Criminal Justice system -- Jury Selection --> appeal

6th Amendment

Guarantees the right of defendants to a trial by an impartial jury for criminal offenses

benefits of trial by jury

places common sense judgement of a group of laymen between the government and the accused; juries are the voice of the people

crimes right to trial by jury applies to

any criminal offense that is not a petty offense

petty offense

if the maximum sentence for an offense is less than 6 months incarceration it is considered petty and the defendant has no right to trial by jury

maximum sentence < 6 months = petty offense

Jury trials v. bench trials

jury trials: costly, timely

bench trials: less costly, more efficient

maximizing trial efficiency

reduce jury trials --> lower penalty for misdemeanors = more bench trials

defendant waiver

defendant has the right to waive their right to a jury trial and have their case heard and decided by a judge

why waive right to jury trial?

defendant sympathetic judges, publicized case, overly emotional case

jury size

no more than 12, no less than 6.

all federal courts and most jurisdictions require 12 person juries.

Fair Cross-Section Requirement

The principle that a person's right to an impartial jury, guaranteed by the Sixth Amendment, includes a requirement that the pool of potential jurors fairly represent the composition of the jurisdiction's population.

Jury Selection and Service Act of 1968

established the process for selecting jurors in federal court and requirements for citizens to to serve on federal juries; all citizens have an equal opportunity to serve on jury duty.

jurors are selected at random from a fair cross-section of the community

1975: SCOTUS incorporates to the states

venire

panel of perspective jurors in a case

venire persons

members of the prospective jurors panel

voir dire

"to speak the truth"

The process by which prospective jurors are questioned under oath about their background, attitudes, and beliefs to ascertain their qualifications and determine any basis for challenge.

how the venire is assembled

lists comprising a cross section of the community (often voter registration lists)

the court sends out notices with summons to report to court on a specific date and time (appearance is required by law)

how voir dire is conducted

in a court room, with a judge, government, defendant, and defense counsel present

venire persons are asked questions that go over their ability to serve and be impartial.

"For cause" challenges

Judge decides, both sides can make motions to the judge

used to ensure an impartial juror.

no limit on number of these challenges.

jurors can be removed for cause when they reveal something that'll prevent them from being impartial + deliberating fairly or unavailability (vacation, health, etc).

Peremptory challenge (strike)

The right to challenge a juror without assigning, or being required to assign, a reason for the challenge. A peremptory challenge results in the exclusion of a potential juror, unless the opposing party presents an argument that this challenge was used to discriminate on the basis of race, ethnicity, or sex.

strategic peremptory challenges

allows the parties to take advantage of the core of truth in most common stereotypes

Batson v. Kentucky

was a case in which the United States Supreme Court ruled that a prosecutor's use of peremptory challenge in a criminal case—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race.

Batson Challenge

defendant must show enough facts to suggest the prosecution used peremptory challenges to exclude jurors based on race (can be based on numbers alone)

burden then shifts to prosecution to set forth fact showing its peremptory challenges had nothing to do with race

judge then decides whether prosecution engaged in purposful discrimination

if a Batson violation is found on appeal, the conviction is overturned

Batson simplified

peremptory challenges cannot be used to strike venire persons on the basis of race and gender

Confrontation Clause (6th Amendment)

in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him (not absolute)

confrontation clause purpose

to prevent the government's use of ex parte affidavits in lieu of a personal examination and cross examination of a witness

Ex parte affidavit

a sworn statement filed by the governement without a defendant being present

Why court testimony is required

helps ensure an adversarial criminal process by allowing for cross examination; "the greatest legal engine ever inventted for the discovery of the truth"

promotes witness truthfulness by requiring that witnesses make their statements under oath =, in open court, in front of the accused, and subject to cross examination

allows jury to observe a witness' demeanor, "thus aiding the jury in assessing their credibility

hearsay

an out of court statement that is being offered to prove the truth of the matter asserted in the statement

hearsay is generally not allowed in court testimony

Ohio v. Roberts (1980)

When a hearsay declarant is not present for cross-examination at trial, their statement is admissible only if it bears adequate indications that the statement is reliable

Such reliability is found automatically if the statement falls within a firmly rooted hearsay exception

Exceptions to hearsay

set in rules of evidence (1973) and common law

excited utterance

present sense impression

business records

Hearsay Exception: Excited Utterance

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. The government does not need to materialize/bring in the witness. more likely to be spontaneous and truthful

Hearsay Exception: present sense impression

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. the maker has no time to fabricate.

