Crim pro Flashcards
Courts jurisdiction
Which crimes go to who
Circuit courts – felonies and felony w/attached misdemeanors
County courts – misdemeanors only
Felony v. misdemeanor
Time in prison
Felonies: 1+ year / death
Misdemeanor: less than 1y
Right to counsel
When is D entitled to it
if there is ANY possibility of jail
Right to counsel
exception
D is not entitled to counsel when there is an order of no incarceration.
Def: written order from judge certifying they would not impose jail if D is convicted.
Pre-trial procedures
Big picture steps
- Arrest (or arrest warrant)
- First appearance (if applicable)
- Pre-trial release
- PC determination
- Charging documents
- Arraignment
Arrest
Requires probable cause (PC) and can ocurr by:
1. a physical arrest
2. Arrest warrants/capias/bench warrant
3. Notice to appear in lieu of physical arrest (NTA)
Arrest warrant
aka capias/bench warrant
Order to arrest someone
Notice to appear in lieu of physical arrest
NTA
Only in misdemeanors and below
- it allows the defendant to sign it, and not be physically arrested. Instead, by signing you are promising to appear
- Note: this counts as an arrest! (but you skip the trip to jail)
- If you refuse to sign, you are taken to jail
First appearance
Def- time frame
Is the first pre-trial procedure for D that is in custody (has been physically arrested)
Must happen w/in 24h of the arrest.
Failure to do so entitles D to release (does not bar prosecution)
Note: if D had a NTA, they are not physically arrested
First appearance
Requirements
D must
1. be told charges
2. have an atty
3. have a right to remain silent
4. be provided w/atty if they cannot afford one
5. have a right to contact family (one call)
6. be told the conditions of their release
2-6: “mini-miranda rights”
+ if possible, judge makes a non-adversarial probable cause determination
Pre-trial release
Definition
Accussed are entitled to release except :
1. life imprisonment/death sentences
2. proof of guilty is evident or the presumption of guilt is great
3. No conditions of release can reasonably assure D’s appearance and community safety
Pre-trial release
Types
You can get release by:
1. bail bond: refundable - bondsperson fee
2. cash: refundable
3. Release on recognizance (ROR)
4. Additional restrictions on D’s liberty during pre-trial release
Bail bond
Pre-trial release
A bondsman puts the $$ amount set to get out of jail and you also pay them a fee for their service (which is non-refundable and can only charge you up to 10% of the $$)
ROR (release on recognizance)
Pre-trial release
No monitoring conditions, this allows you to leave jail w/promise you will return for hearings/trial on your own
Additional restrictions on D’s liberty during
Pre-trial release
i.e. travel ban outside the county/state/country; no contact w/victim, etc.
If you violate these additional restrictions, a judge can issue an arrest warrant for you
Probable cause determination
Types
There are two types: (1) non-adversarial and (2) adversarial
Non-adversarial
PC determination (def)
Judge reads affidavit (w/o witnesses) and determines PC if an offense was committed.
Can be ANY offense, does not need to be the offense alluded in PC
Non-adversarial
PC determination (time-frame)
If possible, it will happen in first appearance.
If not, it MUST happen w/in 48h of the arrest
- but prosecutors can order 2 24h continuance (so it must happen 96h w/in arrest)
If you get arrested w/warrant, you don’t get this
Non-adversarial PC
What happens if there is no PC?
Court looses jurisdiction over D (D walks free)
Exception: if no PC but D has previous charges, D gets ROR
Non-adversarial PC
Do you get one if on house arrest?
Yes, if you have not gotten PC yet.
So, if you get arrested, PC not done, ordered out on bond and house arrest? You are entitled to a non-adversarial PC b/c house arrest = **significant restraint on liberty **
Adversarial
PC determination
Only for felony cases and must occur at least 21 days from arrest IF D is in custody and prosecutor has not filed charges.
Charging documents
types
- Indictment
- Information
- Notice of appearance
Charging documents
Time limits - D not in custody
No time limit to file charges
Charging documents
TIme limit - D in custody
Limit: **30th day **from arrest
- If prosecutor fails to do so, judge issues a letter to file charges (3 additional days to file) - 33th day
- If prosecutor fails, P can request a good cause extension - 40th day.
Indictment
Charging doc
Done by a grand jury and can be used to charge any crime.
Required only in first
degree murder w/death penalty sentence
Information
Charging doc
Done and signed by prosecutor (acting as one person jury). Can charge any crime except the one where grand jury is required.
Charging misdemeanors and felonies
What docs are used for each?
Misdemeanors - indictments, information, and notice to appear
Felonies, indictments and information only.
Arraignment
ONLY schedules when prosecutor files charges, and:
1. judge makes sure D has a lawyer (or qualify for one)
2. D pleas (guilty, not guilty, or nolo contendere)
Can be waived - if D pleas not guilty
What do each of the pleas entail?
Guilty - no trial, straight to sentencing
Not guilty - trial
No contest - D is treated as guilty defendant and then judge has the authority to reject this plea and force D to plead guilty
Can the arraignment be waived (aka not take place)?
Yes, if D plead guilty beforehand (and did so in writing)
