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Course: Crim Pro Advanced Fall 2001
School: University of Detroit
Year: 2001
Professor: unknown
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Advanced Criminal Procedure Outline




  1. Confessions & The 6th Amendment Right to Counsel


  1. Massiah Rule è Statements obtained by the police from a D against whom criminal proceedings have been instituted & in the absence of an attorney are inadmissible, unless a valid waiver of the right to counsel is made.

  • Judicial proceedings – “By way of formal charges, preliminary hearing, indictment, information, or arraignment.” [Brewer]

  • Obtained by Police – Or anyone acting in conjunction with…

  • Deliberate intent to elicit incriminating information – Turns on “active” or “passive” police action

  • Factors to consider à

  1. Custody

  2. Police pressure

  3. Knowing Waiver – NO waiver where informant is undercover government informant [Henry]

  • “Listening Post” type information amounts to waiver [Wilson]


  1. Waiver of 6th Amendment Rights AFTER Miranda


  1. Signing of waiver after Miranda is VALID [Patterson]

  • Substantive 6A rights are properly conveyed

  • NO 6A waiver where è

    • Suspect is told that lawyer was trying to reach him during questioning

    • Surreptitious conversations b/w D & undercover agent who is CHARGED already


    1. Indictment Warnings – NO requirement to inform accused that he has been indicted b/f seeking waiver of right to counsel [Chadwick]


    1. Waiver of 6A Right to Counsel AFTER Invoking It

    • No valid waiver once right is invoked UNLESS D initiates the contact to waive such rights [Jackson]


    1. Waiver as to Crime Unrelated to the Crime Charged

    • Invocation of 6A right to counsel is “offense specific” – waiver of rights regarding uncharged crime is ALLOWED [McNeil]

    • What Is Relate to the Crime Charged ?

      • Derived from the same factual predicate as charged offense

      • E.g. D is charged w/narcotics offense, he is NOT immune from ALL narcotics questioning


      1. Remedy – Courts are split over Exclusionary Rule

      • Statements may NOT be admitted into evidence against D [Brewer]

      • Statement obtained in violation could be used for impeachment purposes [Jackson]

      • Massiah-defective confessions cannot be used for impeachment purposes [Brown]


      1. 6-Hour Safe Harbor Rule – Rosario

      • Police pressure while suspect is in custody – look at circumstances

      • Was Miranda given ?

      • Passage of time b/w arrest & confession

      • Purpose & flagrancy of official misconduct


        1. Identifying Suspects



        1. Identifications & The Right To Counsel

        1. Problems è

        1. Unreliability – E.g. W is unsure, lapse of memory, stress of event, police suggestiveness, W’s ability to perceive


        1. TEST – Wade/Gilbert – Factors to consider

        • Prior opportunity to observe criminal act

        • Existence of discrepancy b/w pre-lineup description & actual description

        • Identification of another person prior to lineup

        • Identification of picture of D prior to lineup

        • Failure to I.D. on prior occasion

        • Lapse of time b/w alleged act & lineup identification

        • Facts disclosed concerning conduct of lineup


        1. Post-Indictment Lineup – INVALID under 6A [unless waived by D]

        • Requires presence of counsel – So that counsel may scrutinize the process to ensure D’s basic right to fair trial [Wade]

        • Otherwise, D may not be able to reconstruct the unfairness


        1. Per Se Exclusion – UNLESS identification proceeds from a source independent of the tainted identification

        • E.g. W had a substantial opportunity to view the perpetrator at the time of the crime


        1. Ways for Counsel to Insure Fairness of Lineup

        • Race

        • Age

        • Sex

        • Height/Build

        • Glasses & Clothing

        • What is Said to W

        • Have ALL turn same way

        1. Uncharged Suspects – No 6A right to counsel [Kirby]


        1. Post-Charge Photographic Identifications – NO 6A right to counsel at photographic identification procedure whether conducted b/f or after indictment

        • Reasoning – Suspect is NOT present – so no need for him to have a spokesperson or advisor


