Pretrial, trial, and pleas

Question 1

Detaining defendant and preliminary hearing

Answer 1

A defendant’s liberty can be restricted only on a finding of probable cause

If probable cause has already been determined, no preliminary hearing to determine probable cause need be held

If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty, a preliminary hearing to determine probable cause must be held within a reasonable time
- 48 hours

Question 2

Grand jury requirement

Answer 2

Fifth Amendment right to indictment by grand jury has not been incorporated into the fourteenth amendment but some state constitutions require grand jury indictment

Question 3

Grand jury - secrecy and defendant’s access

Answer 3

Grand jury proceedings are conducted in secret

Def has no right to notice that the grand jury is considering an indictment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury

Question 4

Grand jury - miranda and counsel

Answer 4

A witness subpoenaed to testify before the grand jury does not have the right to receive Miranda warnings nor is a witness entitled to a warning that they are a potential defendant when called to testify before the grand jury

Witnesses have no right to have an attorney present

Question 5

Grand jury - evidence excluded

Answer 5

A grand jury may base its indictment on evidence that would be inadmissible at trial

An indicated defendant cannot have the indictment quashed on the ground that it is based on illegally obtained evidence

Question 6

Grand jury - challenge subpoena

Answer 6

No right to challenge a subpoena on the fourth amendment grounds that the grand jury lacked probable cause - or any reason at all - to call a witness for questioning

Question 7

Grand jury - exclusion of minorities

Answer 7

A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to harmlessness of error

About the only defect sufficient to quash a grand jury indictment

Question 8

Speedy trial standard and remedy

Answer 8

A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances

Factors
- length of delay
- reason for delay
- whether defendant asserted their right, and
- prejudice to defendant

Remedy is dismissal with prejudice

Question 9

When right to speedy trial attaches

Answer 9

Does not attach until the defendant has been arrested or charged

Defendant does not need to know of the charges for the speedy trial rights to attach

Question 10

Duty to disclose exculpatory evidence

Answer 10

The government has a duty to disclose material, exculpatory evidence to the defendant

Failure to disclose, whether willful or inadvertent, violates due process

Question 11

Failure to disclose exculpatory evidence and reversal

Answer 11

Failure to disclose is grounds for reversing a conviction if the defendant can prove that
- the evidence is favorable to the defendant because it either impeaches or is exculpatory, and
- prejudice has resulted - reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial

Question 12

Incompetency to stand trial

Answer 12

Not a defense to the charge, but rather is a bar to trial

Based on the defendant’s mental condition at the time of trial

If the defendant later regains competency, they can then be tried and convicted

Incompetent to stand trial if they either
- lack a rational as well as factual understanding of the charges and proceedings, or
- lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding

Can require defendant to prove by preponderance of evidence but requiring def to show it by clear and convincing evidence is unconstitutional

Question 13

Public trial

Answer 13

Press and public have a first amendment right to attend the trial, even when prosecution and defense agree to close it

State can permit televising criminal proceedings over defendant’s objection

Question 14

Right to unbiased judge

Answer 14

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a guilty verdict
- not actual malice if judge says “if i see you again, I will give you max sentence” and does see again

Impermissible bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case

Question 15

Due process - jury gave evidence reasonable consideration

Answer 15

Due process violation if the trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration

Question 16

Due process - defendant in prison clothing / shackled

Answer 16

Due process is violated if the state compels the defendant to stand trial in prison clothing

Or compels def to stand trial or appear at penalty phrase proceedings visibly shackled, unless court finds the shackling justified by concerns about courtroom security or escape

Question 17

Due process - police preserving evidence

Answer 17

Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction

Question 18

Right to jury trial

Answer 18

No constitutional right to jury trial for petty offenses, only for serious offenses

An offense is serious if imprisonment for more than six months is authorized

No right to jury trial in juvenile delinquency proceedings

Must be at least 6 jurors and jury verdicts must be unanimous

Question 19

Right to jury - selected jurors

Answer 19

A defendant has a right to have the jury selected from a representative cross-section of the community

Defendant need only show the underrepresentation of a distinct and numerically significant group in the venire to show their jury trial right was violated

No right to proportional representation of all groups in a particular jury

Question 20

Peremptory challenges to jury

Answer 20

Generally, a prosecutor may exercise peremptory challenges for any reason but equal protection clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender

Question 21

Equal protection-based attack on peremptory strikes

Answer 21

Three steps
- defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender
- upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even unreasonable explanation is sufficient as long as race-neutral)
- the judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pre textual for purposeful discrimination

Question 22

Juror excluded for cause

Answer 22

Standard for determining whether a prospective juror should be excluded for cause is whether the juror’s views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath

Question 23

Right to question juror on racial bias

Answer 23

A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or the defendant is accused of an interracial capital crime

Question 24

Right to counsel

Answer 24

Defendant has a right to counsel and violation of this at trial, including erroneous disqualification of the defendants privately retained counsel, requires reversal

