Crim Pro: Pretrial/Trial/Pleas

Question 1

Procedures

Answer 1

1. Lineup - W asked to ID perp from group.
2. Show up - one on one confrontation between W and suspect.
3. Photo array - W asked to ID perp from series of photos.

Question 2

Analysis:

Answer 2

1. 6th Amendment (formal charges, attorney present)?
2. Due Process (reliability)?
3. Suppression?
   * *Miranda does NOT apply, no interrogation.

Question 3

6th Amendment– Trigger

Answer 3

Formal Charges!

Rule: Suspect has right to counsel at live pretrial ID procedures (lineups and show ups, not photo arrays).

Question 4

Due Process

Answer 4

Test: Reliability: ie. procedure arranged by police cannot be so unnecessarily suggestive that there is a substantial likelihood of misidentification
Ex. photo array of four white suspects and one black suspect, where W had described suspect as black.

Question 5

Suppression: Rule/Factors

Answer 5

Rule: exclude W from identifying suspect in court UNLESS prosecution can show ID is product of crime scene observation rather than improper ID procedure.
Factors: 1. opportunity to view suspect at crime scene
2. specificity of W description to police
3. certainty of ID

Question 6

Grand Juries

Answer 6

Function: issue indictment upon PC.

1. 5th A requires grand jury indictment for fed. felonies
2. Proceedings are closed to public
3. Prosecution presents evidence including Hearsay
4. No right to counsel for W, even likely targets.

Question 7

Pretrial Detention: Standard

Answer 7

Standard: PC satisfied by

1. Arrest warrant,
2. grand jury indictment, or
3. preliminary hearing (after warrantless arrest)
   a. must be held promptly within 48 hours may be ex parte

Question 8

Pretrial Detention: Initial Appearance

Answer 8

required promptly after arrest (may be combined with preliminary hearing).
Magistrate informs of charges, advises of rights, appoints counsel if necessary, sets bail.
FED: 8A prohibits excessive bail

Question 9

Trial Rights:

Answer 9

1. Brady Rule
2. Unbiased Judge
3. Confrontation
4. Jury Trial
5. Right to Counsel

Question 10

Trial Rights: Brady Rule

Answer 10

Due Process requires prosecution to turn over all material exculpatory evidence.
* Notice of defenses must be given to the prosecution by D.

Question 11

Trial Rights: Unbiased Judge

Answer 11

Due process guarantees judge with no

1. Actual bias (or malice towards D)
2. Financial interest
3. serious risk of actual bias.

Question 12

Trial Rights: Confrontation

Answer 12

RULE: 6A right to confrontation excludes pretrial statements of adverse witnesses that are testimonial if witness is unavailable at trial and D had no prior opportunity to cross-examine.
Before Trial Trial
1. Testimonial statement by W 1. Witness unavailable
2. No Opp for D to C-E 2. Confrontation Clause
Excludes prior testimony.
**EXCEPTION: face to face confrontation would contravene important public policy (e.g.. traumatize child W in abuse case).

Question 13

Trial Rights: Confrontation

Testimonial

Answer 13

If it testimonial if reasonably expected to be used at trial
Testimonial:
1. Testimony from preliminary hearing, grand jury, former trial.
2. Lab report (offered for truth)
3. Investigative police interview
NOT testimonial: 911 call, police interview with primary purpose of responding to ongoing emergency (eg. shooting victim).

Question 14

Trial Rights: Jury Trial

Answer 14

6A right to jury trial attaches if maximum possible sentence exceeds 6 months.
Composition
a. Jury Pool (venire) must represent fair cross-section of community
b. Actual jury need not
c. preemptory challenges cannot be used on account of race or gender.
Unanimity
Required for 6 person jury
not required for 12 person jury (9-3) okay.

Question 15

Trial Rights: Right to Counsel

Answer 15

6A process right to counsel at trial if D is actually sentenced to prison.
*ineffective if: deficient performance under objective standard of reasonableness AND prejudice

Question 16

statutory maximum 12 months; judge fines. Jury Trial? Right to Counsel?

Answer 16

Yes jury trial

No right to counsel (no sentence).

Question 17

Statutory Maximum of 3 months, judge sentences one day. Jury Trial? Right to Counsel?

Answer 17

No to jury trial

Yes to Right to counsel.

Question 18

Guilty Pleas: Plea-Taking Colloquy

Answer 18

To accept a guilty plea, judge must address the following on the record:
1. Nature of Charge
2 Maximum authorized sentence and any stat. minimum.
3. Right to plead not guilt and to trial
4. D waiving right to trial.

Question 19

Guilty Pleas: Withdrawal of Guilty Pleas

Answer 19

NOT ALLOWED UNLESS:
1. Defective plea-taking colloquy,
2. Jurisdictional defect (wrong court);
3. Ineffective assistance of counsel or
4. Prosecutor fails to fulfill his side of plea bargain
ex. Prosec. recommends max instead of min sentence as agreed.
Note: Judge not bound by prosecutor’s bargain.