        1. Due Process Limitations on Identification Evidence – Fundamental fairness approach – falls outside of Wade & Gilbert

        • Identification procedure must be conducted so a NOT to impermissibly suggest to the W that D be identified as the perpetrator of the crime [Stovall]

        • Governs MOST identification evidence even where there is NO right to counsel

        • NOT limited to post-indictment corporeal identifications


        1. Permissive Suggestiveness ?


        1. Exceptions to Police Suggestiveness è

        1. Lapse of Time – minimal à Show-up conducted after crime where suspect is apprehended almost instantaneously – e.g. at the scene or nearby identification

        • Does NOT apply where show-up is conducted several hours after the crime [Johnson]

        • Does NOT apply where police could NOT find anyone who looked like the suspect [Biggers]


        1. Independent SourceWhere police suggestiveness did NOT cause the I.D. to be made

        • E.g. W’s experience w/D at the time of the crime


        1. Exigent CircumstancesE.g. where W is in danger of dying in hospital


        1. Application of Due Process TEST è Look at the following factors

        1. Officer’s need for fast action

        2. Did the W readily I.D. the suspect

        3. Did W have an excellent opportunity to observe the suspect

        4. Was the I.D. made shortly after the crime


        1. Admissibility Under Due Process TEST è

        • Whether W had a picture of D in his mind BEFORE the police suggestiveness occurred & whether that suggestiveness altered that picture in any way [totality of circumstances analysis]


        1. Reliability as the Linchpin è Operates to save an otherwise tainted identification

        • Per se rule is bad b/c à [Brathwaite]

        • Excludes otherwise good evidence w/o regard of reliability

        • Police learn nothing from a per se exclusion

        • Could result in guilty going free


        • Massachusetts Rule on Identifications è

        • Article 12 à MA. Version of due process TEST

        • IF identification does NOT meet the requirements of the TEST

        • Per se exclusion – NO totality of circumstances

        • If tainted – it is out

        • In court I.D. may be possible


        1. The Right to Counsel


        1. Application under 6th Amendment

        • Criminal prosecutions ONLY

        • To an “accused” – implies adversary proceedings have begun

        • “Assistance of Counsel” – does NOT state free


        1. Appointed Counsel - Modern Rule


        1. Felony Prosecutions à 6A right to counsel is a fundamental right and applies to “indigents” in all felony prosecutions b/c of nature of punishment [Wainwright]


        1. Misdemeanor Cases à No constitutional right so long as punishment is NOT imprisonment & person is capable of protecting own interests [Hamlin]


        1. Crimes Involving Both Fine & Incarceration à D may be tried w/o counsel so long as incarceration is not at stake [Scott]


        1. Penalty Enhancement in Absence of Counsel

        • Can use counsel-free convictions to enhance a penalty, revoke a probation, & give 2nd offender status [Baldasar]


        1. Establishing Indigence

        • Does NOT mean destitute – so long as the accused’s assets cannot be timely reduced to cash [where cash is required] indigence for 6A purposes appears present. [Brower]

        • Statute à State may obtain subsequent reimbursement where D gains the ability to pay


        1. The Scope of the Right – “Critical Stages”

        • Must protect D’s basic right to a fair trial as affected by his right meaningfully to cross-examine W’s against him & to have effective assistance of counsel at the trial itself [Powell]


        1. Preliminary Hearing à where no trial has begun

        • May be considered a critical stage [Coleman] – b/c à

        • Lawyer may expose fatal weaknesses in State’s case which may lead magistrate to refuse to bind over the accused

        • Skilled interrogation of W’s can fashion a vital impeachment tool for use at the trial on cross OR elicit favorable testimony

        • Trained counsel can more effectively “discover” the State’s case against D & allow for proper preparation of defense

        • Counsel is influential in making effective arguments for accused – e.g. necessity for psychiatric examination or bail


          1. Post-Trial Stages à where trial has ended

          1. Sentencing Stage à Lawyer must be afforded at proceeding to revoke probation or deferred sentencing [Mempa] – Importance of legal rights which can be lost must be addressed by counsel for D.

