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Answer each question minimum of 300 words. Use provided material (PDF book) as well as 2 additional sources to answer questions. Reference/cite in APA formatt. Remember to place in-text citations at the beginning of each new paragraph to support facts. [Hall, D. (2015). Criminal law and procedure (7th ed.). Stamford, CT: Cengage Learning].1.) What is jury nullification? May a prosecutor ask a jury to nullify? May defense counsel?2.) Distinguish challenging a prospective juror for cause from using a peremptory challenge.3.) Under what circumstances can a juror be challenged for cause?What is a directed verdict?
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Chapter 15: Trial   573
a “prosecution” be initiated before the right to counsel, under the Sixth Amendment,
­attaches. Accordingly, the Sixth Amendment does not apply to juvenile proceedings, nor
to administrative hearings such as parole determination and revocation.
The right starts whenever the “adversary judicial proceeding” is initiated. Police
contacts prior to the initiation of an adversary judicial proceeding are not covered by
the Sixth Amendment.
In determining what constitutes a critical stage, courts focus on “whether substantial rights of the defendant may be affected.” The greater the contact between the
prosecutor and the defendant, the more likely the event is at a critical stage.
The first critical stage is normally the initial appearance or the arraignment. Courts
have also determined that a defendant may be entitled
L to counsel at a police lineup, sentencing, preliminary hearing, and during a probation revocation hearing. Once charges
I government are critical stages.
are filed, all interrogations of the defendant by the
The Sixth Amendment is not the only constitutional
provision assuring counsel.
D
The Fifth Amendment’s right to be free from self-incrimination also guarantees counD
sel in some instances, as does the Fourteenth Amendment’s
Equal Protection and Due
E
Process Clauses.
Trial Procedure
Voir Dire
L
L
,
The first stage of trial is the voir dire. This is a French phrase that translates “look
T as jury selection.
speak” (to speak the truth). Voir dire is also known
The process of selecting a jury differs amongI the jurisdictions. In all jurisdictions,
prospective jurors are asked questions bearing upon their individual ability to serve
F information is obtained. In many,
fairly and impartially. Each state differs in how this
the judge is responsible for asking most of the questions.
In others, the judge makes
F
only a few brief inquiries, and the lawyers do most of the questioning.
A
There are two ways of eliminating a juror. First, if one of the attorneys believes that
a juror could not be fair and impartial, the jurorNcan be challenged for cause. If the
judge agrees, the juror is released. An unlimitedYnumber of jurors may be eliminated
for cause.
In addition to challenges for cause, a juror may be eliminated by a party using a
peremptory challenge. Each party is given a specific
1 number of peremptory challenges
at the start of the trial and may strike jurors until that number is exhausted. A party is
5
free to eliminate, without stating a reason, any potential juror. However, a juror may
6
not be eliminated because of race.23
In the federal system, both defendant and prosecutor
have 20 peremptory strikes
8
in death cases and 3 in misdemeanors; in noncapital felony cases the defendant gets
10 and the government 6.24 States have similar T
rules. The authority of the parties to
use peremptory challenges is nearly absolute. Two
S limitations exist, though—the use
of a challenge to eliminate a prospective juror for race and sex. Such criteria violate the
Fifth and Fourteenth Amendments’ equal protection guarantees.25 Other than these
voir dire examination
■ (French) “To see,
to say”; “to state the
truth.” The preliminary
in-court questioning of
a prospective witness
(or juror) to determine
competency to testify (or
suitability to decide a case).
[pronounce: vwahr deer]
challenge for cause
■ A formal objection to
the qualifications of a
prospective juror or jurors.
peremptory challenge
■ The automatic
elimination of a potential
juror by one side before
trial without needing to
state the reason for the
elimination.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
574   Part II Criminal Procedure
limitations, parties often go to great lengths to try to understand the psychological
profile of venireman. When resources permit, experts are retained who make recommendations about whether venireman should be retained or struck using models that
predict how a prospective juror will react to the facts of the case.
In addition to challenging individual jurors, entire jury panels may be challenged.
For example, a defendant may challenge the method used to select prospective jurors
if the method does not select individuals who represent a fair cross section of the community. In many instances, these challenges concern race or ethnicity.
