Trial Issues

Question 1

What are the 2 reqs for an ineffective assistance of counsel claim?

Answer 1

1) Deficiency req: Counsel’s performance fell below an OBJECTIVE std of reasonableness, meaning he made errors SO serious that he was not functioning as counsel
2) Prejudice req: “But for” the deficiency, the outcome of the tiral WOULD HAVE BEEN DIFFERENT

THIS IS A VERY HARD CLAIM TO MAKE UNLESS THERE IS SOME COLORABLE ARG THAT ∆ IS NOT GUILTY

Question 2

What is the FEWEST number of jurors allowed in a criminal trial? NOTE: NY Distinction

Answer 2

6

NY DISTINCTION: requires 12 person juries; HOWEVER, a ∆ can waive this req and proceed to verdict w/ only 11 jurors

Question 3

When is the Confrontation Cl of the 6th Am relaxed?

Answer 3

The ∆’s right to confront an adverse witness does NOT apply where face-to-face confrontation would contravene imp public policy concerns e.g. traumatizing a child witness

Question 4

What is the prosecutor’s duty re: exculpatory evidence? NOTE: NY Distinction

Answer 4

A prosecutor MUST disclose to a criminal ∆ ALL material, exculpatory evidence (Brady rule)

NY DISTINCTION: the prosecutor must make available to ∆ any prior written or recorded statements of persons to be called as witnesses that relate to subject matter of the witnesses’ testimony

Question 5

What is the “cross-sectional” requirement for jury selection?

Answer 5

Requires that the pool (not the actual jury) from which the jury is drawn reps a cross-section of the community

Question 6

When does a criminal ∆ have a right to a jury?

Answer 6

A criminal has a right to a jury trial when the maximum authorized sentence is > 6 MONTHS The jury must be FAIR and IMPARTIAL

Question 7

When must jury verdicts in criminal trials be unianimous? NOTE: NY Distinction

Answer 7

Jury trials MUST be UNANIMOUSONLY IF 6 jurors are used; Verdicts in 12-person juries need NOT be unanimous

NY DISTINCTION: all jury verdicts MUST be unianimous

Question 8

What is a preemptory challenge?

Answer 8

Permits BOTH sides to exclude jurors w/o stating their reasons for doing so, BUT they cannot be used by either side to exclude prospective jurors on account of RACE or GENDER

Question 9

What are the 2 reqs for a judge to be deemed unbiased?

Answer 9

The judge…

1) has no FINANCIAL STAKE in the outcome of the case; AND
2) has no ACTUAL MALICE twds the ∆

Question 10

What are the 3 reqs for a guilty plea? NOTE: NY Distinction

Answer 10

A valid guilty plea MUST be…

1) Voluntary;
2) Intelligent; AND
3) There must be a “Plea-taking Colloquy”: the judge addresses ON THE RECORD: (i) the nature of the charges, inc the req’d elements of the charged offense; AND (ii) the consequences of the plea

NY DISTINCTION: In NY, trial court must inform ∆who is not citizen of risk of deportation from pleading guilty

Question 11

Under what 4 circumstances can a ∆ withdraw a guilty plea?

Answer 11

1) The plea is involuntary, due to a defect in the plea-taking colloquy;
2) There is a jx defect;
3) The ∆ prevails on a claim of ineffective assistance of counsel; OR
4) The prosecutor FAILS to fulfill his part of the plea bargain

Question 12

What is the 8th Am std for punishment?

Answer 12

The 8th Am prevents cruel and unusual punishment

Criminal penalties that are GROSSLY disproportionate to the seriousness of the crime committed

Question 13

What are 3 key ltds to the death penalty?

Answer 13

1) 8th Am: a death penalty statute would violate the 8th Am if it created an AUTOMATIC category for the imposition of the death penalty
2) Evidentiary ltds: in deciding whether to impose the death penalty, jurors MUST be allowed to consider ALL potentially mitigating evidence

3) Categorical exclusions: can’t impose death penalty against:
- ∆s w/ mental retardation
- ∆s who are PRESENTLY insane
- ∆s who were under the age of 18 at the time the relevant offense occured

Question 14

Under what 3 circumstances does double jeopardy attach?

