Chapter
18
|
Chapter
18 |
|
PRETRIAL AND TRIAL ISSUES
This chapter covers the following issues:
[A] Exculpatory Evidence
In preparation for trial, the prosecution has a duty to:
Failure to disclose exculpatory evidence violates the due process clause. Where the prosecution fails to disclose exculpatory evidence, a conviction must be overturned if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667 (1985).
Absent bad faith on the part of the police, failure to preserve potentially exculpatory evidence does not constitute a due process violation. Arizona v. Youngblood, 488 U.S. 51 (1988) (failure to test semen taken from a sexual assault victim and to refrigerate his clothing in order to preserve semen on it did not require reversal of conviction because no police bad faith was shown).
[B] Government Duty to Disclose Information
Upon Defense Request
Upon a defendant's request, Federal Rule of Criminal Procedure 16 requires the government to disclose the following evidence within its possession, custody or control, and known to exist through due diligence:
(1) the substance of any oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent;
(2) any relevant written or recorded statement by defendant;
(3) defendant's prior criminal record;
(4) any material documents and objects that the government intends to in its case-in-chief, or was obtained from or belongs to the defendant;
(5) reports resulting from any physical
or mental examinations and tests;
(6) written summary of any expert testimony that the government intends to use in its case-in-chief.
Under federal procedure, if the defendant requests the government to produce documents and tangible evidence, reports of examinations and tests, or information about expert witnesses, the defense must make a reciprocal disclosure. Fed. R. Crim. P. 16(b)(1).
[C] Defendant’s Obligation to Disclose
Information
The prosecution may be entitled by statute or procedural rule to obtain information from the defendant prior to trial, e.g., the names of alibi witnesses. See, e.g., Fed. R. Crim. P. 12.1. In such cases, the defense must be entitled to reciprocal discovery from the prosecution pertaining to relevant rebuttal evidence. Wardius v. Oregon, 412 U.S. 470 (1973).
§ 18.02 Competency to
Stand Trial
[A] Incompetency Defined
Prosecution of a defendant who lacks competency to stand trial violates the due process clause. Medina v. California, 505 U.S. 437 (1992). Competency to stand trial is constitutionally required because a defendant must be able to assist his attorney in a meaningful defense, e.g., to discuss strategy, explain his version of the facts, and provide the names of potential witnesses, as well as to confront accusers at trial.
A person is incompetent if, during the criminal proceedings, he lacks:
(1) capacity to consult with counsel “with a reasonable degree of rational understanding”; or
(2) “a rational as well as factual understanding of the proceedings” against him.
Dusky v. United States, 362 U.S. 402 (1960). Incompetency may be the result of a physical handicap, e.g., inability to speak, or a temporary or permanent mental disability, e.g., mental retardation, amnesia, mental illness.
[B] Procedures for Determining Competency
The issue of competency to stand trial may be raised by the prosecutor, the defense, or the trial judge. The defendant’s competency must be investigated, even over the defendant’s objection, if the trial judge believes that the defendant may be incompetent. Pate v. Robinson, 383 U.S. 375 (1966).
When the defendant’s competency is raised, the defendant must submit to a psychiatric examination, and if the results are in dispute, a hearing must be held at which the parties may present evidence on the matter of competency. 18 U.S.C. § 4241. Upon a ruling of incompetency, the defendant is committed to an appropriate facility for a reasonable period of time (up to four months under federal law) in order to determine whether there is a substantial probability that he will attain capacity to stand trial in the foreseeable future. Jackson v. Indiana, 406 U.S. 715 (1972). The defendant may be held for an additional reasonable period until the defendant attains competency, if it is determined that he is likely to so improve. 18 U.S.C. § 4241(d)(2). If it is not so determined, the defendant is to be committed according to civil commitment procedures.
§ 18.03 Right to a Speedy Trial
The Sixth Amendment guarantees an accused the right to a speedy trial. The right attaches only after one has been formally accused of the offense, i.e., upon indictment, information, or custodial arrest.
A charge must be dismissed if a court finds that the defendant's right to speedy trial has been violated, Strunk v. United States, 412 U.S. 434 (1973), and such dismissal bars all future prosecutions of the offense. As set out in Barker v. Wingo, 407 U.S. 514 (1972), the factors relevant to whether the right to a speedy trial has been violated include:
(1) Length of delay – Delay must be of sufficient length to potentially prejudice the accused; some statutes set specific time limits for initiation of trial, see, e.g., Federal Speedy Trial Act, 18 U.S.C. § 3161.
