Trial

Question 1

Order of Arguments

Answer 1

• trial begins w/ opening arg of prosecution followed by def’s
• closing arguments - gov 1st, then def, then gov rebuttal

Question 2

Right to Public Trial

Answer 2

• guaranteed by 6th + 14 Ams
• Varies w/ stage of proceeding

Question 3

Right to Public Trial - Pretrial Proceedings

Answer 3

• preliminary probable cause + pretrial suppression hearings are presumptively open to public (though suppression ones may be closed under limited circumstances)
• court must make “every reasonable effort” to accomodate public attendance at jury voir dire proceedings

Question 4

Right to Public Trial - During 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 proceedings over def’s objection

Question 5

Right to Unbiased Judge

Answer 5

• due process is violated if judge is shown to have actual malice against def or to have had a financial interest in having trial result in guilty verdict
• also impermissible bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding def’s case

Question 6

Judge - Lawyer?

Answer 6

• def in misdemeanor prosecution has no right to have trial judge be lawyer
• if upon conviction def has right to trial de novo in court with a lawyer-judge, but for serious crimes, the judge probably must be law-trained

Question 7

Other Due Process Rights During Trial

Answer 7

DP violated if:
- trial conducted in manner making it unlikely jury gave ev reasonable consideration
- state compels def to stand trial in prison clothing
- state compels def to stand trial or appear at penalty phase proceedings visibly shackled, unless court finds shackling justified by concerns re courtroom security or escape
- jury exposed to influence favorable to prosecution

Question 8

Due Process - Exculpatory Evidence

Answer 8

• due process doesn’t require police to preserve all items that might be used as exculpatory ev
• BUT does prohibit bad faith destruction

Question 9

Right to Trial By Jury

Answer 9

• KEY Q: >6 months imprisonment???
• only for serious offenses (imprisonment for more than six months is authorized)
• no right to jury in juvenile delinquency proceedings or for civil contempt proceedings (though would apply to criminal contempt proceedings if penalties more than 6 months)
• re contempt, judge may place contemnor on probation for up to 5 yrs w/o right to jury trial, as long as revocation of probation wouldn’t result in imprisonment > 6 months

Question 10

Number and Unanimity of Jurors

Answer 10

• no constitutional right to a jury of 12
• BUT need at least 6 jurors to satisfy right to jury trial
• jury verdicts must be unanimous

Question 11

Jury Selection - Def’s Rights

Answer 11

• right to venire selected fro representative cross-section of the community -> violated if underrepresentation of a distinct + numerically significant group
• BUT no right to proportional representation on their particular jury
• Equal Protection clause - no using peremptory challenges for racial + gender-base discrimination

Question 12

Equal Protection Challenges to Peremptory Strikes

Answer 12

1) def must show facts or circumstances that raise an inference that the exclusion was based on race or gender
2) prosecutor must then come forward w/ race neutral explanation (problem though - not really judged for reasonableness, can have unreasonable exp as long as race neutral)
3) judge determines whether prosecutor’s exp was genuine reason for striking juror or merely pretext

Question 13

Right to Impartial Jury - Standard

Answer 13

• standard for excluding juror for cause = whether juror’s views would prevent or substantially impair performance of their duties in accordance w/ their instructions + oath
• note that def is allowed to use peremptory challenge to exclude a juror judge refused to exclude for cause

Question 14

Right to Impartial Jury - Death Penalty Cases

Answer 14

• def entitled to questioning on voir dire specifically directed to racial prejudice whenever race bound up in the case or def accused of interracial capital crime
• to excuse juror for opposition to dp, need to show juror’s views would prevent or substantially impair performance of their duties in accordance w/ their instructions + oath (automatic reversal if juror improperly excluded)
• jurors who favor death penalty - excluded if they would automatically give the death penalty on a guilty verdict

Question 15

Inconsistent Verdicts

Answer 15

• ex: finding def guilty + co-def not guilty on same evidence
• NOT reviewable

Question 16

Sentence Enhancement

Answer 16

• basically, any time sentence enhancement or setting amount due on fine involves factual determination, those facts have to be submitted to a jury for consideration
• harmless error test applies to failure to submit sentencing factor to jury
• BUT judge may decide whether sentences run consecutively vs. concurrently (even though this determination is based on the facts of the case)

Question 17

Right to Counsel - Imprisonment

Answer 17

• available in misdemeanor cases only if imprisonment is actually imposed
  -> means that if q involves nonfelong + def asks for counsel + is denied then convicted, whether right has been violated depends on def’s sentence (yes if they receive prison time, no if they don’t)

