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Crim B4
Chapter 14
More Rights at Trial
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 crossexamination.
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 fouryear-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 crossexamine 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.
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.
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.
When Double-Jeopardy Protection Does Not Apply
There are several specific situations in which double-jeopardy
protection does not apply:
•
Double jeopardy does not apply if the second prosecution is
based on conduct committed after the first prosecution
(Diaz v. United States, 223 U.S. 442 [1912]).
•
If a defendant successfully appeals a criminal conviction or
otherwise succeeds in overturning a conviction because of
an error in the proceedings leading to conviction, he or she
may be reprosecuted.
•
Reprosecution is permissible if a mistrial occurs because of
a fatal flaw in the indictment (Illinois v. Somerville, 410
U.S. 458 [1973]).
•
If the defendant is responsible for the second prosecution,
double jeopardy does not apply. (Jeffers v. United States,
432 U.S. 137 [1977]).
•
If a case is dismissed by the judge but the defendant is not
acquitted, he or she may be reprosecuted. (United States v.
Scott, 437 U.S. 82 [1978]; Evans v. Michigan, 568 U.S. ___
[2013]).
•
The defendant may be reprosecuted if the judge declares a
mistrial with the defendant’s consent or by the defendant’s
motion, provided that the prosecution does not agree to the
defendant’s consent or motion in bad faith, such as by
intending to pursue a subsequent retrial for the purpose of
subjecting the defendant to the harassment of multiple trials
(Lee v. United States, 432 U.S. 23 [1977]; Oregon v.
Kennedy, 456 U.S. 667 [1982]).
•
If the defense plea-bargains over the prosecution’s
objection, double-jeopardy protection does not apply. (Ohio
v. Johnson, 467 U.S. 493 [1984]).
•
Double jeopardy does not apply when the Court hearing the
first offense lacks jurisdiction to try the second offense
(Fugate v. New Mexico, 471 U.S. 1112 [1985]).
•
A defendant can be retried for the same offense if the
original trial jury was deadlocked and could not reach a
unanimous verdict (Renico v. Lett, 559 U.S. ___ [2010]).
•
The double-jeopardy clause does not prohibit the
government from retrying a defendant on capital or firstdegree murder charges if the jury in the defendant’s first
trial was deadlocked on a charge of manslaughter, resulting
in a mistrial (Blueford v. Arkansas, 566 U.S. ___ [2012]).
Double Jeopardy and Sentencing
Double-jeopardy protection may also apply in the context of
sentencing. In some cases, a court may impose consecutive
punishments (back-to-back punishments). For example, the
defendant is sentenced to a total of 10 years for convictions on two
counts that each carries a 5-year sentence. The Supreme Court has
held that this determination depends on legislative intent (see
Albernaz v. United States, 450 U.S. 333 [1981]). If the criminal
law was intended to permit consecutive sentences, and the
consecutive punishment is not for the same offense, as determined
by the Blockburger test, double jeopardy is not violated.
THE ENTRAPMENT DEFENSE
The entrapment defense is based on the belief that someone should not be
convicted of a crime that the government instigated. In its simplest form,
the entrapment defense arises when government officials “plant the seeds”
of criminal intent by coming up with the idea for the crime and inducing
the defendant to engage in it. In other words, if a person commits a crime
that he or she otherwise would not have committed but for the
government’s conduct, he or she will probably succeed with an
entrapment defense.
The first Supreme Court case recognizing the entrapment defense was
Sorrells v. United States, 287 U.S. 435 (1932). Chief Justice Hughes
stated, “We are unable to conclude that . . . [the] . . . processes of detection
or enforcement should be abused by the instigation by government
officials of an act on the part of persons otherwise innocent in order to lure
them to its commission and to punish them.” This reasoning underlies the
treatment of the entrapment defense in U.S. courts to this day.
In Sherman v. United States, 356 U.S. 369 (1958), the Supreme Court
reached the opposite conclusion but still adhered to the predisposition test.
In that case, a government informant met the defendant at a doctor’s
office, where both were being treated for narcotics addiction. After
repeated requests by the informant, the defendant provided him with
illegal narcotics. The Supreme Court reversed the defendant’s conviction,
noting that entrapment was “patently clear” as a matter of law. Even so,
the Court also pointed out that it is difficult to judge the conduct of an
informant without knowing how predisposed the offender was to act
before the crime was committed.
In United States v. Russell, 411 U.S. 423 (1973), the Court continued to
focus on the defendant’s predisposition. In Russell, a narcotics agent
posed as a narcotics manufacturer and offered the defendant a difficult-toobtain ingredient used to manufacture a drug. The defendant accepted and
was convicted. Justice Rehnquist, the author of the majority opinion,
observed that there was sufficient predisposition on the part of the
defendant, so the entrapment defense did not apply.
In Hampton v. United States, 425 U.S. 484 (1976), the Supreme Court
once again focused on the defendant’s predisposition. In that case, the
defendant was convicted of distributing heroin supplied to the defendant
by a government informant. The Court stated that “[i]f the police engage
in illegal activity in concert with a defendant beyond the scope of their
duties the remedy lies, not in freeing the equally culpable defendant, but in
prosecuting the police under the applicable provisions of state or federal
law.” In other words, it is the defendant’s predisposition that matters in the
context of the entrapment defense, not the government’s conduct.