Trial Issues

Question 1

RIGHT TO EFFECTIVE ASSISTANCE AT COUNSEL

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

Answer 1

There is a TWO-PRONG Test to determine if counsel was ineffective but it is a HIGH BAR

1) DEFICIENCY REQUIREMENT: Counsel’s performance fell below an OBJECTIVE std of reasonableness, meaning he MADE ERRORS SO SERIOUS that he was not functioning as counsel
(not satisfied when counsel took cat naps, slept through 15 minutes of testimony, was unlicensed)

2) PREJUDICE REQUIREMENT: “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 OTHER COLORABLE ARG THAT ∆ IS NOT GUILTY

ON BAR EXAM: ALWAYS DENY RELIEF FOR INEFFECTIVE COUNSEL

Question 2

JURY TRIAL

What is the FEWEST number of jurors allowed in a criminal trial?

NOTE: NY Distinction

Answer 2

The fewest number of jurors allowed in a criminal trial = 6

**NY DISTINCTION: requires 12 person juries;

HOWEVER, in NY 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?

Answer 4

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

Question 5

JURY TRIAL

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

Answer 5

The “cross-sectional” requirement for jury selection 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

Question 6

JURY TRIAL

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

JURY TRIAL

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 unanimous

Question 8

JURY TRIAL

What is a PEREMPTORY challenge?

Answer 8

PEREMPTORY challenge permit 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

RIGHT TO UNBIASED JUDGE

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

Answer 9

For a judge to be unbiased, the judge MUST…

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

Question 10

GUILTY PLEA

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: A trial court MUST inform a ∆ who is not a US citizen of the RISK of DEPORTATION as a result of PLEADING GUILTY to a FELONY

Question 11

GUILTY PLEA

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

Answer 11

Once a ∆ has pled guilty, it is difficult for him to withdraw the plea. He may do so however if:

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 (e.g. prosecutor recommends max sentence when terms of the plea stated otherwise)

Question 12

PUNISHMENT

What is the 8th Am std for punishment?

Answer 12

The 8th Am PREVENTS CRUEL AND UNUSUAL PUNISHMENT which are Criminal penalties that are GROSSLY disproportionate to the seriousness of the crime committed

Question 13

PUNISHMENT

What are 3 key limitations to the death penalty?

Answer 13

STATUTORY LIMITATIONS
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

EVIDENTIARY REQUIREMENTS
2) Evidentiary Limitations: in deciding whether to impose the death penalty, jurors MUST be allowed to consider ALL potentially mitigating evidence

CATEGORICAL EXCLUSIONS

3) Categorical exclusions: The 8th A. prevents imposing the death penalty against:
(i) ∆s w/ mental retardation
(ii) ∆s who are PRESENTLY insane
(iii) ∆s that committed crimes against individuals (e.g. child rape) where the victim DID NOT DIE
(iv) ∆s who were under the age of 18 at the time the relevant offense occurred (Note: is is also unconstitutional to sentence this class of ∆s to mandatory LWOP)

Question 14

DOUBLE JEOPARDY

Under what 3 circumstances does double jeopardy attach?

Answer 14

1) Jury trial: DJ attaches 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 trial: DJ attaches when the first witness is SWORN
3) Guilty plea: DJ attaches when the ct accepts the ∆’s plea UNCONDITIONALLY

Question 15

DOUBLE JEOPARDY

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

DOUBLE JEOPARDY

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”

SAME OFFENSE RQMT
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

SAME SOVEREIGN RQMT
DJ bars retrial for the same offense by the SAME sovereign ONLY
THE FOLLOWING ARE NOT same sovereigns: (i) State and federal gov’ts
(ii) Different states

THE FOLLOWING ARE THE SAME sovereign:
(i) state and municipalities w/in that state

Question 17

DOUBLE JEOPARDY

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

SELF INCRIMINATION

Who can “take the Fifth”?

Answer 18

ANYONE May “Take the 5th”!

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

Question 19

SELF INCRIMINATION

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 he cannot exclude that evidence on self-incrimination grounds (i.e. it’s waived)

Question 20

SELF INCRIMINATION

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

Answer 20

This is a TESTIMONIAL privilege ONLY

Because this is a TESTIMONIAL privilege ONLY, it does NOT apply to the state’s use of our bodies and compelled blood, urine sample analysis or the content of documents mandated by subpeona

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

SELF INCRIMINATION

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

Note: an individual COULD STILL be convicted based on OTHER evidence obtained PRIOR to the grant of immunity

**NY DISTINCTION: uses “transaction” immunity, which is broader, since is shields witnesses from prosecution for any trxn they testifies abt

**NY DISTINCTION: Witnesses in Grand Jury proceedings automatically receive transnational immunity for their 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 unavailable 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

SENTENCE ENHANCEMENT

What role does the Jury play in sentence enhancement?

What role does the Judge play in sentence enhancement?

Answer 22

1) Any fact that increases either the statutory max or the mandatory min sentence for a crime MUST be found by the JURY and NOT the judge
2) The decision of whether a sentence will run consecutively or concurrently may be made by the judge

Question 23

SPEEDY TRIAL

What is meant by “right to a speedy trial?”

Answer 23

1) ALL ∆s have a right to a speedy trial

2) To determine if the right to a speedy trial has been violated, look at:
(i) the LENGTH of the delay
(ii) the REASON for the delay
(iii) if there is any PREJUDICE to the ∆

Question 24

EVIDENTIARY DISCLOSURE

WHAT IS THE BRADY RULE?

NOTE: NY Distinction

Answer 24

BRADY RULE = A prosecutor MUST DISCLOSE to the ∆ ALL MATERIAL and EXCULPATORY evidence

**NY DISTINCTION
Rosario Rule = BEFORE the opening argument, the prosecutor must make available to the ∆ ANY PRIOR WRITTEN or RECORDED statement of persons to be called as witnesses that relate to the subject matter of of the witnesses’ testimony