CONSTITUTION DAY
Rights of the Accused: Court
Joe was charged with intent to deliver
marijuana less than 50 grams which is a felony
punishable by imprisonment for not more than
20 years or a fine of not more than $25,000 or
both.
After being charged, what is the first step in the
court process?
ARRAIGNMENT
According to the Sixth Amendment of the
Constitution, a defendant has the right to be
informed of the nature and cause of the
accusation. Arraignment also informs a
defendant that he has a right to counsel.
Under the Michigan Constitution, does a
defendant have the same right?
At arraignment, district court Judge Bueller
reads a copy of the information to Joe. Judge
Bueller advises Joe that he has been charged
with intent to deliver marijuana less than 50
grams and then explains the maximum penalty
if found guilty. After reading the information,
the judge asks whether Joe wants to plead
guilty or not guilty. Joe advised the Court that
he wants an attorney and can not afford one.
What should the Court do and why?
SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and causes of the accusation; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his
defense.
The right to counsel attaches only at or after initiation
of adversary judicial proceedings against the accused
by way of a formal charge, preliminary hearing,
indictment, information, or arraignment.
Judge Bueller sends Joe to the Office of Assigned
Counsel in order to see whether he qualifies for an
appointed attorney.
Does Joe get to pick the attorney that he wants?
An indigent defendant, entitled to the appointment of
a lawyer at public expense, is not entitled to choose
his lawyer.
He may, however, become entitled to have his
assigned counsel replaced upon a showing of
adequate cause for a change in lawyers.
After arraignment, what is the next step in the
process?
In Michigan, the next phase is the preliminary
examination.
A preliminary examination functions as a screening device
to ensure that there is a basis for holding the defendant to
face a criminal charge.
A defendant against whom there is insufficient evidence to
proceed should be cleared and released as soon as
possible.
In order to bind a defendant over to circuit court
for trial, what must the district court determine at
a preliminary examination?
The purpose of the preliminary examination is to
determine whether probable cause exists to believe that a
crime was committed and that the defendant committed it.
Probable cause is established if a person of ordinary
caution and prudence could conscientiously entertain a
reasonable belief of the defendant’s guilt.
After the preliminary examination, district court Judge
Bueller finds that there is probable cause that a crime
has been committed and that Joe committed the crime.
Joe is bound over to circuit court in order to stand
trial.
Now Joe has to decide whether he wants a bench trial
or a jury trial.
What gives Joe the right to decide the type of trial?
What type of trial should Joe pick?
BENCH TRIAL
v.
JURY TRIAL
• In a bench trial, the judge
decides the law; and
• In a jury trial, the judge will
determine the law; and
• The judge will be the trier of
fact and determine
credibility of witnesses.
• The jury will be the trier of
facts and determine
credibility of witnesses.
Would you waive a jury trial?
Joe decides to have a jury trial. After making his
decision, the court begins to pull the jury. Instead
of 12 jurors, the court only sits 6. Joe objects.
Is this permissible?
Under Michigan law, the jury must consist of 12
jurors but a defendant may waive that right.
Forty four months after the preliminary
examination, Joe’s trial is held. The trial was
adjourned multiple times because the
prosecution argues that a key witness, Misty, is
unavailable at trial. Misty is in a rehabilitation
center that was located in the same city as the
courthouse. The prosecutor believes that a
clean and sober Misty would be more credible
in front of a jury. Joe is in jail until the time of
trial.
What, if any, right of the accused is at issue?
SPEEDY TRIAL
• There is no absolute standard for what a speedy
trial is.
• There are four factors to consider:
a. Length of delay;
b. Reason for delay;
c. Defendant’s assertion of his right; and
d. Prejudice to defendant.
WHAT CONSTITUTES PREJUDICE
TO THE DEFENDANT?
• Prejudice to his person in the form of
oppressive pretrial incarceration and
excessive anxiety and concern;
• Prejudice to his defense caused by loss of
evidence or unavailability of key witnesses.
Prior to commencement of the trial, Channel 12
requests to have cameras in the courtroom during
the trial. Circuit court Judge Daniels stated that the
cameras could be in the courtroom but not during
jury selection because there is no room for
Channel 12’s cameras with the number of people
in the courtroom.
Does this prevent Joe from receiving a public trial?
During jury selection, the prosecutor uses all
of his preemptory challenges in order to
excuse all the women from the jury.