          • MODERN Rule – Sentencing is treated as part of trial & is therefore a “critical” stage requiring presence of counsel

          • Probation revocation involves fundamental liberty interests BUT where the State is NOT represented by counsel & rules of evidence are relaxed, no such right to counsel is necessary [Gagnon]

          1. Appeal Stage à Old Rule – Generally a right to counsel for 1st appeal from a criminal conviction [Douglas] – equal protection rationale

          • Problem – no limits under equal protection rationale

          • Modern Rule – Due process rationale – NO right to counsel for discretionary appeals – 14A does NOT require absolute equality or precisely equal advantages [Moffitt] – go pro se


          1. Right to Experts – Indigent D may in some cases be entitled to appointed expert assistance in addition to appointed counsel [Ake]

          • TEST – ONLY triggered when D will be deprived of fair opportunity to present his defense w/o expert assistance [Ake]

          • Undeveloped assertions are NOT sufficient [Caldwell]



          1. The Screening & Charging Process


          1. Screening By Police – The choice NOT to arrest – unreviewable

          • Mandatory arrest may be governed by statute


          1. Prosecutorial Decision Whether To Charge – Factors to consider include;

          • Prosecutor’s belief à

          • That the suspect is guilty

          • That evidence is sufficient to secure conviction

          • That it is in the community’s best interest to prosecute the suspect

          • Immunity Issues


            1. Decision NOT To Prosecute – Generally NOT subject to judicial review

            • Even statute mandating prosecution has been interpreted to allow discretion by prosecutor

            • Prosecutor may even decline to sign off on charges which the grand jury wishes to prefer [e.g. could enter into a deal instead]

            • Factors Prosecutor May Consider è

            • Prosecutor’s reasonable doubt that accused is in fact guilty

            • Extent of harm caused by offense

            • Disproportion of authorized punishment in relation to offense or offender

            • Possible improper motives of complainant

            • Cooperation of the accused in the apprehension or conviction of others

            • Availability & likelihood of prosecution by another jurisdiction


            1. Limits On The Decision NOT To Prosecute

            • Some States allow for Grand Jury to return an indictment w/o prosecutor’s approval

            • Grand jury may request A.G. to appoint special prosecutor

            • A few jurisdictions allow for a private prosecution by allowing citizen to present claim to grand jury where prosecutor fails to do so


            1. Selective Enforcement – Can amount to equal protection problem

            • Generally, prosecutorial discretion is an executive function & is therefore unreviewable

            • Emphasis on Career or Dangerous Criminals – Disproportionate share of prosecutions are brought here

              • Prosecutors may even “hunt” for a charge that will “stick” here


              1. Constitutional Limitations

              • Modern TEST [Parham] – 2 pronged è D must demonstrate

              • That he has been singled out for prosecution while others similarly situated have not been prosecuted for similar conduct AND

              • That the government’s action in thus singling him out was based on an impermissible motive such as race, religion, or the exercise of constitutional rights.


                1. Choice of Forum – Prosecutors have broad discretion… & may opt for federal court based on harsher prison sentence [Jacobs]


                1. Choice of Crime – Broad discretion to choose which statute to charge under. Presence of statute w/more lenient requirements is allowed.


                1. The Grand Jury


                1. Right NOT Incorporated – Bill of Rights – Right to a grand jury indictment does NOT extend to D’s accused of State crimes


                1. Grand Jury Procedures


                1. The Evidence Before The Grand Jury


                1. No Constitutional Limits on Evidence – Even hearsay evidence may be introduced in a grand jury investigation. They are primarily an investigatory body. [Costello]

                • Even illegally obtained evidence can be considered


                1. Exculpatory Evidence – NO obligation for prosecution to present all relevant evidence to grand jury [Williams]


                1. Subpoena Power of the Grand Jury – Nationwide in scope


                1. Subpoenaing Criminal Defense Attorneys – Problems à

                • Too easy to abuse as an investigative tool

                • Chills the attorney-client relationship – may lead to disqualification

                • Ethical standards also apply here [see Rule 3.8(f)] requires that Prosecutor has a reasonable belief that à

