Criminal Law (Statutory) Flashcards by Tanner Bryant

Jurisdiction

Lies in the where the offense was committed

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Improper Venue

must be raised in ADVANCE of trial by MOTION TO QUASH

Tried by judge alone

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Change of Venue

state or D may move based on proof that, because of prejudice or undue influence, a fair and impartial trial cannot be obtained

Burden rests on Movant

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Change of Venue Factors

1.Nature of pretrial publicity
2. Connection of gov officials with release of publicity
3. Length of time between dissemination of publicity and trial
4. severity and notoriety of the offense
5. are from which jury is drawn
6. other events in community that effect or reflect the attitude of the community or jurors toward D
7. Any factor likely to effect the candor of prospective jurors on voir dire; OR
8. Whether publicity was factual or inflammatory

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Transfer if Change of Venue Granted

transferred to parish where parties can get a fair trial

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Original Jurisdiction

district courts over state felonies and misdemeanors

Mayor’s courts of ordinance violations

Justice’s of the peace Littering only

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Appellate Jurisdiction

appeals from district go straight to LA supreme court where:
1. Death Penalty
2. Statute or ordinance has been declared unconstitutional

Other appeals go to appropriate court of appeals

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Search and Seizure

Article 1, Section 5 of the LA Constitution

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Search Warrants

may issue only upon probably cause by affidavit of a credible person

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Scope of Search Warrants

Judge may issue warrant to search anything within the territorial jurisdiction of the court that
1. has been subject of theft
2. is intended for use or has been used as a means of committing an offense; OR
3. May constitute evidence tending to prove the commission of an offense

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Whom? Execution of a warrant

any police officer, who must execute it and then bring any property seized into the court issuing the warrant

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When? Execution of warrant

Unless expressly directed, cannot be made at night, on sunday, and cannot by executed after 10 days of issuance

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Authority; Execution of warrant

Police officer may use means and force as authorized in an arrest warrant

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Receipt for and Custody of Seized Property

must be given to person whom property was taken and described in detail

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Arrest

must be an ACTUAL stop or IMMINENT actual stop

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Actual Stop

must be either application of physical force or submission to an officer’s show of authority

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Imminent Actual Stop

police attempt to seize person, suspect neither submits nor is physically contacted by police

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Probable Cause

admission of a crime and implication of another person is probably cause to arrest the other

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Affidavit

warrant may issue only where:
1. a person executes an affidavit that he believes that another person has committed a crime; AND
2. The Magistrate has probably cause to believe that the designated person has committed a crime

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Execution of Warrant

Arrest warrant may be issued by any Magistrate (including justices of the peace)

Executed by any police officer with authority in territorial jurisdiction where arrest is made

Police officer in close pursuit of arrestee may enter another parish and make the arrest

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Arrest by Private Persons

may make an arrest when arrested person has committed a felony

Merchant may detain person with reasonable cause committed a theft no longer than 60 minutes

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No Need For Warrant

Person to be arrested committed offense in peace officer’s presence
Committed felony, although not in presence of peace officer
reasonable cause to believe that the person to be arrested has committed an offense; OR
received positive and reliable information that a warrant for the arrest of the individual has been issued from another jurisdiction

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Entering a Residence Exception

Must have either an arrest or search warrant to enter a residence to arrest someone

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Force During Entry into Premises

May use reasonable force to make lawful arrest and overcome resistance

May break open door if announced authority and purpose

Not necessary if announcement would imperil arrest

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Stop and Frisk - Temporary Questioning

may stop person in public place whom reasonably suspects (articulable facts to support suspicion) is committing, has committed, or is about to commit a crime

May demand name, address, and explanation for actions

If reasonably suspects in danger may frisk the outer clothing of the person stopped and seize any weapon found

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Advice of Rights

when arrested or maintained MUST be advised as to why and given Miranda warnings

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Identification Procedures

eyewitness identification procedures MUST be video recorded or, if impracticable, audio recorded

Failure is not per se bar admissibility

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Booking

person must be booked and informed:
1. the charges against
2. right to procure and communicate with counsel; AND
3. the right to a preliminary examination when charged with a felony

Arrested person has right to procure counsel but not to appointment of counsel

If Interrogated in custody there is a RIGHT to counsel

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Right to Counsel

Article 1, Section 13 of the Louisiana Constitution

Misdemeanor AND Felony - If a sentence of imprisonment could be imposed, right to counsel attaches

