Criminal procedure
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CRIMINAL PROCEDURE. CLASS TWELVE. Today’s Topics: Trial by Jury. Fundamental Right What Jury Decides Jury Features Jury Selection & Composition. Today’s Topics: Trial Issues. Right to Participate Presence Competency Stages Trial in Absentia. Today’s Topics: Trial Issues.

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Criminal procedure

CRIMINAL PROCEDURE

CLASS TWELVE


Today s topics trial by jury

Today’s Topics: Trial by Jury

  • Fundamental Right

  • What Jury Decides

  • Jury Features

  • Jury Selection & Composition


Today s topics trial issues

Today’s Topics: Trial Issues

  • Right to Participate

    • Presence

    • Competency

    • Stages

    • Trial in Absentia


Today s topics trial issues1

Today’s Topics: Trial Issues

  • Effective Assistance of Counsel

    • Performance

    • Prejudice


Trial by jury

TRIAL BY JURY


Fundamental right

Fundamental Right

  • Right to trial by jury in criminal cases mentioned in two places in Constitution

    • Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district …”


Fundamental right1

Fundamental Right

  • Issue: When is D entitled to jury in criminal case?

    • Duncan v. Louisiana: 14th Amd guarantees right of jury trial in all criminal cases which -- were they to be tried in federal court -- would come within reach of 6th Amd

    • Query: Why is right to jury trial so significant to sense of justice that Supreme Court willing to override state constitutional provision?


Fundamental right2

Fundamental Right

  • Issue: What is a “serious” [non-petty] offense?

    • Baldwin v. New York: Penalties of more than six months possible imprisonment are not petty

      • Contrast, Right to counsel jurisprudence where actual confinement triggers


Fundamental right3

Fundamental Right

  • Issue: Applicable to Criminal Contempt?

    • Consider both length of possible punishment and potential severity of monetary fine


Fundamental right4

Fundamental Right

  • Issue: What if penalty involves something other than incarceration? [Example: license suspension]


What jury decides

What Jury Decides

  • Issue: Can trial judge instruct jury to find that prosecution has proved particular element of case?


Jury features

Jury Features

  • Issues: Does the constitutional right to trial by jury in criminal cases dictate specific jury size [e.g., 12]? Unanimous verdicts?


Jury size

Jury Size

  • Are 12 person juries constitutionally required?

  • Are 6 person juries constitutional?

  • Are 5 person juries constitutional?


Juror agreement on verdict

Juror Agreement on Verdict

  • Is an 11-1 verdict constitutionally permissible?

  • 10-2?

  • 5-1?


Jury selection and composition

Jury Selection and Composition

  • Two perspectives:

    • Jury pool

      • Venire

      • Group of potential jurors -- “panel” from which jury is ultimately selected

    • Individual jury

      • Petit jury


Jury pool

Jury Pool

  • Key concept: Important that American juries be both impartial and reflect the community character [be representative]


Jury pool1

Jury Pool

  • Historically, cases began as challenges under 14th Amd, focusing primarily on race

  • Distinguish jury pool/fair cross section requirements from what is necessary on individual jury


Jury pool questions

Jury Pool Questions

  • Is it permissible to exclude potential jurors on basis of race?


Jury pool questions1

Jury Pool Questions

  • Is it permissible to exclude potential jurors for non-race reasons, such as fact that they are daily wage earners?


Jury pool questions2

Jury Pool Questions

  • Permissible to exclude women?


Jury pool questions3

Jury Pool Questions

  • Permissible to exclude on ethnic grounds?


Jury pool questions4

Jury Pool Questions

  • Permissible to require “opt in” system [e.g., person must file declaration of desire in order to be subject to service]?


Jury pool questions5

Jury Pool Questions

  • Can a man object to exclusion of women under fair cross-section analysis?


Practical responses

Practical Responses

  • Generally if State able to show a truly random selection process, then most cross-section challenges can be avoided.

  • Methods?


Voir dire

Voir Dire

  • Voir: see

  • Dire: say

  • Attorneys: “to speak the truth”

  • Perspective jurors can be eliminated from jury service in either of two ways

    • Challenge for cause

    • Peremptory challenges


Challenges for cause

Challenges for Cause

  • Unlimited number

  • Address juror disqualification

    • All cases

    • This case


Peremptory challenges

Peremptory Challenges

  • “Strikes”

  • Set number, usually defined by offense type and number of defendants

  • Can be used for any reasons other than those prohibited in Batson and its progeny


Panel examination methods

Panel Examination Methods

  • Question entire panel

  • Address each juror individually

    • Example: Texas capital when death sought

  • Judge-only conducted voir dire

    • Frequent in federal district court

  • Attorney questioning after introduction by trial court


Judge discretion

Judge Discretion

  • Questionnaires

  • Length of voir dire: time limits

  • Scope of questions [some constitutional restrictions]


Exercise limits on questions

Exercise: Limits on Questions

  • Ham v. South Carolina

    • Judge required to interrogate jurors on racial prejudice. Not required to frame that inquiry in any particular form or with any specified number of questions

  • Ristaino v. Ross

    • Constitution does not always entitle D to have questions posed during void dire specifically directed to matters that might prejudice potential jurors against him

  • Rosales-Lopez v. United States


Exercise limits on questions1

Exercise: Limits on Questions

  • Turner v. Murray

  • Mu-Min v. Virginia

  • Query: How reconcile Ham, Ristaino, Rosales-Lopes, Turner and Mu-Min? If you were charged with teaching new prosecutors, how would you describe the rule?