(2) Reason for delay – Evidence that the prosecutor deliberately attempted to delay trial is weighed heavily in the analysis, unless there is a justifiable reason for the delay, such as a missing witness or illness of a party. If the delay is willfully caused by the defendant, he is deemed to have waived the right to a speedy trial.
(3) Defendant's assertion or non-assertion of right – The defendant need not assert the right prior to trial but failure to do so may receive considerable weight in the court's analysis of the speedy trial question.
(4) Prejudice to defendant – e.g., loss of evidence, fading memory of witnesses, prolonged incarceration, etc.
[A] Right to Trial by Jury
The right to a jury trial applies only to “non-petty” offenses, generally deemed to be offenses punishable by imprisonment for more than six months. Baldwin v. New York, 399 U.S. 66 (1970). Offenses for which the maximum term of imprisonment authorized by law is six months or less may also be deemed “non-petty” if additional available statutory penalties (including fines) “are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious' one.” Blanton v. City of North Las Vegas, 489 U.S. 538, 543 (1989).
[B] Required Number of Jurors
A jury composed of as few as six persons is constitutional. Williams v. Florida, 399 U.S. 78 (1970). Twelve jurors are required in federal criminal trials, although fewer may be permissible upon stipulation by the parties or when the court finds it necessary to excuse a juror for cause after the trial begins. Fed. R. Crim. P. 23(a). Many states likewise require a twelve-person jury in criminal trials.
[C] Number of Jurors Needed to Acquit or Convict
State laws permitting non-unanimous verdicts are permissible, as long as the vote to convict represents a “substantial majority” of the jurors, Johnson v. Louisiana, 406 U.S. 356 (1972), but in federal criminal trials, a verdict to convict or acquit must be unanimous. Fed. R. Crim. P. 31(a).
§ 18.05 Right to Confront Accusers and to Present a Defense
[A] Face-to-Face Confrontation
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This right applies to trials but not pretrial or sentencing proceedings. Williams v. New York, 337 U.S. 241 (1949).
The confrontation clause entitles the defendant to be physically present in the courtroom during the trial. Snyder v. Massachusetts, 291 U.S. 97 (1934). Federal Rule of Criminal Procedure 43 requires a federal criminal defendant's presence at every trial stage including empanelment of the jury and the reading of the verdict. The defendant waives the right to be present in the courtroom, however, if he voluntarily absents himself from the courtroom during proceedings, Taylor v. United States, 414 U.S. 17 (1973), or behaves in a disorderly manner in the courtroom, Illinois v. Allen, 397 U.S. 337 (1970). See also Fed. R. Crim. P. 43(c).
The accused is entitled to a face-to-face confrontation with an opposing witness. Such right may be denied, however, when the prevention of the confrontation serves an important public purpose, and the witness's testimony is otherwise shown to be reliable. For example, if the trial court finds that a child victim of alleged sexual abuse would be traumatized from having to testify in front of the alleged abuser, the court may allow the child victim to testify via telephone hook-up or behind a one-way glass or other such protective measure. E.g., Maryland v. Craig, 497 U.S. 836 (1990). However, the trial court may not merely rely on a statutory presumption that a witness needs protection from face-to-face confrontation without a determination as to the susceptibility of the individual witness. E.g., Coy v. Iowa, 487 U.S.1012 (1988).
[B] Hearsay Evidence [Note: After this section was written, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), differentiating between "testimonial" and "nontestimonial" hearsay and holding that the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant.]
Introduction of hearsay passes constitutional analysis where:
(1) the declarant of the hearsay statement testifies at trial, affording the defendant the opportunity to cross-examine the declarant;
(2) a hearsay exception applies;
(3) the statement is otherwise found to be trustworthy, based on the totality of circumstances. Idaho v. Wright, 497 U.S. 805 (1990).
If the hearsay consists of statements made at a prior judicial proceeding, the statement may be admitted if the declarant is unavailable to testify at the current trial and the statement carries with it sufficient indicia of reliability. United States v. Inadi, 475 U.S. 387 (1986). The prosecution has the burden of showing that the witness is unavailable for trial and must make a good faith effort to secure his presence; mere reliance on the witness's incarceration is insufficient as the prosecution must attempt to secure his presence at trial. Barber v. Page, 390 U.S. 719 (1968).