Capital Cases - assigned counsel MUST have been admitted to the bar for at least five years attorney with less may be assigned as assistant counsel

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When Right to Counsel Attaches

each stage of proceeding

no later than first court appearance or judicial hearing even if not indicted

within 72 hours a person is in custody must be brought before a judge for appointment of counsel

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Motion to Suppress Evidence - Standing

ANY person adversely affected by a search and seizure in violation of Article 1, Section 5 has standing to raise illegality

Allows D to suppress evidence gathering in violation of another’s rights

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Motion to Suppress - Procedure

filed within 15 days after arraignment

State has burden of proving admissibility of the confession beyond a reasonable doubt

State has burden in warrantless searches to show probably cause or exception

all other D has burden

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Preliminary Examination

primary purpose is to determine probable cause

D arrested on felony charge has right UNLESS indicted by grand jury

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Louisiana Specific - Warrantless Arrest Rules

police officer must promptly complete an affidavit of probable cause and submit it to the magistrate

Person in custody entitled to a determination with 48hrs

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Bail

noncapital cases - general right to bail MAY be denied

capital cases - neither required or prohibited

Convicted of sex crime punishable by imprisonment of 25 years or more presumed a flight risk

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Instituting prosecutions

Offenses punishable by:

Death or Life = only by grand jury indictment

Other = indictment or information

Ordinance Violations and other = Affidavit or Information

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Grand and Petit Juror Requirements

18 years old
read, write, and speak english
not be under interdiction or incapable because of mental or physical infirmity
not be under indictment for a felony or convicted of a felony which has not been pardoned
US and LA citizen who resided in the parish for one year

Grand Jury Proceedings

12 Juror plus 2-3 alternates

Persons Present:
1. DA and ADA
2. Attorney General or AAG
3. Witnesses
4. Court Reporters
5. Counsel for the target suspect

Sufficiency of Indictment or Information

Notify the defendant of what he is charged with
Enable the defendant to enter a plea to the charge
define the parameters of relevancy of evidence at trial
protect the defendant against double jeopardy

Bill of Particulars

D may ask that missing information be supplied by filing motion for bill of particulars when indictment fails to contain sufficient facts

“who, what, when, where”

Amendment of Indictment

technical errors do not invalidate and may be amended at any time

Errors of substance may be amended prior to trial D may move for continuance if found after trial must order a mistrial

Joinder of Offenses

all crimes charged in same indictment are tried at the same time

May join two or more offenses if:
1. they are of the same or similar character; OR
2. they are based on the same act or transaction or tow or more acts or transactions of a common scheme; AND
3. they are triable by the same mode of trial

FIRST DEGREE MURDER NOT JOIN!

Joinder of Defendants

alleged to have participated in the same act or transaction or the same series of acts or transactions

NEED NOT all be charged on all counts

Misjoinder

need to file a timely motion to quash

Severance of offenses

may grant and order separate trials if confusion of the jury likely or inability to make a defense

“Bad Man” Taint

improper to introduce evidence of other crimes or bad acts of the defendant EXCEPT:
1. evidence of the convictions to impeach credibility where defendant takes the witness stand
2. Evidence that proves intent, knowledge, or motive
3. Signature crime
4. Res Gestae (same transaction or occurrence and relatively contemporaneous)

DA must give notice of intent to use evidence of other crimes, except for res gestae and impeachment

Severance of Defendants

where justice so requires (antagonistic defenses or one will testify for the other)

All Defenses Raised before trial must…

be raised in writing by motion to quash (NOT mental incapacity, not guilty, and not guilty by reasons of insanity)

When motion to quash may NOT be used

testing the sufficiency of evidence in terms of quantum or legal significanceTim

Motion to quash time frame

15 days from arraingment

Grounds for motion to quash

invalidity of a statute that creates the offense charged
failure to comply with rules governing indictment forms
Indictment is duplicitous (more than one offense in one count or misjoinder)
Failure of DA to furnish a bill of particulars when ordered by the court
Bill of Particulars shows ground for quashing
Double Jeopardy
Time for instituting prosecution has expired (made before trial or later)
Court lacks jurisdiction (anytime but venue must be raised before trial)
General venire for jury improper
Charged with Uniform Controlled Dangerous Substance Law has a valid prescription

Special grounds - Indictment

motions to quash by a grand jury on irregularities in process

Special Grounds - Information

Information not signed by DA or not properly filed
information was inappropriate for offense charged

