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A Day > CRIM PRO > Flashcards

CRIM PRO Flashcards

1
Q

Five Parts of Criminal Procedure-Fl

A
  1. major participants
  2. pre-trial (custody and release)
  3. pre-trial (moving the case)
  4. Trial
  5. Post-trial
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2
Q

Steps Under Pre-Trial-Custody and Release

A
  1. First Appearance
  2. Notice to Appear
  3. Probable Cause Determination
  4. Adversary Preliminary Hearing
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3
Q

Pre-Trial Motions

A
  1. Speedy trial
  2. Change of Venue
  3. Disqualification
  4. Motion to Dismiss
  5. Motion to Suppress
  6. Incompetence to Proceed
  7. Continuance
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4
Q

Jurisdiction of Circuit Courts

A

MIS FEL WRIJ

Misdemeanors joined with felonies

Felonies (potential incarceration for more than 1 year)

Writs

Juvenile cases

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5
Q

Felony Defined:

A

A felony is a crime that carries a potential punishment of incarceration for more than 1 year.

A felony sentence is generally served in PRISON.

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6
Q

Misdemeanor Defined:

A

Crimes that carry a potential punishment of incarceration UP TO 1 year.
Sentences for misdemeanors are generally served in JAIL.

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7
Q

Jurisdiction of County Courts

A
  1. Misdemeanors (generally incarceration is less than a year)
  2. Municipal and county ordinance violations
  3. Juvenile cases
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8
Q

Indigent Defendants are Entitled to Counsel Appointments in:

A
  1. Felonies-Gideon v. Wainwright
  2. Misdemeanors punishable by incarceration
  3. Ordinance Violations punishable by incarceration
  4. Juvenile Cases
  5. The first direct appeal in the cases above.
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9
Q

Can the State Avoid Providing Counsel to an Indigent Defendant in a Misdemeanor or Ordinance Violation if the Accused is subject to incarceration?

A

Yes, if the State says so, and the Judge agrees in writing that the defendant will NOT be incarcerated.

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10
Q

Requirements for Waiver of Counsel

A

KIV

  1. Knowing
  2. Intelligent, and
  3. Voluntary
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11
Q

Factors to Determine Whether a Waiver is KIV

A
  1. Education
  2. Prior Experience in Court
  3. The Nature and Complexity of the Case
  4. Age
  5. Mental Condition
  6. and Other Relevant Factors

**Based on the Totality of Circumstances

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12
Q

Are Waivers of Counsel Permanent

A

No. A defendant gets asked about counsel at every stage of the proceedings.

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13
Q

If the Accused is Released, How Can the Court Ensure He Returns to Court?

A

A judge may issue:

Felonies:

  1. an arrest warrant;
  2. a bench warrant (capias);

Misdemeanors:

  1. The clerk’s office can issue a summons;
  2. A police officer can also issue a notice to appear
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14
Q

Notice to Appear

A

For Misdemeanors and Ordinance Violations only.

The notice to appear is a promise by the accused to return to court.

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15
Q

When Will a Notice to Appear NOT be Issued by the Arresting Officer?

A
  1. The accused refuses to sign the notice
  2. The accused refuses to identify herself
  3. The accused refuses to supply required information
  4. The accused constitutes an unreasonable risk of bodily harm to herself or others
  5. The accused has no ties with the jurisdiction or likely won’t respond to the notice
  6. The officer suspects that the accused may be wanted
  7. or it appears that the accused has violated a notice, summons, or release condition in the past

** In sum, if defendant is unreliable, no notice to appear is given.

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16
Q

If the Arresting Officer Decides NOT to Issue a Notice to Appear, is the Accused Still Eligible for one?

A

Yes-by the booking officer.

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17
Q

Who is Entitled to Pre-Trial Release?

A

All persons in custody for the alleged commission of a crime are presumptively entitled to release on reasonable conditions, EXCEPT:

Those who commit a capital or life felony and the presumption of guilt is great.

**How much Proof or Evidence of Guilt is important!!

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18
Q

The Different Types of Pre-Trial Release Conditions:

A
  1. Personal recognizance of defendant
  2. Execution of an unsecured appearance bond
  3. Placing defendant in the custody of a designated person or organization agreeing to supervise him;
  4. placing restrictions upon work, association, travel, drug testing
  5. Execution of a bail bond with sureties
  6. Deposit a cash bond with the court; or
  7. imposing any reasonable restrictions
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19
Q

When is Pre-Trial Release Decided?

A

The First Appearance.

20
Q

First Appearance

A

An administrative hearing-mostly for the defendant. The first appearance is an appearance by the accused before a neutral judicial officer within 24 hours of arrest.

21
Q

What Occurs During the First Appearance?

A

CARP24

  1. Counsel is appointed
  2. Advice is given (regarding the charges against the accused, the right to counsel, the right to communicate with counsel/friends/family, and the right to remain silent)
  3. Release conditions are set
  4. Probable Cause determination also generally occurs during the first appearance-it MUST occur at the first appearance if the paperwork is ready.
  5. Within 24 hours of the arrest

**CARP24: Within 24 hours, the hearing provides Counsel, Advice, Release conditions, and sometimes probable cause determination.

22
Q

Non-Adversary Probable Cause Determinations

A

Serve as a check on the police. A defendant in custody is entitled to a judicial determination of probable cause, which must be made within 48 hours of arrest. A non-adversary probable cause determination is not a hearing, rather it is conducted by a magistrate on the basis of police reports.

23
Q

Must a Defendant be Released from Custody if the Prosecutors Seek a Probable Cause Determination During the 85th Hour After Arrest?