Preliminary Instructions
The next stage in the L
trial proceeding is for the judge to give preliminary instructions
to the jury. The trial judge explains to the jury what its obligation is and gives a brief
I
introduction to the law and facts of the case. The judge may read the formal charge
Dmay summarize its contents.
verbatim to the jury or
The presumptionDof innocence is explained, and the judge admonishes the jury
not to discuss the case prior to deliberating. Jurors are told not to read newspaper arE reports concerning the trial. In rare cases, it may be necessary
ticles or watch television
to keep the jurors’ identities
L secret and to conduct the voir dire in private. Threat to the
safety of the jurors is an example of such an instance. This method is to be used cauL
tiously, as it encroaches upon First Amendment rights of media and of the defendant
,
to a public trial. Moreover,
when using this method, the trial judge should be careful
not to prejudice the jury. If the reason for secrecy is a perceived threat, the judge should
instruct the jury as to another reason, such as concern over pretrial publicity.26
T
I
Opening Statements
After the judge has given
F the preliminary instructions, the parties address the jury.
These statements are commonly known as opening statements. The purpose of opening
F
statements is to acquaint the jury with the basic facts of the case. Opening statement
A to argue the law; only the facts expected to be presented
is not the time for counsel
should be mentioned.N
In some cases the defense attorney may be permitted to wait until after the prosecution has put on itsYcase before giving an opening. Because the purpose of opening
statements is to present the facts surrounding the charge to the jury, opening statements are often waived in bench trials.
1
5 Case in Chief
The Prosecution’s
6 an adversarial system of adjudication. In adversarial systems,
The United States employs
the parties take the lead,
8 not the court, in the development of the facts and theories of the
case. At trial the parties are responsible for introducing the evidence, calling and examining the witnesses, andT
presenting theories to juries. Judges occasionally ask questions of
witnesses and even lessSoften, call witnesses. Historically jurors have been expected to sit
silently during trials. They do not call or questions witnesses. In recent years there has
been a small movement in the direction of jury participation. Arizona, Florida, and a few
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 15: Trial   575
other states, for example, now permit jurors to ask questions of witnesses. State rules vary
in how this happens. It is common, for example, to require questions to be submitted to
the Court for review. In some jurisdictions the parties are permitted to review and object
to questions. It is common for the judge to ask the questions that are approved.
Because the government has brought the charges, it puts its case on first. This
consists of calling witnesses to testify and producing exhibits.
All jurisdictions have rules of evidence that govern procedure and the admissibility
of evidence. The Federal Rules of Evidence are used in the federal courts, and many
states have modeled their rules after the federal ones.
Many evidentiary questions can be resolved prior to trial through a motion
in ­limine. Those arising during trial are handled
L through objections. Any time an
attorney believes that a question, statement, or action of the opposing lawyer is imI rule on the objection, and the trial
proper, he or she may object. The court will then
will continue. In some instances the attorneys will
Dwant to argue the objection outside
the hearing of the jury. In such cases a sidebar may be held, or the judge may order that
the jury be removed until the matter is resolved. D
E the right to cross-examine the
The Confrontation Clause assures the defendant
prosecution’s witnesses. Normally, cross-examination
L is limited to matters raised during
the prosecution’s direct examination. The defense also has the right to review an exhibit
L
before it is shown to the jury.
The Supreme Court has held that prosecutors
, may not call defendants to testify.­
While a defendant may assert the privilege and refuse to testify once called, the
Court has found that to demand this of a defendant creates an appearance of guilt.
failure to testify in closing
Furthermore,­prosecutors may not refer to a defendant’s
T
arguments. Of course, a prosecutor may cross-examine
a
defendant who chooses to
I
testify. However, in the 2013 case Salinas v. Texas,27the Supreme Court held that a defendant’s silence in response to a question duringFa voluntary interview by police may
be mentioned by a prosecutor as evidence of guilt
Fto a jury.
A
Directed Verdict and Judgement of Acquittal
After the government has rested (finished its case),
N the defendant may move for a directed verdict or, as it is also known, a judgement of acquittal. Upon such motion
Ythe government. If the evidence to
the trial judge reviews the evidence presented by
support a conviction is insufficient, the judge will enter a directed verdict favoring the
defendant. A directed verdict may never be entered favoring the government.