Limits on peremptory challenges

Limits on Peremptory Challenges

  • Generally: With the exception of Batson, strikes are “free” for counsel to extent that

    • party not forced to explain basis on which they were made

    • they are beyond control of the court

  • Equal Protection Clause places some boundaries on almost standardless use of peremptory challenges by party advocates


Batson

Batson

  • Facts: African American defendant challenged composition of jury from which members of his race had been purposefully excluded

  • What does challenging party need to show about opposing party’s use of peremptory challenges?


Batson1

Batson

  • What voir dire circumstances might be relevant?

  • Once prima facie case shown, what must challenged party do?

    • What relationship to challenge for cause?

  • Is peremptory challenge system constitutionally required?


Batson developments

Batson Developments

  • Issue: Does white D have standing to raise Batson challenge to exclusion of African American venire member?


Batson developments1

Batson Developments

  • Does Batson apply to civil trials?


Batson developments2

Batson Developments

  • Does Batson apply to strikes by defense counsel as well as prosecutor?


Batson developments3

Batson Developments

  • Does Batson apply to gender?


Batson developments4

Batson Developments

  • Does Batson apply to other ethnic groups?


Right to participate

RIGHT TO PARTICIPATE


Concepts

Concepts

  • Does D have to present?

    • What if he is disruptive?

    • What if he skips bail and never shows up?

    • What is he flees mid-way through trial?


Concepts1

Concepts

  • What if D is not mentally “there” even though physically present?


Concepts2

Concepts

  • To which stages of proceeding does constitutional right apply?


Presence

Presence

  • 6th Amd foundation: confrontation clause

  • Unruly D [Illinois v. Allen]

    • Constitutionally permissible responses

      • bind and gag

      • cite for contempt

      • “time out” removal until promise to behave

    • Query: What post-1970 technologies may offer additional alternatives?


Indicia of confinement

Indicia of Confinement

  • Uniformed officers

  • Jail clothes

  • Query: What constitutional theory implicated?


Competency

Competency

  • Premise: Constitutional right to be present embraces D’s right to participate in her own defense. Many include many facets, such as ensuring that:

    • witnesses are fully cross-examined

    • exculpatory facts are presented

    • potential jurors are challenged


Competency1

Competency

  • Test: Whether D has

    • sufficient present ability to consult with lawyer with reasonable degree of rational understanding

    • rational as well as factual understanding of the proceedings against him


Competency2

Competency

  • Query: If D is incompetent, is there a permanent bar on trying him?


Forced medication

Forced Medication

  • Issues: What can the gov’t do to force someone to regain competency? Which party bears what burden?

    • Riggins v. Nevada

    • Medina v. California

    • Cooper v. Oklahoma


Stages

Stages

  • Concept: D has constitutional right to be present at trial

  • Questions: Does this include:

    • Note sent to judge during jury deliberations?

    • In chambers hearings among judge and attorneys?


Trial in absentia

Trial in Absentia

  • Issue: When, if ever, can D be tried in his absence

  • Scenarios

    • Pre-trial flight

    • Mid-trial flight


Effective assistance of counsel

EFFECTIVE ASSISTANCE OF COUNSEL


Sixth amendment

Sixth Amendment

  • In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence

  • Premise: Inherent in right to representation is right to “effective” representation


Strickland v washington

Strickland v. Washington

  • Benchmark:

    • Whether counsel’s conduct so undermined the proper functioning of the adversarial process the trial cannot be relied on as having produced a just result

  • Purpose of Sixth Amendment:

    • To ensure that a criminal defendant receives a fair trial


Strickland test

Strickland Test

  • Deficiency of representation

    • Performance prong

  • Reasonable probability that, but for counsel’s unprofessional errors, result of proceedings would have been different

    • Prejudice prong


Performance prong

Performance Prong

  • Under first prong D must prove counsel’s performance was constitutionally deficient


Performance prong1

Performance Prong

  • Errors committed so serious that counsel was not functioning as counsel guaranteed by 6th Amd


Performance prong2

Performance Prong

  • Supreme Court does not provide explicit guidelines


Performance prong3

Performance Prong

  • Inquiry: Whether counsel’s assistance was reasonable considering all the circumstances