[C] Confession by Co-Defendant
In a joint trial of co-defendants, when the prosecution introduces an admission or confession made by one defendant that implicates another defendant, and the declarant opts to not testify at trial, the trial court must sever the trials or order a deletion of references to the other defendant. Bruton v. United States, 391 U.S. 123 (1968). When the statement is redacted, it is not sufficient merely to insert a blank or other substitution for the name of the defendant; the redaction should not indicate the defendant's involvement in any manner. Compare Richardson v. Marsh, 481 U.S. 200 (1987) (after redaction, the co-defendant's confession contained no indication of defendant's involvement) with Gray v. Maryland, 523 U.S. 185 (1998) (redacted statement that “me, deleted, deleted, and a few other guys killed the victim” clearly referred to the defendant's involvement).
Severance or redaction is not required if the declarant testifies at trial because the defendant is given the opportunity to cross-examine the co-defendant. Nelson v. O'Neil, 402 U.S. 622 (1971). The rule also does not apply if the confession is offered for a limited purpose other than to prove guilt. Tennessee v. Street, 471 U.S. 409 (1985).
[D] Right to Present a Defense
The Sixth Amendment grants to the accused the right to compulsory process for obtaining witnesses in his favor, which includes the rights to subpoena witnesses and to present a defense. The defendant must be permitted to introduce crucial evidence in his defense that has substantial assurances of trustworthiness, even if the evidence is otherwise inadmissible under local rules of evidence. Chambers v. Mississippi, 410 U.S. 284 (1973).
Generally co-defendants may be charged in the same indictment or information, and tried jointly. Fed. R. Crim. P. 8. Furthermore, defendants charged under separate indictments may be jointly tried if the offenses and defendants could have been charged in a single indictment. Fed. R. Crim. P. 13.
If a defendant believes that he will be prejudiced by joinder of his case with that of a co-defendant, he may move for separate trials (severance). Fed. R. Crim. P. 14. A defendant may appeal the decision to conduct a joint trial, but the decision is subject to the harmless error rule. United States v. Lane, 474 U.S. 438 (1986).
In the interests of judicial efficiency, the Supreme Court has stated that severance should be granted only if “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534 (1993).
[A] Eighth Amendment Limits on Punishment
Implicit in the prohibition against cruel and unusual punishment contained in the Eighth Amendment is that punishment not be grossly disproportional to the crime committed. Weems v. United States, 217 U.S. 349 (1910).
[1] Death Penalty
The death penalty “does not invariably violate the Constitution.” Gregg v. Georgia, 428 U.S. 153 (1976) (addressing capital punishment imposed for murder convictions). However, the death penalty has been determined to be grossly disproportional to the crime of rape of an adult woman. Coker v. Georgia, 433 U.S. 584 (1977).
[2] Terms of Imprisonment
Disproportionate prison sentences for petty offenses may be permissible if the statute provides for parole. Compare Rummel v. Estelle, 445 U.S. 263 (1980) (life sentence for a petty nonviolent crime imposed pursuant to the state's habitual offender law was upheld where the defendant would be eligible for parole) with Solem v. Helm, 463 U.S. 277 (1983) (life imprisonment without possibility of parole, imposed pursuant to the habitual offender law, upon conviction of fraudulently passing a check for $100, was deemed to violate the Eighth Amendment).
Even in the absence of parole, a seemingly disproportionate punishment might be permissible for a serious offense. Harmelin v. Michigan, 501 U.S. 957 (1991) (life sentence without parole for conviction of possession of 672 grams of cocaine, which was the defendant's first conviction, did not violate the Eighth Amendment).
[B] Judicial Vindictiveness
If a defendant successfully appeals his conviction, upon retrial and a subsequent conviction, the trial judge may not impose a greater sentence in order to punish the defendant for successfully appealing the conviction. In the absence of judicial vindictiveness, however, the trial court is authorized to impose a greater sentence, up to the maximum permitted by law, upon retrial and re-conviction. North Carolina v. Pearce, 395 U.S. 711 (1969).
|
Chapter
18 |
|