Hearsay Exception: business records

A business record is admissible as a valid exception

to the hearsay rule if the record is:

1. Kept in the course of regularly conducted

business: AND

2. Made by a person with knowledge of the matter at

or near the time of the matter's occurrence (e.g., a

secretary who logs calls as they come in).

when businesses keep records in the normal course of their work, they have an incentive to have them be accurate

Crawford v. Washington (2004)

A testimony cannot be introduced into trial unless the witness can be cross-examined by the accused. when an out of court statement is testimonial, the confrontation clause forbids its admission unless the person making the statement is subject to cross examination.

Testimonial Statement

a statement created "with an eye toward" using it at trial or for the purpose of establishing or proving some fact at trial

Co-Defendant Statements: balancing

confrontation clause rights of defendants + 5th Amendment rights of defendants + efficiency: systems preference for joint trials of defendants charged with committing crimes together

Bruton v. US (1968)

Admission of defendant 1's out-of-court statement that they did crime with Defendant 2 violated Defendant 2's confrontation clause right because defendant 1 could not be cross examined about their out-of-court statement

Devonshire v. U.S. (1997)

If a party makes a hearsay declarant unavailable, hearsay becomes automatically admissible against the party who caused the declarant not to testify. Even if the statement would be otherwise barred by the hearsay rule.

If a defendant kills a witness, who is expected to give damaging testimony against the defendant, they waive their right to object to the admission of that witness' statements

Forfeiture by Wrongdoing

You can forfeit a constitutional right if you do something bad

Devonshire: what the government has to prove

that the defendant has made unavailable a witness who

hearing before trial with testimony

government's burden of proof: NOT beyond a reasonable doubt but by a "preponderance of the the evidence" (more than probable cause less than clear and convincing)

5th Amendment: Self Incrimination

no person shall be compelled in any criminal case to be a witness against himself

may be asserted in any proceeding, civil or criminal, formal/informal, if the testimonial evidence that would be produced there might incriminate the speaker in ANY criminal proceeding

Elements of 5th Amendment right against self incrimination

no person

shall be compelled

in any criminal case

to be a witness against himself

element: "no person"

a real person, not corporation, partnership, or union, definition isn't restricted to defendants charged with a crime

element: "shall be compelled"

cannot be forced to do something they otherwise would not do

element: "in any criminal case"

in a criminal trial/investigation

subpoena

a court order requiring appearance and/or testimony

without the subpoena the court system could not function because no one wants to appear in court

element: "to be a witness against himself"

testimonial/communicative: must relate factual assertion or disclose information

real/physical evidence: can be compelled without 5th Amendment protection (finger prints, DNA, speech in a voice ID procedure, police lineup)

Overcoming the privilege: Immunity

if there is not risk that a person's compelled statements will be used against them in a criminal case, 5th Amendment privilege does not apply

if a witness is provided with immunity from prosecution for their statements they can be compelled to testify

2 types of immunity

transactional immunity

use immunity

transactional immunity

full immunity, meaning the witness can no longer be prosecuted as to any criminal matter that their compelled statement is related to

Use Immunity

government agrees to not use a person's compelled statements against them in any criminal proceeding

prevents the prosecution from using the witness's testimony or evidence derived from it, but allows prosecution based on independent evidence.

