More Rights at Trial

Crim B4

Chapter 14

CHAPTER OVERVIEW

The first section of this chapter begins with a summary of the right to a public trial. The right to a public trial is the right to one that is open to the public. This right has been expanded to cover several pretrial proceedings, such as suppression hearings. Sometimes the right to a public trial does not apply. If the government seeks closure, it must show (1) that there is an overriding interest, such as the protection of certain witnesses; (2) that the closure is no broader than absolutely necessary; and (3) that reasonable alternatives were considered. If the accused seeks closure of a trial, it will be permitted only if an open proceeding will compromise the ability of the jury to make a fair decision.

The second section summarized the right to confrontation. The right to confrontation refers to the ability of the defendant to face his or her accusers.

This right is manifested in three ways: (1) by permitting the defendant to be present at trial, (2) by requiring live testimony, and (3) by allowing the defendant to challenge the government’s witnesses through cross-examination.

The third section summarizes the right to compulsory process. Compulsory process means that the defendant is legally entitled to compel the production of witnesses. This can be accomplished via a subpoena, if the witness will not voluntarily come forward. Compulsory process also extends to the production of physical evidence.

The fourth section explains the concept of double jeopardy. The defendant further enjoys the right to double-jeopardy protection. In general, a defendant cannot, by the same sovereign, be reprosecuted after acquittal, reprosecuted after conviction, or subjected to separate punishments for the same offense. Several exceptions to the Fifth Amendment’s double-jeopardy clause exist. First, double jeopardy does not apply if the second prosecution is based on conduct committed after the first prosecution. Second, double jeopardy does not apply if the defendant is responsible for the second prosecution. Third, double jeopardy does not apply when the Court hearing the first offense lacks jurisdiction to try the second offense. Fourth, if the defense plea-bargains over the prosecution’s objection, double-jeopardy protection does not apply. Fifth, if a defendant successfully appeals a criminal conviction or otherwise succeeds in overturning a conviction, he or she may be reprosecuted. Sixth, if a case is dismissed by the judge but the defendant is not acquitted, the defendant may be reprosecuted. Finally, reprosecution is permissible if the dismissal occurs over the defendant’s objections and is a “manifest necessity.”

The fifth and final section outlines the classifications and origins of the entrapment defense. The entrapment defense is available in some cases where the defendant has been lured by a government official into committing a crime. While this defense is not a constitutional right, it has, nevertheless, been given a high degree of support by the Supreme Court. This defense can be asserted prior to trial—say, in a probable cause hearing or a preliminary hearing—but entrapment is also a common-law defense that can be affirmatively asserted at trial.

THE RIGHT TO A PUBLIC TRIAL

In In re Oliver, 333 U.S. 257 (1948), the Supreme Court elaborated on the purpose of a public trial—one that is open to the public. The Court stated, “The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of power. . . . Without publicity, all other checks are insufficient; in comparison of publicity, all other checks are of small account.”

When the Right May Not Apply

Most trials are open to the public, but occasionally they are not. Indeed, the defendant, whose interests are frequently served by openness, may want the trial closed to the public. This could be in an effort to minimize negative publicity, especially when the trial is for a heinous crime. In this way, the defendant’s Sixth Amendment rights can be waived, just like many other constitutional rights can.

Government-Sought Closure.

In Waller v. Georgia, 467 U.S. 39 (1984), the Supreme Court limited the ability of the government to close proceedings to the public, and created a test for determining when closing proceedings is warranted. The government must show (1) that there is an overriding interest, such as protection of certain witnesses, (2) that the closure is no broader than absolutely necessary, and (3) that reasonable alternatives have been considered.

Defense-Sought Closure.

Sheppard v. Maxwell, 384 U.S. 333 (1966) illustrates the negative effects that publicity may have at trial. In that case, the courtroom was packed with members of the public and media for all nine weeks of the trial. This made it difficult for people to hear one another. The press also handled and took pictures of evidentiary exhibits. The Supreme Court reversed the defendant’s conviction, citing the “carnival atmosphere” of the trial.

The First Amendment and Public Trials

The First Amendment guarantees freedom of speech and of the press. Thus, any effort to close a trial or pretrial hearing to the public—be it by the government or the defense—may cause the press to rally in opposition. The Supreme Court precedent suggests that unless the government or the defense can demonstrate that significant prejudice is likely to result from a public trial, closure of a trial is unlikely.

Dealing with Media Influence.

The media can seemingly influence the fairness of a criminal trial in two ways: (1) by its pretrial coverage and/or (2) by being present in the courtroom. Several alternatives to closure are available and generally preferable. Each is aimed at ensuring a fair trial for the accused while maintaining as much openness as possible.