                1. Evidence sought is not privileged

                • E.g. work product, atty. Client communication…

                • Evidence sought be essential

                  • Key to establishing elements of case

                  • No feasible alternative

                    • E.g. unavailable from another source

                    • Prosecutor obtains prior judicial approval AFTER adversarial proceeding


                    1. Nixon TEST è for Grand Jury Subpoena

                    1. Evidence sought must be relevant

                    2. Admissible &

                    3. Specific – subpoena



                    Federal Rule of Crim. Pro. 17 è Subpoena may be quashed IF compliance would be unreasonable or oppressive [E.g. where no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation]


                    1. Regulating Abuses – Courts will intervene where subpoena is being used as a discovery device for civil litigation purposes [Gibbons]

                    • Cannot call a person who has already been indicted by a grand jury to testify in order to gather evidence for a pending prosecution. [6A]


                    1. Counsel in the Grand Jury Room – NO 6A right to counsel in room

                    • No 5A right either – Miranda does NOT apply b/c no custody

                    • Massachusetts Rule à Statutory right to a lawyer

                    • Modern Trend – W to be advised of general subject matter of proceedings

                    • W may refuse to answer self-incriminating questions

                    • W may step outside to consult w/ lawyer

                    • Trend toward having lawyer inside room – BUT cannot ask questions

                    1. Preliminary Hearings & Its Relationship to Indictments & Informations


                    1. Massachusetts Procedure24 Hours to go before magistrate UNLESS indictment beforehand

                    • D gets to see the evidence against him [form of discovery]

                    • May be able to get case dismissed for lack of p/c

                    • Puts testimony in concrete form


                    1. Methods of Getting to the Hearing in Mass.

                    1. Warrant issuance, then arrest

                    2. Arrest with indictment

                    3. Arrest with preliminary hearing following

                    4. Indictment, then summons to appear later

                    • Indictment supercedes any defective p/c [cuts off right to preliminary hearing]


                    1. Arraignment – P/c needed to bind-over hearing w/i 10 days

                    • NO constitutional right to this type of hearing

                    • BUT where arraignment is held – 6A right to counsel applies

                    • Considered a “critical stage”

                    • Prosecutor is more likely to indict than to have a p/c hearing


                    1. Constructive Amendment, Variance, & Adequate Notice

                    1. Amendment – Definition à Occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court AFTER the grand jury has last passed upon them.

                    • Per se prejudicial – it directly infringes upon D’s right to know charges against him by effectively allowing the jury to convict D on a different crime for which he was charged.

                    • Inquiry à

                    • Is it prejudicial ?

                    • If indictment states he killed X but he really killed Y, no amendment allowed

                    • Type of crime is a material variation

                    • Date can be amended – not generally material


                    1. Variance – Definition à Occurs when the charging terms of an indictment are left unaltered, BUT the evidence offered at trial proves facts materially different from those alleged in the indictment.

                    • NOT reversible error UNLESS D has proved prejudicial effect on his defense b/c

                    • Merely permits prosecution to prove facts to establish the criminal charge materially different from those in the charging instrument

                    • Lesser included offenses are always allowed BUT not the greater 4



                    1. Bail & Pre-Trial Detention


                    1. Suspect’s Concerns

                    1. Deprivation of contact w/family & friends

                    2. Absence from employment

                    3. Inability to support family

                    4. Poor conditions

                    • Deprivation of liberty is severe

                    • Incarceration may affect the verdict

                    • Social Costs – Society pays the bill


                    1. Countervailing Concerns

                    1. Guarantee presence of D

                    2. Protect accused

                    3. Protect community – preventative aspect

                    • Must balance the individual’s liberty against legitimate state interests

                    • Inquiry à

                    1. Should D be permitted release on bail ?

                    2. How much should the bail be ?


                    1. History & Constitutional Origin of Bail

                    1. Common Law à Prisoners confined while awaiting travelling justices

                    2. Constitutional à 8th Amendment ban on “excessive bail” BUT no guarantee to bail


                    1. Conditions Placed Upon D à Mass. Rule – In absence of specific statutory authorization, judge may NOT impose conditions [§ 58 see Dodge]


