Trial Issues Flashcards
RIGHT TO EFFECTIVE ASSISTANCE AT COUNSEL
What are the 2 reqs for an ineffective assistance of counsel claim?
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
JURY TRIAL
What is the FEWEST number of jurors allowed in a criminal trial?
NOTE: NY Distinction
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
When is the Confrontation Cl of the 6th Am relaxed?
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
What is the prosecutor’s duty re: exculpatory evidence?
A prosecutor MUST disclose to a criminal ∆ ALL material, exculpatory evidence (Brady rule)
JURY TRIAL
What is the “cross-sectional” requirement for jury selection?
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
JURY TRIAL
When does a criminal ∆ have a right to a jury?
A criminal has a right to a jury trial when the maximum authorized sentence is > 6 MONTHS
The jury must be FAIR and IMPARTIAL
JURY TRIAL
When must jury verdicts in criminal trials be unanimous?
NOTE: NY Distinction
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
JURY TRIAL
What is a PEREMPTORY challenge?
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
RIGHT TO UNBIASED JUDGE
What are the 2 reqs for a judge to be deemed unbiased?
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 ∆
GUILTY PLEA
What are the 3 reqs for a guilty plea?
NOTE: NY Distinction
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
GUILTY PLEA
Under what 4 circumstances can a ∆ withdraw a guilty plea?
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)
PUNISHMENT
What is the 8th Am std for punishment?
The 8th Am PREVENTS CRUEL AND UNUSUAL PUNISHMENT which are Criminal penalties that are GROSSLY disproportionate to the seriousness of the crime committed
PUNISHMENT
What are 3 key limitations to the death penalty?
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)
DOUBLE JEOPARDY
Under what 3 circumstances does double jeopardy attach?
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
DOUBLE JEOPARDY
Does double jeopardy apply to civil proceedings?
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
DOUBLE JEOPARDY
What is double jeopardy?
NOTE: NY Distinction
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
DOUBLE JEOPARDY
What are 4 exceptions to the double jeopardy rule that permit retrial?
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 ∆
SELF INCRIMINATION
Who can “take the Fifth”?
ANYONE May “Take the 5th”!
e.gs. ∆s, witnesses, parties in civil proceedings
SELF INCRIMINATION
When can someone “take the Fifth”?
NOTE: NY Distinction
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)
SELF INCRIMINATION
What is the scope of the 5th Am privilege against self-incrimination?
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
SELF INCRIMINATION
What are the 3 ways to eliminate the 5th Am privilege against self-incrimination?
NOTE: NY Distinction
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)
SENTENCE ENHANCEMENT
What role does the Jury play in sentence enhancement?
What role does the Judge play in sentence enhancement?
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
SPEEDY TRIAL
What is meant by “right to a speedy trial?”
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 ∆
EVIDENTIARY DISCLOSURE
WHAT IS THE BRADY RULE?
NOTE: NY Distinction
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
