Trial

Question 1

BASIC RIGHT TO A FAIR TRIAL: Order of Arguments

Answer 1

• Trial begins w/ prosecution’s opening argument
  followed by defense’s opening argument.
• Closing arguments:
  (1) Gov argues,
  (2) Defense argues, and
  (3) Gov rebuts.

Question 2

Right to Public Trial

Answer 2

• 6th & 14 Am guarantee right to public trial, but right varies w/ stage of proceeding involved.

Question 3

Right to Public Trial:Pretrial Proceedings
.

Answer 3

• Prelim PC hearings are presumptively open to public & press, as are pretrial suppression hearings, but the latter may be closed to public under limited circumstances (ex. party seeking closure has overriding interest likely to be prejudiced by disclosure & there is no reasonable alternative besides closure).
• Similarly, ct must make “every reasonable effort” to accommodate public attendance at jury voir dire
  proceedings

Question 4

Right to Public Trial: Trial

Answer 4

• Press & public have 1st Am right to attend trial itself, even when defense & prosecution agree to close it.
• State may constitutionally permit televising
  criminal proceedings over D’s objection.

Question 5

Right to Unbiased Judge

Answer 5

• Due process is violated if judge is shown to have
  actual malice against D/ to have had a financial
  interest in having trial result in a guilty verdict.
• Bias is present when judge earlier had significant, personal involvement as prosecutor in a critical decision regarding D’s case.

Question 6

Must Judge Be Lawyer?

Answer 6

• D in minor misdemeanor prosecution has no
  right to have trial judge be a lawyer if upon conviction D has a right to trial de novo in a ct w/ a lawyerjudge,
  but for serious crimes, judge probably must be
  law-trained.

Question 7

Other Due Process Rights

Answer 7

Due process is violated if:
(1) Trial is conducted in manner making it unlikely jury gave evidence reasonable consideration
(2) State compels D to stand trial in prison clothing
(3) State compels D to stand trial/appear at penalty phase proceedings visibly shackled, unless ct finds shackling justified by concerns about courtroom security/escape; or
(4) Jury is exposed to influence favorable to prosecution
- Due process does not require police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction

Question 8

RIGHT TO TRIAL BY JURY: Right to Jury Trial Only for “Serious” Offenses

Answer 8

• No con right to jury trial for petty offenses, only serious offenses.
• Offense is serious if imprisonment for more than 6 months is authorized.
• No right to jury trial in juvenile delinquency proceedings.

Question 9

Contempt

Answer 9

• For civil contempt proceedings, no jury trial right.
• For criminal contempt proceedings, cumulative penalties totaling > 6 months D has right to jury trial.
• If judge summarily imposes punishment for contempt during trial, penalties may aggregate > 6 months w/o a jury trial.

Question 10

Probation

Answer 10

• Judge may place a contemnor on probation for up to 5 years w/o giving them right to a jury trial, if revocation of probation would not result in imprisonment for >6 months

Question 11

Number and Unanimity of Jurors

Answer 11

• No con right to a jury of 12, there must be at least 6 jurors to satisfy right to a jury trial.
• Jury verdicts must be unanimous.

Question 12

Right to Venire Selected from Representative Cross-Section of Community

Answer 12

• D has right to have jury selected from a representative cross-section of community.
• D need only show underrepresentation of a distinct & numerically significant group
• D does not have right to proportional representation of all groups

Question 13

Use of Peremptory Challenges for Racial and Gender-Based Discrimination

Answer 13

• Generally prosecutor may exercise peremptory challenges for any reason, Equal Protection Clause forbids use of peremptory challenges to exclude potential jurors solely on race/gender.
• An equal protection-based attack on peremptory strikes involves 3 steps:
  (1) D must show facts/circumstance that raise an inference that exclusion was based on race/gender.
  (2) Upon showing, prosecutor must come forward w/ race-neutral explanation for the strike (even an unreasonable explanation is sufficient if race-neutral).
  (3) Judge then determines whether prosecutor’s explanation was genuine reason for striking juror, or merely pretext for purposeful discrimination.
• If judge believes that prosecutor was sincere, strike may be upheld.

Question 14

Right to Impartial Jury: Standard—Impair or Prevent Performance

Answer 14

• The standard for determining when prospective juror should be excluded for cause is whether juror’s views would prevent/substantially impair performance of their duties in accordance w/ their instructions & oath.

