Trial

Question 1

Right to Public Trial

Answer 1

6th and 14th Amendment guarantee the right to a public trial, but the right varies with the stage of the proceeding involved.

Question 2

Pretrial Proceedings

Answer 2

Preliminary PC hearings are presumptively open to the public and press, as are pretrial suppression hearings, although the latter may be closed to the public under limited circumstances for example, the party seeking closure has an overriding interest likely to be prejudiced by disclosure and there is no reasonable alternative besides closure.

Question 3

Trial

Answer 3

The press and public have a First Amendment right ot attend the trial itself, even when the defense and prosecution agree to close it.

The state may constitutionally permit televising criminal proceedings over the defendant’s objection.

Question 4

Right to Unbiased Judge

Answer 4

Due process is violated if the judge is shown to have actual malice against the D or to have had a financial interest in having the trial result in a guilty verdict.

Impermissible bias also is present when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the D’s case.

Question 5

Right to Trial by Jury

Answer 5

There is no constitutional right to jury trial for petty offenses, but only for serious offenses.

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

Also, there is no right to jury trial in juvenile delinquency proceedings.

Question 6

Contempt

Answer 6

For civil contempt proceedings, there is no jury trial right.

For criminal contempt proceedings, cumulative penalties totaling more than six months cannot be imposed without affording the D the right to a jury trial.

Question 7

Probation

Answer 7

A judge may place a contemnor on probation for up to five years without affording them a right to a jury trial, as long as revocation of probation would not result in imprisonment for more than six months.

Question 8

Number and Unanimity of Jurors

Answer 8

There is no constitutional right to a jury of 12, but there must be at least 6 jurors to satisfy the right to a jury trial.

Jury verdicts must be unanimous.

Question 9

Right to Venire Selected from Representative Cross-Section of Community

Answer 9

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

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

Note: that a D does not have the right to proportional representation of all groups on their particular jury.

Question 10

Use of Peremptory Challenges for Racial and Gender-Based Discrimination

Answer 10

The Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender.

Question 11

Right to Impartial Jury - Standard: Impair or Prevent Performance

Answer 11

The standard for determining when 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 12

Inconsistent Verdicts

Answer 12

Are not reviewable - for example, finding the D guilty and co-D not guilty on the same evidence.

Question 13

Right to Counsel

Answer 13

A defendant has a right to counsel. Violation of this right at trial including erroneous disqualification of the D’s privately retained counsel, requires reversal. For non-trial denials, the harmless error test is applied.

Question 14

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

Answer 14

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

NOTE: a D does not have a right to self- representation on appeal.

Question 15

Effective Assistance of COunsel

Answer 15

The 6th Amendment right to counsel includes the right to effective counsel.

The right extends to the first appeal.

Effective assistance of counsel is generally presumed.

Question 16

Circumstances Constituting Ineffective Assistance

Answer 16

An ineffective assistance claimant must show:

1. Deficient performance by counsel; and
2. But for the deficiency, the result of the proceeding would have been different.

The D must point out specific deficiencies (cannot base claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of the defenses, or accessibility of witnesses to counsel).

Question 17

Plea Bargain Cases

Answer 17

To make out a 6th Amendment ineffective assistance claim in a plea bargain case, the D must show deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice.

An attorney’s failure to notify a D of a plea offer can constitute deficient performance if the D can show that:

1. had the plea agreement been communicated, the D likely would have accepted; and
2. the plea likely would have been entered without the prosecutor’s canceling it.

Question 18

Circumstances Not Constituting Ineffective Assistance

Answer 18

Circumstances not constituting ineffective assistance include trial tactics and the failure to raise a constitutional defense that is later invalidated.

Question 19

Conflicts of Interest

Answer 19

Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the D is entitled to automatic reversal.

Question 20

Conflict with Attorney

Answer 20

A D’s conflict of interest with their attorney is rarely a ground for relief.

Question 21

No Right to Joint Representation

Answer 21

A D has no right to be jointly represented with their co-D if the government can show a potential conflict of interest.

Question 22

Right to Support Services for Deense

Answer 22

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

Question 23

Seizure of Funds

Answer 23

The right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where D was going to use such money or property to pay an attorney.

Question 24

Right Limited while Testifying

Answer 24

A D has no right to consult with their attorney while testifying and may be sequestered from their attorney during short breaks (for example, 15 minutes as opposed to overnight).

Question 25

Right to Confront Wtinesses

Answer 25

the 6th Amendment grants a D in a criminal prosecution the right to confront adverse witnesses.

The right is not absolute: Face-to-Face confrontation is not required when preventing such confrontation serves an important public purpose.

Also, a judge may remove a disruptive D, and a D may voluntarily leave the courtroom during trial.

Question 26

Introduction of Co-D’s Confession

Answer 26

A Co-D’s confession may be admitted if:

1. all portions referring to the other D can be eliminated,
2. The confessing D takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; or
3. the confession of the non-testifying co-D is being used to rebut the D’s claim that their confession was obtained coercively.

Question 27

Prior Testimonial Statement of Unavailable Witness

Answer 27

Prior testimonial evidence not admitted unless:

1. The declarant is unavailable, and
2. The D had an opportunity to cross-examine the declarant at the time the statement was made.

Question 28

Forfeiture by Wrongdoing

Answer 28

A D can be held to have forfeited a Confrontation clause claim by wrongdoing.

However, the Court will not find a forfeiture by wrongdoing unless the wrongdoing was intended to keep the witness form testifying.

Question 29

Burden of Proof, Sufficiency of Evidence, and Jury Instructions

Answer 29

The Due Process Clause requires in all criminal cases that het state prove guilt beyond a reasonable doubt.

The presumption of innocence is a basic component of a fair trail. However, the state may generally impose the burden of proof upon the D in regard to an affirmative defense, such as insanity or self-defense.

Question 30

Presumptions

Answer 30

A mandatory presumption or a presumption that shifts the burden of proof to the D violates the 14th Amendment’s requirement that the state prove every element of the crime beyond a reasonable doubt.

Question 31

Jury Instructions

Answer 31

A judge is to give jury instruction requested by the D or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence.