Trial

Question 1

What is the right to a public trial?

Answer 1

Guaranteed by 6A/14A – varies by stage of proceeding
Preliminary probable cause hearing – presumptively open to public
Pretrial suppression hearing – presumunptively open to public (unless party seeking closure has overriding interest likely to be prejudiced by disclosure and no reasonable alternative to closure)
Voir dire – court must make every reasonable effort to accommodate public attendance
Trial – 1A right to attend (even over the agreement between defense and prosecution). Court may televise proceedings even over defendant’s objection

Question 2

What is the right to an unbiased judge?

Answer 2

Due process violated if judge shown to have either actual malice against the defendant, a financial interest in a guilty verdict, or previous personal involvement as a prosecutor in a decision critical to the case

Question 3

Does a judge have to be a lawyer?

Answer 3

Yes for serious crimes

Not for minor misdemeanors if the conviction will result in a right to trial de novo before a lawyer-judge

Question 4

What other due process requirements besides judicial neutrality are required of trial?

Answer 4

Violation where …
Conducted in a manner making it unlikely the jury gave the evidence reasonable consideration
State compels defendant to stand trial in prison clothing
State compels defendant to appear visibly shackled at trial or penalty phase proceedings unless justified by courtroom security concerns
Jury exposed to influence favorable to the prosecution
Evidence destroyed in bad faith

Question 5

What is the right to trial by jury?

Answer 5

Only for serious not petty offenses (serious if imprisonment for more than six months is authorized).

Question 6

What types of proceedings don’t constitutionally require a jury?

Answer 6

Petty offense trials
Juvenile delinquency proceedings
Civil contempt proceedings
Criminal contempt proceedings only if cumulative penalties are under 6 mom or imposed during trial

Question 7

How may jurors are required constitutionally?

Answer 7

At least 6 people. Previously only six person jury convictions had to be unanimous but a recent SCOTUS ruling held that all convictions must be unanimous both in state and federal court. This rule will not be on the bar though.

Question 8

What is the right to venire selection representative of community?

Answer 8

A defendant has the right to have the jury selected from a representative cross-section of the community. A showing that the venire group had an underrepresentation of a distinct and numerically significant group will show that the jury trial right is violated. This is not a right to a proportional representation of groups ON THE JURY.

Question 9

When do prosecutorial peremptory challenges violate the equal protection clause?

Answer 9

They cannot be used to exclude potential jurors solely on account of their race or gender. To challenge a peremptory challenge on EP grounds, a defendant must show facts or circumstances raising an inference that the exclusion was based on race/gender. The prosecutor must then provide a race-neutral explanation (need not be reasonable). The judge then determines if the reasoning was sincere or pretextual.

Question 10

When is a Defendant entitled to voir dire questioning on the issue of racial prejudice?

Answer 10

as part of a right to an impartial jury, where race is bound up in the case or where the defendant is accused of an interracial capital crime

Question 11

May the state exclude for cause anyone who does not support the death penalty from a capital case?

Answer 11

No, it must be determined that the believes would percent or substantially impair performance of duties in accord with instructions/oath. A death sentence imposed by a jury from which a juror is improperly excluded is subject to automatic reversal

Question 12

When the jury will sentence the defendant on a capital crime, what is the defendant entitled to?

Answer 12

Ask jurors if they will automatically give the death penalty on a guilty verdict, any juror answering yes must be excluded

Question 13

Are inconsistent verdicts (defendant guilty/co-defendant not guilty) reviewable?

Answer 13

no

Question 14

What must occur if a sentencing enhancement is provided for?

Answer 14

if additional facts must be proven for the enhancement beyond those necessary to convict, those facts must be proven beyond a reasonable doubt and submitted to a jury (judge cannot make the determination/violates right to jury trial)
This also applies to sentencing enhancements imposed after guilty pleas
Failure to submit a sentencing factor to the jury is subject to the harmless error test

Question 15

What is the consequence of violation of defendant’s right to counsel at trial?

