Grand Juries, Pre-trial Detention, and Trial Rights

Question 1

What is the function of the grand jury?

Answer 1

To issue indictments - allowing prosecution to go forward.

Question 2

What is the standard of proof required in a grand jury in NY?

Answer 2

Prosecution must establish ALL elements of the offense, and provide reasonable cause to believe the accused committed the offense.

Question 3

Are grand jury proceedings public?

Answer 3

No - they’re secret.

Question 4

What is the standard of proof required to have a defendant detained pre-trial?

Answer 4

Probable cause to detain.

Question 5

When is a pretrial detention hearing unnecessary to justify the detention?

Answer 5

If the grand jury has issued an indictment or

a magistrate has issued an arrest warrant.

Question 6

What must happen soon after arrest?

Answer 6

The person must be brought for a “first appearance” before a magistrate, who:
- advises D of his rights,
- sets bail, and
- appoints counsel if necessary
[decisions on bail are immediately appealable]

Question 7

Are states required to use grand juries?

Answer 7

No, only the federal courts are - the 7th Am right to grand jury indictment was never incorporated to the states. But, NY uses them.

Question 8

What information must the prosecution disclose to a criminal defendant?

Answer 8

Any information that has a tendency to exculpate the defendant.

Question 9

What makes a judge biased?

Answer 9

Judge has a financial state in the outcome or has actual malice towards D.

Question 10

If the judge is generally known for being biased against defendants, does that violate D’s right to an unbiased judge?

Answer 10

No - the judge must have “actual malice towards the defendant” to be considered biased.

Question 11

When does the defendant have a right to a jury trial?

Answer 11

When the maximum sentence he could get is longer than 6 months.

Question 12

What is the fewest number of jurors required to convict a defendant?

Answer 12

6

Question 13

What is NY’s requirement for the number of jurors in a criminal case?

Answer 13

12 - but D can waive and proceed to verdict with only 6 jurors.

Question 14

Must the jury be unanimous to convict?

Answer 14

If 12 jurors - no.
If 6 jurors - yes.
In NY: always must be unanimous!

Question 15

What must the jury pool be like?

Answer 15

The jury POOL must be a cross-section of the community.

The actual jury doesn’t have to represent a cross-section.

Question 16

What are the parties rights to strike jurors?

Answer 16

Each party has unlimited strikes for cause.

Each party has only 3 peremptory strikes (but can’t use them in a race or gender discriminatory manner)

Question 17

What is D’s right to confrontation?

Answer 17

Guaranteed by the 6th Amendment: D has a right to confront adverse witnesses.

• but this doesn’t apply where face-to-face confrontation would contravene public policy (like making a child face their molester).

Question 18

What is the test for ineffective assistance of counsel?

Answer 18

1. counsel’s performance fell below an objective standard of reasonableness (errors so serious, it was as if no counsel at all), and
2. but-for the deficiency, D would not have been convicted.
   [unless there’s a colorable argument that D is actually innocent, this will always be denied]