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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
§9.1 Overview of Constitutional Safeguards During the Trial and Punishment Phases of a
Criminal Case
§9.2 The Fifth Amendment Double Jeopardy Prohibition
A.
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.
§9.3 Prohibition of Multiple Prosecutions for the Same Offense
A. Ingredients necessary 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;
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B. Jeopardy attachment. Jeopardy attaches in jury trials when the jury is empanelled 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;
support a guilty verdict.
C. Same offense. When an accused is retried on different statutory charges, the court must
decide whether the ne
1.
sections of the penal code as brought for the same offense unless each statute violated
2.
All statutory violations occasioned by the same underlying conduct must be joined for
D. Same sovereign entity. The double jeopardy bar applies only if the same government
attempts to reprosecute the same person for the same offense. It does not prevent successive
prosecutions of the same person for the same offense by different sovereign entities when the
offense is a crime against both.
E. Hypotheticals. Below is 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
3. Suppose Von Snobley attended the trial, testified, and the jury found Sam guilty. Sam
§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
B. Hypothetical. The Legislature of the State of Confusion recently enacted a statute requiring
a Breathalyzer test. On July 27, 1998, Trooper Jones arrested Frank Landrum for DUI and
§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
§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
D. Courts consider the following factors in assessing whether the right to a speedy trial has been
§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
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 when exclusion of the public is necessary to serve higher values. The trial
2. Grand jury proceedings are an exception to the guarantee of a public trial. Grand jury
proceedings are conducted in secret.
§9.8 Confrontation of Adverse Witnesses
A. 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.
1. The accused may forfeit his or her right to be present during the trial by failing to show
2. witnesses face-to-face in open court may, in
rare cases, be subordinated to the needs of child witnesses. In Maryland v. Craig, the
§9.9 Fair and Impartial Tribunal
A. The Sixth Amendment guarantees the accused the right to have his or her guilt determined by
B. Impartiality means that the decisionmaker (i.e., jurors or judge):
1. has no personal stake in the outcome;
§9.10 Pretrial Publicity
1. Courts consider the following factors in applying this standard: (1) the prejudicial nature
of the disclosures, (2) the extent of publicity, (3) the proximity to the time of trial, (4)
the attitudes revealed by jurors during their voir dire examination.
B. Precautions traditionally used to counteract the effects of prejudicial media coverage include:
C. Trial judges occasionally use more radical measures to keep prejudicial disclosures out of
print. Some measures have been held to violate the First Amendment.
1. Orders directing media representatives not to publish lawfully obtained information are
2. Orders closing courtroom proceedings while the trial is in session are also of
3. Orders closing pretrial suppression hearings are constitutional under the conditions
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4. Orders directing attorneys, witnesses, and law enforcement officers to refrain from
making extrajudicial comments about specified aspects of the case are constitutional.
a. Gag orders directed at attorneys, witnesses, and law enforcement officers are
common in high-profile cases. For example, in United States v. McVeigh, 1997 U.S.
Dist. LEXIS 6748 (D. Colo. 1997), the federal judge trying the case entered the
b. 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 mat
prior criminal record, character, or reputation; opinions about guilt or the strength of
§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
C. The common law trial jury (i.e., petit jury) consisted of 12 individuals.
1. This feature continues to be constitutionally required in federal criminal prosecutions
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D. The Sixth Amendment mandates unanimous verdicts in federal criminal prosecutions, but
permits less-than-unanimous verdicts in state criminal prosecutions. Apodaca v. Oregon
(upholding state statute authorizing a verdict by vote of 10 out of 12 jurors).