Arraignment

Please made:
1. Guilty
2. Not Guilty
3. not guilty by insanity
4. nolo contendere (court approval)

Entering the Plea

Felons = In person
Misdemeanors = through counsel but guilty needs court approval

D refuses to plea NOT GUILTY is entered

Instituting Prosecution

time from crime to charge

Capital, Life, and Forcible rape: no limit
Felony necessarily punishable by imprisonment at hard labor: 6 years
Felony NOT necessarily punishable by imprisonment at hard labor: 4 years
sexual off against victim under 17: 30 years from victim turning 18
Misdemeanor punishable by fine or imprisonment: 2 years

Interruption occurs when defendant is absent, avoiding, mentally incompetent etc…When charge is dismissed by DA D has either 6 months or the time remaining whichever longer

Time limit for commencing trial

From Charge to Trial

Capital Cases: 3 years
Felony Cases: 2 years
Misdemeanor: 1 year

Suspension: when motion to quash is filed, preliminary plea, suspended until ruling then state has either time remaining or 1 year whatever is longer

1 year after mistrial unless longer time available from above rules

Louisiana Speedy Trial Act

provides a timetable for filing an information or indictment after arrest:

D in custody must be filed within 30 days of the arrest for a misdemeanor, and with 60 days for felony, or 120 days after a felony punishable by death or life imprisonment

D NOT in custody filed within 90 days of arrest for misdemeanor, or 150 days for felony

Upon filing must set for arraignment within 30 days unless just cause shown

Time period for commencement of trial:
misdemeanor 30 days if in custody, 60 if not, felony within 120 days if custody or 180 if not

Recusal of Judge

Judge MUST:
1. biased, prejudiced, personally interested a case unable to conduct fairly
2. closely related to the accused, victim, defense counsel, or DA
3. involved in the case as an attorney or has been associated with an attorney involved in the case
4. material witness
5. performed judicial act in case in another court
6. any other reason unable to perform fair trial

Recusal of DA

Personal interest in case
Related to defendant or victim
has been employed or consulted in the case as an attorney for the defendant

MOTION TO DISQUALIFY

Continuance

D must:
1. in writing
2. state the grounds specifically for which it is sought
3. when made by a defendant, be verified by affidavit
4. filed at least 7 days prior to trial but for good cause will be waived

Recess or Continuance based on witness absence

facts to which witness is expected to testify
facts and circumstances showing the probability that the witness will testify and be available at the time to which the trial is deferred
a showing that due diligence was used to procure attendance of the absent witness

Discovery by Defendant

upon written motion DA must

allow D to inspect copy any written or recorded confession or statement, including grand jury testimony of D in control of DA
Inform D existence or oral confession or statement of D or co-D that the DA intends to offer in evidence
inform the D substance of any oral statement made by D or co-D in response to a preson know to D to be law enforcement officer that the state intends to offer in evidence
Disclose, or direct the appropriate law enforcement official to disclose to D record of arrests and convictions of D, co-D, and any witnesses the state calls or intends to call

Documents and Tangible Objects

allow D to inspect that which is within possession or control of the state and that
1. are intended for use by the state as evidence in its case in chief at trial; OR
2. were obtained from or belong to the D

Reports of Exams and Test

DA to produce reports they intend to use

Exculpatory MUST be produced regardless

Evidence of other crimes

must inform D of intent to offer evidence of other crimes as allowed by law

Hearsay of Co-C

must let D know of hearsay statement of co-conspirators

Confessions or Inculpatory statement of Co-D

must permit D to inspect

Matters not subject to disclosure

D may not

reports, memos, internal state docs in connection with investigation or prosecution of case
any other items that contain the mental impressions of an attorney for the state or any investigator working on behalf of such attorney

Brady and Agurs Rules

state MUST make available to D Exculpatory material

no reversal unless:
1. Material to guilt or penalty
2. noncumulative
3. evidence could have affected the verdict

Discovery by the State

required to disclose state documents, tangibles, etc. defendant INTENDS to use at trial

If relating to D’s mental condition must notify state AT LEAST 10 days before trial

When DA makes proper demand D must notify within 10 days intent to offer alibi as defense

Sanctions for failure to comply

Order party to permit the discovery or inspection
grant a continuance
order a mistrial on motion of defendant
prohibit the party from introducing the evidence which was not disclosed
issue any order except dismissal