Is this permissible?
No, “litigants may not strike potential jurors
solely on the basis of gender….”
The prosecutor decides not to call Misty to testify
because Misty left rehab and is using cocaine and
drinking again. Also, Misty is homeless. The
prosecutor believes that the jury would disregard
Misty’s testimony because of her appearance.
Is the witness unavailable to testify?
UNAVAILABLE WITNESS:
A witness is considered unavailable if he or she is “absent
from the hearing and the proponent of a statement has
been unable to procure the declarant’s attendance…by
process or other reasonable means, and in a criminal
case, due diligence is shown.”
A witness cannot be unavailable for purposes of
using former testimony unless the prosecutor
has made good faith effort to obtain the witness’
presence at trial.
The prosecutor knows that Misty was sleeping
in a local homeless shelter but does not
subpoena her or notify her of the trial.
If the prosecutor knew where the witness was
located and failed to subpoena the witness, did the
prosecutor meet its good faith effort requirement?
Since the prosecutor did not call Misty, can her
testimony from the preliminary examination be
used even if the defense attorney did not cross
examine her?
To preserve the right to confront witnesses,
testimonial hearsay is not admissible against a
criminal defendant unless the witness was
unavailable at trial and the defendant had a prior
opportunity to cross-examine the witness.
Hearsay is defined as an out of court statement
made for the truth of the matter asserted.
The court adopted three “nonexhaustive” factors to use in
determining whether the party had a similar motive to
examine a witness at a prior proceeding:
(1) whether the party opposing the testimony “had
at a prior proceeding an interest of substantially similar
intensity to prove (or disprove) the same side of a
substantially similar issue”;
(2) the nature of the two proceedings- both what is
at stake and the applicable burden of proof; and
(3) whether the party opposing the testimony in fact
undertook to cross-examine the witness (both the
employed and available but forgone opportunities).
The defense attorney does not crossexamine Misty during the preliminary
examination. At trial, defense counsel
objects to the admission of Misty’s prior
testimony because he did not have an
opportunity to cross-examine her.
Will his objection be sustained by the Judge?
The prosecutor rests his case. The defense
attorney rests its case without calling any
witnesses or presenting any evidence. In the
prosecutor’s closing arguments, the prosecutor
states that the facts are not in dispute because Joe
failed to testify.
Which constitutional amendment is affected by the
prosecutor’s statement?
UNITED STATES CONSTITUTION
5TH AMENDMENT
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of war
or public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be
taken for public use, without just compensation.
[T]he constitutional foundation underlying the privilege is the
respect a government–state or federal–must accord to the
dignity and integrity of its citizens. To maintain a ‘fair stateindividual balance,’ to require the government ‘to shoulder
the entire load’ . . . , to respect the inviolability of the human
personality, our accusatory system of criminal justice
demands that the government seeking to punish an
individual produce the evidence against him by its own
independent labors, rather than by the cruel, simple
expedient of compelling it from his mouth.”
Miranda v Arizona, 384 US 436, 460 (1966)
A prosecutor may not comment upon a defendant’s
failure to testify.
However, a prosecutor’s statement that certain
inculpatory evidence is uncontroverted does not
constitute a comment regarding the defendant’s
failure to testify, particularly where someone other
than the defendant could have provided contrary
testimony.
Was Joe’s attorney ineffective because he did not
call any witnesses to testify on Joe’s behalf?
An attorney is not ineffective merely because he or
she does not call witnesses. It is ineffective
assistance of counsel if the failure to call a witness
deprives the defendant of a substantial defense.
INEFFECTIVE ASSISTANCE OF COUNSEL
To establish ineffective assistance of counsel, a
defendant must show the following:
(1) that defense counsel’s performance was
below an objective standard of
reasonableness under prevailing
professional norms, and
(2) that there is a reasonable probability that,
but for counsel’s errors, a different outcome
would have resulted.
After about 10 minutes in deliberations, the jury
finds Joe guilty of intent to deliver marijuana
less than 50 grams. Joe is sentenced to five
years in prison in addition to fines.
Joe wants to appeal and requested the
assistance of counsel.
Does Joe have the right to counsel for
appeals?
An indigent defendant has the right to
appointed appellate counsel for the first
tier review by the Michigan Court of
Appeals.
You are a judge on the Michigan Court
of Appeals; should Joe’s conviction be
overturned?
The
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