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Criminal Procedure
University of Dayton School of Law
Mickenberg, Ira

More trial
Opening statements
Prosecution Witnesses
-direct exam by prosecutor (open ended question)
-cross-exam by defense (close ended and leading questions)
Defense Witnesses
Closing arguments (depends on jurisdiction in determining who goes first, prosecution always gets last argument)
Jury instructions don’t have to be approved by either side
Jury deliberation if hung jury then get mistrial
Motions for new trial (if found guilty)
Sentencing hearing- if the jury convicts of a capital defense immediately afterwards a second trial begins in front of the same jury for the issue of the death penalty; only a jury can deliver sentence per Supreme Court
File notice of appeal (within time limit)
Post Trial Process
Step #1 Conviction at trial
Step #2 The state court of appeal- direct appeal (in almost every state have a right to review 2nd level discretionary for the court) one state that does not have intermediate and no right to immediate review is WV
Appeable Issues
-errors of law
-appear on the trial record, and were objected to at trial or were so obvious serious and prejudicial to be considered “plain error”
Step #3 Cert petition to the US Supreme Court
Step #4 State habeas Corpus
-file in the state trial court
-appeal to state intermediate then supreme court
-appeal to US Supreme court
Appeable Issues
-legal errors not appearing on the Trial record
-newly discovered evidence
-ineffective assistance of counsel
Step #5 Federal Habeas Corpus
-filed in US District Court
-Appeal to US court of Appeals
-Cert Petition to US Supreme Court
Appelable Issues
-violation of federal constitution right by the State Conviction or sentence
-that was properly preserved at all levels of the state litigation (preservation and exhaustion of state remedies) had to raise it at every level on the record otherwise it is procedurally barred.
I. The right to council
A. generally
1. 1938, US Supreme court held that federal defendants who could not afford an attorney head a constitutional right to be appointed counsel under the sixth amendment
a. the average defendant does not have the legal skills to protect themselves from the prosecution who has experience and learned council
2. states duty to provide indigent with counsel through the fourteenth amendment
a. In all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his defense. In federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. (Gideon v. Wainwright)
3. Supreme court has not yet defined indigenc

1. defendant may waive right to council if it is made knowingly and intelligently, voluntarily.
a. intelligently- should not be accepted without obtaining the defendant’s assurances on the record that he or she fully understands the significance of such waiver
b. there is a strong presumption against waiver and to discharge their duty the judge must investigate as long and a s hourly as the circumstances in the case before him demand.
c. knowingly- to be valid the waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments the under, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter
i. judge can only be certain that the decision was understandingly and wisely made from a penetrating and comprehensive examination of all the circumstances
d. knowingly- purpose is to determine whether they actually understand the significance and consequence and it was uncoerced.