                    1. Bail Procedures

                    1. MGL § 58A “Dangerousness” Hearing - Allows prosecutor to move – hold D in pre-trial detention

                    • Occurs at 1st appearance [arraignment]

                    • WhereBail may be set at the police station

                    • How Bail schedule [doesn’t account individual circumstances] OR by bail clerk

                    • Considerations è Interested parties include

                      1. Prosecutor – Interested in holding D to insure appearance

                      2. Probation – Access to prior records of D

                      3. Judge

                      4. Bondsman

                      5. Defense Attorney

                      1. 10% Rule à % is given to court by bondsman or D

                      • Bondsman assesses the risk & determines whether or not to allow issuance of money

                      • Problem à Allows judges to set high bail [to look good] even though D pays only %

                      1. Forfeiture à If D fails to appear in court – bond is forfeited to courts

                      • Money goes to general treasury of State


                      1. Methods of Release

                      1. Bonds

                      2. Released on Own Recognizance – also called “personal bond”

                      3. Supervised [bracelet]

                      4. 3rd Party Custody [may not be allowed under Dodge as a condition UNLESS you have a §58A “dangerousness” hearing]

                      1. Change in Circumstances à Bail may be changed where

                      1. D is re-arrested for a crime [statutory]

                      2. After conviction – while appeal is pending


                      1. Federal Bail Reform Act of 1984 è Standard – allows government to show

                      1. Clear & convincing evidence

                      2. In an adversary hearing [2 parties]

                      3. That NO release conditions will ensure safety of 1 person or community

                      • Establishes a presumption of ROR

                      • Rebuttable presumption by the government may be overcome by a showing of

                      • Federal drug offense or commission of crime while out on bail

                      • Salerno è Procedural safeguards are built in

                      • Judge must write reasons for a finding of “dangerousness”

                      • Sometimes a check form is filled out

                      • Statute must be sufficiently narrow

                      • State must have a “compelling interest”

                      1. Discovery


                      1. Brady Rule – 5 Requirements

                      1. Suppression – failure to disclose

                      • Implies some ACT to hide or not disclose purposely

                      • By the prosecutor

                        • Prosecutor is chargeable in Mass. For a failure to comply here

                        • Of evidence favorable to accused

                          • Some bearing on innocence of D [possibly exculpatory]

                          • Upon request

                            • Problem – how specific must the request be ?

                            • Where the evidence is material to guilt or innocence of D

                              • Whose burden is that ?


                              1. Modern TEST è Reasonable possibility that if the evidence were disclosed the result would have been different [Bagley]

                              • One size fits all test

                              • Problem – What about evidence which is exculpatory but not admissible ?


                              1. Discovery by Prosecution of Defense Information


                              1. Notice of Alibi Rule – Williams

                              • Compelling D to give names of alibi W’s does NOT violate 5A protection against self incrimination

                              • Problem – P does not have reciprocal duty – therefore may be fundamentally unfair thus violating due process


                              1. Sanctions for Failure to Comply – Not prohibited by 6A under Taylor

                              1. Exclusion of W’s [extreme cases]

                              2. Impose fine

                              3. Brief continuance to allow time for prosecution


                              1. Massachusetts Rule 14 è Pre-trial discovery rule

                              • Certain discovery is mandatory – E.g. à

                              • Confession

                              • D’s signed statement

                              • All exculpatory evidence

                                • Certain discovery is discretionary – E.g. à

                                • Police report containing statement of D or W’s

                                • Victim’s medical or mental health record

                                • Knife or gun [w/restrictions]

                                • Police Officer’s notes



                                  1. Trial by Jury


                                  1. Fundamental Right – Article III Section 2, clause 3 & 6th Amendment

                                  • The fact that it is found in 2 places in Constitution emphasizes the fundamental nature of the right

