Pretrial and Trial Procedures

Preliminary Hearing to determine PC to detain

If PC has not already been determined and there are significant restraints on the arrestee’’s liberty (jail or bail generally) a preliminary hearing to determine PC must be held within a reasonable time (usually 48 hours). Informal, nonadversarial hearing. No real remedy for denial of the hearing but evidence discovered as a result of the unlawful detention can be excluded

Pretrial Detention: Bail

Most state constitutions create a right to be released on bail unless the suspect is charged with a capital crime. Bail can be set no higher than is necessary to assure the defendant’s appearance at trial. Refusal to grant bail or setting excessive bail may be appealed immediately. SCOTUS has upheld portions of the Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial

Defendant Incompetent to Stand Trial

Standards for commitment and subsequent release of defendants incompetent to stand trial are necessarily essentially identical to those for commitment of persons not charged with a crime due to equal protection rights.

Grand Jury Incorporation

SCOTUS has not incorporated the right to indictment by grand jury against the states, but some state constitutions require it. Western states such as California generally charge by filing an information: a written accusation of the crime prepared and presented by the prosecutor

Grand Jury: Secrecy and Notice

The defendant has no right to notice that the grand jury is considering an indictment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury. Grand jury meetings are conducted in secrent

Grand Jury Right to Counsel and Miranda

A witness subpoenaed to testify before the grand jury does not have the right to receive Miranda warnings, nor are they entitled to a warning that that they are a potential defendant. Witnesses have no right to an attorney

Grand Jury Exclusion

A grand jury may base its indictment on evidence that would be inadmissible at trial, and an indicted defendant may not have the indictment quashed on the ground that it is based on illegally-obtained evidence

Grand Jury: Subpoena Challenges

There is no right to challenge a subpoena on the fourth amendment grounds that the grand jury lacked probable cause, or any reason at all, to call a witness for questioning

Grand Jury: Equal Protection

A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to harmless error

Right to a Speedy Trial: Standards

Based on the totality of the circumstances. Important factors include: (1) length of delay; (2) reason for delay; (3) whether defendant has asserted their right to a speedy trial; and (4) prejudice to the defendant. The remedy is dismissal with prejudice.

Right to a Speedy Trial: When the Clock Starts

The right to a speedy trial does not attach until the defendant has been arrested or charged. If the defendant is charged and is incarcerated in another Jx, reasonable efforts must be used to obtain the presence of the defendant. The prosecution cannot indefinitely suspend charges. The defendant does not need to know of the charges for the right to attach.

Duty to Disclose

A prosecutor’s failure to disclose material, exculpatory evidence to the defendant is grounds for reversing a conviction if the defendant can prove that: (1) the evidence is favorable to the defendant because it either impeaches or is exculpatory; and (2) prejudice has resulted in that there is a reasonable probability that the result of the case would have been different

Duty to Notify Prosecution

If the defendant plans on using an alibi or the insanity defense, he must notify the prosecution. If an alibi is to be used, the defendant must give the prosecution a list of witnesses, and the prosecution must give the defendant a list of witnesses it will use to rebut. The prosecutor may not comment at trial on the defendant’s failure to produce a witness named as supporting the alibi or on failure to present the alibi itself

Competency to Stand Trial

A defendant is incompetent to stand trial if, at the time of trial, they either (1) lack a rational as well as factual understanding of the charges and proceedings against them; or (2) lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding. A state may place the burden on the defendant to prove incompetency, but this burden cannot be higher than a preponderance of the evidence.

Commitment of a Defendant

A defendant who successfully asserts an insanity defense may be confined to a mental hospital for a term longer than the maximum period of incarceration. However, the defendant cannot be indefinitely committed after regaining sanity merely because he is unable to prove that he is not dangerous to others

Pretrial Publicity

Excessive pretrial publicity prejudicial to the defendant may require retrial or change of venue

Order of Arguments at Trial

P opening, D opening, trial, P closing, D closing, P rebuttal

Right to a public trial

Preliminary probable cause hearings are presumptively open to the public and press, as are pretrial suppression hearings, although the latter may be closed to the public under limited circumstances. A court must make “every reasonable effort” to accommodate public attendance at jury voir dire proceedings. The press and the public have a right to attend the trial itself even when the defense and prosecution agree to close it. They state may permit televising criminal proceedings over a defendant’s objections

Right to a neutral judicial officer

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in a guilty verdict. Impermissible bias is also present when a judge had earlier, significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

The Judge as a Lawyer

A defendant in a minor misdemeanor prosecution has no right to have the trial judge be a lawyer if, upon conviction, the defendant has a right to trial de novo in a court with a lawyer judge. For serious crimes, the judge likely has to be a lawyer

Miscellaneous Due Process Rights at Trial

Due process is violated if: (1) the trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration; (2) the state compels the defendant to stand trial in prison clothing; (3) the state compels the defendant to stand trial or appear at penalty phase proceedings while visibly shackled unless the court finds shackling justified by real concerns; or (4) if the jury is exposed to influence favorable to the prosecution

Preservation of Exculpatory Evidence

The police have no due process duty to preserve all items that might be used as exculpatory evidence at trial, but they cannot destroy evidence in bad faith.

