CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 9
Trial and Punishment
Objectives
This chapter examines the constitutional safeguards that are in effect during the trial and punishment phases
of a criminal case. These safeguards include:
1. Protection against double jeopardy.
2. The right to a speedy trial.
Discussion Outline
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
PowerPoint Slide 3. Introduction
[No] person [shall] be subject for the same offense to be twice
§ 9.1 Overview of Constitutional Safeguards During the Trial and Punishment Phases of a
Criminal Case
PowerPoint Slide 4. Double Jeopardy
The double jeopardy clause of the Fifth Amendment prohibits the
government from:
§ 9.2 The Fifth Amendment Double Jeopardy Prohibition
A. The double jeopardy clause of the Fifth Amendment declares that no person “shall . . . be subject for
the same offense to be twice placed in jeopardy of life or limb . . .”
B. The policy behind this safeguard is to prevent the government from using its vast resources to
C. The ban on double jeopardy imposes two closely related restrictions on the government:
1. It prevents the government from trying an accused more than once for the same offense.
PowerPoint Slide 5. Double Jeopardy Protection against Retrial
• Three elements are needed for double jeopardy protection against
retrial:
§ 9.3 Prohibition of Multiple Prosecutions for the Same Offense
A. Elements needed for protection against reprosecution. Three ingredients are necessary for a defendant
to have double jeopardy protection against a second prosecution:
1. An earlier prosecution must progress to the point of jeopardy attachment;
B. Jeopardy attachment. Jeopardy attaches in jury trials when the jury is empaneled and in bench trials
when the first witness has been sworn and the judge begins taking testimony. Once a criminal
prosecution progresses to the jeopardy attachment point, the accused cannot be retried for the same
offense by the same sovereign entity unless:
1. The defendant requests a dismissal or mistrial before a verdict is reached;
C. Same offense. When an accused is retried on different statutory charges, the court must decide whether
the new charges represent the “same’ or a different offense. Most courts use the “same elements” test.
This test requires the court to compare the elements of proof needed to obtain a conviction under each
statute. If each statute violated requires proof of at least one distinct element, the violations will be
considered distinct offenses and the second prosecution may go forward, even though both charges are
based on the same underlying conduct.
D. Same sovereign entity. The double jeopardy bar applies only if the same government attempts to
E. Hypotheticals. Below are a sequence of hypotheticals that cover all the main points in §9.3 of the
textbook and can be used as an alternative to lecturing.
1. Sticky-Fingered Sam was arrested for burglarizing the Von Snobley mansion after he tried to sell
2. Continuing with this hypothetical, Sam is placed on trial for burglary. The jury is empaneled and
sworn, at which point the prosecutor discovers that Von Snobley (the person whose home was
3. Suppose Von Snobley attended the trial, testified, and the jury found Sam guilty. Sam appealed.
The appellate court reversed Sam’s conviction on the grounds that illegally seized evidence was
admitted at Sam’s trial. May Sam be retried? (Yes. When the defendant appeals a conviction and
the conviction is set aside, the slate is wiped clean and the defendant can be retried.)
4. Suppose Sam was acquitted of burglarizing Von Snobley’s home. May the prosecutor now try
Sam for receiving stolen property, knowing that it was stolen? (Yes, receiving stolen property is
not the same offense as burglary.)
PowerPoint Slide 6. Multiple Punishments
• Eighth Amendment distinguishes between civil and criminal penalties
§ 9.4 Prohibition of Multiple Punishments for the Same Offense
A. The double jeopardy clause also prohibits more than one punishment for the same offense. The concept
of punishment does not include civil penalties. The Fifth Amendment does not prohibit the government
from imposing civil and criminal penalties for the same offense.
§ 9.5 Sixth Amendment and Due Process Requirements for Fair Trials
The Sixth Amendment and due process requirements for a fair trial include the guarantee of a speedy
and public trial; the requirement that the tribunal assembled to pass judgment on the accused be
impartial; the right to trial by jury; and the right to confront and cross-examine adverse witnesses.
PowerPoint Slide 7. Speedy Trial
• Guaranteed by the Sixth Amendment
PowerPoint Slide 8. Statutes of Limitation
• Require that criminal prosecutions be brought within a fixed
§ 9.6 Speedy Trial
A. The right to a speedy trial is guaranteed by the Sixth Amendment.
B. This guarantee is designed to protect the accused from lengthy pretrial incarcerations, prolonged
anxiety and concern, and erosion of evidence needed to defend against the charges.
