Crim Pro Foundations 9 - Trial - Jury Selection, Right to Counsel, & Confrontation of Witnesses
Jury Selection
Constitutional right to a jury trial for all serious offenses.
A serious offense is defined as a crime with a possibility of more than six months of incarceration.
Right to a jury of peers means:
Right to a jury selected from a pool of people from a representative cross-section of the community; no automatic exclusion of stay-at-home parents, lawyers, or people of certain races; The pool should look like the community; Right to select from a representative cross-section, but no right to proportional representation.
Jury Selection Process:
Members of the community receive summons to serve as jurors.
Potential jurors are questioned to see if they are biased.
Reasons to exclude potential jurors:
Excluded for cause: Reason to believe a potential juror might not be able to render an impartial verdict.
Example: Defense counsel can challenge someone from Mothers Against Drunk Driving in a DUI case.
Peremptory challenges: Challenges that can be exercised based on a whim.
Cannot be based on race or sex (unconstitutional).
Process is called voir dire (French for speak the truth).
Lawyers question jurors until a jury of at least six is selected, though 12 is standard (for federal cases)
Verdicts must be unanimous, whether the jury is composed of six or 12 jurors.
Right to Counsel
Sixth Amendment right to counsel at all critical stages of a prosecution once formal proceedings have begun.
Trial is a critical stage.
Significance: If a defendant was entitled to a lawyer at trial and didn't get one, their conviction will automatically be reversed.
Even with video evidence of the crime, conviction is reversed if counsel was not provided.
Non-trial proceedings:
Violation of Sixth Amendment right to counsel during non-trial stages does not result in automatic reversal.
Harmless error test is applied: Conviction will be upheld if the government can show that the violation was harmless.
Waiver of Right to Counsel:
A defendant can waive their right to counsel and represent themselves.
Test for a valid waiver: Waiver must be knowing and intelligent.
Defendant must have a rational and factual understanding of the proceeding and be competent.
Effective Assistance of Counsel:
Right to the effective assistance of counsel.
If a defendant is convicted and believes their lawyer was not up to par, they can seek to have their conviction overturned for lack of effective assistance.
Effective assistance is presumed unless the defendant can show that counsel's conduct at trial was so poor that the result at trial could not have been relied upon to be just.
Defendant must show:
Counsel had a deficient performance.
But for the deficiency, the result of the proceeding would have been different.
Arguments typically made on appeal by a different attorney.
Typically, someone claiming ineffective assistance of counsel has to point to specific errors that counsel made.
Things that aren't grounds themselves include inexperience, lack of time to prepare, the gravity of the charges, complexity of defenses, or accessibility of the witnesses.
Example of ineffective assistance of counsel:
Defendant convicted of possession of cocaine discovered during an unlawful search, but the defense attorney failed to file a motion to suppress the cocaine.
Competent attorney would have made the motion, and the evidence would have been suppressed, leading to a different outcome.
Rules About Right to Counsel Relating to Joint Representation
Joint representation is a denial of the Sixth Amendment right to counsel if there is a conflict of interest between the co-defendants.
Conflict of interest arises when the lawyer wouldn't be able to zealously argue for one defendant for fear of harming the other.
Example:
Lawyer representing Bonnie and Clyde for a bank robbery.
Bonnie tells the lawyer that Clyde was the mastermind and that she participated under duress.
If the lawyer represents both Bonnie and Clyde, the lawyer couldn't make this argument in hopes of benefiting Bonnie because it would hurt Clyde's case.
If a lawyer thinks they can represent both parties and begins to, but a conflict arises, then the lawyer can ask the court to appoint separate counsel.
If the judge refuses and a conflict was present, then the defendant will be entitled to an automatic reversal.
If a defendant's lawyer fails to bring up a conflict of interest in joint representation in a timely manner, then the defendant will have to show that the attorney actively represented conflicting interests if they want to obtain a reversal.
Right to Confront Witnesses
Sixth Amendment gives defendants the right to confront witnesses against them at trial, but this right isn't absolute.
Limitations:
If the defendant is heckling witnesses, the judge may remove them from the courtroom.
Defendant may also leave the courtroom voluntarily.
Face-to-face confrontation isn't required if an important public purpose intervenes, like protecting young children from the trauma of facing the accused.
If the defendant is disruptive during trial, they can be removed, forfeiting their confrontation rights.
Right arises when co-defendants are tried together and one co-defendant has confessed.
The confession often can't be introduced into evidence because a defendant has a Fifth Amendment right to refuse to take the stand.
If defendant who confessed to the police refuses to take the stand at trial, then the other defendant will be denied the right to confront the witness against them.
If the confessor does take the stand, then problem solved.
Allow the confession in if we can excise the parts that refer to the non-confessing defendant.
In most cases, the confrontation clause also prevents admission of other prior testimonial statements.
Exception: Prior testimonial evidence may be admitted at trial if:
The declarant is unavailable.
The defendant had an opportunity to cross-examine the declarant at the time the statement was made.
What is testimonial evidence?
No comprehensive definition.
Includes, at a minimum, statements from a preliminary hearing, a grand jury hearing, a former trial.
Interrogation conducted to establish or prove past acts.
Statements to individuals not principally charged with uncovering and prosecuting crimes are less likely to be considered testimonial evidence.
Statements intended to aid police responding to an ongoing emergency (e.g., statements made to a 911 operator).
A defendant can be held to have forfeited a confrontation clause claim by wrongdoing.
The wrongdoing had to be done with the intent to keep the witness from testifying.
Example: Defendant stabbed the victim six times, causing their death.
At trial, the prosecution wanted to introduce a statement the victim had made in a complaint they filed with the police three weeks before they died.
The exception was held not to apply unless the prosecution could show that the defendant killed the victim to prevent them from testifying against him.