Performance prong4

Performance Prong

  • “Highly deferential” review


Performance prong5

Performance Prong

  • Indulge strong presumption that conduct falls within wide range of reasonable professional assistance


Performance prong6

Performance Prong

  • Elevated from lawyer’s perspective at time of event


Performance prong7

Performance Prong

  • Applies to both acts and omissions


Prejudice prong

Prejudice Prong

  • Outcome determinative

  • Reasonable probability = sufficient to undermine confidence in outcome

    • Must prove more than some conceivable effect

      • Need not prove “prove likely than not”


Presumptions of prejudice

Presumptions of Prejudice

  • Actual or constructive denial of assistance of counsel

  • Some types of State interference with counsel’s assistance


Presumptions of prejudice1

Presumptions of Prejudice

  • Representation by lawyer who has an actual conflict

  • Query: Why is Court willing to adopt such a bright line test -- a presumption -- in these circumstances?


Application to facts

Application to Facts

  • Performance prong

    • strategic choice

    • well within range of professionally reasonable judgments

  • Prejudice prong

    • evidence D says trial counsel should have offered would barely have altered the sentencing profile presented to judge


Retained counsel

Retained Counsel

  • Evaluated under same test

  • Cuyler v. Sullivan


Vehicles for raising

Vehicles for Raising

  • Appeal

    • Motion for New Trial

  • Writ of habeas corpus

    • Substantial limitations with 1996 AEDPA


Application to appeals

Application to Appeals

  • Evitts v. Lucey

    • Issue: Does criminal D have right to effective assistance of counsel on first appeal


Application to appeals1

Application to Appeals

  • Roe v. Flores-Ortega (Supplement)

    • Issue: How evaluate ineffective assistance of counsel claim based on failure to file notice of appeal


Application to appeals2

Application to Appeals

  • Anders v. California

    • Issue: What if appointed counsel finds case on appeal to be without merit


Application to appeals3

Application to Appeals

  • Smith v. Robbins

    • Issue: Are there constitutionally permissible alternatives to procedure set forth in Anders


Application to appeals4

Application to Appeals

  • PDR? Certiorari? Writs of habeas corpus?


Assessing attorney performance

Assessing Attorney Performance

  • Issue: What is acceptable strategy?

  • Darden v. Wainwright

    • At sentencing D counsel failed to introduce evidence of mitigation

  • Kimmelman v. Morrison

    • D counsel failed to file timely motion to suppress; unaware search conducted; believed gov’t had to tender all inculpatory evidence


Assessing prejudice

Assessing Prejudice

  • Lockhart v. Fretwell

    • Issue: Prejudice as of what moment in time

    • D attorney failed to object to death penalty aggravating factors which at time of trial had been undeclared unconstitutional


Assessing prejudice1

Assessing Prejudice

  • Glover v. United States [Supplement]

    • Issue: Can failure to object that leads to increased sentence satisfy prejudice prong


Assessing prejudice2

Assessing Prejudice

  • Hill v. Lockhart

    • Issue: How is prejudice shown in guilty plea context


Viability of per se error

Viability of Per Se Error

  • United States v. Cronic

    • Caution: in Strickland, Supreme Court acknowledged that there are circumstances when prejudice might be presumed


Challenging on writ

Challenging on Writ

  • Bell v. Cone [Supplement]

    • Demonstrates AEDPA impact on ineffective assistance of counsel claims

    • Federal court not to retry state conviction; rather, role is to give effect to extent possible under law


Challenging on writ1

Challenging on Writ

  • Federal Court can only issue writ if

    • contrary to

    • unreasonable application [not merely incorrect]


Exercise

EXERCISE

  • D is charged with aggravated robbery, a first degree felony with possible punishment range of 5 to 99 years or life and a $10,000 fine. Additionally, aggravated robbery is a listed offense for which parole eligibility does not accrue under after prisoner has discharged the lesser of (1) half his sentence, or (2) 30 calendar years


Exercise1

EXERCISE

  • D has steadfastly maintained his innocence of the charges, claiming that the eyewitnesses are mistaken in their identification of him. There is no other “hard” evidence trying him to crime.


Exercise2

EXERCISE

  • D has rejected all plea bargain overtures, stating, “To pleas guilty is to admit something I did not do. The system has already accused me of being a thief, now it want to make a liar out of me.”


Exercise3

EXERCISE

  • The morning of trial, prosecutor offers final deal: reduction of charge to robbery, 3 years confinement.


Exercise4

EXERCISE

  • Defense counsel rejects this last minute attempt with talking to D.


Exercise5

EXERCISE

  • Case goes to trial; jury convicts D and sentences to 35 years.


Exercise6

EXERCISE

  • Question: Ineffective assistance? How frame, support, analyze?


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