§8 Preparations for Trial


The decision to plead guilty or prepare for trial is the most important for a criminal defendant. The defendant understands that by pleading guilty he/she surrenders certain rights including the right t o a public and speedy trial. The trial could either be a jury trial or a trial by a judge sitting without a jury. The defendant has a Seventh Amendment right to a jury trial. However, in order that the trial be conducted by the judge sitting without a jury, the defendant, the prosecution and the judge all must agree that the trial be conducted by the judge without a jury.

If the trial is a jury trial, the jury would be composed of twelve laypersons selected at random. Defendant proceeding pro se with standby counsel, would have a say in who the jurors would be by removing prospective jurors for cause where actual bias or other disqualification is shown, or without cause by exercising peremptory challenges, the same as if the defendant was represented by counsel. The jury would have to agree unanimously before it could return a verdict of either guilty or not guilty. The jury would be instructed that the defendant is presumed innocent, and that it could not convict him/her unless, after hearing all the evidence, it was persuaded of his/her guilt beyond a reasonable doubt. The jury should also be instructed as to elements of the offense and the defense theory of the case.

If the trial is held by a judge without a jury, the judge would find the facts and determine, after hearing all the evidence, whether or not he/she was persuaded of the defendant’s guilt beyond a reasonable doubt.

At a trial, whether by a jury or a judge, the prosecution would be required to present its witnesses and other evidence against the defendant. Defendant would be able to confront those prosecution witnesses and would be able to cross-examine them, aided by standby counsel if proceeding pro se or by defense counsel. In turn, defendant could present witnesses and other evidence on his/her own behalf. If the witnesses for the defendant would not appear voluntarily, he/she could require their attendance through the subpoena power of the court.

At a trial, the defendant would have a privilege against self-incrimination so that he/she could decline to testify, and no inference of guilt could be drawn from his/her refusal to testify.

By pleading guilty before the court with or without a plea agreement, with or without conditions on the plea, the defendant understands that he/she is waiving all the Seventh Amendment rights to a public and speedy trial. The consequences of waiving said rights include the right to appeal any issues not preserved by a conditional plea of guilty or in a plea agreement.

A. Rights of the Criminal Defendant

One accused of a crime has numerous rights which attend him from the time of the commission of the crime until he is duly discharged from all forms of legal custody that may result. Such rights are guaranteed by the federal or various state constitutions, by statute, or by the rules of the court. They may be specifically guaranteed, or the particular right may be guaranteed by implication as arising out of some constitutional guarantee.

Due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. Frisbie v. Collins, 342 U.S. 519, 96 L.Ed. 541, 72 S.Ct. 509 (1952).

The manner in which a defendant is brought to trial does not affect the government’s ability to try him. The fact that he was abducted from another country but not in violation of any treaty, does not preclude his trial in the United States. A defendant’s body is not a suppressible fruit. The illegality of his detention cannot deprive the government of the opportunity to prove his guilt. United States v. Matta-Ballesteros,71 F.3d 754 (9th Cir 1995) opinion amended on denial of rehearing, 98 F.3d 1100 (9th Cir. 1996).

Rights of the criminal defendant include:

  • Right to a bill of particulars
  • Right to investigative experts and other services
  • Right to counsel and conflict-free representation
  • Right to presumption of innocence and evidence establishing guilt beyond a reasonable doubt
  • Right to testify and right against self-incrimination
  • Right to remain silent
  • Right to self-representation
  • Right to competent and effective counsel
  • Right to substitute counsel
  • Right of the presence of the accused
  • Right to enforce plea agreement

The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires. Fed.R.Crim.P 7(f)

Under some circumstances, a defendant who is unable to obtain investigative, expert, or other services may obtain an order directing that such services be furnished. 18 U.S.C.A. §3006(A)

The defendant has a right to counsel and conflict-free representation. Where the defendant or his counsel objects to an attorney conflict of interest prior to or during trial, the trial court must inquire as to the extent of the conflict or subject any subsequent conviction to automatic reversal. Absent an objection to the attorney conflict of interest before or during trial, a showing of: (1) actual conflict; and (2) adverse effect on the attorney’s performance voids conviction. Moss v. United States, 323 F.3d 445 (6th Cir. 2003), cert.denied, 124 S.Ct. 303 (2003).

The accused in a criminal case is presumed to be innocent until proven guilty beyond a reasonable doubt. The law presumes that a person charged with a crime is innocent until he is proven by competent evidence to be guilty. This presumption stands unless it has been removed by evidence proving the defendant guilty beyond a reasonable doubt. Coffin v. United States, 156 U.S. 432, 39 L.Ed. 481, 15 S.Ct, 394 (1895).

A reasonable doubt is an actual doubt in the mind of the juror that he is conscious of after going over in his mind the entire case, giving consideration to all the testimony and every part of it. If he then feels uncertain and not fully convinced that the defendant is guilty, believes that he is acting in a reasonable manner, and believes that a reasonable man in any matter of like importance would hesitate to act because of such a doubt as he is conscious of having, that is reasonable doubt, of which the defendant is entitled to have the benefit. Holt v. United States, 218 U.S. 245, 54 L.Ed. 1021, 31 S.Ct. 2 (1910).