                                  • 14th Amendment à Guarantees right to jury trial in all criminal cases which if held in Federal court would come w/I 6A guarantee [Duncan]

                                  • No right to jury trial for “petty offenses” < 6 mo. Penalty = petty

                                  • Penalties other than incarceration generally do not give rise to jury trial rights [Blanton]

                                  • Contempt Violations à Jury trial right applies [Bloom]


                                  1. What the Jury Decides – Elements of crime

                                  • Must be proved “beyond a reasonable doubt”


                                  1. Requisite Features of the Jury

                                  • Jury of 6 is allowable under state law [Williams]

                                  • Purpose of jury is to prevent government oppression

                                  • Jury of 6 can do same job of 12

                                  • Must have at least 6 jurors. 5 is NOT allowed [Ballew]

                                  1. Less likely to foster group deliberation

                                  2. Doubts about accuracy of groups lesser than 6


                                  • Risk of convicting an innocent person rises as jury decreases

                                  • Imbalance to the detriment of D

                                  • Presence of minority viewpoint decreases


                                    1. Unanimity – Less than unanimity is allowed [Apocada]

                                    • Reasoning – Common sense judgment of laymen does NOT rest upon absolute unanimity requirement

                                    • Some jurisdictions require unanimity 4

                                    • In such jurisdiction, unanimity CANNOT be waived by D [Ullah]


                                    1. Jury Selection & Composition


                                    1. Jury Pool à 6th Amendment assures D “an impartial jury of the State & district wherein the crimes shall have been committed.”

                                    • Jury panel selection must be unbiased, indiscriminate & generate a panel representing a cross-section of the community

                                    • Each juror must also be free from outside influences


                                    1. Fair Cross Section Requirement – Does NOT apply to petit jury

                                    • D may ONLY challenge the procedure NOT the jury make-up




                                    1. Standing to Object – D must show the following [Duren]

                                    1. The group excluded from the jury array is a distinctive group w/I the community

                                    2. Representation of the group in the venire from which jurors are selected is NOT fair & reasonable in relation to the number of such persons in the community AND

                                    3. This under-representation is the result of systematic exclusion of the group in the jury selection process

                                    • Burden then shifts to state to show that inclusion of the under-represented group would be “incompatible w/a significant state interest”


                                    1. What is a Distinctive Group – TEST [Fletcher]

                                    1. Group is defined and limited by some factor

                                    • E.g. by race or sex

                                    • That a common thread of basis similarity in attitude, ideas, or experience runs through the group

                                    • That there is some community of interests among members such that it cannot be adequately represented if excluded from jury process

                                      • College students are NOT a distinctive group for these purposes


                                      1. Proper Sources for the Jury Pool

                                      1. Driver’s license lists

                                      2. Voting lists


                                      1. Voir Dire & Court Control


                                      1. Challenges for Cause – Unlimited


                                      1. Peremptory Challenges – Limited number by rule or statute


                                      1. Methods – Trial judge has broad authority

                                      1. Address all questions to panel at one time

                                      2. Address individuals one at a time

                                      3. Allow counsel to ask questions

                                      4. Broad or narrow scope of inquiry into juror attitudes


                                      1. Relevance – In ALL jurisdictions, the judge may consider relevance of questions and has the right to refuse to allow and to strike questions deemed irrelevant or inappropriate


                                      1. Questions Concerning Prejudice

                                      • Due process clause may require under certain facts that jurors be interrogated on the issue of racial bias [Ham]



                                      • Where the circumstances do not suggest a significant likelihood that racial prejudice might infect the trial, due process is satisfied by a general but thorough inquiry into the impartiality of the veniremen [Ross]

                                      • A capital D accused of an interracial crime IS entitled to have prospective jurors informed of the race of the V and questioned on the issue of racial bias. [Murray]