For non trial denials, harmless error test

But only in felony and misdemeanor cases that imprisonment is actually imposed

Question 25

Waiver of right to counsel - right to defend oneself

Answer 25

Defendant has a right to defend themself at trial if, in the judgment of the judge, their waiver is knowing and intelligent and, based on the judge’s consideration of the defendant’s emotional and psychological state, the defendant is competent to proceed pro se

No right to self-representation on appeal

Question 26

Effective assistance of counsel generally

Answer 26

Right to counsel includes the right to effective counsel and this right extends to the first appeal

Effective assistance of counsel is generally presumed

Question 27

Circumstances constituting ineffective assistance

Answer 27

An ineffective assistance claimant must show
- deficient performance by counsel, and
- but for the deficiency, the result of the proceeding would have been different

Must point out specific deficiencies and cannot base it on
- inexperience
- lack of time to prepare
- gravity of charges
- complexity of defenses, or
- accessibility of witnesses to counsel

Trial tactics and failure to raise a constitutional defense that is later invalidated do not constitute ineffective assistance

Question 28

Counsel admits clients guilt

Answer 28

If counsel admits their client’s guilt in the face of the defs clearly articulated desire to maintain their innocence during the sentencing phase of trial, mandates a new trial without any need to first show prejudice

Question 29

Ineffective assistance - deportation risk

Answer 29

Constitutionally deficient for counsel not to inform a client whether their plea carries a risk of deportation

Question 30

Ineffective assistance and plea offers

Answer 30

Defendant must show deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice

Failure to notify a defendant of a plea offer can constitute deficient performance if the def can show that
- had the plea agreement been communicated, the defendant likely would have accepted, and
- the plea likely would have been entered without the prosecutor’s cancelling it

Fact that defendant subsequently has a fair trial does not prevent the ineffective assistance claim

Question 31

Right to confront witnesses generally

Answer 31

Sixth amendment grants to a defendant in a criminal prosecution the right to confront adverse witnesses - but the right is not absolute

Question 32

Right to confront witnesses - not absolute

Answer 32

Love to test on the right not being absolute

Face to face confrontation is not required when preventing such confrontation serves an important public purpose

Judge may remove a disruptive defendant and a defendant may voluntarily leave the court room during trial

Question 33

Co-defendant’s confession

Answer 33

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement
- even where the confrontation interlocks with the defendant’s own confession, which is admitted

But may be admitted if
- all portions referring to the other defendant can be eliminated
- the confessing defendant takes the stand and subjects himself to cross-examination with respect to truth or falsity of the statement, or
- the confession of the non testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 34

Prior testimonial statement of unavailable witness

Answer 34

Under the confrontation clause, prior testimonial evidence may not be admitted unless
- the declarant is unavailable, and
- the defendant had an opportunity to cross-examine the declarant at the time the statement was made

Question 35

Testimonial statement

Answer 35

Includes, at minimum, statements from
- preliminary hearing
- grand jury hearing
- former trial
- police interrogation conducted to establish or prove past acts

However, statements from police interrogations intended to aid the police in responding to an ongoing emergency are not testimonial

Question 36

Burden in affirmative defenses

Answer 36

State may generally impose the burden of proof upon the defendant in regard to an affirmative defense

Question 37

Presumptions and burdens

Answer 37

A mandatory presumption or a presumption that shifts the burden of proof to the defendant violates the fourteenth amendment’s requirement that the state prove every element of the crime beyond a reasonable doubt

Question 38

Jury instructions

Answer 38

Judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence

Question 39

Judges determinations regarding pleas

Answer 39

Judge must determine that the plea is voluntary and intelligent
- done by addressing the defendant personally in open court on the record

Specifically, judge must be sure that the defendant knows and understands things such as
- the nature of the charge to which the plea is offered and the crucial elements of the crime charged,
- the maximum possible penalty and any mandatory minimums, and
- that the defendant has a right not to plead guilty and that if they do plead guilty, waive right to a trial

Doesn’t need to personally explain, sufficient that attorney did and defendant knows

Question 40

Collateral attacks on guilty pleas

Answer 40

Those pleas that are seen as an intelligent choice among a defendant’s alternatives are immune from collateral attack

But a plea can be set aside for
- involuntariness (failure to meet standards for taking a plea)
- lack of jurisdiction
- ineffective assistance of counsel, or
- failure to keep the plea bargain

Question 41

Plea bargain

Answer 41

Plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who does not have to accept it

Question 42

Involuntary plea and threat from prosecution

Answer 42

A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime if they do not plead guilty

No prosecutorial vindictiveness in charging a more serious offense when defendant demands a jury trial

Question 43

Collateral effects of guilty pleas

Answer 43

A guilty plea conviction may be used as a conviction in other proceedings when relevant

A guilty plea neither admits the legality of incriminating evidence nor waives fourth amendment claims in a subsequent civil damages action