Answer 14

1) Jury trial: when the jury is SWORN NOTE: the state MAY retry a ∆ EVEN IF DJ attaches when a jury trial ends in a hung jury
2) Bench tiral: when the first witness is SWORN
3) Guilty plea: when the ct accepts the ∆’s plea UNCONDITIONALLY

Question 15

Does double jeopardy apply to civil proceedings?

Answer 15

NO!

E.g.: if the SEC prosecutes civilly for insider trading, the USAO can LATER prosecute the same individual for securities fraud w/o implicating double jeopardy

Question 16

What is double jeopardy? NOTE: NY Distinction

Answer 16

DJ = “…nor shall any person be subject for the SAME OFFENSE to be twice put in jeopardy of life or limb by the SAME SOVEREIGN”

1) Same offense req:
Federal rule: 2 offenses are NOT the “same” if EACH contains an element THAT THE OTHER DOES NOT
Greater and “lesser-incl’d” offenses:2 offenses ARE the “same” offense if only ONE has an element not in the other THUS, trial for greater offense bars retrial for lesser offense and vice versa

NY DISTINCTION: NY uses the “trxn test,” which reqs that a ∆ be charged w/ all offenses arising from a SINGLE TRXN UNLESS… (i) the offenses have subt. different elements; (ii) each offense contains an element NOT in the other AND prevents different harms; (iii) one is for criminal possession and the other is for criminal USE; OR (iv) each offense involves harm to a different victim

2) Same sovereign req: DJ bars retrial for the same offense by the SAME sovereign ONLY NOT same sovereigns = State and federal govts and different states
SAME sovereign = state and municipalities w/in that state

Question 17

What are 4 exceptions to the double jeopardy rule that permit retrial?

Answer 17

1) a hung jury
2) a mistrial for “manifest necessity” (e.g. defect is found in the indictment during trial that couldn’t be cured)
3) a successful appeal, UNLESS the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial 4) a breach of the plea agmt BY THE ∆

Question 18

Who can “take the Fifth”?

Answer 18

ANY ONE!

e.gs. ∆s, witnesses, parties in civil proceedings

Question 19

When can someone “take the Fifth”? NOTE: NY Distinction

Answer 19

The privilege can be assered in ANY proceeding in which an individual testifies UNDER OATH (i.e. sworn testimony)

NY DISTINCTION: the privilege CANNOT be asserted in a grand jury proceeding

NOTE: if someone provides sworn testimony, they CANNOT LATER assert the Fifth in a SUBSEQUENT proceeding when asked the same question (i.e. it’s waived)

Question 20

What is the scope of the 5th Am privilege against self-incrimination?

Answer 20

This is a TESTIMONIAL privilege ONLY (i.e. it does NOT apply to our bodies and compelled sample analysis or documents required to be produced)

The prosecution cannot COMMENT on (i) a ∆’s decn NOT to testify at trial; OR (ii) the invocation of his right to silence or counsel

Question 21

What are the 3 ways to eliminate the 5th Am privilege against self-incrimination? NOTE: NY Distinction

Answer 21

1) Grant of immunity: prosecutors can grant “use and derivative use” immunity, which bars the gov’t from using the testimony or ANYTHING derived from it to convict you

NY DISTINCTION: uses “transactional” immunity, which is broader, since is shields witnesses from prosecution for any trxn they testifies abt (note: witnesses in grand jury automatically receive transactional immunity for testimony)

2) The ∆ taking the stand: by taking the stand the ∆ WAIVES the ability to “take the Fifth” as to anything properly w/in the scope of cross examination
3) SOL: the privilege is available IF the SOL has run on the underlying crime (since a witness’s testimony could NOT expose him or her to criminal prosectution)