                                      1. Challenges for Cause – Defined by statute

                                      • E.g. related to party, unable or unwilling to be impartial


                                      1. Use of Peremptory Challenges – Batson TEST – D must show è

                                      1. He is a member of a cognizable racial group and prosecutor has removed such members through peremptory challenges

                                      2. May rely on the fact that peremptory challenges can be used to discriminate AND

                                      3. These facts raise an inference that prosecutor has purposefully discriminated

                                      4. Prosecutor must then show race-neutral explanation for the strike [Purkett]

                                      5. Judge then determines whether prosecutor’s explanation was the genuine reason OR purposeful discrimination [Purkett]


                                      1. Standing to Raise Batson Violation

                                      • 3rd Party Standing – White D has standing to object to exclusion of black jurors [Powers]

                                      • TEST è D may assert equal protection rights or juror where…

                                      1. Litigant must have suffered an “injury in fact”

                                      • Racial discrimination of D’s jury panel

                                      • Litigant must have close relation to the 3rd party AND

                                        • Common interest b/w D and juror of racial discrimination

                                        • There must exist some hindrance to the 3rd party’s ability to protect his/her own interests

                                          • Unlikely that juror would raise the issue


                                          1. Influence of the Press


                                          1. Impact of Press Coverage on Litigation

                                          • Excessive pretrial publicity prejudicial to D may require change of venue or retrial under Due Process [Dowd]

                                          • E.g. where jury was familiar w/material facts & formed an opinion as to D’s guilt before trial

                                          • BUT à Due process may be satisfied where judge asks veniremen if they have been exposed to such pretrial publicity AND whether it would affect their impartiality & ability to hear the case w/an open mind [Mu’Min]

                                          • Relevant question is whether the jurors have fixed opinions on guilt of D [Yount]

                                          1. Televised Interviews of Confessions

                                          • New trial is required IF D is denied a change of venue and is tried b/f a jury drawn from people who have seen D’s confession on TV [Rideau]


                                          1. Television in the Courtroom

                                          • Due process IS violated when trial is conducted in manner that interferes w/jury’s ability to give the evidence r’ble consideration. [Estes]

                                          • E.g. televising parts of trial may influence jury by emphasizing noteriety

                                          • HOWEVER, a state may constitutionally permit televising of criminal proceedings so long as the televising does not prejudice the jury [Chandler]

                                          • D must show actual prejudice here

                                          • NO 1st Amendment right of media to televise from courtroom


                                          1. Defendant’s Right to Participate in the Trial


                                          1. Nature of the Right – 6th Amendment confrontation clause – fundamental

                                          • Purposes è

                                          • To insure reliability by means of the oath

                                          • Expose W’s to probative effects of cross-examinations AND

                                          • Permit trier of fact to weigh demeanor of W concerning credibility


                                            • Pretrial proceedings – Right does NOT necessarily apply

                                            • No right to pretrial hearing to determine competency of child witnesses [Stincer]

                                            • Relevant inquiry = Whether excluding D interferes w/his right of effective cross-examination


                                            • Mass. Article 12 è Requires that D be present at such hearing

                                            • Requires “face to face

                                            • Any deviation must have a “compelling need

                                            • E.g. that W has trouble testifying

                                            • Reasoning – veracity & communication are enhanced


                                            1. Disruptive Conduct in Courtroom

                                            • If D persists (after a warning) in disorderly or disrespectful conduct in the courtroom, he will be held to have waived his right to be present & may be excluded from his own trial. [Allen]


                                            1. Methods of Dealing with Disruptive Behavior

                                            1. Hold D in contempt

                                            2. Bind & gag D (preferred method)

                                            3. Remove D altogether


                                            1. Defendant’s Right to Participate in the Trial


                                            1. Right of D to be Present


                                            • General Rule è D’s right to be present at his own trial is NOT absolute [Allen]

                                            • Right may be lost where D is so disorderly that the trial cannot be continued with his presence.

                                            • D may return on promise to conduct himself properly


                                            • Options for judge à

                                            • Bind & Gag (court preferred method)

                                            • At least D can communicate w/counsel

                                            • Contempt

                                            • Removal of D


                                            • Factors to Consider à

                                            • Was D warned about consequences ?

                                            • Was D informed that he could return to courtroom on good behavior ?

