Chapter 10: Pretrial Procedures Flashcards
Discovery
Defense attorney’s opportunity to examine the case against the defendant during the Pretrial stage.
Defense attorney may wish to have ____________ the ______________plans to use against the _____________ suppressed via the ____________ ___________.
evidence; prosecution; defendant; exclusionary rule
At What Stage Does the Criminal Process Begin
Arrest or Complaint.
Complaint Document
Filed by Police, Prosecutor, or Private Citizen.
Used as the charging document during the suspect’s preliminary hearing
At what stage does the criminal process USUALLY begin?
Arrest
______________ are made by ___________ _____________ who have reason to believe, based on ______________ ______________, that a ____________ has been committed and that the person being _______________ either _________________ the crime or was involved in the ________________ ___________. ______________ can also be made by _________ _____________ under what’s known as a “____________ ____________.”
Arrests; police officers; probable cause; crime; arrested; committed; criminal activity; Arrests; private citizens; “citizens arrest”
True or False: A police officer must be issued a warrant to make an arrest?
False
(Police officers may make arrest with or without arrest warrants).
Affidavit
- must be filled out to obtain a search/arrest warrant
- police officer must document facts relied on that led to probable cause.
Probable Cause
The amount of proof a police officer must have to search or arrest someone.
Booking is the next stage of the ________________ _______________. This includes…
- Filling out ____________ that records ____________ was arrested.
- Recording the ____________ of the alleged _______________.
- Taking ____________
- Taking ____________
The _________________ is then placed in a _____________ __________, where he may contact _______________ or an ________________. They’re oftentimes ________________ if the _______________ is considered _____________ and there’s no question of whether or not the _______________ will show in court.
criminal process; paperwork; who; time; offense; fingerprints; photographs; suspect; holding cell; family; attorney; released; offense; minor; defendant
Bordenkircher v. Hayes (1978)
As long as the prosecutor has probable cause to believe the accused (defendant) is guilty of the crimes defined by statute, the decision of whether or not to prosecute (charge) is left to him.
2 Reasons the Prosecutor may dismiss charges
- If the prosecutor believes the defendant is not guilty of the crimes charged.
- Prosecutor represents govt. and must seek justice. If the defendant’s actions don’t reflect the charge, the case shouldn’t be pursued. - If there’s not a guarantee the case will end in a conviction.
4 distinct prosecutorial policies
1) Legal Sufficiency
2) Trial Sufficiency
3) System Efficiency
4) Defendant Rehabilitation
Legal Sufficiency Policy
Prosecutor takes cases where all legal elements of crime are present.
Trial Sufficiency Policy
Prosecutors evaluate likelihood that case will end in a conviction.
(file charges only if odds of case ending in a conviction are good).
System Efficiency Policy
Emphasizes decreasing office workload
Defendant Rehabilitation Policy
Believes first time offenders charged with non-violent crime shouldn’t be processed through criminal justice system,
and seek noncriminal justice alternatives.
Victim Impact Program (VIP)
Founded in Los Angeles County District Attorney’s Office
prosecute sex crimes vertically
In sexual assault cases in LA, the ________________ is not charged without ________________ of the ______________’s testimony, ___________ evidence of the perpetrator, _______________ to the victim, _____________ who can corroborate the _______________’s testimony, or ____________/_____________ evidence consistent with the ______________’s testimony.
suspect; corroboration; victim’s; DNA; injuries; witnesses; victim’s; physical/medical; victim’s
What kind of sexual assault cases are usually rejected
He said/She said cases
(where perpetrator said it was consensual, and victim said it wasn’t consensual.)
In sexual assault cases, prosecutors are able to “_____________ ______________” by taking cases where the ___________ of a ___________ is good.
“avoid uncertainty”; likelihood; conviction
The decision to ____________ is more likely among ____________ in _____________ and ______________ cases where the ____________ is ______-________, specifically when the ____________ is __________ and the victim is _________.
charge; prosecutors; homicide; sexual assault; suspect; non-white; defendant; black; white
Research indicates prosecutors are more likely to charge _______ and those who are _________________.
men; unemployed
Prosecutors are more likely to take cases given to them by the __________ more seriously than ____________ - invoked complaints. Attorneys pursue _____________ more _____________ when the case is from a __________ __________. Cases handed to them by ___________ stand a slim chance of getting to the ___________ stage.
police; citizen; charges; aggressively; police officer; citizens; charging
Downstream Orientation
Prosecutors choose cases based on likelihood of conviction.
In deciding to take the case, prosecutors predict how the judge & jury will interpret (perceive) the defendant, victim, and incident.
In making the charging decision, the prosecution pays attention to BOTH the ___________ and the __________ of the ____________.
defendant; behavior; victim
____________ to a ___________’s decision to not file charges is rarely challenged. ______________ ______________ should be avoided when the prosecutor decides not to formally _____________. This suggest criminal justice officials should _________ to the prosecutor’s judgement of whether or not to __________.
