Trial Issues

Question 1

Trial Right:
Right to an Effective Assistance of Counsel

Answer 1

Ineffective Assistance of Counsel: (2-pt)

• 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
  • (not guilty/less time)

​(very high- fallign asleep at trial/having 1 of 2 unlicensed is not enough)

Question 2

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

Answer 2

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 3

Trial Right:

to an Unbiased judge

Answer 3

The judge…:

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

Question 4

Trial right:
Right to a Jury-

how many? Unanimous?

(Fed vs. NY)

Answer 4

Fed constitution:

• at least 6
• unanimous IF only 6; not unanimous if 12

NY: 12

• D can waive this req and proceed to verdict w/ only 11 jurors
• MUST be unanimous

Question 5

Trial right:
Right to Trail by Jury:

Diversity & jury

Answer 5

D is entitled to jury selected from pool that represents a cross-section of the community

No challenge just b/c actual jury not cross section

Exception: equal protection for peremptory challenges based upon:

• race
• gender
• (burden then on prosectuion to present another reason –> judge to decide)

Question 6

Right to Evidentiary Disclosure:

What must prosecutor disclose?

Answer 6

MBE:

• A prosecutor MUST disclose to a criminal D all material, exculpatory evidence (Brady rule)
  
  • (impeach or substantive)

NY:

• Prosecutor must make availbale to D:
  
  • prior written/recorded statements of person to be called as witnesses
  • that relate dto subject matter of W’s testimony

Question 7

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

Answer 7

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 8

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

Answer 8

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 9

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

Answer 9

Jury trials MUST be UNANIMOUS ONLY IF 6 jurors are used Verdicts in 12-person juries need NOT be unanimous NY DISTINCTION: jury verdicts MUST be unianimous

Question 10

What is a preemptory challenge?

Answer 10

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 11

Guilty Plea:

2 requirements to be valid

Answer 11

A valid guilty plea MUST be…

• 1) Voluntary;
• 2) Intelligent

How judge establishes:

• have colloguy w/D on record
• Disclose:
  
  • nature of charges (elements)
  • consequences of plea
    
    • (waiver of trial/not guilty plea)
    • NY: if not American citizen, to be deported

Question 12

Guilty plea:

When can withdraw (4 circ’s)

Answer 12

1) The plea is involuntary, due to a defect in the plea-taking colloquy;
2) Court l_acked jurisdiction_
3) The D prevails on a claim of i_neffective assistance of counsel_;

OR 4) The prosecutor FAILS to fulfill his part of the plea bargain

Question 13

What is the 8th Am std for punishment?

Answer 13

The 8th Am prevents cruel and unusual punishment

• standard = grossly disproportionate to the seriousness of the offense committed

Question 14

8th Amendment:

3 Limitations on Death Penalty

Answer 14

1) AUTOMATIC imposition of death penalty for particular verdict
2) Jurors MUST be allowed to consider ALL potentially mitigating evidence
3) Categorical exclusions: can’t impose death penalty upon:

• i) Ds w/ mental retardation
• ii) Ds who are PRESENTLY insane
• OR iii) Ds who were under the age of 18 at the time the relevant offense occured

Question 15

Double jeopardy:

What is double jeopardy?

Answer 15

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”

Question 16

Double jeopardy:
“Same Sovereign” requirement

Answer 16

2) Same sovereign req:

• FEd & state are not
• State & diff state are not
• State & municipal ARE

Question 17

Double jeopardy:
“Same Offense” requirement

Answer 17

_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:

• “trxn test:” D must be charged w/ all offenses arising from a SINGLE TRXN
• Exceptions:
  
  • i) 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

Question 18

Double Jeopardy:

When does it attach

Answer 18

Jury trial: when the jury is SWORN

• the state MAY retry a D trial ends in a hung jury

Bench trial: when the first witness is SWORN

Guilty plea: when the ct accepts the D’s plea unconditionally

Question 19

Does double jeopardy apply to civil proceedings?

Answer 19

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 20

Double Jeopardy:

4 exceptions

Answer 20

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
• (no DJ if weight of evidence OR procedural)

4) a breach of the plea agmt by** D**

Question 21

5th Amend aganst Self-Incrimination:

Who & when can “take the Fifth”?

Answer 21

ANY ONE! in a proceeding in which individual testifies under oath

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

NY: canNOT take in grand jury

Question 22

5th Amend against Self-Incrimination:

Scope & effect

Answer 22

This is a TESTIMONIAL privilege ONLY

• (i.e. it does NOT apply to our bodies and compelled sample analysis)

Effect of taking:

• D cannot be compelled to take stand
• Other W’s can choos enot to answer q’s
• 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 23

3 ways to eliminate the 5th Am privilege against self-incrimination?

NY Distinction

Answer 23

1) Grant of immunity:

• **Fed: **prosecutors can grant “use and derivative use” immunity, which bars the gov’t from using the testimony or ANYTHING derived from it to convict
  
  • (can elim by showing independent source)
• NY:
  
  • *automatic for grand jury witnesses
  • can grant “transactional” immunity, which is broader, since is shields witnesses from prosecution for any trxn they testifies abt

2) Statute of limitations:
* he privilege is available IF the SOL has run on the underlying crime
3) The D taking the stand –> can cross examine:
* WAIVES w/in the scope of cross examination

Question 24

5th Amend aganst Self-Incrimination:

Waiver

Answer 24

How waive?

• by answering questions in another proceeding
  
  • *including civil trial