                                            • Modern CCTV may remedy some concerns


                                            1. Exclusion of D from Hearings as to Competency of W’s


                                            • ISSUE à Whether excluding D interferes w/his constitutional right of effective cross examination


                                            • Factors à

                                            • Were only minimal questions asked ?

                                            • Procedural type questions (e.g. do you know the difference b/w truth & lie?)

                                            • Were questions in hearing repeated at the proceeding ?

                                            • No interference here

                                            • D’s Arguments à

                                            • Harder for child/person/W to lie w/D present

                                            • Symbolic goals behind 6A rights – D should be there


                                            1. Massachusetts on D’s Presence at Competency Hearings

                                            • Article 12 à Requires that D be present at such hearing

                                            • Requires “face to face” (language = “eyeballing”)

                                            • Any deviation must have a “compelling need

                                            • E.g. W has trouble testifying

                                            • Reasoning à Veracity & communication are enhanced




                                            1. Right to Effective Assistance of Counsel


                                            1. Ineffectiveness & Prejudice – Claim of ineffective assistance of counsel can only be made out by pointing to specific errors of trial counsel.

                                            • Cannot be based on an inference drawn from counsel’s inexperience, lack of time to prepare, gravity of charges, or accessibility to W’s [Cronic]


                                            1. 2 Pronged TEST è Strickland


                                            1. Deficient performance by counsel AND #2 below

                                            • Presumption of competence

                                            • Burden on D to overcome

                                            • Did the lawyer make strategic decisions ?

                                            • Were they “so manifestly unreasonable, that no objectively r’ble lawyer would have made that decision?”

                                            • Must be a r’ble probability sufficient to undermine the outcome

                                            • Types of Deficiencies à

                                            • Duty of loyalty

                                            • Conflict of interest – prejudice is presumed

                                            • Did lawyer consult w/D

                                            • Did lawyer visit D


                                            1. But for such deficiency, there is a reasonable probability that the result of the proceeding would have been different

                                            • Prejudicial to defense

                                            • NOT the mere fact that you were convicted

                                            • Presumed prejudice w/conflict of interest

                                            • Totality of Circumstances è

                                            • Where case is overwhelming against D à

                                            • Was the evidence so overwhelming that deficient performance did NOT make a difference ?


                                            1. Extent of Effective Assistance of Counsel Right

                                            • Guaranteed for trial & 1st appeal as a right

                                            • No right to counsel after 1st appeal

                                            • Post conviction counsel cannot be challenged


                                            1. No Per Se Ineffectiveness Rule [Cronic]

                                            • Factors such as time, experience, gravity, complexity, & W accessibility are NOT grounds for a per se rule

                                            • Still must prove prong #1 of Strickland TEST


                                            1. Perjury

                                            • D has NO constitutional right to perjury

                                            • Lawyer has ethical obligation NOT to allow perjured testimony

                                            • Can NEVER be ineffective assistance of counsel where lawyer is obeying an ethical obligation

                                            • Cannot show prejudice based on lawyer’s preventing you from lying


                                            • Massachusetts Rule è 3.3 – Candor toward the tribunal

                                            • Cannot knowingly offer false evidence

                                            • IF the lawyer knows it is false

                                            • If it is material

                                            • Client or W’s on behalf of client

                                            • Lawyer must take reasonable remedial measures

                                            • Maybe take steps to correct

                                            • Speak w/judge

                                            • Massachusetts Rule è 3.3(e) Criminal cases where D testifies

                                            • Where D testifies falsely

                                            • IF lawyer KNOWS client will testify falsely

                                            • Lawyer cannot help him fabricate a story or prepare him to do so

                                            • MUST strongly urge D not to lie


                                            • Tell D it is unlawful

                                            • Advise of adverse consequences


                                            1. Before he is a client

                                            • Must NOT take the case


                                            1. Before Trial

                                            • Warn client of consequences

                                            • Make strategic decision whether to put D on stand


                                            1. During Trial

                                            • IF must put him on the stand – ask vague questions

                                            • Inform judge of problem using as little information as possible

                                            • Seek to withdraw





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