Question 15

Right to Questioning on Racial Bias

Answer 15

• D is entitled to questioning on voir dire specifically
  directed to racial prejudice whenever race is bound up in the case/ D is accused of interracial capital crime.

Question 16

Juror Opposition to Death Penalty

Answer 16

• In capital punishment cases, state may not automatically exclude for cause all those who express a doubt/scruple about death penalty; it must be determined whether juror’s views would prevent/ substantially impair performance of their duties in accordance w/ their instructions & oath.
• Death sentence imposed by jury from which juror
  was improperly excluded is subject to automatic reversal.

Question 17

Juror Favoring Death Penalty

Answer 17

• If jury is to decide whether D is to be sentenced
  to death, on voir dire D must be allowed to ask
  potential jurors if they would automatically give death penalty upon guilty verdict.
• A juror who answers yes must be excluded for cause b/c such juror cannot perform their duties in accordance w/ instructions as to mitigating circumstances.

Question 18

Use of Peremptory Challenge to Maintain Impartial
Jury

Answer 18

• If trial ct refuses to exclude for cause juror whom the ct should exclude, & D uses a peremptory challenge to exclude juror, there is no con violation

Question 19

Inconsistent Verdicts

Answer 19

• Inconsistent verdicts (ex. finding D guilty & co-D not guilty on same evidence) are not reviewable.

Question 20

Sentence Enhancement

Answer 20

• If substantive law provides that sentence may be increased beyond statutory max for a crime if additional facts (other than prior conviction) are proved, proof of facts must be submitted to jury & proved beyond reasonable doubt; D’s right to jury trial is violated if judge makes determination.
• Same general rule applies to setting amount due on a fine.
• If amount is based on facts, there is right to have jury find those facts.
• Same rule also applies to sentencing enhancements
  after guilty pleas.
• In deciding whether to overturn a sentence for failure to submit a sentencing factor to jury, harmless error test is applied.

Question 21

Distinguish—Judge May Decide Whether Sentences
Run Consecutively

Answer 21

• A state legislature may give to its judges (rather than jury) power to decide whether sentences for multiple crimes are to run consecutively/concurrently, even though decision is based on facts of case.

Question 22

RIGHT TO COUNSEL

Answer 22

• D has right to counsel.
• Violation of this right at trial, including erroneous disqualification of D’s privately retained counsel, requires reversal.
• For nontrial denials, harmless error test is applied.

Question 23

tip

Answer 23

Remember that right to counsel is available in misdemeanor cases only if imprisonment is actually imposed. Thus, if exam question involves a nonfelony & D asks for counsel, is denied, & is convicted, whether right to counsel has been violated depends on D’s sentence: if they receive no imprisonment, their right has not been violated; if they receive prison time, their right has been violated.

Question 24

Waiver of Right to Counsel at Trial and Right to
Defend Oneself

Answer 24

• D has right to defend themself at trial if, in judgment of judge, their waiver is knowing & intelligent &, based on trial judge’s consideration of D’s emotional & psychological state, D is competent to proceed pro se.
• D does not have a right to self-representation on appeal.

Question 25

Indigence and Recoupment of Cost

Answer 25

• State generally provides counsel in close cases of
  indigence, but may then seek reimbursement from those convicted Ds who later become able to pay.

Question 26

Effective Assistance of Counsel

Answer 26

• 6th Am right to counsel includes right to effective counsel.
• This right extends to 1st appeal.
• Effective assistance of counsel is generally presumed.

Question 27

Circumstances Constituting Ineffective Assistance

Answer 27

An ineffective assistance claimant must show:
(1) Deficient performance by counsel; and
(2) But for deficiency, result of proceeding would
have been different (ex. D would not have been convicted/sentence would have been shorter)
- D must point out specific deficiencies & cannot
base claim on inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel.
- Note: If counsel admits their client’s guilt in the face of D’s clearly articulated desire to maintain their innocence during sentencing phase of trial, this structural error mandates a new trial w/o any need to first show prejudice.

Question 28

Plea Bargain Cases

Answer 28

• To make out a 6th am ineffective assistance claim in a plea bargain case, D must show deficient performance & a reasonable possibility that outcome of plea process would have been different w/ competent advice.
• Attorney’s failure to notify D of plea offer can constitute deficient performance if D can show that:
  (1) had plea agreement been communicated, D likely would have accepted; and
  (2) plea likely would have been entered w/o prosecutor’s canceling it.
• The fact that D subsequently has a fair trial
  (after turning down plea offer) does not prevent ineffective assistance claim.