Challenges; prosecutor’s; Judicial oversight; charge; defer; charge.
Bordenkircher v. Hayes (1978) ruled that a ___________’s ____________ ____________ cannot be based on _________, ________, ___________ or other arbitrary ____________.
Prosecutor’s charging decision; race; gender; religion; classifications
(or for vindictive reasons [to retaliate/revenge])
Charges based on _____________ reasoning (for _________, or to __________ due to the outcome of the first trial) violates a ____________’s ____th Amendment right to _______ __________.
vindictive; revenge; retaliate; defendant’s; 14; Due Process
T/F: It violates a defendant’s right to Due Process under the law if the Prosecutor threatens the defendant with more serious charges during the pretrial phase?
False
(new evidence may arise that warrants a more extreme charge by the prosecution).
Information
(Substitute document for indictment)
Lists the charges the defendant is facing
Outlines facts of the case and elements of the offense charged.
Why is information more efficient than an indictment argument?
indictment requires a grand jury to be constructed
information does not.
Indictment
5th Amendment right (defendant must be indicted by a grand jury)
More than __________ of all states use ____________ instead of ______________, which requires a __________ ___________.
half; information; indictment; grand jury
True Bill
The grand jury returns an indictment
No Bill
The grand jury does not indict the defendant
At the ___________ _____________, the trial court judge explains to the ___________ their ___________ rights, the __________ against them, and the consequent _____________ attached to the charges.
Initial Appearance; defendant; suspect rights; charges; punishment
Defendant’s charged with a ______________ are expected to _________ the day of their _________ ______________. If he/she pleas __________, punishment is imposed instantaneously. If he/she pleas _____ __________, the trial court judge sets a _________ ________.
misdemeanor; plea; Initial Appearance; guilty; not-guilty; trial date
In ____________ cases, the _____________ does NOT _________ at the _____________ _________________. He/she is given time to make the decision until the ____________ _____________.
felony; defendant; plea; initial appearance; Preliminary Hearing
____________ decisions may be made at the _____________ ______________ or may be scheduled for at a _____________ _________________ soon after the __________________ ________________. If the _______________ poses a risk of “__________” or “__________” the ______________ does not release the ______________ on bail. If the ______________ is not seen as _____________, he/she is released on their own _______________ (w/o having to pay ____________) or may be released on a _______________ ____________. The amount of ________ posted shouldn’t be _______________ (___th Amendment), but it should guarantee the ________________’s appearance at trial.
Bail; initial appearance; bail hearing; initial appearance; defendant; “flight”; “harm”; judge; defendant; defendant; dangerous; recognizance; bail; monetary bail; bail; excessive; 8th; defendant’s
Arraignment
Where the defendant is notified of the charges, and is asked to make a plea (i.e. guilty, not-guilty, nolo contendere etc.)
Pleas the Defendant is allowed to make at Arraignment
Guilty
Not-Guilty
No Contest
Standing Mute
Standing Mute
When the defendant refuses to plea.
Judge enters plea of “not guilty” on behalf of defendant
No Contest (Nolo Contendere)
When the defendant “does not wish to contest the action.”
This is rendered as a guilty plea
Nolo Contendere v. Guilty plea
- Nolo Contendere plea can’t be used against defendant in subsequent civil litigation
- In Nolo Contendere plea, defendant is not admitting to any of the actions.
- In guilty plea, the defendant specifically admits to wrongdoing.
Allocution
When the defendant admits to the criminal wrongdoing and outlines, to the judge, what happened during the commission of the crime.
Why do judges not like Nolo Contendere pleas?
The nolo contendere plea essentially allows a defendant to make a plea similar to a guilty plea, but doesn’t admit to the criminal activity.
Alford Plea
A plea in which the defendant enters a guilty plea, but does not admit to the crime they’re pleading to.
Discovery
Opposing sides of case learn evidence each side will use.
T/F: States vary in what is Discoverable by the Defense and Prosecution?
True
Brady v. Maryland (1970)
Ruled that the prosecution may not withhold any exculpatory evidence from the defendant (bc it may prove their innocence).
Reciprocal Discovery
Defense is required to turn over evidence to the prosecution (state)
Pretrial Motions
Attorneys must state
1) grounds on which the motion is made
2) type of relief requested
Motion for Dismissal of Charges
Motion to dismiss charges against defendant because…
1) police didn’t have probable cause to make arrest
2) there’s not sufficient evidence to prove charges (against def.) filed by state.
Motion for Change in Venue
Motion to change destination of trial to different jurisdiction due to pretrial publicity
Who are the only people allowed to make a motion for Change in Venue, and why?
