PowerPoint Chapter 13 - Southeast Missouri State University

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PowerPoint Chapter 13 - Southeast Missouri State University Powered By Docstoc
					Andrew Fulkerson, JD, PhD
 Southeast Missouri State

Criminal Procedure
      Chapter 13
  Pretrial, Trial and

§ Article III, Section 2 of the U.S. Constitution provides
  for jury trials
§ 5th Amendment provides no person shall be
  compelled to be witness against himself
§ 6th Amendment provides:
   §   right to speedy trial
   §   by impartial jury
   §   right to confront witnesses
   §   have assistance of counsel
Guilty Plea

§ 90% of cases plead guilty
   § Negotiated plea
   § Unconditional plea (straight plea) (plea
     to the court)
Guilty Plea

§ Promotes
   § Efficiency
   § Economy
   § Speed
Guilty Plea

§ Plea negotiations promote
   § Fact-finding
   § Uses informal discussion and
     agreement through bargaining
Jury Trial

   § Article III of Constitution and 6th

   § Every state constitution guarantees jury

   § Supreme Court holds that 14th Amendment
     due process clause requires that states
     provide jury trial

   § Jury trial provides an independent citizen
     group between an accused and the
Jury Trial

§ U.S. Supreme Court ruled that right not apply
  to “petty crimes”
§ Offense punishable by 6 months or more
  imprisonment is not petty
§ Other offenses punishable by less than 6
  months may be serious- such as DWI,
  shoplifting, even though sentence may be
  less than 6 months.
Jury Size

  § Supreme Court formerly held that the 12
    person jury of common law was required.
  § Supreme Court has since allowed 6 person
  § Right to jury only requires that jury be
    large enough to achieve goal of the jury
     § Protect innocent from false charges
     § Provide checks and balances
     § Provide community representation
       in law enforcement
Jury Size

§ Ballew v. Georgia, 435 U.S. 223 (1978)
Unanimous Verdicts

  § Unanimous verdicts for criminal cases
    required at common law and upheld by
    Supreme Court in 1900.
  § 1972, Supreme Court in Apodaca v. Oregon,
    held verdicts of 11-1 and 10-2 did not
    violate 6th Amendment right to jury trial.
  § Johnson v. Louisiana, Supreme Court
    upheld 9-3 verdict of guilty
  § The Court held 6 person juries must be
Jury Nullification

§ Jury may acquit even when facts clearly indicate
  violation of the law
§ Jury nullification indirectly approved by U.S.
  Supreme Court in Sparf v. Hansen, (1895)
   § holding there is no legal ground to set aside a jury
     verdict of acquittal.
Jury Selection

     §Right to an impartial jury
      requires that juries
      represent a “fair cross
      section of the community.
Jury Selection
  § Equal protection clause of 14th Amendment
    prohibits systematic exclusion of members of Ds
    racial, gender, ethnic, or religious group.

  § Federal Jury Selection and Service Act requires
    juries be selected at random.

  § No citizen shall be excluded from jury service on
    account of race, color, religion, sex, national
    origin, or economic status.

  § Most states have similar requirements
Jury Selection

     § Sources of juror lists:
       §Voting lists
       §Driver license lists
       §Telephone directories
       § Tax records
Excusing Persons From Jury
    § Many jurors ask to be excused
    § Some states provide legal exemptions for:
       § Physicians
       § Pharmacists
       § Teachers
       § Lawyers
       § Judges
       § Public employees
       § Elderly persons
Jury Selection

  § Jury panel is drawn at random from entire

  § Selecting from this group is voir dire (“to
    speak the truth”)
     § Questions of each prospective
       juror by judge and attorneys
     § Seek to learn bias of jurors toward
       parties or type of case

  § For cause – striking juror for a bias.
    § Attorney moves to strike and states
    § Judge rules on the motion to strike
     the juror
  § Peremptory – striking without having to give
    § Number of peremptory challenges is
Death Qualified Juries

§ Lockhart v. McCree, 476 U.S. 162 (1986)
Right to Public Trial

     §6 Amendment confrontation
                        th   th
      clause and 5 and 14
      Amendment due process
      clauses guarantee D’s right to
      a public trial.
Right to Public Trial

     §Right to public trial has two
        §Right of public to have
        §Right of defendant to
Right to Public Trial

     §Right to public trial extends to
      every stage of the trial
           §Jury selection
           §Communications between
            judge and jury
           §Jury instructions
           §Not include brief bench
     § ·
Right to Public Trial

     §Public trials prevent secret
     §Enhance public participation
      and confidence
     §Encourages witnesses to come
Right to Public Trial
    § Right is not absolute
       § Courtroom size limits public access
       § Need to protect threatened witnesses may justify
         closing the courtroom
       § Shy, introverted witnesses may not want to come
       § Identity of undercover agents may need to be
       § Court may close courtroom during testimony of
         rape victim
       § Defendant may forfeit right to be present by
         disruptive behavior
       § Dangerous defendants may be required to appear
         under armed guard
State and Defense Case

§ Formal rules of procedure and evidence
  control this phase of trial
§ Opening statement-prosecution first, defense
State and Defense Case

§ Presentation of evidence
  § State first; cross-exam by defense
  § Defense second; cross-exam by state
  § State rebuttal witnesses; cross-exam by
State and Defense Case

§ Closing arguments
  § State first
  § Defense second
  § State final close
State and Defense Case

