U.S. Const, amend. V; Del. Const, art. I, § 8. 8 . 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). 9 . Green, 355 U.S. at 187-88, 78 S.Ct. 221. 10 . Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). 11 . Id. at 688-89, 69 S.Ct. 834. 12 . Earnest v. Dorsey, 87 F.3d 1123, 1128 (10th Cir.1996), citing United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) and Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). 13 . Id., citing Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). 14 . Bailey v. State, 521 A.2d 1069, 1075 (Del.1987), citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, (1982). See also, United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (<HOLDING>) Id. at 93, 98 S.Ct. 2187. 15 . Bailey v.
holding that it was fundamental error for a sentencing court to consider a criminal defendants protestations of innocence because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt holding a consequence instruction is not necessary because the consequences of the verdict have no bearing upon the guilt or innocence of the defendant holding that a defendants motion for a mistrial is deemed to be a waiver of his valued right to have his guilt or innocence determined before the first trier of fact holding that a defendant is barred from contending on appeal that the trial court erred in denying a mistrial motion when he acquiesced in the courts decision to give curative instructions and did not then renew his own motion for mistrial or join in his codefendants renewal of the motion holding that treating a defendants failure to appear as a waiver not only of the right to be present but of the right to have a hearing on the motion was error