, but ***NY requires a unanimous verdict by a 12-person jury

Question 15

What is the “Cross-Sectional” Requirement with respect to juries?

Answer 15

“Cross-Sectional” Requirement - the cross-sectional requirement requires that the POOL from which the jury is drawn represents a cross-section of the community; therefore, a jury that contains all white women over the age of 60 does NOT violate the cross-sectional requirement provided the POOL from which it was drawn was appropriately diverse

Question 16

What is the rule regarding Peremptory Challenges?

Answer 16

Peremptory Challenges permit 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 OF GENDER

Question 17

What rights does a D have under the 6th amendment “Confrontation Clause?”

Answer 17

D has right to confront adverse witnesses, but this does not apply where face-to-face confrontation would contravene important PUBLIC POLICY concerns
–eg. traumatizing a child witness in physical or sexual abuse case

Question 18

The Right to Effective Assistance of Counsel

Answer 18

Two-Prong Test
(1) “Deficiency” Requirement - Counsel’s performance fell below an objective standard of reasonableness, meaning he made errors so serious that he was not functioning as counsel!; and

(2) Prejudice Requirement - “But For” the deficiency, the outcome of the trial would have been different

Note: almost impossible for D to get this - ALMOST ALWAYS DENY unless there is a colorable argument D is not guilty
e.g. lawyer fell asleep during witness testimony and still wasnt held deficient

**NY - e.g. reversal of guilty verdict was not required on “ineffective assistance” when one of the 2 attorneys representing him WASN’T LICENSED!