- Only defendant is allowed to make motion for change in venue.
- DEFENDANT has 6th Amendment Right to an impartial jury
Consequences of Change in Venue
Defendant waives right to be tried by jury in “State and district wherein the crimes shall have been committed.”
(bc he/she wants to move trial to different jurisdiction)
Motion for Discovery
Motion filed by Defense attorney for Prosecutor to turn over any evidence they plan to use against the defendant at trial, and a list of witnesses the prosecution plans to call.
What Defense is required to notify Prosecution of in Reciprocal Discovery
- If the defendant plans to plea guilty (based on insanity or alibi defense)
- Results of Physical/ Mental examinations of defendant
- names and addresses of witnesses defendant intends to call
- Witness statements
Motion to Suppress Evidence
Motion to exclude evidence (aka. “fruit of the poisonous tree”) that was obtained illegally.
Motion for Severance of Defendants
Motion by defense attorney for codefendants to be tried separately.
(May be best to avoid incriminating co defendants because the testimony/action of one)
Motion for a Determination of Competency
Motion to determine if defendant is mentally competent to stand trial.
(Made to ensure the defendant isn’t suffering from mental disease/illness that would hinder his ability to stand trial).
Following the _________ ______, the practice of _____________ ___________ became more common. It became the dominant method of resolving ____________ _________ in the ____ century
Civil War; plea bargaining; criminal cases; 20th
Why did plea bargaining increase so dramatically during the 1800s and 1900s?
(Outgrowth of a progressively adversarial justice system)
There was an increase
- Competent attorneys
- Larger caseloads
- An increasingly adversarial system
The Supreme Court deems ______ _____________ an “__________ __________ in the __________ of _________.”
plea bargaining; essential component; administration; justice
T/F: All guilty pleas arise from a plea bargain? Elaborate on why the answer is either true or false.
False
guilty pleas occur when the defendant admits to committing the crime (plea bargain for a lesser sentence is separate from that). Many defendants will plead guilty if 1) evidence against them is overwhelming, and 2) if they defendant is overcome w/ guilt.
In most cases, a _________ _________ is usually followed by a ________ __________.
guilty plea; plea bargain
Black’s Law Definition of Plea Bargaining
Prosecutor and Defense reach mutually agreeable disposition
Defendant pleas to lesser sentence, or to only some of the counts in a multicount indictment.
Better Definition of Plea Bargainning
Defendant pleas guilty to criminal charge(s) with reasonable expectation of receiving consideration from the state.
Charge reductions
Reduce the potential sentence the defendant is facing
United State’s v. Ammidown (1973)
ruled that a judge who rejects a plea agreement because it’s of the “public interest” that the defendant face more serious charges is beyond his discretion.
A judge cannot interfere with a plea agreement between prosecution or defense unless…
the judge feels the prosecutor abused his/her discretion
Sentence Agreement
Agreement reached for defendant’s sentence in plea bargain.
Prosecutor agrees that defendant should serve (multi-count) sentence concurrently instead of consecutively.
Prosecutor agrees that defendant shouldn’t face more than sentence lid.
Ad Hoc Plea Bargaining
When defendants agree to unusual concessions made during the plea negotiation process.
e.g.
- pay charity in lieu of fines
- enlist in army as punishment
- shaming bumper stickers
In 1975, the _______ __________ of Alaska banned all _________ __________ practices in an effort to increase _____________ and restore __________ ____________ in the justice system.
attorney general; plea bargaining; convictions; public confidence
Another, less strict, method of reducing __________ ____________ is setting _____-____ dates wherein the chance for a plea bargain is ____________ until a certain __________.
plea bargaining; cut-off; open; date
Slow plea of guilty
When defendants participate in a jury waiver
- to participate in plea bargaining (to any capacity) the defendant must waiver their right to a jury trial.
Cal. Penal Code 1192.7
Plea bargains are not allowed in cases of
1) a serious felony
2) felony w/ use of a firearm
3) DUI cases
Research in New York has shown that ______________ people receive less substantial _____________ _______________ than _____________ people. It was also found that ____________ are _________ likely to receive ___________ offers than _______________.
black; sentence reductions; white; blacks; less; plea; whites.
In some counties, ________________ and ______________ receive __________ favorable treatment than _____________ in sentence reduction, and plea offers.
Blacks; Hispanics; more; Whites
Substantial Assistance Departure
Judge imposes more lenient (merciful) sentence on defendant if he provides information that leads to arrest of more offenders.
Even though ________ _________ is meant to obtain an impartial jury, ___________ ultimately want to ______________ jurors with bias __________ their side, and ______________ jurors with bias ____________ their side.
voir dire; attorneys; excuse; against; keep; toward
Jury consultants
Help attorney determine which people on jury or more likely to bias in favor of prosecution or defense.