Answer 15

Reversal (nontrial denial = harmless error)

Question 16

When may a defendant proceed pro se?

Answer 16

If the judge concludes that the defendant’s waiver of the right to counsel is knowing and intelligent and the defendant is competent to proceed pro se (no right to self-representation on appeal)

Question 17

What is the 6A right to effective assistance of counsel?

Answer 17

Right includes trial and first appeal. Effective assistance of counsel presumed

Question 18

What circumstances constitute ineffective assistance of counsel?

Answer 18

Claimant must show (1) deficient performance by showing specific deficiencies (not lack of time, inexperience, accessibility of witnesses, trial tactics) and (2) but for the deficiency the result of the proceeding would have been different (acquittal or shorter sentence)

Question 19

What establishes an ineffective assistance claim in a plea bargain case?

Answer 19

Deficient performance can include failure to notify defendant of plea offer if defendant can show that had the plea agreement been communicated they would have likely accepted and that the plea would likely have been entered w.o prosecution cancelling.
Generally must show outcome of plea process would have been different with competent advice.
A subsequent fair trial does not prevent the ineffective assistance during plea bargain claim
Constitutionally ineffective if counsel did not warn client of risk of deportation as a consequence of plea

Question 20

When are conflicts of interest grounds for relief?

Answer 20

Joint representation usually valid, but if an attorney advises the court in advance of a conflict of interest and the court does not appoint separate counsel, the defendant is entitle to automatic reversal

Question 21

Is there a right to joint representation with co-defendants?

Answer 21

not if govt can show potential conflict of interest

Question 22

When must the state provide the defendant with psychiatric services?

Answer 22

When the defendant shows he is likely to be able to use the insanity defense, must be provided a psychiatrist for preparation of the defenase

Question 23

Does the defendant have a right to consult with an attorney during their testimony?

Answer 23

no

Question 24

What is the 6A right to confront adverse witnesses?

Answer 24

not an absolute right – face to face confrontation not required where an important public interest involved (protecting child witnesses). judge may also remove disruptive defendant

Question 25

What is the effect of the right of confrontation on the introduction of a co-defendant’s confession?

Answer 25

If 2 people are tried jointly and one gives a confession implicating the other, the right of confrontation prohibits use of that statement even where it interlocks with defendant’s own admitted confession,

May be admitted if

(1) all portions referring to defendant may be eliminated, or
(2) confessing defendant takes the stand and is subject to cross, or
(3) confession of non-testifying co-defendant is used to rebut the defendant’s claim that the confession was obtained coercively

Question 26

When may prior testimonial evidence be admitted in a criminal trial?

Answer 26

Only if declarant is unavailable and the defendant had an opportunity to cross-examine the declarant at the time the statement was made

Question 27

What is testimonial evidence?

Answer 27

includes, at a minimum, statements from preliminary hearings, grand jury hearings, former trials, or police interrogations intended to gather evidence for prosecution. Statements to police intended to aid the police in an emergency are not testimonial. statements reporting crimes to non-cops may be testimonial but are significantly less likely to be

Question 28

What does the confrontation clause require with regard to results of lab tests?

Answer 28

If intro-ed for proof of matter asserted (powder found on defendant was cocaine, e.g.) they are testimonial and inadmissible unless the person who did the testing is available for cross
not a confrontation clause issue where not intro-ed for truth of matter asserted

Question 29

Can a defendant forfeit Confrontation Clause claims by wrongdoing?

Answer 29

Yes – only if the wrongdoing was intended to keep the witness from testifying

Question 30

What burden of proof requirements are imposed by the Confrontation Clause?

Answer 30

state must prove guilt beyond all reasonable doubt
innocence presumed
defendant usually has the burden of an affirmative defense
any presumption shifting the burden of proof to the defendant violates the 14A requirement that the state prove each element beyond a reasonable doubt

Question 31

When must a judge give a jury instruction offered by either side?

Answer 31

when it is correct, has not already been given, and is supported by some evidence