C. The right to a speedy trial attaches when the suspect becomes an “accused” through an indictment,
D. Courts consider the following factors in assessing whether the right to a speedy trial has been denied:
(1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant made a timely
assertion of his or her right to a speedy trial or sat idly by, and (4) whether the defendant was prejudiced
by the government’s delay in trying him or her.
PowerPoint Slide 9. Public Trial
• Guaranteed by the Sixth Amendment
§ 9.7 Public Trial
A. The right to a public trial is guaranteed by the Sixth Amendment.
B. Public trials are considered important for the following three reasons: (1) witnesses are more likely to
C. The guarantee of a public trial applies both to the actual trial and to ancillary pretrial proceedings, like
voir dire examinations of potential jurors, and hearings on motions to suppress illegally seized
evidence.
1. Trial judges have the power to close the courtroom to public access only in urgent circumstances
D. Members of the media and the public have a complementary right to attend criminal trials; the right of
the media and the public is grounded in the common law and the First Amendment. The media’s right
to attend criminal trials is covered in §9.10(C) of this outline.
§ 9.8 Confrontation of Adverse Witnesses
The Sixth Amendment confrontation clause guarantees the accused the right to be present during the
trial, to face prosecution witnesses who testify against him or her, and to cross-examine them in open
court.
PowerPoint Slide 10. Confrontation of Witnesses
• Guaranteed by the Sixth Amendment
§ 9.9 Fair and Impartial Tribunal
A. The Sixth Amendment guarantees the accused the right to have his or her guilt determined by an
impartial jury; the Fourteenth Amendment due process clause embodies a similar guarantee for bench
trials.
PowerPoint Slide 11. Fair and Impartial Tribunal
• Guaranteed by the Sixth Amendment
§ 9.10 Pretrial Publicity
A. The due process standard for whether jurors who have been exposed to prejudicial media coverage can
render an impartial verdict is whether they can lay aside their impressions and render a verdict based
on evidence presented in court.
PowerPoint Slide 12. Pretrial Publicity
Courts consider the following factors to determine if pretrial publicity
B. Precautions traditionally used to counteract the effects of prejudicial media coverage include: (1)
making special efforts to identify and eliminate prospective jurors with fixed opinions about the
defendant’s guilt during voir dire; (2) postponing the trial until the case has lost its notoriety; (3)
changing the venue of the trial to a different community, and (4) sequestering jurors during the trial.
PowerPoint Slide 13. Customary Measures Used to Counteract Excessive Pretrial Publicity
• delay trial
C. Trial judges in high-profile cases sometimes use more extreme measures, which are designed to keep
prejudicial information out of print. These measures have been challenged according to the First
Amendment, and some have been ruled unconstitutional.
PowerPoint Slide 14. Preventing Media Contamination
• Gag orders directed at media
o Judges cannot restrict publication of what happens
in open court
o Gag orders directed at media are least acceptable
1. Orders directing media representatives not to publish information in their possession that was
2. Orders closing courtroom proceedings while the trial is in session are also of questionable
constitutionality. Richmond Newspapers, Inc. v. Commonwealth of Virginia.
3. Orders closing pretrial suppression hearings are constitutional under the conditions stated in
Gannett Co. v. DePasquale.
4. Orders directing attorneys, witnesses, and law enforcement officers to refrain from making
extrajudicial comments about specified aspects of the case are constitutional.
a. The ABA guidelines for pretrial release of information by lawyers, prosecutors, judges, and
law enforcement officers [ABA Standards on Fair Trial and Free Press (Part II)] forbid
comments to the media about the following matters: a suspect’s prior criminal record,
and results of any judicial proceeding; and any information contained in a public record.
PowerPoint Slide 15. Right to a Jury
• Guaranteed by Sixth Amendment
• This protection does not apply to petty offenses (six
months or less in jail), military courts, juvenile courts,
§ 9.11 Trial by Jury
A. The right to trial by jury is guaranteed by the Sixth Amendment, made applicable to the states through
the Fourteenth Amendment due process clause.