1
The prosecution’s evidence is insufficient if reasonable persons could not conclude
5 a motion for directed verdict, the
that the defendant is guilty. If the trial court grants
jury never deliberates and is discharged. Directed
6 verdicts are rarely granted, as most
judges prefer to have the jury return a verdict.
in limine
■ (Latin) “At the
beginning”; preliminary.
A motion in limine is a
(usually pretrial) request
that prejudicial information
be excluded as trial
evidence.
objections
■ A claim that an action
by your adversary in a
lawsuit (such as the use
of a particular piece of
evidence) is improper,
unfair, or illegal, and you
are asking the judge for a
ruling on the point.
sidebar
■ An in-court discussion
among lawyers and the
judge that is out of the
hearing of witnesses
and the jury. Sidebar
conferences are usually on
the record.
8
T
The Defense Case
If the motion for directed verdict is denied, the defense
S may put on its case. The defen-
dant is not required to put on a defense, and juries are instructed not to infer guilt by
the absence of a defense.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
576   Part II Criminal Procedure
If a defendant chooses to present a defense, the rules are the same as for the prosecution. The defendant may call witnesses and introduce exhibits, as limited by the
rules of evidence. Defense witnesses are subject to cross-examination by the prosecutor.
Defendants do not have to testify but may choose to do so. If a defendant does testify,
he or she is subject to cross-examination by the prosecutor.
Rebuttal
After the defense has concluded, the prosecution may call rebuttal witnesses in an effort
to disprove the evidence of the defense. No new issues may be raised during rebuttal.
The defense is then permitted to rebut the prosecution’s rebuttal evidence.
L
Closing Arguments
I
After the evidentiary stage of the trial has concluded, the parties present their closing
arguments. The lengthDof closing arguments is left to the discretion of the trial judge.
Attorneys may argue
D both the facts and the law during closing arguments. However, an attorney may not argue law different from what the judge will express to the
E
jury as controlling in the case. Closing arguments give the parties an opportunity to
L and explain their positions to the jury.
summarize the evidence
Attorneys must not
L make incorrect factual or legal statements to the jury. Objections to such statements may be made. If an objection is sustained, the jury will be
, to disregard the statement. Prosecutors must be especially careinstructed by the judge
ful not to make inflammatory remarks about the defendant or defense counsel. Such
remarks, if extreme, can lead to mistrial.
T
I
Final Instructions
F are completed, the judge will instruct the jury. Through these
After closing arguments
instructions the judgeFexplains the law to the jury. The information contained in the
judge’s instructions includes the prosecutorial burden, the standard of proof, the elements
A to weigh and value evidence, and rules for reaching a verdict.
of the charged crime, how
N
Jury Deliberations and Verdict
Y
After receiving its instructions, the jury goes into deliberations. Jury deliberations are
secret in all cases.
Generally, no person
1 has contact with the jury when it is deliberating. If the jury
has a question for the judge, it is escorted into the courtroom where all the parties
5
may hear the question. Some judges, but not all, permit juries to take the exhibits and
6into the jury room.
instructions with them
As mentioned earlier,
8 juror unanimity is not required when twelve jurors are empanelled. As few as nine jurors may support a guilty verdict. This is not true, however,
in capital cases where T
a unanimous vote is required. Unanimity is also required if only
six jurors sit in judgement.
S
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 15: Trial   577
On occasion, a jury may communicate to the judge that a verdict cannot be
reached. Some courts will then give the jury an “Allen charge,” an instruction encouraging jurors in the minority to reexamine their position. The charge gets its name from
Allen v. United States, 164 U.S. 492 (1896), wherein the Supreme Court approved its
use. Courts must be careful with such charges, but they are not violative of the U.S.
Constitution. However, some states have banned the Allen charge.
In the event of a hung jury, the court will declare a mistrial and set a new trial date.
Due to the expense and inconvenience of trying cases a second time, plea bargains are
often reached.
