Pretrial and Trail Procedures Flashcards
pretrial ID - purpose of protections, 2 ways to challenge, 2 remedies
- The purpose of the rules concerning pretrial identification is to ensure that when a witness identifies a person at trial, she is identifying the person who committed the crime and not merely the person she saw at the police station.
- There are two ways to challenge a pretrial identification:
o (1) Denial of right to counsel (Sixth Amendment); however, this applies only to post-charge line-ups and show ups (but not photo identifications)
o (2) Denial of due process: the police used techniques that are unnecessarily suggestive AND substantially likely to produce misidentification (e.g., the perpetrator is an African-American, but the line-up contained all whites except the accused)
• Remedies:
o (1) If the pretrial identification violates the defendant’s Sixth Amendment or Due Process rights, the pre-trial identification is inadmissible at trial.
o (2) In addition, the witness will be precluded from making an in-court identification, unless the government can show by clear and convincing evidence an INDEPENDENT SOURCE for the in-court identification, such as where the witness had a good view of the accused at the time of the crime or where the witness’s initial description was precise and later corroborated.
trial procedures - BOP (2 rules)
• The state must prove all elements of the crime beyond a reasonable doubt. EVEN SENTENCING:
»> Other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
»> Moreover, any fact that increases the mandatory minimum sentence also must be submitted to the jury and proved beyond a reasonable doubt.
• The state may impose the burden of proof upon the defendant with regard to affirmative defenses, such as insanity, duress, or self-defense.
»> Alibi is not an affirmative defense but rather negates an essential element of the crime. Thus, the state may not impose the burden of proving alibi on the defendant, but the state may require the defendant to give advance notice of his intent to claim alibi.
trial procedures - rules for admissibility of confessions when you have multiple defendants, insanity defense, defendant’s presence in courtroom
• If two defendants are tried jointly and a confession given by one of them implicating the other is admitted into evidence, this violates the confrontation clause, because the person implicated has no right to compel the other defendant to testify so that he may be cross-examined about the confession.
> > > This is true even if both defendants have given interlocking confessions.
> > > The confession of one may be used, however, ONLY IF:
(a) all references to the other defendant are removed (including any redactions that implicitly refer to the other defendant) or if the confessing defendant testifies,
(b) the confessing defendant takes the stand and subjects himself to cross-exam with respect to the truth/falsity of the statement, OR
(c) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively (in which case the jury must be instructed as to the purpose of the admission.
right to jury trial - rule and 5 sub rules:
- where does it attach in a criminal case?
- do we aggregate offenses?
- how many jury members required?
- application in juvy proceedings
- ability to waive
- availability of jury instructions
• The accused has a right to a jury trial whenever he or she is tried for an offense if the MAXIMUM AUTHORIZED SENTENCE for this offense EXCEEDS SIX MONTHS
o A right to a jury trial is judged on an offense-by-offense basis rather than an aggregate basis. Thus, a right to a jury does not arise when, in a single proceeding, sentences for multiple petty offenses (each with a maximum sentence not exceeding six months) result in an aggregate prison term of more than six months.
o Federal court juries must contain 12 members and reach a unanimous verdict; state court juries may be as small as six members and (as of April 20, 2020) must also reach a unanimous verdict (at least with regard to felonies)
»> UNLESS THE PARTIES STIPULATE TO FEWER JURORS (only in criminal cases?)
o There is no right to a jury in juvenile delinquency proceedings.
o A defendant may waive the right to a jury trial if the waiver is voluntary, knowing, and intelligent. In most jurisdictions, the prosecutor may veto the defendant’s waiver and insist upon a jury trial.
o A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction (1) is a correct statement of the law; (2) has not already been given; and (3) is supported by some evidence.
right to counsel for trial/pretrial - when it applies
• The accused has a right to counsel in ALL FELONY cases, but in misdemeanor cases ONLY IF imprisonment is actually imposed (including suspended sentences with probation)
»> There is no right to counsel if the punishment is probation, fines, or community service.
