Kaplan Pgs 419-427 Fair Trial

Question 1

If two defendants are tied together, how can they get a right of severance?

Answer 1

If either co-defendant is unfairly prejudiced at any stage of a joint trial

Question 2

If in a joint trial one co-defendant’s confession implicates the other, what happens?

Answer 2

That gives a right to confrontation that prohibits the use of the confession and demands that the defendants be given separate trials

Question 3

What does the due process right to an unbiased judge require?

Answer 3

The magistrate cannot be prejudiced against the defendant or financially interested in the outcome of the trial

Question 4

What is involved in the right to effective counsel?

Answer 4

The law presumes that legal counsel is effective, so the defendant has the duty to demonstrate otherwise by proving:
– that counsel was ineffective and deviated from reasonably prevailing norms
– there’s a reasonable probability that the verdict would not have been guilty if counsel had been effective

Question 5

What must an indigent be informed of before a waiver of the right to counsel is valid?

Answer 5

His right to free counsel

Question 6

What are the major critical stages of a proceeding that the right to counsel would attach to?

Answer 6

- custodial interrogation
– post indictment lineup
– preliminary hearings
– arraignments
– felony trials
- sentencing
– appeals as a matter of right

Question 7

What are stages of a trial that are not deemed to be critical and so no right to counsel exists?

Answer 7

– preliminary identification procedures
– preindictment lineups
- nonadversarial detention hearings
- grand jury proceedings
– discretionary appeals
– parole revocation
- habeas corpus proceedings

Question 8

What does the defendant need in order to be competent?

Answer 8

• he must be able to understand the nature of the charges
  – have the capacity to consult with his lawyer to prepare his defence
  – be oriented as to time and place
  – have a fair recollection of the events surrounding the charge

Question 9

When is a defendant’s competency determined?

Answer 9

At the time of trial, not at the time of the crime

Question 10

If a defendant is found to be incompetent, what usually happens?

Answer 10

He is committed for treatment, and the criminal proceedings are suspended until he regains his competence. Generally he cannot remain indefinitely in a mental health hospital

Question 11

What are the rules about the government giving drugs to mentally ill defendants?

Answer 11

The government can give antipsychotic drugs to a mentally ill defendant against his will in order to make him competent to stand trial for serious criminal charges

Question 12

What is the rule for a right to jury trial?

Answer 12

It attaches in any criminal proceeding if the defendant faces a potential sentence of longer than six months

Question 13

How many jurors are necessary?

Answer 13

• 6 are necessary for non-capital cases: verdict must be unanimous. Five is unconstitutional as a denial of due process
• state criminal trials that have 12 member juries do not have to be unanimous. Super majorities like 10 to 2 or 9 to 3 are OK
• for federal trials there must be a unanimous verdict from 12 jurors

Question 14

What is the right of a defendant with regard to the make up of a jury?

Answer 14

He has a right to a jury selected from a cross section of the community. But this doesn’t have to include members of all minority groups

Question 15

Peremptory challenges can be exercised for any rational or irrational reason, except what?

Answer 15

On the basis of race, ethnicity, or gender

Question 16

How many peremptory challenges do parties get in federal criminal court?

Answer 16

– capital case with the death penalty: 20
– felony case: government has 6 and defendant has 10
– misdemeanor: 3

Question 17

If peremptory challenges are used to exclude prospective jurors based on race, ethnicity, or gender, what does that violate?

Answer 17

The equal protection clause

Question 18

If there is a prima facie showing of purposeful racial discrimination in jury selection, where does the burden go?

Answer 18

On the accused party to prove otherwise. A pretext or reason for using a peremptory challenge gives rise to an inference of discriminatory intent

Question 19

If there is an under representation of a distinct and significant racial group from the members of the jury, that provides grounds of what?

Answer 19

A prima facie showing of discriminatory jury selection

Question 20

In order for one party to rebut a charge of racial discrimination with regard to jury selection, what do they have to show?

Answer 20

Racially neutral selection procedures

Question 21

Is it OK to exclude a juror because he has misgivings about imposing capital punishment?

Answer 21

No

Question 22

In a case, if a prospective juror has views about capital punishment that would prevent or substantially impair the performance of his duties as a juror, what happens?

Answer 22

He is subject to a challenge for cause

Question 23

If a prospective juror is opposed to capital punishment, is that enough to excuse him for cause?

Answer 23

No. Only if his personal beliefs would substantially limit his ability to follow the court’s instructions or from fairly considering the imposition of a death sentence

Question 24

What does it mean that the defendant has a right to a public trial for all criminal prosecutions under the sixth amendment?

Answer 24

He has the right for the press and the public to have access to the trial. But he can also choose to waive this right

Question 25

Members of the press and the general public have a sixth amendment right to be present at all criminal proceedings except a grand jury, unless what?

Answer 25

The judge specifically finds an overriding interest to require a closed trial

Question 26

The judge has a right to put limitations on the public and the media with regard to a public trial, as long as what?

Answer 26

The exclusions are to protect the defendant’s right to a fair trial

Question 27

What is the right to confrontation?

Answer 27

The defendant has a fundamental right to confront all witnesses against him in any federal or state criminal prosecution

Question 28

What is the purpose of the right of confrontation?

Answer 28

To give the defendant an opportunity to cross examine witnesses at trial

Question 29

What are punishments that the trial judge can mete out on a defendant?

Answer 29

• bind and gag the defendant
  – cite him for contempt
• remove him from the courtroom for disruptive behaviour

Question 30

What are the standards for proof in a criminal trial?

Answer 30

– Prosecution must prove beyond a reasonable doubt that the defendant is guilty of each element of the claim
– defendant must prove affirmative defences by a preponderance of the evidence
– if the affirmative defence is insanity, that must be proven by clear and convincing evidence