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



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


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



  • 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?



  • 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




  • 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?



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



  • To which stages of proceeding does constitutional right apply?



  • 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?



  • 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



  • 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



  • 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



  • 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


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]



  • 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



  • 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.



  • 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.”



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



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



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



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

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