CRIMINAL PROCEDURE

1. CRIMINAL PROCEDURE CLASS TWELVE

2. Today’s Topics: Trial by Jury • Fundamental Right • What Jury Decides • Jury Features • Jury Selection & Composition

3. Today’s Topics: Trial Issues • Right to Participate • Presence • Competency • Stages • Trial in Absentia

4. Today’s Topics: Trial Issues • Effective Assistance of Counsel • Performance • Prejudice

5. TRIAL BY JURY

6. Fundamental Right • Right to trial by jury in criminal cases mentioned in two places in Constitution • Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district …”

7. Fundamental Right • Issue: When is D entitled to jury in criminal case? • Duncan v. Louisiana: 14th Amd guarantees right of jury trial in all criminal cases which -- were they to be tried in federal court -- would come within reach of 6th Amd • Query: Why is right to jury trial so significant to sense of justice that Supreme Court willing to override state constitutional provision?

8. Fundamental Right • Issue: What is a “serious” [non-petty] offense? • Baldwin v. New York: Penalties of more than six months possible imprisonment are not petty • Contrast, Right to counsel jurisprudence where actual confinement triggers

9. Fundamental Right • Issue: Applicable to Criminal Contempt? • Consider both length of possible punishment and potential severity of monetary fine

10. Fundamental Right • Issue: What if penalty involves something other than incarceration? [Example: license suspension]

11. What Jury Decides • Issue: Can trial judge instruct jury to find that prosecution has proved particular element of case?

12. Jury Features • Issues: Does the constitutional right to trial by jury in criminal cases dictate specific jury size [e.g., 12]? Unanimous verdicts?

13. Jury Size • Are 12 person juries constitutionally required? • Are 6 person juries constitutional? • Are 5 person juries constitutional?

14. Juror Agreement on Verdict • Is an 11-1 verdict constitutionally permissible? • 10-2? • 5-1?

15. Jury Selection and Composition • Two perspectives: • Jury pool • Venire • Group of potential jurors -- “panel” from which jury is ultimately selected • Individual jury • Petit jury

16. Jury Pool • Key concept: Important that American juries be both impartial and reflect the community character [be representative]

17. Jury Pool • Historically, cases began as challenges under 14th Amd, focusing primarily on race • Distinguish jury pool/fair cross section requirements from what is necessary on individual jury

18. Jury Pool Questions • Is it permissible to exclude potential jurors on basis of race?

19. Jury Pool Questions • Is it permissible to exclude potential jurors for non-race reasons, such as fact that they are daily wage earners?

20. Jury Pool Questions • Permissible to exclude women?

21. Jury Pool Questions • Permissible to exclude on ethnic grounds?

22. Jury Pool Questions • Permissible to require “opt in” system [e.g., person must file declaration of desire in order to be subject to service]?

23. Jury Pool Questions • Can a man object to exclusion of women under fair cross-section analysis?

24. Practical Responses • Generally if State able to show a truly random selection process, then most cross-section challenges can be avoided. • Methods?

25. Voir Dire • Voir: see • Dire: say • Attorneys: “to speak the truth” • Perspective jurors can be eliminated from jury service in either of two ways • Challenge for cause • Peremptory challenges

26. Challenges for Cause • Unlimited number • Address juror disqualification • All cases • This case

27. Peremptory Challenges • “Strikes” • Set number, usually defined by offense type and number of defendants • Can be used for any reasons other than those prohibited in Batson and its progeny

28. Panel Examination Methods • Question entire panel • Address each juror individually • Example: Texas capital when death sought • Judge-only conducted voir dire • Frequent in federal district court • Attorney questioning after introduction by trial court

29. Judge Discretion • Questionnaires • Length of voir dire: time limits • Scope of questions [some constitutional restrictions]

30. Exercise: Limits on Questions • Ham v. South Carolina • Judge required to interrogate jurors on racial prejudice. Not required to frame that inquiry in any particular form or with any specified number of questions • Ristaino v. Ross • Constitution does not always entitle D to have questions posed during void dire specifically directed to matters that might prejudice potential jurors against him • Rosales-Lopez v. United States

31. Exercise: Limits on Questions • Turner v. Murray • Mu-Min v. Virginia • Query: How reconcile Ham, Ristaino, Rosales-Lopes, Turner and Mu-Min? If you were charged with teaching new prosecutors, how would you describe the rule?

32. Limits on Peremptory Challenges • Generally: With the exception of Batson, strikes are “free” for counsel to extent that • party not forced to explain basis on which they were made • they are beyond control of the court • Equal Protection Clause places some boundaries on almost standardless use of peremptory challenges by party advocates

33. Batson • Facts: African American defendant challenged composition of jury from which members of his race had been purposefully excluded • What does challenging party need to show about opposing party’s use of peremptory challenges?

34. Batson • What voir dire circumstances might be relevant? • Once prima facie case shown, what must challenged party do? • What relationship to challenge for cause? • Is peremptory challenge system constitutionally required?

35. Batson Developments • Issue: Does white D have standing to raise Batson challenge to exclusion of African American venire member?

36. Batson Developments • Does Batson apply to civil trials?

37. Batson Developments • Does Batson apply to strikes by defense counsel as well as prosecutor?

38. Batson Developments • Does Batson apply to gender?

39. Batson Developments • Does Batson apply to other ethnic groups?

40. RIGHT TO PARTICIPATE

41. Concepts • Does D have to present? • What if he is disruptive? • What if he skips bail and never shows up? • What is he flees mid-way through trial?

42. Concepts • What if D is not mentally “there” even though physically present?

43. Concepts • To which stages of proceeding does constitutional right apply?

44. Presence • 6th Amd foundation: confrontation clause • Unruly D [Illinois v. Allen] • Constitutionally permissible responses • bind and gag • cite for contempt • “time out” removal until promise to behave • Query: What post-1970 technologies may offer additional alternatives?

45. Indicia of Confinement • Uniformed officers • Jail clothes • Query: What constitutional theory implicated?

46. Competency • Premise: Constitutional right to be present embraces D’s right to participate in her own defense. Many include many facets, such as ensuring that: • witnesses are fully cross-examined • exculpatory facts are presented • potential jurors are challenged

47. Competency • Test: Whether D has • sufficient present ability to consult with lawyer with reasonable degree of rational understanding • rational as well as factual understanding of the proceedings against him

48. Competency • Query: If D is incompetent, is there a permanent bar on trying him?

49. Forced Medication • Issues: What can the gov’t do to force someone to regain competency? Which party bears what burden? • Riggins v. Nevada • Medina v. California • Cooper v. Oklahoma

50. Stages • Concept: D has constitutional right to be present at trial • Questions: Does this include: • Note sent to judge during jury deliberations? • In chambers hearings among judge and attorneys?