§9.12 Preservation and Disclosure of Evidence Favorable to the Defense
A. the defendant to a new
trial, when the prosecutor or police:
B. Brady disclosure requirement. In Brady v. Maryland, the Supreme Court ruled that the
prosecutor has a duty under the due process clause to disclose to the accused: (1) all evidence
1. In the prosecuto
2.
guilt (such as negative fingerprint or ballistics reports, negative eyewitness
3. Material. To be considered material, the suppressed evidence must undermine
confidence in the verdict or, in other words, create a reasonable probability that the
verdict would have been different had the suppressed evidence been disclosed.
leaving his own
car parked in the lot. The prosecution offered an enlarged photograph of the parking lot
taken shortly after the murder and argued that a poorly discernible vehicle in the
background belonged to Kyles. Kyles maintained his innocence and claimed that he had
5. 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
Walczak was called to the scene of the crime to investigate. His investigative report
underwear was found in a location that was consistent with
was an informant for the same police department that employed Walczak, the defense
could have presented the jury with a motive for why Walczak switched from his original
have been different. Because the suppressed evidence was both favorable and material, a
new trial was required.
C. Arizona v. Youngblood duty to preserve evidence. The Youngblood rule applies when the
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acted in bad faith in destroying it.
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
due process.
§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.
1. The death penalty may not be imposed for any crime that does not involve the taking of
a human life.
a. Coker v. Georgia (Part II) (Death constitutes unconstitutionally cruel punishment
5. Guilt and sentencing phases of a capital punishment case must be tried separately.
C. The Eighth Amendment imposes two restrictions on prison officials. They must:
1. Refrain from unnecessary and sadistic applications of force, and
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2. hree
categories: minimally decent conditions of habitation, safety from attack, and care for
Review Questions
1. Which constitutional amendment prohibits placing an accused twice in jeopardy for the same
offense? (§9.2)
2. What policy does the prohibition on double jeopardy promote? (§9.2)
6. In United States v. Perez
to the double jeopardy bar. What is the manifest necessity exception? Give examples of
cases in which this exception applies. (§9.3)
7. Under what circumstances may the same government entity retry an accused for the same
offense after an acquittal? (§9.3)
8. Under what circumstances may the same government entity retry an accused for the same
offense following a conviction? (§9.3)
11. Are the following punishments or civil sanctions?
a. Laws authorizing the government to seize money or property gained from or used in
connection with criminal activity.
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12. Which amendment guarantees the right to a speedy trial? (§9.6)
13. What policies does the right to a speedy trial promote? (§9.6)
19. Does the guarantee of a public trial apply to pretrial proceedings? Grand jury proceedings?
(§9.7)
20. Under what circumstances, if any, may a trial judge exclude media representatives and the
trial? (§9.7)
21. Define grand jury, petit jury, and voir dire. (§9.7 & Glossary)
26. What standard is used to determine whether jurors who have been exposed to prejudicial
media coverage can render an impartial verdict? (§9.10)
27. What factors do courts consider in applying this standard? (§9.10)
28. What three precautions have trial judges traditionally taken to counteract the effects of
prejudicial media coverage? What are their shortcomings? (§9.10)
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31. The ABA Standards on Fair Trial and Free Press establish guidelines on the pretrial release
of information concerning pending criminal cases. What subjects are appropriate matters for
public comment? What subjects are inappropriate? (§9.10; Part II)
32. Which constitutional amendment guarantees the right to trial by jury? (§9.11)
35. Brady duty to disclose
evidence to the defense? (§ 9.12)
36. What three things must the defendant prove in order to establish that the prosecutor violated
the Brady duty to disclose? Is it necessary for the defendant to prove that his or her attorney
requested disclosure? That the prosecutor was personally aware of the existence of the
suppressed evidence? That the prosecutor acted in bad faith? (§9.12)
40. Which amendment prohibits cruel and unusual punishments? (§9.13)
41. What three kinds of punishments, commonplace in modern society, are considered neither
cruel nor unusual? (§9.13)
46. What three classes of offenders are not death-penalty eligible? (§9.14)
47. The Eighth Amendment prohibition on cruel and unusual punishment imposes two categories
of duties on prison officials. What are they? (§9.15)
Examination Questions (*indicates correct answer)
(§9.2)
1. Protection against double jeopardy is provided in the:
2. In order to have double jeopardy protection against a second prosecution:
(§9.3)
3. The accused is placed in jeopardy (i.e., jeopardy attaches) when:
(§9.3)
4. Notwithstanding the attachment of jeopardy, the accused can be retried for the same offense
when the first trial ends in a mistrial due to:
5. An accused is not protected by the double jeopardy clause from being retried for the same
offense:
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(§9.3)
6.