If a verdict is reached, the parties are summoned to the courtroom and the jury verdict is read. The parties may request that the jury
Lbe polled. Polling the jury involves
asking each juror how he or she voted. If there has been an error, the judge may order
the jury to return to deliberations or may declareI a mistrial.
Jurors have an obligation to follow the law, as
Dinterpreted by the trial judge, when
rendering a verdict.28 Trial judges instruct jurors in this obligation. Further, the trial
judge is not to instruct the jury, nor the parties D
to encourage the jury in closing arguE not prosecution. That is, if a law
ments, to disregard the law. This rule affects defense,
(defining a crime or punishment) is harsh or unfavorable,
defendants have an interest
L
in arguing that a jury should disregard the law and acquit, notwithstanding guilt. This
is not permitted in most, if not all, jurisdictions.L
Accordingly, a defendant has no right
to insist that a jury be instructed that it has the authority
to nullify the law.29
,
In 2012 a professor in Manhattan was charged with obstructing justice for standing outside a courthouse with a sign that read “Jury Information” and distributed
pamphlets encouraging jurors who disagree withTa law to disregard it and acquit the
defendants charged under it. The charges were dismissed
by the trial court, finding that
I
his general pleas were not intended to influence jurors in specific cases, as required by
F Free Speech questions.
the statute.30 The case also raises First Amendment
In reality, though, juries can and may disregard
F the law—-even though unlawful.
When a jury retires, its deliberations are secret; and each juror, while feeling bound by
the law, also feels bound by personal conscience.AA jury does not have to support its
N
verdict with a statement of its findings and conclusions.
An acquittal, even if the result
of nullification, is valid. Accordingly, although Y
the trial judge may comment on the
evidence to the jury before it retires to deliberate, a judge may not instruct a jury that
the government has met its burden and that the jury must return a guilty verdict.31
1
5
If the jury returns a verdict of guilty, the defendant may move for a judgement
6 to a directed verdict, in that the
­notwithstanding the verdict, or JNOV. This is similar
­defendant is asserting that the evidence is insufficient
8 to support a guilty verdict.
In addition to JNOV, a defendant may file a motion for a new trial. The commonlaw equivalent of a motion for a new trial was theTwrit of error coram nobis. Coram nobis
is still recognized in a few states.
S
hung jury
■ A jury that cannot reach
a verdict (decision) because
of disagreement among
jurors.
polling the jury
■ Individually asking each
member of a jury what his
or her decision is. Polling
is done by the judge, at
the defendant’s request,
immediately after the
verdict.
JNOV/New Trial
JNOV
■ A request by a defendant
convicted by a jury for
the court to set aside the
verdict as unsupported by
the evidence.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
578   Part II Criminal Procedure
The motion for a new trial is different from the JNOV because the defendant is
not claiming that the evidence was insufficient, but rather that the trial was flawed.
For example, if a defendant believes that evidence was admitted that should have been
excluded and that he or she was denied a fair trial because of the admission of the evidence, he or she may file a motion for new trial. A motion for new trial may also be
made because of new evidence discovered after trial.
Ethical Considerations
DISCLOSING INTENDED CLIENT PERJURY
L
As you have learned, attorneys have an obligation to zealously represent
I
their clients. They also have a duty to be loyal to their clients and not to
D of their client’s statements. There are limits to these
disclose the content
responsibilities, however.
For example, the ABA Model Rules of ProfesD
sional Responsibility allow (but do not require) an attorney to reveal client
Ea disclosure will prevent death or substantial injury to
information, if such
another, will prevent
L the client from committing fraud that will lead to substantial financial harm to another, and in other specific situations (see
L
Rule 1.6). Note, however, that an attorney may not disclose a client’s con, or a statement of intention to commit a lesser crime.
fession for past acts
A particularly thorny issue concerns client perjury. Model Rule 3.3
addresses this topic.
As provided inTthe ABA rules an attorney may not intentionally use
false evidence. AsIsuch, an attorney may not call a witness that he or she
reasonably believes will commit perjury. If a witness surprises an attorney
F
on the stand by testifying falsely on material (important) facts, the atF
torney has an obligation
to take “remedial” measures to correct the misinformation. Any remedial
measure is acceptable—including inter alia,
A
informing the court, calling a contrary witness, and questioning the witN where no …
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