Trial Flashcards
Right to Public Trial
6th and 14th Amendment guarantee the right to a public trial, but the right varies with the stage of the proceeding involved.
Pretrial Proceedings
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.
Trial
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.
Right to Unbiased Judge
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.
Right to Trial by Jury
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.
Contempt
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.
Probation
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.
Number and Unanimity of Jurors
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.
Right to Venire Selected from Representative Cross-Section of Community
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.
Use of Peremptory Challenges for Racial and Gender-Based Discrimination
The Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender.
Right to Impartial Jury - Standard: Impair or Prevent Performance
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.
Inconsistent Verdicts
Are not reviewable - for example, finding the D guilty and co-D not guilty on the same evidence.
Right to Counsel
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.
Waiver of Right to Counsel at Trial and Right to Defend Oneself
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.
Effective Assistance of COunsel
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.
Circumstances Constituting Ineffective Assistance
An ineffective assistance claimant must show:
- Deficient performance by counsel; and
- 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).
Plea Bargain Cases
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:
- had the plea agreement been communicated, the D likely would have accepted; and
- the plea likely would have been entered without the prosecutor’s canceling it.
Circumstances Not Constituting Ineffective Assistance
Circumstances not constituting ineffective assistance include trial tactics and the failure to raise a constitutional defense that is later invalidated.
Conflicts of Interest
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.
Conflict with Attorney
A D’s conflict of interest with their attorney is rarely a ground for relief.
No Right to Joint Representation
A D has no right to be jointly represented with their co-D if the government can show a potential conflict of interest.
Right to Support Services for Deense
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.
Seizure of Funds
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.
Right Limited while Testifying
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).