*granted routinely as way to obtain the truth to serve the public without jeopardizing people's rights

Griffin v. California (1965)

the privilege against self-incrimination prohibits the prosecutor from commenting on the defendant's failure to testify during trial or at any point in the adversarial process

*however, the government can use a defendants silence at trial if they're not arrested and questioned by police

Burden of proof

a legal standard that requires a part in a court case to provide evidence the demonstrate their claim is valid

Burden of Proof: constitution and SCOTUS

due process clause of the 5th and 14th amendments require the prosecution in a criminal case to prove beyond and reasonable doubt every fact necessary to constitute the crime charged

Evidentiary standards

(lowest to highest)

1. probable cause

2. preponderance of the evidence

3. clear and convincing evidence

4. beyond a reasonable doubt

probable cause

lowest standard, more likely than not (about 50 %)

arrest and search warrants

preponderance of the evidence

Usually the standard of proof used in a civil suit; the burden of proof that a party must meet in order to win the lawsuit. To win, a party must provide evidence that is more convincing than the other side's evidence. (think like minimum 50-60% sure)

clear and convincing evidence

an intermediate standard of proof, sometimes required for certain defenses such as the insanity defense

used in preliminary hearings when deciding conditions of release

beyond a reasonable doubt

The standard that must be met by the prosecution's evidence in a criminal case: that there is no other logical explanation, based on the facts, except that the defendant committed the crime.

government must prove each and every element of an offense charged beyond a reasonable doubt

element of a crime

any part of the description of an offense that requires its own evidence

reasonable doubt

a fair doubt based on reasonable logic, common sense, experience

any doubt that would cause an ordinary, reasonable person to hesitate to act in matters of importance in their lives

may arise from evidence, or from a lack thereof

common defense argument

witness inconsistency: 1 inconsistency in witness testimony = reason to doubt (counter: look at testimony as a whole)

unanimous vs. non-unanimous verdicts

in all federal courts and most state courts, verdicts in criminal cases must be unanimous

a small number of states allow for non-unanimous verdicts permitted by SCOTUS

any verdict from a 6-person jury must be unanimous

multi-theory verdicts: issues

unanimity issue: w/ multiple theories of guilt it is hard to determine if true unanimity was met or of they agree guilty for different theories

*jury deliberations are secret and impenetrable

**jury cannot be asked how it decided a case

means

the method by which a crime is committed -- the jury does not need to be unanimous

Schad v. Arizona (1991)

plurality: premeditated murder and felony murder are 2 different means not elements. the 2 are morally equivalent

Crime Victims' Rights Act of 2004

the Victim's bill of rights; some version incorporated at the state level

1. the right to be reasonably protected from the accused

2. the right to reasonable, accurate and timely notice of any public proceeding involving the crime or of any release or escape of the accused

3. the right to be included in any such public proceeding

4. the right to be reasonably heard at any public proceeding involving release, plea, or sentencing

5. the right to confer with the federal prosecutor handling the case

6. the right to full and timely restitution as provided by law

7. the right to proceedings free from unreasonable delay

8. the right to be treated with fairness and with respect for the victim's dignity and privacy

Sexual Assault Survivors Rights Act

federal; 30 states have some version

modest framing of rights, not as comprehensive as CVRA

right to store rape kits until statute of limitations expires or 20 years have passed

Homicide Victim's Families Rights Act of 2021

allows designated family members of cold case murder victims to request a review of the case file from the investigation agency, if certain criteria are met

3 years after the date of death, a designated family member can make a request of the law enforcement to review a case and see if there is unexplored leads

Appeals

generally: if a defendant or prosecutor is unhappy with the result of a trial court, they can appeal

main constitutional limitation for prosecution to appeal: double jeopardy

double jeopardy & prosecutorial appeals

Trial or punishment for the same crime by the same government; forbidden by the Constitution.

Bar or prosecution after acquittal is absolute

no point in letting the government appeal a decision because been if it won the appeal, it would not be able to retry a defendant

appellant

part that files an appeal; almost always the defendant who was convicted at trial

appellee

The party against whom the appeal is filed, and who has to responds to it

when the government can appeal

when the government loses a pre-trial ruling and appeals it, the government is the appellant

defendant's right to appeal

no constitutional right to appeal a criminal conviction BUT every jurisdiction in the US gives defendants one appeal "as of right" as to a criminal conviction

Appeal as of right

a direct appeal to a court one level above the trial court

federal: to the US Court of Appeals for the curcuit in which the case was tried

state: to the intermediary court of appeals above the trial court and below the state supreme court

Discretionary review

if a defendant loses direct appeal, they can ask a higher court to review their appeal, but that court has discretion to hear it or not

federal appellate court --> Supreme Court

State appellate court --> State Supreme Court --> US Supreme Court

defendant's right to counsel on appeal

first appeal as of right: SCOTUS: the due process clause guarantees a criminal defendant the effective assistance of counsel on their first appeal

subsequent discretionary appeals: no constitutional right to counsel, many states leave it up to appellate courts as to whether to appoint counsel

Appellate court standards

1. sufficiency of the evidence

2. plain error

3. harmless error

Sufficiency of the Evidence

Was the evidence sufficient? Was there enough of it to support the defendant's conviction?