Criminal defendants have a constitutional right to testify on their own behalf or waive that right voluntarily and knowingly. Criminal defendants have the Fifth Amendment right not to incriminate themselves. 18 U.S.C.A. §3481

In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any state, district, possession, or territory, the person charged shall, at his own request, be a competent witness. His failure to make such request, shall not create any presumption against him.

The right to testify cannot be waived by defense counsel. It’s the responsibility of counsel to advise a defendant on whether or not to testify, and the tactical advantages and disadvantages of each choice.

The right of defendants not to be punished for exercising their Fifth and Fourteenth Amendments’ right to be silent is a federal right which, in the absence of appropriate congressional action, is the court’s responsibility to protect by fashioning the necessary rule. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967). The defendant has a right to counsel and self-representation pro se if he elects. The Sixth Amendment right to counsel is triggered at or after the time that judicial proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Fellers v. United States, 540 U.S. 519, 157 L.Ed.2d 1016, 124 S.Ct. 1019 (2004). The information a defendant must possess in order to make an “intelligent” election to proceed without counsel will depend on a wide range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. Iowa v. Tovar, 541 U.S. 77, 158 L.Ed.2d 209, 124 S.Ct. 1379 (2004). The right to counsel may be waived so that the accused may represent himself. Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938).

The defendant has a right to competent and effective counsel. If counsel is ineffective at any stage in the proceedings the defendant has the right to make a claim of ineffective counsel and have the trial court make an inquiry. If the trial court deems counsel ineffective or if the defendant requests substitute counsel, the defendant has the right to substitute counsel.

The defendant has the right to be present at every critical stage in the proceeding. The principle opinion on the right of presence is Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed 674, 54 S.Ct. 330 (1934).

The defendant has the right to enforce a plea agreement by the government or withdraw if the government fails to abide by its terms. Plea agreements are subject to contract law standards of interpretation. In determining whether a plea agreement has been broken, courts look to what was reasonably understood by the defendant when he entered the agreement. If disputed, the terms of the agreement will be determined by objective standards. United States v. Kamer, 781 F.2d 1380 (9th Cir. 1986).

The state cannot compel an accused to stand trial before a jury while dressed in identifiable prison clothes. However, a defendant must make an objection to the court as to being tried in such clothes, for whatever reason, in order to establish a constitutional violation of his due process or equal protection rights. Estelle v. Williams. 425 U.S. 507, 48 L.Ed.2d 126, 96 S.Ct. 1691 (1976).

On appeal, the court held that defendant’s due process rights had been violated when the court refused to provide either clothing or funds to purchase clothing when defendant did not own nor had the money to purchase suitable clothes for his trial. Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989).

B. Third-Party Testimonial Statements and Hearsay Not Permitted

In Crawford v. Washington, 541 U.S. 36, 158 L.Ed.2d 177, 124 S.Ct. 1534 (2004), the Supreme Court held that the Sixth Amendment’s Confrontation Clause does not allow the admission at trial of a “testimonial” statement by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross-examine the witness.

The Ninth Circuit has ruled that the Crawford rule falls within watershed exceptions and is retroactive. Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005). The retroactivity standard is based on the test set out in Teague v. Lane, 489 U.S. 288, 103 L.Ed.2d 334, 109 S.Ct. 1060 (1989).

The Teague standard requires a three-part inquiry into: (1) whether the defendant’s conviction is final; (2) whether the procedural rule in question is in fact new; (3) if the rule is new, whether it falls within either of two exceptions to the general bar on retroactivity. The exception at issue in Crawford cases is the one that allows the retroactive application of so-called “watershed” rules, which Teague described as “new procedures without which the likelihood of an accurate conviction is seriously diminished.”

Crawford abrogates Ohio v. Roberts, 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531 (1980) requiring that any out-of-court testimonial statement made by a declarant that is offered for the truth of a fact within the statement against a defendant in a criminal case, be denied admission in evidence unless the defendant has an opportunity to cross-examine the declarant, and the declarant appears at trial or is proven to be unavailable with no exception to be made if the statement is found by the trial judge to have sufficient indicia of reliability.

A statement having probative worth simply by virtue of the fact that it was uttered, if relevant to a material fact in issue, is not hearsay and is generally admissible, unless its probative value is found to be substantially outweighed by the prejudicial effect. Where a statement is not offered for the truth of the conversation, but only to show that it was made, then the statement contents of the is not hearsay.

C. Impeachment of Witnesses and Jencks Act

The credibility of witnesses and the reliability of their testimony can be impeached through cross-examination by the defendant. Many criminal cases rely upon confidential informants or third-party testimony. Thus their testimony must be effectively discredited or impeached if not suppressed or excluded in limine.