»> There is also a right to counsel in juvenile delinquency proceedings only in which institutional commitment is a possibility
• The right to counsel exists at all critical stages of the case from custodial police interrogation (5th Amendment) to an appeal as a matter of right. It also includes the plea bargaining process.
right to counsel at trial - 4 ancillary rules:
- result of denial
- right to proceed pro se
- freezing of defendant’s assets
- effective assistance
- Denial of the right to counsel at trial is reversible error PER SE; the harmless error rule applies to non-trial deprivations of counsel.
- An accused has a right to proceed pro se at trial as long as his waiver of the right to counsel is knowing and intelligent and he is competent (i.e., this requires a mental state somewhat greater than that required to stand trial). There is no right to proceed pro se on appeal.
- The government’s pretrial freeze of a defendant’s legitimate, untainted assets which she needed to retain counsel violates the Sixth Amendment. Forfeiture of “tainted” assets is not a violation of the Sixth Amendment.
• If an accused has a right to counsel, she has a right to “effective counsel.” Ineffective assistance of counsel is a violation of the Sixth Amendment.
»> To prevail on an “ineffective assistance” claim, the accused must show:
(1) that counsel’s performance was deficient (well below that of a competent lawyer), AND
»> need specificity of issues!
(2) but for the deficiencies, there is a REASONABLE PROBABILITY that the result of the proceeding would have been different.
sentencing and retrial - 3 rules (imposing harsher punishment; sentencing guidelines; prosecution for a more serious crime after successful appeal)
• Resentencing after a successful appeal may not be harsher than the initial sentence.
o Exceptions: A harsher sentence is permissible if
»> (1) the defendant’s conduct after the first conviction merits additional punishment; or
»> (2) the second sentence is determined by a jury (and not a judge).
- “Advisory” sentencing guidelines are valid, but “mandatory” sentencing guidelines are generally unconstitutional.
- After a successful appeal, a defendant may not be prosecuted for a more serious crime in the second trial than the one for which he was convicted in the first trial.
double jeopardy - premise (3 elements; when it attaches)
**Double Jeopardy bars (1) retrial (2) by the same government (3) for the same offense.
• 1. For Double Jeopardy to apply, the accused must have been in jeopardy in an earlier proceeding. Jeopardy does not require that the first trial end with an acquittal or conviction.
– **TIMING: jeopardy attaches at a jury trial when jury is sworn and at bench trial when the first witness is sworn.
double jeopardy - retrial rule (5 situations where accused may be charged twice)
There are five situations where the accused may be tried twice:
– 1. The jury at the first trial was unable to agree on a verdict (i.e., a hung jury)
• on retrial, the prosecutor can re-try all charges in the prior trial, even if the former jury reached agreement (but did not return a verdict) on some of those charges
– 2. The first trial ended in a mistrial because of
• a manifest necessity (e.g., the death or disability of the judge or a juror),
»> the death of the judge’s mother-in-law is not a manifest necessity
• a motion raised or supported by the defendant, or
• the defendant’s misconduct.
– 3. The defendant may be retried after a successful appeal, unless the ground for reversal is that the evidence was insufficient to support a guilty verdict (i.e., the appellate court finds that no reasonable jury could have found the defendant guilty on the evidence presented).
– 4. The defendant breached a plea bargain agreement (e.g., the defendant agreed to testify against his confederates in exchange for a lesser sentence, but later refused to so testify).
– 5. The defendant consented to two trials (e.g., the defendant may be tried for possession of a firearm arising out of a burglary even though the defendant had been acquitted of the burglary, where the defendant consented to have the charges against him considered in two trials).
double jeopardy - same offense rule
Double Jeopardy applies only if the accused is being tried a second time for the same offense:
– Two crimes are not the same offense if EACH CRIME requires proof of an independent element (e.g., manslaughter and reckless driving are separate offenses; reckless driving and drunk driving are separate offenses). - JUST LIKE BLOCKBURGER
– Trial for a lesser included offense is barred if defendant was put in jeopardy for a greater offense (e.g., a defendant acquitted of robbery cannot be retried for larceny or assault).
