Trial Right:
Right to an Effective Assistance of Counsel
Ineffective Assistance of Counsel: (2-pt)
- 1) Deficiency req:
- Counsel’s performance fell below an OBJECTIVE std of reasonableness, meaning he made errors SO serious that he was not functioning as counsel
- + 2) Prejudice req:
- “But for” the deficiency, the outcome of the trial WOULD HAVE BEEN DIFFERENT
- (not guilty/less time)
(very high- fallign asleep at trial/having 1 of 2 unlicensed is not enough)
What are the 2 reqs for an ineffective assistance of counsel claim?
1) Deficiency req: Counsel’s performance fell below an OBJECTIVE std of reasonableness, meaning he made errors SO serious that he was not functioning as counsel 2) Prejudice req: “But for” the deficiency, the outcome of the tiral WOULD HAVE BEEN DIFFERENT **THIS IS A VERY HARD CLAIM TO MAKE UNLESS THERE IS SOME COLORABLE ARG THAT ∆ IS NOT GUILTY**
Trial Right:
to an Unbiased judge
The judge…:
- 1) has no FINANCIAL STAKE in the outcome of the case;
- 2) has no ACTUAL MALICE twds the ∆
Trial right:
Right to a Jury-
how many? Unanimous?
(Fed vs. NY)
Fed constitution:
- at least 6
- unanimous IF only 6; not unanimous if 12
NY: 12
- D can waive this req and proceed to verdict w/ only 11 jurors
- MUST be unanimous
Trial right:
Right to Trail by Jury:
Diversity & jury
D is entitled to jury selected from pool that represents a cross-section of the community
No challenge just b/c actual jury not cross section
Exception: equal protection for peremptory challenges based upon:
- race
- gender
- (burden then on prosectuion to present another reason –> judge to decide)
Right to Evidentiary Disclosure:
What must prosecutor disclose?
MBE:
- A prosecutor MUST disclose to a criminal D all material, exculpatory evidence (Brady rule)
- (impeach or substantive)
NY:
- Prosecutor must make availbale to D:
- prior written/recorded statements of person to be called as witnesses
- that relate dto subject matter of W’s testimony
When is the Confrontation Cl of the 6th Am relaxed?
The ∆’s right to confront an adverse witness does NOT apply where face-to-face confrontation would contravene imp public policy concerns e.g. traumatizing a child witness
When does a criminal ∆ have a right to a jury?
A criminal has a right to a jury trial when the maximum authorized sentence is > 6 MONTHS The jury must be FAIR and IMPARTIAL
When must jury verdicts in criminal trials be unianimous? NOTE: NY Distinction
Jury trials MUST be UNANIMOUS ONLY IF 6 jurors are used Verdicts in 12-person juries need NOT be unanimous NY DISTINCTION: jury verdicts MUST be unianimous
What is a preemptory challenge?
Permits BOTH sides to exclude jurors w/o stating their reasons for doing so, BUT they cannot be used by either side to exclude prospective jurors on account of RACE or GENDER
Guilty Plea:
2 requirements to be valid
A valid guilty plea MUST be…
- 1) Voluntary;
- 2) Intelligent
How judge establishes:
- have colloguy w/D on record
- Disclose:
- nature of charges (elements)
- consequences of plea
- (waiver of trial/not guilty plea)
- NY: if not American citizen, to be deported
Guilty plea:
When can withdraw (4 circ’s)
1) The plea is involuntary, due to a defect in the plea-taking colloquy;
2) Court l_acked jurisdiction_
3) The D prevails on a claim of i_neffective assistance of counsel_;
OR 4) The prosecutor FAILS to fulfill his part of the plea bargain
What is the 8th Am std for punishment?
The 8th Am prevents cruel and unusual punishment
- standard = grossly disproportionate to the seriousness of the offense committed
8th Amendment:
3 Limitations on Death Penalty
1) AUTOMATIC imposition of death penalty for particular verdict
2) Jurors MUST be allowed to consider ALL potentially mitigating evidence
3) Categorical exclusions: can’t impose death penalty upon:
- i) Ds w/ mental retardation
- ii) Ds who are PRESENTLY insane
- OR iii) Ds who were under the age of 18 at the time the relevant offense occured
Double jeopardy:
What is double jeopardy?
DJ = “…nor shall any person be subject for:
- the SAME OFFENSE to be twice put in jeopardy of life or limb
- by the SAME SOVEREIGN”
Double jeopardy:
“Same Sovereign” requirement
2) Same sovereign req:
- FEd & state are not
- State & diff state are not
- State & municipal ARE
Double jeopardy:
“Same Offense” requirement
_1) Same offense req: _
Federal rule:
- 2 offenses are NOT the “same” if EACH contains an element THAT THE OTHER DOES NOT
- Greater and “lesser-incl’d” offenses:
- 2 offenses ARE the “same” offense if only ONE has an element not in the other
- THUS, trial for greater offense bars retrial for lesser offense and vice versa
NY DISTINCTION:
- “trxn test:” D must be charged w/ all offenses arising from a SINGLE TRXN
- Exceptions:
- i) offenses have subt. different elements;
- ii) ea. offense contains an element NOT in the other AND prevents different harms
- iii) ; one is for criminal possession and the other is for criminal USE;
- OR iv) ea. offense involves harm to a different victim
Double Jeopardy:
When does it attach
Jury trial: when the jury is SWORN
- the state MAY retry a D trial ends in a hung jury
Bench trial: when the first witness is SWORN
Guilty plea: when the ct accepts the D’s plea unconditionally
Does double jeopardy apply to civil proceedings?
NO! E.g.: if the SEC prosecutes civilly for insider trading, the USAO can LATER prosecute the same individual for securities fraud w/o implicating double jeopardy
Double Jeopardy:
4 exceptions
1) a hung jury
2) a mistrial for “manifest necessity”
* (e.g. defect is found in the indictment during trial that couldn’t be cured)
3) a successful appeal,
- *UNLESS the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial
- (no DJ if weight of evidence OR procedural)
4) a breach of the plea agmt by** D**
5th Amend aganst Self-Incrimination:
Who & when can “take the Fifth”?
ANY ONE! in a proceeding in which individual testifies under oath
e.gs. ∆s, witnesses, parties in civil proceedings
NY: canNOT take in grand jury
5th Amend against Self-Incrimination:
Scope & effect
This is a TESTIMONIAL privilege ONLY
- (i.e. it does NOT apply to our bodies and compelled sample analysis)
Effect of taking:
- D cannot be compelled to take stand
- Other W’s can choos enot to answer q’s
- The prosecution cannot COMMENT on (i) a ∆’s decn NOT to testify at trial; OR (ii) the invocation of his right to silence or counsel
3 ways to eliminate the 5th Am privilege against self-incrimination?
NY Distinction
1) Grant of immunity:
- **Fed: **prosecutors can grant “use and derivative use” immunity, which bars the gov’t from using the testimony or ANYTHING derived from it to convict
- (can elim by showing independent source)
- NY:
- *automatic for grand jury witnesses
- can grant “transactional” immunity, which is broader, since is shields witnesses from prosecution for any trxn they testifies abt
2) Statute of limitations:
* he privilege is available IF the SOL has run on the underlying crime
3) The D taking the stand –> can cross examine:
* WAIVES w/in the scope of cross examination
5th Amend aganst Self-Incrimination:
Waiver
How waive?
- by answering questions in another proceeding
- *including civil trial