The defense may use statements previously given by a prosecution witness in the cross-examination of such witness, for the purpose of impeachment. In determining whether the statements may be used for impeachment purposes, it is not necessary that the statement be a flat contradiction of the testimony at trial. Flat contradiction between the witness’s testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the report of facts related at the trial or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’s testimony. Jencks v. United States, 353 U.S. 657, 1 L.Ed.2d 1103, 77 S.Ct. 1007 (1957); 18 U.S.C.A. §3500(a) – (e).

Under the Jencks Act’s definition of a “statement” of a government witness, producible upon the defendant’s request in a federal prosecution after the witness has testified on direct examination, a writing prepared by the government lawyer relating to the subject matter of the testimony of a government witness and which has been signed or otherwise adopted or approved by the witness is producible even though the government lawyer interviewed the witness and wrote the statement. Goldberg v. United States, 425 U.S. 94, 47 L.Ed.2d 603, 96 S.Ct. 1338 (1976).

Failure to comply with the Jencks Act does not per se require a new trial. However, such failure calls for close scrutiny. The harmless-error doctrine must be strictly applied in such cases. United States v. Knowles, 594 F.2d 753 (9th Cir. 1979).

The Jencks Act clearly contemplates appellate review of a failure to excise portions of grand jury testimony only if the defendant first objects before the district court. United States v. Moody, 778 F.2d 1380 (9th Cir. 1985), opinion amended, 791 F.2d 707 (9th CIr. 1986).

Production of Jencks Act statements is not automatic. The defendant must submit a proper request to the district court for the government to produce the Jencks statements. However, no ritual of words is required to assert a proper Jencks Act request. Rather, the defendant must fairly direct the attention of the district court to the Jencks Act production issue at an appropriate time and with a demand sufficiently precise to identify the statements requested. United States v. Wallace, 848 F.2d 1464 (9th Cir. 1988).

In imposing sanctions against the government for violations of the Jencks Act, the district court should consider the culpability of the government and the injury to the defendant. It may impose the sanction of a mistrial and then impose the sanction of suppression on the retrial proceeding. United States v. McKoy, 78 F.3d 446 (9th Cir. 1996). Fed.R.Crim.P. Rule 16(a)(2) and (3) exclude internal government reports and memoranda as well as grand jury’s recorded proceedings. These rules incorporated the “work product” language of Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 (1947).

The government is to disclose an agreement between a witness and the government that might motivate the witness to testify. Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763 (1972).

The Constitution does not require the government to disclose impeachment information prior to entering a plea agreement with a criminal defendant. Impeachment information is related to the fairness of a trial rather than the voluntariness of a plea, the value of disclosure to him would be limited, and the disclosure would place an added burden on the government, thereby significantly interfering with the plea bargaining process. United States v. Ruiz, 536 U.S. 622, 153 L.Ed.2d

D. Government’s Burden of Proof

In all criminal cases the government has the burden of proof beyond a reasonable doubt.

The government has the burden of proof for the following:

  • Proving the place of commission of crime
  • Proving the presence of the defendant
  • Proving the crime was within the statute of limitations
  • Proving effect on interstate commerce
  • Proving conspiracy or drug conspiracy
  • Proving money laundering, income tax fraud or willful failure to file
  • Proving intent or knowledge
  • Proving possession or intent to distribute
  • Proving facts as alleged in indictment
  • Proving all elements of the offense charged

Under limited circumstances, the silence of the accused when a statement is made in his presence which tends to incriminate him may be admitted in evidence as admission or as indicative of a consciousness of guilt. Osborne v. United States, 371 F.2d 913 (9th Cir. 1967).

In most circumstances silence is so ambiguous that it is of little probative force. Silence gains more weight where it persists in the face of an accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. United States v. Hale, 422 U.S. 171, 45 L.Ed.2d 99, 95 S.Ct. 2133 (1975).

There is a presumption that every man is presumed to intend the natural and probable consequences of his own acts. Yet, it is reversible error to so instruct the jury where such instruction causes the jury to mistakenly believe that it is permissible to infer specific knowledge or intent solely from the doing of a particular act, without regard to the totality of the circumstances. Cohen v. United States, 378 F.Zd 751 (9th Cir. 1967); or to find malice aforethought simply from the doing of an act. Mitchell v. United States, 434 F.2d 483 (D.C. Cir. 1970).

E. Motion for Mistrial

It may be desirable for various reasons to terminate a trial before completion. Reasons include: (1) inability of the jury to arrive at a verdict; (2) illness or other incapacity of a juror, a party, the judge, or counsel; (3) the admission of evidence of other occurrence in the courtroom that is so prejudicial to one of the parties as to deprive him or her of a fair trial.

Either party may move for a mistrial. The Fifth Amendment prohibits placing a defendant twice in jeopardy for the same offense, therefore granting of a mistrial will bar the further prosecution of the defendant for the same offense unless there is sufficient grounds. The district court judge has the discretion in granting or denying a mistrial.

If the defendant finds good cause to declare a mistrial, a “Motion for Mistrial,” should be filed in the district court.

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