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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
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?
  • 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
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?