The alternatives are:

• Voir dire with special attention to pretrial publicity

• A change of venue

• Jury sequestration

• A gag order on the media

• A gag order on other parties

Teaching Note: Review that voir dire is the process by which jury members are selected from a panel of potential jurors. The judge can ask several questions, and the attorneys can exclude jurors for cause and by use of peremptory challenges. When media coverage of a crime is extensive and presumed to have influenced members of the jury panel, voir dire can be used to detect that bias.

THE RIGHT TO CONFRONTATION

The Sixth Amendment’s provision that an accused person enjoys the right to be “confronted with the witnesses against him” is manifested in three ways. The first type of confrontation is to allow the defendant to appear at his or her own trial. In Illinois v. Allen, 397 U.S. 337 (1970), the Supreme Court expressly stated that “[o]ne of the most basic of rights guaranteed by the Confrontation Clause is the accused’s right to be present in the Courtroom at every state of his trial.” The other two types of confrontation extended to the defendant are to require the live testimony of witnesses before the defendant and to permit him or her to challenge witnesses’ statements in open court.

The Defendant’s Right to Be Present

The defendant would be seriously hampered in his or her ability to confront adverse witnesses if he or she was not allowed to attend the trial. But allowing the defendant to be physically present in the courtroom may not be enough to satisfy the Sixth Amendment’s strictures.

Physical Presence.

The Supreme Court’s opinion in Illinois v. Allen seems to suggest that the accused enjoys an unqualified right to physical presence in the proceedings, but nothing could be further from the truth. In the cases decided after Allen, the Court placed significant restrictions on when the defendant is permitted to be physically present. There are three key restrictions:

•Physical presence is not required in noncritical proceedings,

•The right to physical presence may be waived.

•Physical presence may be impermissible due to the defendant’s inappropriate conduct.

In Taylor v. United States, 414 U.S. 17 (1973), the Court decided that the defendant’s refusal to return to the courtroom after a lunch recess, even though it was not an intentional waiver, could have amounted to a violation of his Sixth Amendment right.

Mental Competence.

Due process—and by implication, the right to confrontation—is violated when the defendant cannot understand what is happening to him or her in a criminal trial. In other words, the defendant must demonstrate mental competence in order to stand trial. In Dusky v. United States, 362 U.S. 402 (1960), the Court set forth a test for determining whether or not a defendant is mentally competent to stand trial. The test assesses whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” The burden of proving incompetence falls on the defendant (Medina v. California, 505 U.S. 437 [1992]).

Drawbacks of Being Present.

Although the Sixth Amendment, subject to some limitations, guarantees the right to be present at trial, the defendant’s presence could in some cases be prejudicial or harmful to his or her case. First, if the defendant is present but exercises his or her Fifth Amendment rights by refusing to take the stand, the jury may conclude that he or she has something to hide. The Supreme Court has been so concerned with this possibility that it has prohibited the prosecution from calling attention to the defendant’s refusal to testify (Griffin v. California, 380 U.S. 609 [1965]) and even required judges to advise jury members that no adverse inferences can be drawn from a defendant’s refusal to testify (Carter v. Kentucky, 450 U.S. 288 [1981]).

The Defendant’s Right to Live Testimony

Confrontation also includes the defendant’s right to live testimony. In general, this means the defendant enjoys the right to have witnesses physically appear in the courtroom to give their testimony, but this right has become qualified over the years. Over a century ago, the Supreme Court stated in Mattox v. United States, 156 U.S. 237 (1895), that the defendant’s right to live testimony is “subject to exceptions, recognized long before the adoption of the Constitution.”

Deceased Witness.

In Mattox, the Supreme Court upheld the admissibility of a witness’s past testimony from the defendant’s first trial in the defendant’s second trial because the witness died between the two trials. According to the Court, “To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent.”

Unavailable Witness.

The Supreme Court has held that an unavailable witness, for purposes of the confrontation clause, is one who permanently moves to another country (Mancusi v. Stubbs, 408 U.S. 204 [1972]), cannot be located after a careful search by the prosecution (Ohio v. Roberts, 448 U.S. 56 [1980]), or suffers from a lapse in memory (California v. Green, 399 U.S. 149 [1970]).

In Motes v. United States, 178 U.S. 458 (1900), the Court stated that it would violate the Sixth Amendment “to permit the deposition or statement of an absent witness . . . to be read at the final trial when it does not appear that the witness was absent by the suggestion, connivance, or procurement of the accused, but does appear that this absence was due to the negligence of the prosecution.”

Hearsay and Exceptions to the Hearsay Rule.

Hearsay is a statement made by a person outside of court, which is offered in court to prove the truth of the matter it asserts. It is often testimony given in court by someone who heard what someone outside of in court said (hence, the term hearsay).

Although hearsay is generally inadmissible, there are many hearsay exceptions under both state and federal rules of evidence which permit out-of-court statements made by declarants to be admitted at trial. On the surface, these exceptions seem to violate the defendant’s right to confront live witnesses.

