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 trial 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

Where ace-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?

Answer 4

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

Question 5

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

Answer 5

Pool from which the jury is drawn reps a cross-section of the community

NOTE: A jury that has all white women over the age of 60 does NOT violate the req, PROVIDED the POOL was appropriately diverse

Question 6

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

Answer 6

When max authorized sentence is > 6 MONTHS

The jury must be FAIR and IMPARTIAL

Question 7

When must jury verdicts in criminal trials be unanimous?

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: 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

1) No FINANCIAL STAKE in the outcome of the case; AND

2) No ACTUAL MALICE twds the ∆

Question 10

What are the 3 reqs for a guilty plea?

Answer 10

1) Voluntary;
2) Intelligent; AND
3) Include a “Plea-taking Colloquy”:

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

Question 11

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

Answer 11

1) 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:
(i) ∆s w/ mental retardation
(ii) ∆s who are PRESENTLY insane
(iii) ∆s who were under the age of 18 at the time the relevant offense occurred

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

”..Nor shall any person be subject for the SAME OFFENSE to be twice put in jeopardy of life or limb by the SAME SOVEREIGN”

Source: 5A

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) ea. 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) ea. 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 (i) State and federal gov’ts
(ii) Different states

SAME sovereign
State and municipalities w/in that state

3) More serious offense

Can’t be charged a second time for a more serious offense, even if the second trial results in conviction of equal or lesser offense.

Question 17

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

Answer 17

1) Hung jury
2) Mistrial for “manifest necessity” (e.g. defect is found in the indictment during trial that couldn’t be cured)
3) Appeal, UNLESS the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial
4) 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 asserted 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)

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

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 prosecution)

Question 22

What is 6A Confrontation clause?

Answer 22

∆’s right to confront an adverse witness testifying to testimonial evidence by unavailable declarants.

Question 23

When is OTHERWISErelevant evidence INADMISSIBLE?

NOTE: NY Distinction

Answer 23

General rule: all relevant evidence is ADMISSIBLE, UNLESS…

(1) Specific exclusionary rule (policy-based); OR
(a) Evidence that a person has (or DOES not have) liability insurance for the PURPOSE of showing fault (or absence of);

NOTE: Don’t confuse with OTHER TYPES of insurance

BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; impeachment)

(b) Evidence of subsequent remedial measures (e.g. post-accident repair, design changes, etc) for the PURPOSE of showing negligence, culpable conduct, product defect, or need for warning;

BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; feasibility of safer design IF ∆ disputes)

NY DISTINCTION: in a STRICT LIABILITY products liability action, a mnfrs post-accident design change ARE admissible

(a) to suggest the existence of a defect in the product at time of accident
(b) evidence of settlements of disputed CIVIL claims(evidence of settlement; offer to settle; OR stmts of fact made during settlement negotiations)
(c) for the PURPOSE of showing liability OR to impeach a witness as a prior inconsistent stmt

EXCEPTIONS: Settlement evidence IS admissible for the PURPOSE of (a) impeaching witness on grounds of BIAS

Stmts of fact made during settlement discussions in CIVIL CASE w/ a GOV’T AGENCY ARE admissible in a later CRIMINAL CASE (NY DISTINCTION: this exception DOES NOT exist in NY)
Evidence of plea bargaining in CRIMINAL cases

An offer to plead guilty (can’t be used in criminal or subsequent civil case)

Withdrawn guilty plea (can’t be used in criminal or subsequent civil case) [NY DISTINCTION: a withdrawn guilty plea IS admissable in a SUBSEQUENT civil case]

BUT a plea of GUILTY (not withdrawn) is ADMISSABLE against ∆ in subsequent litigation under the rule of party admission (both MBE and NY)

Offer to pay hospital or medical expenses to prove liability

NOTE: this exclusion does NOT exclude OTHER stmts made in connection w/ an offer to pay hospital/medical expenses

(2) Probative value of the evidence is outweighed by outweighed by pragmatic considerations (as determined by the ct)

(a) Danger of unfair prejudice
(b) Confusion of the issues (e.g. by introducing a collateral matter)
(c) Misleading the jury
(d) Undue delay
(e) Waste of time
(f) Unduely cumulative