B. The Sixth Amendment right to trial by jury is available in all criminal cases except the trial of: (1) petty
C. The common law trial jury (i.e., petit jury) consists of 12 individuals.
1. This feature continues to be constitutionally required in federal criminal prosecutions and used in
a majority of state courts.
2. States are free to reduce the size of trial juries, but not below six in felony trials.
E. The Sixth Amendment requires that juries be drawn from a source fairly representative of a cross–
section of the community in which the trial is held.
1. Systematic exclusion from jury rolls of members of any distinctive group violates the Constitution.
2. The prosecutor’s use of peremptory challenges to strike potential jurors solely because of their
race or gender also violates the Constitution.
PowerPoint Slide 16. Constitutional Duty to Disclose Favorable Evidence to the Defense
§ 9.12 Preservation and Disclosure of Evidence Favorable to the Defense
A. The prosecutor is an officer of the court and has a duty under the due process clause to see to it that the
accused receives a fair trial. The duties covered in this section are aspects of that responsibility.
1. The prosecution’s disclosure obligation extends not only to information in its own files but also to
information known to anyone assisting the prosecution with the case. This includes the police. The
failure of the police to bring favorable evidence to the prosecutor’s attention does not absolve the
prosecutor of its responsibility.
2. Favorable. To be favorable, the suppressed evidence must either negate the defendant’s guilt (such
as negative fingerprint or ballistics reports, negative eyewitness identifications, evidence that
someone else may have committed the crime, etc.), counter the prosecution’s theory of the case,
or impeach the credibility of key government witnesses (such as government promises of monetary
compensation or leniency in exchange for their testimony; criminal histories; pending criminal
charges against them, etc.)
▪ Kyles v. Whitley (Part II). Kyles was convicted of killing a 60-year-old woman in a grocery
store parking lot. Prior to the trial, Kyles’s attorney filed a motion for the prosecutor to disclose
any exculpatory or impeachment evidence and was told that there was none. The prosecution’s
themselves, as the final arbiters of the government’s obligation to ensure fair trials.”
▪ People v. Wright (Part II). This case was included to reinforce the important message that
police risk reversal of a conviction when they keep the prosecutor in the dark about evidence
favorable to the defense that might affect the outcome of a trial. Wright committed a “Lorena
Bobbitt” (severing penis with knife) on a man whom she claimed tried to rape her. Officer
Walczak was called to the scene of the crime to investigate. His investigative report noted that
the victim’s underwear was found in a location that was consistent with Wright’s account that
PowerPoint Slide 17. Constitutional Duty to Preserve Evidence
• Failure to preserve evidence that has an exculpatory
value that is apparent to police before it is destroyed
violates due process.
C. Police can be held accountable for failure to preserve evidence in two situations: (1) The evidence
had an exculpatory value that was apparent to them before it was destroyed; or (2) they destroyed
the evidence in bad faith. Instances where defense lawyers have been successful in proving either
ground are exceedingly rare.
▪ Arizona v. Youngblood (Part II). Police failed to refrigerate a semen sample taken from a rape
victim’s body and clothing, destroying the ability to use the sample for DNA testing. The
defendant claimed that the victim mistakenly identified him as the rapist, and that the semen
sample, if properly preserved, would have exonerated him. The Supreme Court rejected the
defendant’s argument that the failure of the police to preserve the semen samples denied him
PowerPoint Slide 18. Constitutionally Acceptable Punishments
Eighth Amendment prohibits criminal punishments that are
either:
• cruel
• unusual
PowerPoint Slide 19. The Death Penalty
• May be imposed only for crimes that involve taking a human
life
• Sentencer must have discretion to decide whether penalty is
appropriate
§ 9.13–9.15 Eighth Amendment Requirements for Punishment
The Eighth Amendment prohibits excessive fines and cruel and unusual punishments. This Amendment
has been interpreted to provide the following protections.
A. The Eighth Amendment limits the kinds of punishments for a crime to fines, victim restitution, prison
B. Death is the most severe penalty that any society can impose. The Eighth Amendment places the
following limitations on imposition of the death penalty:
1. The death penalty may not be imposed for any crime that does not involve the taking of a human
life.
2. Legislatures may not make the death penalty mandatory, even for the most heinous crimes;
discretion to impose this sentence is necessary.
4. Defendants facing the death penalty must be afforded an unrestricted opportunity to offer
mitigating evidence that might convince the tribunal to show mercy.