Question 29

-

Answer 29

-

Question 30

Deportation Risk

Answer 30

• It is constitutionally deficient for counsel not to inform client whether their plea carries risk of deportation.

Question 31

Circumstances Not Constituting Ineffective
Assistance
.

Answer 31

• Circumstances not constituting ineffective assistance include trial tactics & failure to raise a con defense that is later invalidated

Question 32

Conflicts of Interest

Answer 32

• Joint representation is not per se invalid.
• However, if attorney advises trial ct of a resulting conflict of interest at/before trial, & ct refuses to appoint separate counsel, D is entitled to automatic
  reversal.

Question 33

Conflict with Attorney

Answer 33

• D’s conflict of interest w/ their attorney is rarely a
  ground for relief.

Question 34

No Right to Joint Representation

Answer 34

• D has no right to be jointly represented / their co-Ds if gov can show a potential conflict of interest.

Question 35

Right to Support Services for Defense

Answer 35

• Where D has made prelim showing they are likely to be able to use insanity defense, state must provide a psychiatrist for preparation of defense.

Question 36

Seizure of Funds Constitutional

Answer 36

• Right to counsel does not forbid seizure of drug
  money & property obtained w/ drug money, even where D was going to use such money/property to pay attorney.

Question 37

Right Limited While Testifying

Answer 37

• D has no right to consult w/ their attorney while testifying & may be isolated from their attorney
  during short breaks (ex. 15 minutes as opposed to
  overnight).

Question 38

RIGHT TO CONFRONT WITNESSES

Answer 38

• 6th am grants to D in a criminal prosecution right to confront adverse witnesses.
• Right is not absolute: Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (ex. protecting child witnesses from trauma).
• Also, judge may remove a disruptive D, & D may voluntarily leave courtroom during trial.

Question 39

Introduction of Co-Defendant’s Confession

Answer 39

• If 2 persons are tried together & one has given a confession that implicates the other, right of confrontation prohibits use of that statement, even where confession interlocks w/ D’s own confession, which is admitted.
• However, such a statement may be admitted if:
  (1) All portions referring to other D can be eliminated
  (2) Confessing D takes the stand & subjects
  themself to cross-examination w/ respect to the truth/falsity of what statement asserts; or
  (3) Confession of nontestifying co-D is being used to rebut D’s claim that their confession was obtained coercively

Question 40

Prior Testimonial Statement of Unavailable
Witness

Answer 40

Under Confrontation Clause, prior testimonial evidence (ex. statements made at prior judicial proceedings) may not be admitted unless:
(1) Declarant is unavailable, and
(2) D had opportunity to cross-examine declarant at time statement was made

Question 41

What Is Testimonial?

Answer 41

-“Testimonial,”: at minimum, statements from prelim hearing, grand jury hearing, former trial, or police interrogation to establish/prove past acts.
- Statements from police interrogations to aid police in an ongoing emergency are not testimonial.
- Statements to individuals who are not principally
charged w/ uncovering & prosecuting crimes are subject to Confrontation Clause, but they are significantly less likely to be testimonial than statements given to police

Question 42

Results of Forensic Lab Testing

Answer 42

• If results of forensic lab tests are offered for proof of the matter asserted (ex. testimony from a lab tech that powder found on D is coke), they are testimonial & inadmissible unless person who did testing is available for cross.
• No CC issue when lab test results are not offered to prove validity of test results (ex. testimony that results from a private lab matched results from a state lab offered to show results match—not that private lab results are correct).

Question 43

Forfeiture by Wrongdoing

Answer 43

• D can be held to have forfeited a CC claim by wrongdoing.
• Ct will not find forfeiture by wrongdoing unless wrongdoing was intended to keep witness from testifying

Question 44

BURDEN OF PROOF, SUFFICIENCY OF EVIDENCE, AND JURY INSTRUCTIONS

Answer 44

• DPC requires in all criminal cases that state prove guilt beyond a reasonable doubt
• The presumption of innocence is a basic component of a fair trial.
• However, state may generally impose burden of proof upon D in regard to an affirmative defense, like insanity/self-defense.

Question 45

Presumptions

Answer 45

• A mandatory presumption/presumption that shifts burden of proof to D violates 14th am’s req that state prove every element of crime beyond a reasonable doubt.

Question 46

Jury Instructions

Answer 46

• A judge is to give a jury instruction requested by D/prosecution if instruction is correct, has not
  already been given, & is supported by some evidence.