Chapter Twelve – Constitutional Rights
of the Accused During Trial
Rolando V. del Carmen
Constitutional Rights of the Accused During
Trial
 The Right to a Trial By Jury
– Jury Size
• Williams v. Florida (1970)
• Ballew v. Georgia (1978)
– Unanimous versus Nonunanimous Verdicts
• Apodaca v. Oregon (1972)
• Johnson v. Louisiana (1972)
Constitutional Rights of the Accused During
Trial
 The Right to a Trial By Jury
– Serious versus Petty Offenses
• Baldwin v. New York (1970)
• Blanton v. North Las Vegas (1989)
• Lewis v. United States (1996)
– Waiver of a Jury Trial
• Singer v. United States (1965)
– The Selection of a Jury of Peers
• Taylor v. Louisiana (1975)
Constitutional Rights of the Accused During
Trial
 The Right to a Trial By Jury
– The Disqualification of Jurors Based on
Race
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Batson v. Kentucky (1986)
Strauder v. West Virginia (1880)
Holland v. Illinois (1990)
Johnson v. California (2005)
Georgia v. McCullum (1992)
Powers v. Ohio (1991)
Campbell v. Louisiana (1998)
Constitutional Rights of the Accused During
Trial
 The Right to a Trial By Jury
– The Disqualification of Jurors Based on
Gender
• J.E.B. v. Alabama (1994)
Constitutional Rights of the Accused During
Trial
 The Right to a Trial By Jury
– The Constitutionality of “Death-Qualified
Juries”
• Lockhart v. McCree (1986)
• Witherspoon v. Illinois (1968)
Constitutional Rights of the Accused During
Trial
 The Right to a Trial By Jury
– The Strengthening of the Role of Juries in
Sentencing
• Apprendi v. New Jersey (2000)
• Ring v. Arizona (2002)
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– Gideon v. Wainwright (1963)
– Constitutionally required in the following
proceedings:
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Custodial interrogations
Lineups, if formal charges have been filed
Preliminary examination
Arraignment
Trial
Sentencing
Appeal from a conviction, if available to others
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– Not constitutionally required in the
following proceedings:
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Criminal investigation
Arrest, unless the suspect is interrogated
Grand jury proceedings
Habeas corpus proceedings
Probation or parole revocation
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– Why Counsel is Needed
• Powell v. Alabama (1932)
• Iowa v. Tovar (2004)
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– How Counsel is Obtained
• Retained counsel – an attorney chosen and
paid by the accused
– Wheat v. United States (1988)
• Court-Appointed Counsel
– Indigent Defendant
– Fuller v. Oregon (1974)
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– The Responsibility of the Defense Lawyer
– The Right to Court-Appointed Counsel
during the Trial
• Argersinger v. Hamlin (1972)
• Scott v. Illinois (1979)
• In re Gault (1967)
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– The Difficulty of Proving Ineffective
Assistance of Counsel
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Specific errors must be pointed out
Effective assistance is assumed
United States v. Cronic (1984)
Strickland v. Washington (1984)
Wiggins v. Smith (2003)
Yarborough v. Gentry (2003)
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– Claims of Ineffective Assistance of Counsel
in Death Penalty Cases
• A Sleeping Lawyer
– Burdine v. Johnson (5th Cir. 2001)
• Silent Lawyer
– Bell v. Cone (2002)
• A Lawyer who had the Victim as a Client
– Mickens v. Taylor (2002)
Constitutional Rights of the Accused During
Trial
 The Right to Counsel
– The Right to Act as One’s Own Counsel
• Faretta v. California (1975)
• Constitutional requirements that must be met:
– Awareness of the right to counsel
– Express waiver
– Competency of the accused
Constitutional Rights of the Accused During
Trial
 The Right to Due Process
– The Brady Rule on Disclosure of Evidence
to the Accused
• Mooney v. Holohan (1935)
• Brady v. Maryland (1963)
– Cases after Brady
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United States v. Agurs (1976)
United States v. Bagley (1985)
Kyles v. Whitley (1995)
Strickler v. Greene (1999)
Constitutional Rights of the Accused During
Trial
 The Right Against Self-Incrimination
– The Scope of the Provision: Testimonial not
Physical
• Gilbert v. California (1967)
• South Dakota v. Neville (1983)
Constitutional Rights of the Accused During
Trial
 The Right Against Self-Incrimination
– Two Separate Privileges during Trials: The
Accused and the Witness
• The Privilege of the Accused
– Not to take the stand and not to testify
• Griffin v. California (1965)
– Fair Response
• United States v. Robinson (1988)
Constitutional Rights of the Accused During
Trial
 The Right Against Self-Incrimination
– Two Separate Privileges during Trials: The
Accused and the Witness
• The Privilege of a Witness
– Refuse to disclose any information that may tend to
incriminate him or her
• United States v. Balsys (1998)
Constitutional Rights of the Accused During
Trial
 The Right Against Self-Incrimination
– The Grant of Immunity
• Immunity in criminal cases means that the
person granted immunity will not be prosecuted
in a criminal case, either fully or partially—
depending upon the type of immunity granted—
for testimony given before a grand jury, in court,
or in some other proceeding from which
prosecution could otherwise have resulted.