• **b/c the lesser crime does not require proof of an additional element
– Likewise, if the defendant is tried for the lesser offense (e.g., assault), he or she may not be retried for the greater offense (e.g., robbery)
• except that an accused who was put in jeopardy for battery (or assault) may be tried for murder if the victim dies AFTER the battery (or assault) TRIAL began (but not felony murder if already acquitted of the felony)
• **b/c the lesser crime does not require proof of an additional element
**common test trick: remember that larceny and burglary are NOT the same offense b/c burglary requires a B&E and larceny requires a taking (whereas the burglary can be a B&E to commit ANY FELONY - not necessarily larceny)
double jeopardy - same sovereign rule
Double Jeopardy applies only if the second trial is by the same sovereign (e.g., federal government or state government)
** BUT a state and its municipalities are the same sovereign.
privilege against compelled testimony - where it comes from; rules for testimonial evidence
**derived from 5th amendment
• The privilege only protects compelled, “testimonial” evidence; it does not protect real or physical evidence, such as pre-existing documents, journals, hand-writing samples, blood samples, etc.; it also does not protect a person from disclosing his or her identity (except in rare cases), standing in a line-up, or from signing an authorization for the prosecutor to receive records from a third party (e.g., foreign bank).
– However, compelling a person (by subpoena) to produce documents (e.g., diaries, tax returns) invokes the protections of the Fifth Amendment privilege against self-incrimination when the act of producing the documents has testimonial significance.
»> The act of production has testimonial significance when it:
(1) proves the existence of the document,
(2) demonstrates possession and control over the document, OR
(3) authenticates the document.
– Only humans can raise the privilege—not corporations, etc.
privilege against compelled testimony - 3 scenarios where it doesn’t apply, even to testimonial evidence
• There are three instances where the privilege does not apply even to testimonial evidence:
– The witness has received a grant of immunity. There are two types of immunity:
»> Use and Derivative Use Immunity. This guarantees that the testimony obtained and the evidence located by this testimony will not be used against the witness by this jurisdiction and other U.S. jurisdictions as substantive evidence or for impeachment. However, such testimony may be used in a prosecution for perjury. This type of immunity is sufficient to extinguish the privilege against compelled self-incrimination.
»> Transactional Immunity. This immunity—which is broader than the Use and Derivative Use Immunity—guarantees immunity from prosecution for any crimes related to the transaction about which the witness testifies.
– There is no possibility of incrimination (e.g., the statute of limitations has expired) or the defendant has been acquitted (and may not be retried).
»> In criminal cases, the statute of limitations usually begins to run on the date the crime is committed; for manslaughter (and other homicides–assuming there is a SOL for such crimes), the SOL starts to run on the date of the victim’s death (subject, of course, to the year-and-a-day rule).
– The witness has waived the privilege (e.g., if a criminal defendant takes the witness stand and testifies on direct, he waives the privilege as to all legitimate cross-exam subjects (i.e. still not silence in response to a Miranda warning)). The defendant does not waive the privilege by testifying at a suppression hearing.
privilege against compelled testimony - prosecutor’s use in court (what prosecutor may and may not comment on)
The prosecutor may NOT comment to the jury about:
– a person’s exercise of his or her Miranda rights,
– the defendant’s refusal to testify at trial, or
– the defendant’s silence in response to police questioning (implied protection under 5th Amendment).
However, the prosecutor MAY comment on:
– defendant’s pre-arrest silence (e.g., D claims self-defense in a murder case; on cross-examination, the prosecutor brought out the fact that D had left the scene of the crime and, during the two weeks between the crime and his arrest, did not go to the police to tell his story), and
– defendant’s silence in response to voluntary, non-custodial police questioning, unless the suspect clearly invokes the right to remain silent.
duty to disclose exculpatory information (Brady violations)
• The government has a duty to timely disclose material, exculpatory evidence to the defendant. Failure to do so—whether willful or inadvertent—constitutes a violation of the Due Process Clause and is grounds for reversal if:
– 1. The evidence is favorable to the defendant because it impeaches or is exculpatory; AND
– 2. There is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial.