(§9.3)
7.
8. A masked bandit robbed a federally insured bank located in the State of New York. John
Smith was arrested by federal authorities and tried for this crime under the federal bank robbery
law. Under settled interpretation of the Fifth Amendment, the State of New York may retry
Smith:
9. for the same criminal acts under a state statute, even if the state and federal statutes are
identical.
(§9.6)
10. The federal constitutional right to a speedy trial attaches when the:
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11. All of the following considerations are relevant in evaluating whether an accused has been
denied the right to a speedy trial, except whether:
12. The right to a public trial is guaranteed by which of the following amendments?
13. The federal constitutional right to a public trial does not apply to:
14. The right to confront adverse witnesses:
(§9.10)
15. There are several constitutionally acceptable precautions that trial judges can take to protect
jurors in high-profile cases from being exposed to prejudicial news accounts. These precautions
include:
16. The American Bar Association has established a set of guidelines governing the pretrial
release of information about pending criminal cases (ABA Standards on Fair Trial and Free
Press). The ABA guidelines recommend that police officers refrain from making public
comments about which of the following?
17. Another name for the trial jury is the:
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18. The trial jury, as it evolved at common law, possessed all but which of the following
characteristics?
19. The Supreme Court has ruled that the federal constitutional right to trial by jury does not
apply to:
20. federal constitutional right
to trial by jury?
21. To establish that the prosecutor committed a Brady violation, the defendant must prove that:
(§9.12)
22.
fingerprints found on the murder weapon. The prosecutor advised the defense that no fingerprint
test had been run on the weapon. In which of the following cases would the defendant be entitled
to a reversal of his or her conviction?
23. The prohibition against cruel and unusual punishment is contained in the:
24. Assume that Congress is thinking about changing the penalty for the crime of military
desertion during a war. Which of the following penalties would involve cruel and unusual
punishment?
25. The Supreme Court has devised a number of procedural requirements that must be satisfied
before the death penalty may be imposed. These requirements include all of the following,
except:
26. The Supreme Court has ruled that the death penalty may not be imposed on:
Multiple Choice Questions (*indicates correct answer)
1. Jeopardy attaches in a jury trial when:
2. Double jeopardy does not apply if the following takes place:
3. Laws like those requiring sex offenders to register with local police are constitutional under the
Eighth Amendment because:
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4. The right to a speedy trial is protected under:
d. the Fifth Amendment
5. Voir dire refers to:
6. Courts consider the following factors when deciding whether prejudicial news coverage
compromised the impartiality of the jury, except for:
7. The following decision governs exculpatory information being given over to the defense:
8. The following is eligible for the death penalty on its own:
9. One or more of these must be present for a crime to be eligible for the death penalty:
10. The following Supreme Court case highlights the unfairness in application of the death
penalty:
True/False Questions (*indicates correct answer)
1. unique invention of the American justice system.
2. A grand jury is conducted in public.
3. For most crimes, criminal charges must be made within a fixed number of years.
4. Juvenile trials are not jury trials.
5. In both federal and state jury trials, the number of jurors must be twelve.
6. The government cannot limit the publicity surrounding a trial, as it violates the First
Amendment.
7. Criminal charges do not have to be made within a fixed number of years after a crime has been
committed.
8. The death penalty may be imposed only for crimes that involve taking a human life.
9. The double jeopardy clause of the Fifth Amendment allows the government to try the same
person twice for the same offense.
10. Laws requiring sex offenders to register with the police are considered civil penalties.