• Murphy v. Waterfront Commission (1964)
Constitutional Rights of the Accused During
Trial
 The Right Against Self-Incrimination
– Comparison between Transactional and
Use and Derivative Use Immunity
• Transactional immunity
• Use and derivative use immunity
• Kastigar v. United States (1972)
Constitutional Rights of the Accused During
Trial
 The Right Against Self-Incrimination
– How the Right is Waived
• Failure to Assert
• Partial Disclosure
• Taking the Witness Stand
Constitutional Rights of the Accused During
Trial
 The Right Against Double Jeopardy
– What Double Jeopardy Means
• Successive prosecution of a defendant for the
same offense by the same jurisdiction
• North Carolina v. Pearce (1969)
• Three elements for double jeopardy to occur:
– Successive prosecution
– Same offense
– Same jurisdiction
Constitutional Rights of the Accused During
Trial
 The Right Against Double Jeopardy
– When Double Jeopardy Starts
– When Double Jeopardy Is Waived
• In mistrials
• When a verdict of conviction is set aside on a
defendant’s motion or appeal
• In habeas corpus cases
• Green v. United States (1957)
• Burks v. United States (1978)
Constitutional Rights of the Accused During
Trial
 The Right Against Double Jeopardy
– What Same Offense Means
• Blockburger v. United States (1932)
• Illinois v. Vitale (1980)
• Brown v. Ohio (1977)
– What Lesser Included Offense Means
• Rutledge v. United States (1996)
Constitutional Rights of the Accused During
Trial
 The Constitutionality of Prosecution for a
Higher Offense After Conviction for a
Lesser Included Offense
– “if the facts needed to prove the higher offense
had not yet been discovered at the time of the first
trial, despite the prosecution’s due diligence,”
and
– “if at the time the first case is tried, events have
not yet occurred that are needed for the second
crime.”
Constitutional Rights of the Accused During
Trial
 The Constitutionality of Prosecution
for the Same Offense by Two States
– Heath v. Alabama (1985)
Constitutional Rights of the Accused During
Trial
 The Right to Confront Witnesses
– The Right to Cross-Examine Opposing
Witnesses
• Crawford v. Washington (2004)
– The Right to Physical Presence During
Trial
– Deliberate Absence
• Taylor v. United States (1973)
– Disruptive Conduct in the Courtroom
• Illinois v. Allen (1970)
Constitutional Rights of the Accused During
Trial
 The Right to Confront Witnesses
– Coy v. Iowa (1988)
– Maryland v. Craig (1990)
– The Right to Know the Identify of
Prosecution Witnesses
• United States v. Owens (1988)
Constitutional Rights of the Accused During
Trial
 The Right to Compulsory Process to
Obtain Witnesses
– Webb v. Texas (1972)
– Chambers v. Mississippi (1973)
Constitutional Rights of the Accused During
Trial
 The Right to a Speedy and Public
Trial
– A Speedy Trial
• Barker v. Wingo (1972)
• Doggett v. United States (1992)
• Speedy Trial Act of 1974
– A Public Trial
Constitutional Rights of the Accused During
Trial
 The Right to a Fair and Impartial Trial
– The Prohibition of Prejudicial Publicity
• Irvin v. Dowd (1961)
• Rideau v. Louisiana (1963)
• A Public Trial
Constitutional Rights of the Accused During
Trial
 The Right to a Fair and Impartial Trial
– Controlling Prejudicial Publicity
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Change of Venue
Sequestration
Continuance
Issuance of a gag rule
Control of the press
Sheppard v. Maxwell (1966)
Constitutional Rights of the Accused During
Trial
 The Right to Proof of Guilt Beyond a
Reasonable Doubt
– What Must Be Proved
– Reasonable Doubt
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Moore v. United States (D.C. Cir. 1965)
Cage v. Louisiana (1990)
Sullivan v. Louisiana (1993)
Victor v. Nebraska (1994)