Question 18

Right to Counsel - Effect of Denial

Answer 18

• reversal required if right violated at trial
• harmless error test for nontrial denials
• includes erroneous disqualification of def’s privately retained counsel

Question 19

Waiver of Right to Counsel

Answer 19

• def has right to defend self at trial IF judge determines waiver is knowing + intelligent, + def is competent to proceed pro se (based on emotional + psychological state)
• BUT no right to self-representation on appeal

Question 20

Effective Assistance of Counsel

Answer 20

• 6th Am right
• IAC - need to show deficient performance + prejudice (result of proceeding would’ve been different)
  -> deficiency must be based on specific circumstances
• if counsel admits guilt in face of def’s clearly articulated desire to maintain innocence during sentencing phase of trial, structural error mandates new trial w/o need for showing of prejudice

Question 21

IAC - Plea Bargain Cases

Answer 21

• failure to notify def of plea offer can constitute deficiency if def can show 1) had the plea agreement been communicated, def likely would’ve accepted, + 2) plea likely would’ve been entered w/o prosecution’s cancelling it
• subsequent fair trial doesn’t prevent IAC claim based on the plea offer
• constitutionally deficient if counsel fails to inform client whether plea carries risk of deportation

Question 22

Circumstances Not Constituting IAC

Answer 22

• trial tactics
• failure to raise a constitutional defense that is later invalidated

Question 23

Counsel - Conflicts of Interest

Answer 23

• joint representation not per se invalid
• def has no right to joint rep if gov can show potential conflict of interest
• for joint rep, if attorney advises trial court of conflict of interest at or before trial + court refuses to appoint separate counsel, def is entitled to automatic reversal

Question 24

Right to Support Services for Defense

Answer 24

• where def has made 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 25

Other Limitations on Right to Counsel

Answer 25

• def has no right to consult w/ attorney while testifying + may be sequestered from attorney during short breaks
• right to counsel doesn’t forbid seizure of drug money or property obtained w/ drug money, even where def was going to use such money to pay attorney

Question 26

6th Am - Confrontation Clause

Answer 26

• def has right to confront adverse witnesses in crim prosecution
• not absolute though - don’t need face-to-face confrontation when preventing confrontation serves important public purposes (ex: protecting child witnesses)
• judge may remove a disruptive def + def may voluntarily leave courtroom during trial

Question 27

Confrontation Clause - Co-Def’s Confession

Answer 27

If two defs tried together + one has confession that implicates other, right of confrontation prohibits use of that statement, even where confession interlocks w/ def’s own admitted confession UNLESS:
- all portions referring to other def can be eliminated
- confessing def takes stand + subjects self to cross wrt truth or falsity of the confession OR
- confession of nontestifying co-def is being used to rebut def’s claim that confession was obtained coercively

Question 28

Confrontation Clause - Prior Testimonial Statement of Unavailable Witness

Answer 28

• statements made at prior judicial proceedings can’t be admitted UNLESS declarant is unavailable AND def had opportunity to cross-examine declarant at the time the statement is made

Question 29

Confrontation Clause - What counts as “testimonial”?

Answer 29

• no comprehensive definition from SCOTUS
• but includes, at minimum, statements from a preliminary hearing, grand jury hearing, former trial, or police interrogation conducted to establish or prove past acts (doesn’t count ones responding to ongoing emergency)
• statements from indivs not principally charged w/ uncovering + prosecuting crimes are subject to Conf Clause, but significantly less likely to be testimonial than statements given to police

Question 30

Conf Clause - Results of Forensive Lab Testing

Answer 30

• if results offered for proof of matter asserted, they are testimonial in nature + inadmissible unless person who did the testing is made available for cross-examination
• no issue if not offered to prove the validity of the results

Question 31

Conf Clause - Forfeiture by Wrongdoing

Answer 31

• forfeiture of Conf Clause right if def commits wrongdoing intended to keep witness from testifying (NOT forfeiture if wrongdoing not intended to prevent testimony)

Question 32

Burden of Proof in Crim Trials

Answer 32

• generally, state must prove guilt beyond reasonable doubt
• BUT state can impose burden of proof on def in regard to an affirmative defense (ex: insanity, self-defense)

Question 33

Burden of Proof - Presumptions

Answer 33

• a mandatory presumption or a presumption that shifts burden of proof to def violates 14th Am DP requirement that state prove every element of crime beyond reasonable doubt

Question 34

Jury Instructions

Answer 34

• judge is to give a jury instruction requested by def OR prosecution if instruction is correct, hasn’t already been given, + is supported by some evidence