Motion for Judgment of Acquittal

not in jury trials

non-jury trial D may move after close of state’s evidence

Right to Jury Trial

CAPITAL CASES must by tried by jury of 12 unanimity required to render verdict

Cases necessarily punishable by confinement at hard labor must be tried by 12 all of whom must concur to render a verdict

MAY be punished by imprisonment must be by 6 and unanimity required

misdemeanor excess of $1k fine or imprisonment more than 6 months jury of 6 unanimity is required

Polling of the Jury

state or D may request the judge to have the clerk poll the jury to determine whether each juror, in fact, voted to find the D guilty

Oral or in writing if number required is not met judge may remand for further deliberation

Waiver of Jury Trial

except in capital cases, D may knowingly and intelligently waive a jury trial

Filed within 15 days of arraignment unless extended by court

Voire Dire Examination

Court, State, and D have right to examine prospective jurors

sequestration of jurors

kept together in charge of officer of the court and secluded from outside communication

CAPITAL cases - each juror sworn is sequestered unless joint state and D motion to contrary; After court’s charge all jurors are sequestered

NON-CAPITAL cases - jury is sequestered after courts charge and may be sequestered at any time upon order of the court

Challenges of Prospective Jurors

Peremptory Challenges = Prior to swearing in at sidebar

Capital and Hard Labor # 12 each
Other Cases # 6 each

Challenge for Cause = lack qualies, not impartial, relationship, not accept law, served on previous grand jury or petit jury to this case (STATE gets some extra items to dismiss for - police officer bias, no death penalty, disagrees with law, etc.)

Right to Present a Defense

Subpoena and call witnesses (compulsory process)
At state’s expense D may subpoena 6 witness in misdemeanor and 16 in a felony

Sentencing

Judge has discretion to impose sentence not constitutionally excessive but is within statutory range

Guidelines not mandatory

Record must Reflect
1. judge carefully examined guidelines
2. determined the designated sentence range for “typical case”
3. determined whether there are specific aggravating or mitigating circumstances
4. if such circumstances are present the judge consulted the departure procedure guidelines

Motion for new Trial

Injustice has been done on D

Filed before sentencing and sentence may not be imposed until at least three days have passed after conviction

When Court will Grant motion for new trial

Verdict is contrary to law and evidence
Written motion or objection shows prejudicial error
newly discovered evidence has become available
Discovery of prejudicial error not previously discoverable
Justice so requires

Motion for Post-Verdict Judgment of Acquittal

moved before sentencing

3 day wait to impose sentencing after conviction

Court grants if viewing the evidence most favorable to the state finds the evidence doesn not support guilty or supports only a conviction of a lesser included offense it should modify to reflect

Motion in Arrest of Judgment

before sentencing and sentence is delayed for at least three days post conviction

court will grant if:

indictment is substantially defective
offense charged is not punishable under a valid statute
cours lack jurisdiction
tribunal that tried case did not follow proper mode of trial
verdict is not responsive to the indictment or is defective
double jeopardy
prosecution was untimely
capital or life sentence offense not indicted by grand jury

EFFECTS: new proceedings commenced if legally permissible

Motion to Reconsider sentence

within 30 days of sentencing for felony cases

Misdemeanor any time following sentencing

Standard of Review on Appeal

evidence insufficient to support a conviction D is discharged

evidence is sufficient BUT prejudicial error conviction is set aside and new trial is permitted

Appeals

30 days from rendition of the judgment or ruling on the motion to reconsider the sentence

ONLY judgment or ruling is appealable

State may appeal: quash, time limit, double jeopardy, arrest of judgment, change of venue, recusal

D may appeal: judgment imposing sentence, ruling on a motion by the state declaring D present sanity, excessive

Rehearing from Adverse Decision on Appeal

party has 14 days to move for a rehearing after 14 days it becomes final

Post Conviction relief

Violation of US constitution
court exceeded its jurisdiction
Double Jeopardy
limitation on institution or prosecution has expired
statute creating offense unconstitutional
Conviction or sentence violates prohibition of ex post facto laws
results of DNA prove by clear and convincing

Post Conviction Relief-When to file

Not after 2 years from judgment UNLESS:

Facts arise that were not known to the petitioner or his attorney
it is based on an appellate decision involving the retroactive application of a constitutional rule
person is asserting the claim under the death penalty

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Criminal Law (Statutory) Flashcards

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