PowerPoint Slide 20. Unfair Application
• Minorities and the poor are much more likely than others to
receive the death penalty
• McCleskey v. Kemp:
C. The Eighth Amendment imposes two restrictions on prison officials. They must:
1. Refrain from unnecessary and sadistic applications of force, and
2. Provide for a prisoner’s “basic human needs.” “Basic human needs” fall into three categories:
minimally decent conditions of habitation, safety from attack, and care for serious medical needs.
a. Prison officials are liable for failing to provide for a prisoner’s basic needs only when they
are actually aware that these needs are not being met and act with deliberate indifference.
PowerPoint Slide 21. Eighth Amendment Protection for Prisoners
Student Review Questions
1. Most rights discussed in this chapter derive from the Fifth, Sixth, and Eighth Amendments. Read all
three Amendments very carefully and make a list of the rights that derive from each of them. Which
one provides protection against double jeopardy? (Appendix)
2. What three conditions must exist for a defendant to have double jeopardy protection against a second
prosecution? (§9.3)
5. Where the judge aborts the prior trial for reasons of “manifest necessity” is one of the situations where
retrial is permitted. What is the most common application of this exception? What are some other
examples where this exception applies? (§9.3)
6. The double jeopardy clause prohibits multiple punishments for the same offense, but is not offended if
the second penalty is civil. How do courts decide whether a penalty is criminal or civil? (§9.4)
7. Are the following penalties civil or criminal? Explain why.
a. Laws authorizing the government to seize money or property gained from or used in connection
8. Which amendment guarantees the right to a speedy trial? (§9.6)
9. What policies does the right to a speedy trial promote? (§9.6)
10. At what point in the criminal process does the right to a speedy trial attach? (§9.6)
11. What legal protection, if at all, do defendants have against long delays in arresting or charging them?
(§9.6)
12. What factors do courts consider in determining whether the right to a speedy trial has been denied?
(§9.6)
13. Which Amendment guarantees the right to a public trial? (§9.7)
14. Why are public trials considered important? (§9.7)
15. Does the guarantee of a public trial apply to pretrial proceedings? Grand jury proceedings? (§9.7)
16. What findings must a judge make to exclude media representatives and the public from the courtroom
without violating the defendant’s to a public trial? (§9.7)
20. When, if ever, may a defendant be denied the right to face his accuser in open court? (§9.8)
21. What four qualities must the decision maker possess in order to be considered impartial? (§9.9)
22. What standard is used to determine whether jurors who have been exposed to prejudicial media
coverage can render an impartial verdict? (§9.10)
23. What factors do courts consider in applying this standard? (§9.10)
24. What precautions have trial judges traditionally taken to counteract the effects of prejudicial media
coverage? (§9.10)
a. order media representatives to withhold publication of information they have already gathered
b. bar media representatives from attending criminal trials
c. bar media representatives and members of the public from attending pretrial suppression hearings
d. order attorneys, witnesses, and law enforcement officers to abstain from making extrajudicial
comments about specific aspects of the case
27. The ABA Standards on Fair Trial and Free Press establish guidelines on the pretrial release of
information concerning pending criminal cases. What subjects are generally appropriate matters for
public comment? What subjects are not? (§9.10; Part II)
31. Which constitutional amendment is the source of the prosecutor’s Brady duty to disclose evidence to
the defense? (§9.12)
32. State the Brady test for when is the prosecution required to disclose evidence to the defense? (§9.12)
33. For what information besides the information in its own files is the prosecution responsible for
disclosing? (§9.12)
34. There are three broad categories of evidence that are considered “favorable” for Brady purposes. What
are they? Provide examples for each category. (§9.12)
38. For what crimes is the death penalty regarded as an unconstitutionally cruel punishment? (§9.14)
39. What case marked the beginning of the Supreme Court’s capital punishment sentencing reforms? What
did this case hold? (§9.14)
40. The Eighth Amendment has been interpreted to require death penalty sentencing procedures to
incorporate certain safeguards. What safeguards are necessary? (§9.14)
41. For what crimes may the death penalty be made mandatory? (§9.14)
42. What three classes of offenders are not death penalty–eligible? (§9.14)
43. The Eighth Amendment prohibition on cruel and unusual punishment imposes two categories of duties
on prison officials. What are they? (§9.15)