Rights of the Accused: Court

CONSTITUTION DAY

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?

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.

SIXTH AMENDMENT

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?

• In a bench trial, the judge decides the law; and

• The judge will be the trier of fact and determine credibility of witnesses.

• In a jury trial, the judge will determine the law; and

• The jury will be the trier of facts and determine credibility of witnesses.

BENCH TRIAL v. JURY TRIAL

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?

• 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.

SPEEDY TRIAL

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 cross-examine 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?

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.

UNITED STATES CONSTITUTION5TH AMENDMENT

[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 state-individual 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 End