SCOTUS: after viewing the evidence in the light most favorable to the prosecution, any rational jury could have found the essential evidence of the crime beyond a reasonable doubt

When a court of appeals decides that at a trial, the government did not present sufficient evidence, the trial judge should have granted the MJOA

Motion for a judgement of acquittal

made to the court at by the end of the defense in every trial, both at the end of the government's case-in-chief and at the end of the presentation of evidence

a judge grants a MJOA if no reasonable jury could find beyond a reasonable doubt that the defendant committed the crime charges

Plain error

if a defendant fails to raise an objection as to an issue in trial court, they lose the ability to raise that issue on appeal

*an appellant can only prevail on that issue if they can show the trial court committed "plain error" that affected their substantial rights

burden of proof is on the appeallant to show plain error

Justification for "plain error" doctrine

Gives a defendant a strong incentive to raise

any potential objection at the trial level

Drawing objections to the trial judge's attention reduces the

number of errors that occur, and promotes efficiency

by "getting things right the first time"

Helps the appellate court by making the reason for the

trial court's action more likely to appear in the record

Prevents defense "sand bagging"

Sand Bagging

intentionally withholding objections or requests during trial to bring up later during appeal

what appellant needs to show for plain error

Error committed by the trial judge must be "plain" - "clear and obvious"

Plain error" must have affected "substantial rights" - it must have must have been prejudicial, and affected the outcome of the trial

Appellate court doesn't have to consider an issue that wasn't raised at trial - only if it "seriously affected the fairness,

integrity or public reputation of judicial proceedings"

defense is more likely to raise objections and have it on record

harmless error

General rule: If a defendant RAISES an objection as to an issue

in the trial court, appellate court reviews that issue

on a "harmless error" standard

Burden is on the appellant to show error

Burden is on the appellee (the government)

to show error was "harmless"

Trial error is considered to have been harmless if it didn't affect substantial rights of the defendant - NOT harmless if the error

had a "substantial influence" on the verdict

Non-harmless errors

"Structural" errors, i.e., those that affect the framework within which the trial proceeds,

rather than simply being an error in

the basic trial process itself

ex.

Deprivation of the right to counsel

Debilitating conflicts of interest on the part of judge or attorney

Batson error

Denial of the right to proceed pro se

Denial of the right to trial by jury

Erroneous instruction on reasonable doubt

Error overall

Given human fallibility, there is virtually no such thing as an error-free trial: A defendant is entitled to a fair trial, but not a perfect one

Overturning convictions and ordering new trials on the basis of any error, no matter how trivial,

would exact a high cost

Appellate standards are designed to balance various goals of criminal justice system

Retroactivity

To make a law or rule effective as of a

date prior to the passing of the law or rule

Retroactivity and criminal cases

U.S. SUPREME COURT, 1987: "A new rule is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final."

Covers:

Defendants who have trials coming up as of the time of

the decision, and would benefit from the "new rule" YES

Appellants who have appeals in the system as of the time of the

decision, and would benefit from the "new rule" YES

Retro activity and Collateral Attacks

Appeals process is over, can only challenge conviction

by way of what's called a "collateral attack"

Collateral attacks are often made to raise "newly discovered evidence"

So can a "new rule" be raised retroactively

in a collateral attack on a conviction?

U.S. Supreme Court, 1989

It all depends on whether the "new rule" is

SUBSTANTIVE or PROCEDURAL

If the new rule is "substantive," answer is YES

If the new rule is "procedural," answer is ALMOST NEVER

Substantive new rule

think what the letter of the law says

is criminal, and how it should be punished

Procedural new rule

think what procedures have been put

in place to safeguard defendants' rights