5. Pretrial procedures Crim pro Flashcards
Initial Appearance
Under Georgia law, when a person is arrested on a warrant, he must be brought before a committing judicial officer within 72 hours after the arrest.
At this event, the accused must be notified of the date and time of the commitment hearing. If not given this date and time, he must be released.
Arraingment/Preliminary or Probable Cause Hearing under Georgia Law
Under Georgia law, a commitment hearing determines if there’s enough evidence to require the defendant to answer charges in court. If an indictment is returned, the commitment hearing is not needed.
Grand Jury Rights in Georgia;
In Georgia, if bail is denied, a defendant has the right to a grand jury hearing within 90 days. For death penalty cases, this period can be extended by another 90 days. If this time expires without a hearing, the defendant must be granted bail.
Information under Georgia law
Under Georgia law, an information is referred to as an accusation. In order to proceed by accusation on felony charges, the defendant must waive his right to a grand jury presentment.
Does the Fifth Amendment right to a grand jury exist in federal felony cases?
Yes.
Can an accused waive a grand jury hearing?
In federal court, the accused can waive a grand jury hearing except in capital offenses.
How many people are composed of a federal grand jury?
A federal grand jury is composed of between 16 and 23 persons, with 12 needed to agree to issue an indictment.
Can special grand juries investigate unlawful activity on their own?
Yes.
Are Grand Juries conducted in secret?
Yes.
What is the grand jury’s power?
The grand jury has the power to:
* subpoena evidence
* subpoena testimony
Can an accused challenge a grand jury subpoena?
No.
Can a criminal defendant be compelled to produce documents?
Yes, if immunity is granted.
What is transactional immunity?
Transactional immunity completely protects the witness from future prosecution for crimes related to his or her testimony.
What is ‘use and derivative use’ immunity?
‘Use and derivative use’ immunity prevents the prosecution from:
* using the witness’s own testimony
* using any evidence derived from the testimony against the witness.
Can an accused present, confront witnesses, or introduce evidence in a federal grand jury proceeding?
No.
Does a grand jury witness have a right to counsel?
No, except for consultation outside the grand jury room.
Do Miranda warnings have to be given to potential defendants testifying at a grand jury proceeding?
No.
Are grand jury witnesses sworn?
Yes.
What is an information?
A formal accusation filed by a prosecutor without a grand jury, often used for misdemeanors.
What is booking?
Booking generally occurs when a defendant first arrives at the police station or jail, involving photographing, fingerprinting, and informing of charges.
Are booking procedures protected by the Fifth Amendment?
No.
What is a bail hearing?
An individualized hearing to determine whether bail should be granted or denied.
What is the purpose of a bail hearing?
To ensure the presence of the defendant at trial.
Is a bail hearing considered a stage where the defendant has a right to counsel?
No.
When will a bail hearing be set and conducted?
During or soon after the arraignment.
Can denial of bail be raised at any time during criminal proceedings?
Yes.
Is excessive bail prohibited?
Yes, by the Eighth Amendment.
What is a preliminary hearing?
Determines probable cause for prosecution; not constitutionally required but a right for defendants arrested without a warrant.
Can a defendant waive their right to a preliminary hearing?
Yes.
Are delays between arraignments and preliminary hearings normal?
Yes.
What is arraignment?
The formal notice of charges against the defendant and advisement of rights.
What happens if the defendant pleads not guilty or remains silent?
A preliminary motion and trial dates are set.
What happens if the defendant pleads nolo contendere?
Can forgo a trial without admitting guilt; not admissible in subsequent cases.
What happens if the defendant pleads guilty?
The judge determines if the plea was voluntarily and intelligently made.
When is a guilty plea valid?
To impose criminal punishment, even without a formal admission of guilt.
Can a defendant withdraw their guilty plea?
Yes, when any form of error occurs during the taking of the plea.
Is a withdrawn guilty plea admissible in a subsequent civil trial?
No.
Can a defendant represent himself at trial?
Yes.
Can a defendant raise motions following a formal indictment?
Yes.
What is plea bargaining?
An agreement to plead guilty in return for a lesser sentence or dismissal of a charge.
What happens if the court accepts a plea bargain?
The defendant has a right to enforce her plea bargain.
What can a defendant do if the prosecutor fails to keep her promise in a plea bargain?
File a collateral attack.
