Criminal Trial — Constitutional Rights

When does a defendant have a constitutional right to a jury trial?

When charged with a serious offense.

What is generally considered a serious offense for jury-trial purposes?

An offense punishable by more than six months of incarceration.

What does the right to a jury drawn from a representative cross-section mean?

The jury pool must fairly represent the community.

Must the final jury proportionally represent every group in the community?

No. Only the jury pool must be drawn from a representative cross-section.

What is the constitutional minimum number of jurors in a criminal trial?

Six jurors.

Must a criminal jury’s verdict be unanimous?

Yes.

What is voir dire?

The process of questioning prospective jurors to determine whether they can be impartial.

What does “voir dire” mean?

“Speak the truth.”

What is a challenge for cause?

The exclusion of a prospective juror for a specific reason indicating that the juror cannot be impartial.

Is there a numerical limit on challenges for cause?

No.

What is a peremptory challenge?

The exclusion of a prospective juror without having to establish a specific reason.

May a peremptory challenge be based on race or sex?

No. That would violate the Constitution.

When does the Sixth Amendment right to counsel apply?

At every critical stage of a prosecution after formal judicial proceedings have begun.

Is a criminal trial a critical stage of the prosecution?

Yes.

What happens if a defendant entitled to counsel is completely denied counsel at trial?

The conviction is automatically reversed.

Does the harmless-error test apply to the complete denial of counsel at trial?

No.

What happens when the right to counsel is violated during a non-trial stage?

The court applies the harmless-error test rather than automatically reversing the conviction.

Under the harmless-error test, who must prove that the constitutional violation was harmless?

The government.

What must the government prove under the constitutional harmless-error test?

Beyond a reasonable doubt that the violation did not contribute to the conviction.

May a defendant waive the right to counsel?

Yes, if the waiver is knowing and intelligent.

What understanding must a defendant possess to validly waive counsel?

A rational and factual understanding of the proceedings.

Does a waiver of counsel become invalid merely because self-representation is a bad strategic decision?

No.

What does the Sixth Amendment guarantee regarding the quality of legal representation?

The effective assistance of counsel.

Is effective assistance of counsel presumed?

Yes.

What test governs ineffective-assistance-of-counsel claims?

The Strickland test.

What are the two elements of the Strickland test?

Deficient performance and prejudice.

What is deficient performance under Strickland?

Counsel’s representation fell below an objectively reasonable professional standard.

What is prejudice under Strickland?

There is a reasonable probability that, but for counsel’s deficient performance, the result would have been different.

Does an attorney’s inexperience alone establish ineffective assistance of counsel?

No.

Does an attorney’s limited preparation time alone establish ineffective assistance of counsel?

No.

Do the seriousness of the charges or complexity of the defenses alone establish ineffective assistance?

No.

Can failure to file a meritorious motion to suppress constitute ineffective assistance?

Yes, if competent counsel would have filed it and suppression probably would have changed the outcome.

When does joint representation violate the Sixth Amendment?

When an attorney represents co-defendants whose interests actually conflict.

When does a conflict of interest exist in joint representation?

When counsel cannot zealously advocate for one defendant without harming the other.

What happens if counsel timely raises an actual conflict but the judge refuses to appoint separate counsel?

The defendant is entitled to automatic reversal.

What must a defendant prove if counsel failed to timely raise a joint-representation conflict?

That the attorney actively represented conflicting interests.

What right does the Confrontation Clause provide?

The defendant’s right to confront and cross-examine the witnesses against them at trial.

Is face-to-face confrontation always required?

No.

When may face-to-face confrontation be restricted?

When an important public purpose justifies the restriction, such as protecting a young child from serious trauma.

May a defendant voluntarily waive the right to be present at trial?

Yes, by voluntarily leaving the courtroom.

Can a disruptive defendant lose the right to remain in the courtroom?

Yes. A disruptive defendant may be removed and thereby forfeit face-to-face confrontation.

Why can a non-testifying co-defendant’s confession create a Confrontation Clause problem?

The other defendant cannot cross-examine the confessing co-defendant.

When may a co-defendant’s confession be admitted without violating the Confrontation Clause?

When the confessing co-defendant testifies and is available for cross-examination.

When may a prior testimonial statement be admitted against a defendant?

When the declarant is unavailable and the defendant previously had an opportunity to cross-examine the declarant.

What are the two requirements for admitting a prior testimonial statement?

The declarant is unavailable and the defendant had a prior opportunity for cross-examination.

What types of proceedings generally produce testimonial statements?

Preliminary hearings, grand jury proceedings, former trials, and certain police interrogations.

When is a statement made during a police interrogation testimonial?

When the primary purpose is to establish or prove past events potentially relevant to a criminal prosecution.

Are statements made to obtain assistance during an ongoing emergency generally testimonial?

No.

Are statements made during a 911 call always testimonial?

No. Statements intended to obtain help during an ongoing emergency are generally non-testimonial.

What is forfeiture by wrongdoing?

A defendant loses the right to object under the Confrontation Clause by intentionally causing a witness’s unavailability to prevent the witness from testifying.

What intent is required for forfeiture by wrongdoing?

The defendant must have acted with the purpose of preventing the witness from testifying.

Is causing a witness’s absence enough by itself to establish forfeiture by wrongdoing?

No. The defendant must have intended to prevent the witness’s testimony.

Does killing a witness automatically make the witness’s prior testimonial statements admissible?

No. The prosecution must show that the defendant killed the witness to prevent the witness from testifying.