Prosecutorial duty to disclose exculpatory information,Trial, Guilty Pleas & Bargaining, Death Penalty, Double Jeopardy, 5A Privelege against compelled testimony

Question 1

Prosecutorial duty to disclose exculpatory information

Answer 1

• A prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of a conviction.
• A failure to disclose exculpatory information will constitute grounds for reversing a conviction if:
  
  1. The evidence is favorable to the defendant, and
  2. Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.

Question 2

Trial Rights

Answer 2

1. Right to an unbiased judge
2. Right to jury trial
3. Right to Counsel
4. Right to Confront Witnesses
   5.

Question 3

Right to an unbiased judge; what does bias mean?

Answer 3

Bias means having a financial interest in the outcome of the case or some actual malice against the defendant

Question 4

When does right to a jury trial attach:

Answer 4

• The constitutional right to jury trial attaches anytime the Defendant is tried for an offense for which the maximum authorized sentence exceeds 6 months
  
  • If the maximum authorized sentence is up to or including 6 months, there is no constitutional right to jury trial.
    *

Question 5

Number and unanimity of jurors

Answer 5

• The minimum number of jurors permissible is 6. If a
  court uses this minimum number of jurors, the verdict must be unanimous
• Note: There is no federally protected constitutional right to a unanimous twelve juror verdict. The Supreme Court has approved the non-unanimous verdicts of 10-2 and 9-3.

Question 6

The cross sectional requirement to jurys

Answer 6

You have the right to have the jury pool reflect a fair cross section of the community. BUT – you have no right to have the empanelled jury reflect a fair cross section of the community.

Question 7

The use of peremptory challenges

Answer 7

• A peremptory challenge is a challenge to exclude a
  prospective juror for any reason whatsoever
• BUT: It is unconstitutional for the prosecutor or the defense to exercise peremptory challenges to exclude from the jury prospective jurors on account of their race or gender

Question 8

When does right to counsel apply?

Answer 8

All critical stages of a prosecution, including trial

Question 9

Ineffective assistance of counsel

Answer 9

• Rule: there must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different
• Typically, such a claim can only be made out by
  specifying particular errors of trial counsel
  
  • vague allegations of inexperience or ineffective trial tactics are not enough

Question 10

Right to self-representation

Answer 10

• A Defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se.
• Note: a Defendant can be found mentally competent
  to stand trial, yet incompetent to represent himself, as determined by the trial judges discretion

Question 11

Right to confront witnesses

Answer 11

• The absence of face-to-face confrontation between the Defendant and accuser does not violate the Sixth Amendment when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured.
  
  • Ex: Child in sex-abuse case (ok to testify in other room via closed circ TV)
• A Defendant who is disruptive may be removed
  from the courtroom, thereby relinquishing his right of confrontation.

Question 12

Guilty Pleas General Rule

Answer 12

A court will not disturb guilty pleas after sentencing

Question 13

If the D pleads guilty, the judge must:

Answer 13

specifically address the Defendant on the record about the following:

1. The nature of the charge; and
2. The judge must tell the Defendant the maximum authorized penalty and any mandatory minimum penalty; and
3. The judge must tell him that he has a right to plead not guilty and to demand a trial; and
4. All of this must be on the record.

Question 14

Four good bases for withdrawing a guilty plea after sentence:

Answer 14

1. The plea was involuntary (some mistake in plea
   taking ceremony);
   
   • Note: A 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
2. Lack of jurisdiction;
3. Ineffective assistance of counsel;
4. Failure of the prosecutor to keep an agreed upon plea bargain.

Question 15

Death Penalty

Answer 15

1. Any death penalty statute that does not give the Defendant a chance to present mitigating facts and circumstances is unconstitutional
2. There can be no automatic can be no automatic category for imposition of the death penalty.
3. The State may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the death penalty statute is unconstitutional.
4. Only a Jury – not a judge – may determine the aggravating factors justifying imposition of the death penalty.

Question 16

When does Double Jeopardy Attach?

Answer 16

It attaches when:

1. the jury is sworn
2. In a bench trial, jeopardy attaches when the 1st witness is sworn.

Question 17

Double jeopardy does not generally attach when proceedings are:

Answer 17

Civil

Example: It is okay to have a criminal prosecution for tax fraud, and then a civil proceeding to collect the back taxes.

Question 18

Exceptions permitting retrial:

Answer 18

1. Jury is unable to agree upon a verdict
2. Mistrial for manifest necessity
   
   • i.e. medical emergency - declare a mistrial and retry

Question 19

Retrial & Double Jeopardy

Answer 19

• a retrial after a successful appeal is not double jeopardy.
• Upon retrial after a successful appeal, the Defendant cannot be retried for a more serious offense than he was convicted of at the first trial.

Question 20

What happens when the Defendant breaches a plea bargain?

Answer 20

His plea sentence can be withdrawn and the original sentence reinstated

• because once you agree to testify, you agree for that trial and any subsequent trial. So if you withdraw at an appeal you have wiped it clean.

Question 21

Two crimes do not constitute the same offense if:

Answer 21

each crime requires proof of an additional element the other does not

• You can prove hit and run without the death. You can prove manslaughter w/o the driving away

Question 22

Lesser Included offenses: Being put in jeopardy for a greater offense….

Answer 22

Bars retrial for a lesser included offense

Question 23

Exception to the Lesser Included Offense Rule

Answer 23

Battery/Murder. If a Defendant is tried and convicted on a charge of battery, and the victim of the battery later dies due to the injuries, the Defendant can also then be prosecuted for Murder

Question 24

Seperate Sovereigns

Answer 24

• Double jeopardy bars retrial for the same offense by seperate soveriegns
• State and Federal are not the same sovereign. But, local and State are same.

Question 25

The Fifth Amendment Privilege against self-incrimination can be asserted by:

Answer 25

• Anyone in any type of case
• Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him is entitled to a Fifth Amendment privilege.

Question 26

When must you assert the 5th amendment privalge against self incrimination and when is it waived?

Answer 26

• You must assert that privilege the 1st time the question is asked or you will have waived your Fifth Amendment privilege for all subsequent criminal prosecutions.
• The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution.
• If the individual responds to the questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence on Fifth Amendment grounds.

Question 27

Scope of 5th amendment privalge against self incrimination

Answer 27

• protects citizens from compelled testimony
• The Fifth Amendment does not protect citizens from having the government use physical evidence in ways to incriminate them

Question 28

Examples of non-testimonial evidence that the prosecution can compel a person to produce:

Answer 28

1. blood sample
2. handwriting sample
3. voice sample
4. hair sample

Question 29

The Fifth Amendment and prosecutorial conduct (misconduct) - It is unconstitutional for the prosecutor to make a negative comment on the defendant’s:

+ Exception

Answer 29

1. Failure to testify
2. or Defendant choosing to remain silent

Exception: The prosecutor can comment on the defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that defendant was not allowed to explain his side of the story

Question 30

Can silence be used against a defendant?

Answer 30

if a suspect chooses to remain silent before police read him his Miranda rights, that silence can be used against him in court

Question 31

When a prosecutor impermissibly comments on a defendant’s silence:

Answer 31

The harmless error test applies, and thus, the prosecutor’s conduct may not be fatal to an otherwise sound conviction.

Question 32

The Fifth Amendment privilege can be eliminated in three ways:

Answer 32

1. under a grant of immunity
2. No possibility of incrimination
   
   • Ex: Statute of limitiations has already run
3. Waiver
   
   • The criminal Defendant who takes the witness stand waives the Fifth Amendment privilege as to all legitimate subjects of cross examination.