1. Chapter Twelve – Constitutional Rights of the Accused During Trial
Rolando V. del Carmen

2. 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)

3. 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)

4. Constitutional Rights of the Accused During Trial
The Right to a Trial By Jury
The Disqualification of Jurors Based on Race
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)

5. 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)

6. 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)

7. 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)

8. Constitutional Rights of the Accused During Trial
The Right to Counsel
Gideon v. Wainwright (1963)
Constitutionally required in the following proceedings:
Custodial interrogations
Lineups, if formal charges have been filed
Preliminary examination
Arraignment
Trial
Sentencing
Appeal from a conviction, if available to others

9. Constitutional Rights of the Accused During Trial
The Right to Counsel
Not constitutionally required in the following proceedings:
Criminal investigation
Arrest, unless the suspect is interrogated
Grand jury proceedings
Habeas corpus proceedings
Probation or parole revocation

10. Constitutional Rights of the Accused During Trial
The Right to Counsel
Why Counsel is Needed
Powell v. Alabama (1932)
Iowa v. Tovar (2004)

11. 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)

12. 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)

13. Constitutional Rights of the Accused During Trial
The Right to Counsel
The Difficulty of Proving Ineffective Assistance of Counsel
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)

14. 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)

15. 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

16. 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
United States v. Agurs (1976)
United States v. Bagley (1985)
Kyles v. Whitley (1995)
Strickler v. Greene (1999)

17. 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)

18. 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)

19. 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)

20. 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)

21. 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)

22. 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

23. 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

24. 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)

25. 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)

26. 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.”

27. Constitutional Rights of the Accused During Trial
The Constitutionality of Prosecution for the Same Offense by Two States
Heath v. Alabama (1985)

28. 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)

29. 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)

30. Constitutional Rights of the Accused During Trial
The Right to Compulsory Process to Obtain Witnesses
Webb v. Texas (1972)
Chambers v. Mississippi (1973)

31. 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

32. 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

33. Constitutional Rights of the Accused During Trial
The Right to a Fair and Impartial Trial
Controlling Prejudicial Publicity
Change of Venue
Sequestration
Continuance
Issuance of a gag rule
Control of the press
Sheppard v. Maxwell (1966)

34. Constitutional Rights of the Accused During Trial
The Right to Proof of Guilt Beyond a Reasonable Doubt
What Must Be Proved
Reasonable Doubt
Moore v. United States (D.C. Cir. 1965)
Cage v. Louisiana (1990)
Sullivan v. Louisiana (1993)
Victor v. Nebraska (1994)