Trial Issues Flashcards

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1
Q

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

A

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

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2
Q

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

A

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

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3
Q

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

A

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

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4
Q

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

A

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

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5
Q

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

A

Requires that the 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

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6
Q

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

A

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

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7
Q

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

A

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

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8
Q

What is a preemptory challenge?

A

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

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9
Q

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

A

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

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10
Q

What are the 3 reqs for a guilty plea?

A

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

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11
Q

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

A

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

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12
Q

What is the 8th Am std for punishment?

A

The 8th Am prevents cruel and unusual punishment Criminal penalties that are GROSSLY disproportionate to the seriousness of the crime committed

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13
Q

What are 3 key ltds to the death penalty?

A

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

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14
Q

Under what 3 circumstances does double jeopardy attach?

A

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

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15
Q

Does double jeopardy apply to civil proceedings?

A

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

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16
Q

What is double jeopardy? NOTE: NY Distinction

A

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… the offenses have subt. different elements; ea. offense contains an element NOT in the other AND prevents different harms; one is for criminal possession and the other is for criminal USE; OR 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 State and federal gov’ts Different states SAME sovereign = state and municipalities w/in that state

17
Q

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

A

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 ∆

18
Q

Who can “take the Fifth”?

A

ANY ONE! e.gs. ∆s, witnesses, parties in civil proceedings

19
Q

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

A

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)

20
Q

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

A

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

21
Q

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

A

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 prosectution)