Right to trial by jury

The right to a criminal jury trial only attaches if a sentence of more than six months’ imprisonment is authorized. There is no right to a jury trial in juvenile proceedings

Contempt and Right to a Jury

Civil contempt has no right to a jury trial. For criminal contempt, cumulative penalties totaling more than 6 months cannot be imposed without the right to a jury trial. If a judge summarily imposes punishment for contempt during trial, penalties may aggregate more than 6 months without a jury trial. A judge may place a contemnor on probation for up to 5 years without affording them the right to a jury trial as long as revocation of probation would not result in imprisonment for more than six months

Jury: Numbers and Unanimity

There is no right to a jury of 12, but the jury must include at least 6 jurors. The verdict must be unanimous

Right to a Fair Cross-Selection of the Community

A defendant has the right to have the jury selected from a representative cross-section of the community. The defendant need only show the underrepresentation of a distinct and numerically significant group in the venire to show their right to a jury trial was violated. A defendant does not have the right to proportional representation of all groups on their particular jury

Peremptory Challenge limitations

Peremptory challenges may not be based on race or gender. Challenging such a peremptory strike requires: (1) the moving party showing facts or circumstances that raise an inference of improper exclusion; (2) the party being challenged must come forward with a race-neutral explanation for the strike, even if the basis is unreasonable; and (3) a determination from the judge whether the given reason was merely pretextual

Exclusion: Impair or Prevent Performance

The standard for determining when a prospective juror should be excluded for cause is whether the juror’s views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath

Exclusion: Questioning on Racial Bias

A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is “bound up” in the case or the defendant is accused of an interracial capital crime

Juror Opposition to Death penalty

A state may not exclude a juror who expresses doubts or scruples about the death penalty. The state may exclude a juror if the juror refuses to impose the death penalty under any circumstances. A death penalty imposed by a jury from which a juror was improperly excluded is automatically reversed

Juror Favoring Death Penalty

If a jury is to decide whether the defendant is to be sentenced to death, the defendant must be allowed to ask potential jurors if they would automatically give the death penalty upon a guilty verdict. Jurors who would do so are excluded for cause.

Use of Peremptory Challenges to Maintain an Impartial Jury

If a judge refuses to exclude for a cause a juror whom the court should exclude, and the defendant uses a peremptory challenge to exclude the juror, there is no constitutional violation

Inconsistent Verdicts

Verdicts that are inconsistent, such as finding one defendant guilty and his co-defendant not guilty on the same evidence, are not reviewable

Sentence Enhacements

If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts other than prior conviction are proved, the facts must be submitted to the jury using the beyond a reasonable doubt standard. this also applies to setting fines and sentencing enhancements after guilty pleas. Harmless error applies to review.

Consecutive Sentences

A state legislature may give a judge, rather than a jury, discretion to determine whether sentences for multiple crimes are to run consecutively or concurrently

Right to Proceed Pro Se

A defendant has the right to defend himself at trial if his waiver of the right to counsel is knowing and intelligent and the defendant is competent to proceed pro se. Defendants do not have a right to self-representation on appeal

Indigence and Recouping Costs

The state generally provides counsel in close cases of indigence, but may then seek reimbursement from convicted defendants who later become able to pay

Effective Assistance of Counsel

A defendant claiming ineffective assistance of counsel must show (1) deficient performance and (2) but for the deficiency, the result of the proceeding would have been different. This claim cannot be based on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel

IAC and Plea Bargaining

IAC also applies to the plea bargaining stage. An attorney’s failure to notify a defendant of a plea offer can constitute deficient performance if the defendant can show that (1) had the plea been communicated, the defendant likely would have accepted; and (2) the plea likely would have been entered without the prosecutor canceling it. The fact that the defendant receives a subsequent fair trial does not prevent the IAC claim for a plea bargain

IAC and Deportation Risk

It is constitutionally deficient for counsel not to inform a client whether their plea carries a risk of deportation

Conflicts of Interest

Joint representation is not per se invalid. However, if an attorney advises the trial court of a conflict of interest at or before trial and the court refuses to appoint separate counsel, the defendant is entitled to automatic reversal. A defendant’s conflict of interest with their attorney is rarely grounds for relief. A defendant has no right to be jointly represented with their co-defendants if the government can show a potential conflict of interest

Right to Support Services for Defense

Where a defendant has made a preliminary showing that they are likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense

Seizure of Funds and Attorney Payment

The right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where the defendant was going to use such money or property to pay for an attorney

Right to Counsel while Testifying

A defendant has no right to consult with their attorney while testifying and may be sequestered from their attorney during short breaks

Right to Confront Witnesses

A defendant has the 6A right to confront adverse witnesses. Face-to-face confrontation is not required when preventing such confrontation serves an important public service, the jury can view the witness, and the defendant is able to cross-examine the witness

Introduction of Co-defendant’s Confession

If two persons are tried together and one has given a confession that implicates the other, the confrontation clause prohibits the use of that statement even where the confession interlocks with the defendants own admissible confession. Such a statement may nevertheless be admitted if: (1) all portions referring to the other defendant are eliminated; (2) the confessing defendant takes the stand and is subject to cross-examination; or (3) the confession is being used to rebut the defendant’s claim that their confession was obtained coercively

Pretrial Testimonial Statement of Unavailable Witnesses

Prior testimonial evidence may not be admitted unless: (1) the declarant is unavailable, and (2) the defendant had an opportunity to cross-examine the declarant at the time the state was made

Definition of Testimonial Statements

Includes, at a minimum, statements from a preliminary hearing, a former trial, a grand jury hearing, or police interrogation conducted to prove past acts. Statements from interrogation intended to aid in the response to an ongoing emergency are not testimonial. Lab evidence admitted for the truth of the matter asserted is testimonial and the person who did the testing must be subject to cross-examination

Confrontation Clause Forfeiture by Wrongdoing

A defendant can be held to have forfeited a Confrontation Clause claim by wrongdoing. However, the wrongdoing must be intended to keep the witness from testifying

Burden of Proof and Affirmative defenses

The state must prove guilt BaRD in all cases, but the state may generally impose the burden of proof upon the defendant in regard to affirmative defenses

Presumptions

A mandatory presumption or a presumption that shifts the burden of proof to the defendant violates the requirement that the state prove every element of the crime BaRD

Jury Instructions

A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence