Criminal Law (Statutory) Flashcards
Jurisdiction
Lies in the where the offense was committed
Improper Venue
must be raised in ADVANCE of trial by MOTION TO QUASH
Tried by judge alone
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
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
Transfer if Change of Venue Granted
transferred to parish where parties can get a fair trial
Original Jurisdiction
district courts over state felonies and misdemeanors
Mayor’s courts of ordinance violations
Justice’s of the peace Littering only
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
Search and Seizure
Article 1, Section 5 of the LA Constitution
Search Warrants
may issue only upon probably cause by affidavit of a credible person
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
Whom? Execution of a warrant
any police officer, who must execute it and then bring any property seized into the court issuing the warrant
When? Execution of warrant
Unless expressly directed, cannot be made at night, on sunday, and cannot by executed after 10 days of issuance
Authority; Execution of warrant
Police officer may use means and force as authorized in an arrest warrant
Receipt for and Custody of Seized Property
must be given to person whom property was taken and described in detail
Arrest
must be an ACTUAL stop or IMMINENT actual stop
Actual Stop
must be either application of physical force or submission to an officer’s show of authority
Imminent Actual Stop
police attempt to seize person, suspect neither submits nor is physically contacted by police
Probable Cause
admission of a crime and implication of another person is probably cause to arrest the other
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
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
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
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
Entering a Residence Exception
Must have either an arrest or search warrant to enter a residence to arrest someone
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
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
Advice of Rights
when arrested or maintained MUST be advised as to why and given Miranda warnings
Identification Procedures
eyewitness identification procedures MUST be video recorded or, if impracticable, audio recorded
Failure is not per se bar admissibility
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
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
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
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
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
Preliminary Examination
primary purpose is to determine probable cause
D arrested on felony charge has right UNLESS indicted by grand jury
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
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
Instituting prosecutions
Offenses punishable by:
Death or Life = only by grand jury indictment
Other = indictment or information
Ordinance Violations and other = Affidavit or Information
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