A

NOT if the extra 48 hours were allowed for good cause.

**For a showing of good cause, the prosecutor can get two extensions of 48 hours total (24 hours each), so a total of 96 hours

24
Q

Big John was arrested on assault charges and released on personal recognizance. Is he entitled to a probable cause determination?

A

Generally, no. The determination is generally for those in custody, but it’s also for those with significant restraints on their freedom.

25
Q

If Big John (arrested on assault charges but released on his own recognizance) is released with significant restraints on his liberty, what rules apply?

A

Defendant can seek a probable cause determination concerning the restraints on liberty if:

  1. the defendant requests a probable cause determination within 21 days of arrest;
  2. the Judge decides restraints are significant and;
  3. the Judge determines that probable cause exists or does not exist to hold Defendant within 7 days of the request.
26
Q

Adversary Preliminary Hearing

A

WHAT: A special probable cause hearing for some defendants. The hearing is meant to encourage the prosecutor to charge the defendant. Because an Adversary Preliminary Hearing is an actual hearing, evidence will be presented, and the defendant must have his counsel present (unless he KIV waives counsel).

WHEN: A felony defendant who is detained and has not been formally charged by the prosecution within 21 days of his arrest.

CONSEQUENCES:

a. If no probable cause is found: release defendant
b. If probable cause is found: no change, but the State must release the defendant by the 33rd day after arrest (30th day + 3 days)

**Exception: the State may seek an additional 7 days to hold the defendant after the initial 33-day period, so long as good cause is shown.

27
Q

Timeline of Adversary Preliminary Hearing

A

Defendant arrested for felony

V

No formal charges filed

V

Within 21 days of arrest, defendant seeks APH

V

State MUST file charges by 30 days and

V

Release defendant by the 33rd day.

V

*If good cause is shown, the State can extend the period (from 33) to 40 days.

28
Q

Pre-Trial Detention

A

Special detention for dangerous defendants.

  1. Accused is charged with a dangerous crime (i.e. “aircraft piracy, murder, robbery, sexual battery, etc.)
  2. These defendants may be detained upon the motion of the state after arrest and an evidentiary hearing where the State has the burden of proof.
  3. The hearing must show that the accused:
    1. Poses a threat of harm to the community;
    2. Is charged with a drug trafficking offense and is likely to flee;
    3. is a threat to the judicial process;
    4. or is likely to flee.
29
Q

Charging Instruments

A

Charging instruments’ main function is to provide reasonable notice to the defendant.

Two main charging instruments are:

  1. Indictment-returned by a grand jury; and
  2. Information-a paper filed by the prosecutor.

Other charging instruments include:

Docket Entries, Affidavits, and notices to appear (DAN)-for misdemeanors and ordinance violations

30
Q

Indictment

A

An indictment is a charging instrument returned by a grand jury after determining probable cause as to the crime.

31
Q

Information

A

An Information is a charging instrument filed by the prosecutor (State).

32
Q

Formalities of Indictments and Informations

A

“NICE SANTA”

N-name of the accused or alias

I-Intent to defraud: can be asserted in general terms.

C-Caption

E-Endorsement and signature: an indictment must be signed by the foreperson of the grand jury and endorsed by a prosecutor

S-Signature and Oath: a State attorney must sign and swear the information

A-Authority: under whose auspices this indictment or information is being filed

N-Nature of the offense/Facts

T-Time and Place: where and when the offense occurred (Must be as “definite as possible”)

A-Allegation of facts: must be made for each count.

33
Q

Capital Crimes (what charging instrument?)

A

Indictment

34
Q

Non-capital Offenses (what charging instrument?)

A

Indictment or Information

35
Q

Circuit Court Misdemeanor (what charging instrument?)

A

Indictments or Informations

36
Q

County Court Ordinance Cases (what charging instrument?)

A

These are Misdemeanors and Ordinance Violations. All charging instruments.

37
Q

Means of Attacking Charges:

A
  1. Defective Indictment or Information
  2. Motion for Statement of Particulars
  3. Advance Copy of Indictment or Information
38
Q

Defective Information or Indictment (Defendant Attack)

A

This claim can seek a dismissal because the charging instrument is too vague or misleading.

39
Q

Motion for Statement for Particulars (Defendant Attack)

A

This is a discovery device: Need more particularity about the case; notice.

40
Q

Advance Copy of Indictment or Information (Defendant’s Attack)

A

Defendant can request a copy of the charging instrument 24 hours in advance of pleading.

**If the defendant pleads without receiving a copy of the instrument, it is considered waived.

41
Q

Joinder

A

Defendants and Offenses can be charged together in the same charging instrument

42
Q

Severed

A

Defendants and/or Offenses can be severed after being joined.

43
Q

Test for Joinder of Offenses

A

If the offenses are based on the same transaction or series of transactions, the offenses may be joined as different counts of the same indictment or information.

**A mere crime spree is not sufficient.

44
Q

Test for Joinder of Defendants

A

Joinder of defendants is permitted if:

a. Each defendant is charged in each count;
b. “conspiracy plus”-each defendant is charged with conspiracy and a substantive offense; or
c. The offenses are all part of a common scheme or plan

45
Q

Consolidation of Related Offenses

A

Rule of thumb: Can consolidate if could have consolidated/joined in the first place…

46
Q

Severance of Offenses

A
  1. For charges improperly joined, the defense has a right to sever.
  2. Even if charges are properly joined, severance can still occur, if it is appropriate to promote fair proceedings.

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