§ Instructions to jury
§ Jury deliberations
§ Jury verdict
§ Judgment of the court
Opening Statement

    § Purpose is for attorneys to outline
      what they expect the evidence will
    § Attorneys are not to argue their
      case at this point
    § Attorneys are not to refer to
      evidence that they do not expect to
      be admitted by the court.
Proof Beyond Reasonable Doubt

§ Defense does not have to prove innocence
§ Right against self-incrimination means D has
  right to say nothing
§ Many trials defense offers no evidence
§ Government has entire burden to prove
  defendant guilty beyond a reasonable doubt.
Proof Beyond Reasonable Doubt

    § In re Winship, Supreme Court held
      due process requires that state and
      federal prosecutors have to prove
      each element of offense beyond a
      reasonable doubt.
    § Based on proposition that it is
      worse to convict an innocent man
      than to acquit a guilty man.
Order of Proof

§ Prosecution goes first because it has the
  burden to prove D’s guilt
§ Rules of evidence control what may be
  § Hearsay evidence is excluded
  § 23 exceptions to hearsay rule
Order of Proof

§ Prosecution and defense may stipulate to
  certain facts
§ Res gestae witnesses – eyewitnesses to the
6th Amendment Confrontation

§ Includes right to cross-examine witnesses.
§ Confidential informants may be required to
  disclose identity
  § Failure to do so may violate confrontation
  § Identity may be useful to defense to
    determine credibility
§ Only compelling reasons may justify
  withholding informant identity
Hearsay Testimony

§ Out-of-court statements offered to prove the
  truth of the statements
§ Hearsay violates the confrontation clause
§ Declarant not present for cross-examination
§ General exceptions to hearsay rule
  § Declarant unavailable, and
  § Reliability of the statement
Compulsory Process

§ Witnesses can be issued subpoena and
  required to testify
§ Indigent D is provided process free of charge
§ Some states limit number of subpoenas
  without showing cause
5th Amendment Privilege

§ Prosecution cannot call D to testify
§ D does not have to present a case.
§ Defense may call witnesses solely to rebut
  govt case
§ Defense may call witnesses to show
  reasonable doubt in govt case
Affirmative Defense

§ Defense may have affirmative defense
  § Excuse or justify D acts
  § Show lack of intent to deliver in drug cases,
§ Prosecution has right to cross-examine
  defense witnesses
Closing Argument

§ Following presentation of evidence
  § Prosecution
  § Defense
  § Prosecution – rebuttal – not raise new issues;
    limited to rebut defense
§ Most jurisdictions not allow prosecution to
  waive initial close
Closing Argument

§ Ethical concerns for closing arguments
  § Improper for attorneys to intentionally
    misstate evidence
  § Cannot refer to evidence that was excluded or
    not offered
  § Cannot express personal opinion as to truth
    or falsity of evid
  § Cannot make arguments designed to inflame
    jurors passions or prejudice.
Closing Arguments

  § Violation of the ethical rules rarely results in reversal
  § Appellate court considers whether:
     § Defense counsel invited or provoked the
     § Defense counsel made timely objection
     § Trial judge gave corrective instruction
     § Comments were brief or isolated
     § Other errors occurred in trial
     § Evidence of guilt was overwhelming
Jury Instructions

§ Before beginning deliberations judge
  instructs jury as to the law
§ Jury instructions include the following:
   § Role of judge to decide law and jury to decide
   § Presumption of innocence
   § Burden of proof on state (beyond a
     reasonable doubt)
   § Elements of the offense and definitions
   § Jury room procedures
 Jury Instructions

§ Pros and defense may request specific
§ Most jurisdictions use standard “Pattern
§ Additional instructions are given if requested
  and judge finds they are appropriate under facts
  of case.
§ Improper instructions are frequently ground for
§ Empirical studies show that jurors only
  understand about half of the instructions.
Jury Deliberations

§ Judge sequesters the jury – retire to separate
  room under supervision
§ Deliberate until the reach a verdict
§ Jurors take the instructions, exhibits, and
  their individual notes
§ Often ask judge for additional clarification
  and instructions
Jury Deliberations

§ Failure to reach a verdict is a hung jury –
  results in a mistrial.
§ Jury may reach one of three verdicts
  § Guilty
  § Not guilty
  § Special – related to insanity or capital
Jury Deliberations

§ If jury acquits, then judge discharges jury
  and the defendant
§ If jury votes for conviction, then case
  continues to judgment
§ Judgment is the court’s ruling based on the
  jury determination of facts
Guilty Plea

   § Two types of guilty plea
     § Straight plea (unconditional plea, or
       plea to the court)
     § Negotiated plea
Guilty Plea

    § Pleading guilty waives three
      constitutional rights:

      §5 Amendment right to
       remain silent
      §6th Amendment right to trial
       by jury
      §6th Amendment right to
       confront witnesses
Guilty Plea

     § Plea of guilty must be knowing and

     § Trial judge has duty to ensure that guilty
       plea is made:
       § Intelligently
       § Knowingly
       § Voluntarily
Guilty Plea

   § Plea made by D who is fully aware of
     consequences of plea will stand unless:
     §Induced by threats or promises to
      discontinue harassment
     §Induced by misrepresentation
     §Or induced by improper promises
Guilty Plea

     §A trial judge’s failure to ask
      D questions about plea is
      reversible error
     §Judge must find that there
      is a factual basis to support
      the plea
Guilty Plea

§ North Carolina v. Alford, 400 U.S. 25 (1970)

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