Trial procedures

Question 1

Speedy trials: Due Process

Answer 1

Although relatively toothless, the Due Process clause protects against pre-accusation delay:

• The Due Process Clause and federal and state statutes protect defendants from intentional and prejudicial pre-accusation delay—e.g., if the delay was used to obtain a tactical advantage for the prosecution or to harass the defendant.
• In practice, Due Process is satisfied so long as the statute of limitations period has not run.

Question 2

Speedy trials: Speedy Trial Clause

Answer 2

The Sixth Amendment protects defendants against post-accusation delay:

• Delay that occurs between the earlier of the time of arrest or indictment and
• The time of the trial.

In evaluating a Speedy Trial Clause claim, a court looks at four factors:

(1) The length of the delay;
(2) The reason for the delay;
(3) Whether the defendant asserted her right to a speedy trial; and
(4) The risk of prejudice to the defendant.

Question 3

Due process: burden of proof

Answer 3

The Fifth Amendment requires the prosecution to prove all the elements of an offense beyond a reasonable doubt.

But the government may place on the defendant the burden of proof with respect to affirmative defenses—e.g., insanity, self-defense, entrapment, or mistake.

Question 4

Due process: mandatory presumptions

Answer 4

Mandatory presumptions regarding an element of an offense violate due process.

Violative presumptions include:

• A conclusive presumption that cannot be rebutted;
• A rebuttable mandatory presumption, which shifts the burden of proof regarding the element of the offense to the defendant.

Question 5

Due process: defenses that negate an element of the crime

Answer 5

Imposing the burden of proving a defense on the defendant violates due process if the defense negates an essential element of the crime.

For example, the defendant need not prove an alibi, as alibis negate the element of whether the defendant actually committed the crime.

Question 6

Confrontation: Crawford doctrine

Answer 6

If a statement is testimonial—made under circumstances which would lead a reasonable person to believe that the statement would be used at a later trial—then the Sixth Amendment bars its admission if:

(1) The declarant is unavailable; and
(2) The defendant had no prior opportunity to cross-examine the witness.

Question 7

Confrontation: Bruton doctrine

Answer 7

A non-testifying co-defendant’s statements are not admissible against the other defendant.

The doctrine applies even though a defendant’s own statements generally are admissible against her.

Question 8

Confrontation: other rights

Answer 8

The defendant has the rights:

• To testify on her own behalf;
• To use compulsory process to obtain witnesses in her defense.

Question 9

Public trial rights

Answer 9

The Sixth and First Amendments protect the rights of the defendant and the public, respectively, to attend public trials.

But courts have some discretion to close certain proceedings if:

(1) There is a substantial likelihood of prejudice to the defendant; or
(2) There is another reason—e.g., the possibility of revealing sensitive national security information.

Question 10

Speedy trials: delays attributable to defense counsel

Answer 10

Delay in proceeding to trial attributable to the defendant’s attorney is not allocated to the state simply because the attorney was provided by the state to the defendant.

Instead, as with delay attributable to a defendant-supplied attorney, delay attributable to a public defendant is generally treated as caused by the defendant rather than the state.