In White v. Illinois, 502 U.S. 346 (1992), which dealt with the admissibility of out-of-court statements made by a four-year-old girl. The prosecution argued that the statements should be admissible because two exceptions to the hearsay rule applied to her testimony. The first exception, for “spontaneous declarations” allows hearsay statements that are made in the “heat of the moment.”

The Defendant’s Right to Challenge Witness Testimony

Part of the defendant’s right to confrontation is the ability to challenge witnesses in the courtroom. This ability is manifested when each witness physically appears in court before the defendant. This type of confrontation permits questioning by the defense and is intended to submit the witness’s account to scrutiny.

Order and Scope of Questions.

Witness testimony proceeds in several stages. That testimony is examined at each stage by a particular party to the case—the state or the defendant. And each examination is subject to limitations in terms of scope.

Direct Examination.

The first examination of a witness is called direct examination, and it is usually conducted by the party calling the witness. The scope of direct examination is broad. In general, questions are permitted about any relevant facts that may prove or disprove an element of the offense charged.

Cross-Examination.

The next step in examining a witness is cross-examination. It is conducted by a party other than the one who called the witness. For example, the state may call a witness in a criminal trial. Once the state’s direct examination has concluded, the defense will have an opportunity to cross-examine the state’s witness.

Redirect Examination.

The party calling the witness conducts the redirect examination and does so after the cross-examination. Thus, the scope of questioning on redirect is limited to the scope of questioning on cross-examination.

Redirect Examination.

Cross-Examining and Obtaining Evidence

The Supreme Court has considered, more than once, the constitutionality of state- and court-imposed restrictions on the defendant’s right to cross-examine (and by extension, to engage in re-cross-examination). For instance, in Smith v. Illinois (390 U.S. 129 [1968]), the Court considered whether the prosecution can conceal the identity of a witness who is a police informant.

In Chambers v. Mississippi, 410 U.S. 284 (1973), the Court considered the constitutionality of a state statute that barred any cross-examination by the defense.

THE RIGHT TO COMPULSORY PROCESS

The compulsory process clause of the Sixth Amendment provides that the defendant can use subpoenas to obtain witnesses, documents, and other objects that are helpful to his or her defense. The right to compulsory process was incorporated to the states in Washington v. Texas, 388 U.S. 14 (1967), in which the Supreme Court stated that compulsory process protects “[t]he right to offer the testimony of witnesses, and to compel their attendance.”

The Right to Present Evidence

The Sixth Amendment’s compulsory process clause appears only to grant the defendant the right to subpoena and question witnesses. In Washington v. Texas, however, the Supreme Court modified the definition of compulsory process to include the right of the defense to present evidence. It held that compulsory process also guarantees “the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.”

Decisions in Favor of the Defense.

In Crane v. Kentucky, 476 U.S. 683 (1986), the defendant sought to present evidence that his confession was unreliable because it had been obtained when he was young and uneducated and had been interrogated at great length. The trial court excluded this evidence and the defendant was convicted. The Supreme Court reversed that decision, however, declaring that a state may not exclude “competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence” because “[w]hether rooted directly in the Due Process Clause . . . or in the Compulsory Process or Confrontation Clause . . . the Constitution guarantees criminal defendants a ‘meaningful opportunity’ to present a complete defense.”

Decisions against the Defense.

On a few occasions, the Court has sanctioned exclusion of certain defense evidence based on the right to compulsory process. For example, in United States v. Scheffer, 523 U.S. 303 (1998), the Court upheld a trial court’s decision to exclude polygraph evidence presented by the defense.

THE RIGHT TO DOUBLE-JEOPARDY PROTECTION

The constitutionally guaranteed protection against double jeopardy is designed to ensure that a person who has been convicted or acquitted of a crime is not tried or punished for the same offense twice. Double jeopardy occurs when, for the same offense, a person is (1) reprosecuted after acquittal, (2) reprosecuted after conviction, or (3) subjected to separate punishments for the same offense. Double jeopardy does not apply, however, to prosecutions brought by separate sovereigns. The federal government, each state government, and each Native American tribe is considered a separate sovereign.

The double-jeopardy protection is applied in every state because in Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court decided that the Fifth Amendment’s protection against double jeopardy is a fundamental right.

When Double-Jeopardy Protection Applies

The Fifth Amendment suggests that double jeopardy occurs when a person’s “life or limb” is threatened. This language has been taken to mean that double jeopardy applies in all criminal proceedings.

Determining whether a proceeding is criminal, however, is not as clear as it seems. Courts will often look to the legislature’s intent in writing the statute that is the basis for prosecution. For example, in Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court found that a statute providing for a “sexual predator” proceeding, in addition to a criminal proceeding, did not place the defendant in double jeopardy because it provided for civil confinement.

The Blockburger Rule.

A rather complicated issue in double-jeopardy jurisprudence concerns the definition of same offense. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court stated that “[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each requires proof of an additional fact which the other does not.” This test came to be known as the Blockburger rule.