Criminal - Procedure Flashcards
Where is venue proper?
Venue (jurisdiction) lies in the parish where the offense was comitted. If any act constitutes fofense/elements of offense occur in ore than one place in/out of parish or state, offense is deemed committed in ANY parish where act or element occurred.
How is improper venue raised?
Improper venue is raised by a pre-trial motion to quash. If not raised, WAVIED. Burden on the prosecution is PREPONDERANCE of the evidence.
Who can move for a change of venue?
EITHER state or defendant may move for change of venue based on proof that because of prejudice or undue burden, a FAIR AND IMPARTIAL trial cannot be obtained.
What fact does the court consider on a motion to change venue?
- Nature of pretrial publicity/partic degree to which it circulated; 2. Connection of govt officials with release of publicity; 3. Severity/notoriety of the offense; 4. Area from which the jury is drawn; 5. Any factor likely to affect the candor/veracity of prospective jurors on voir dire. Note: “Trial run” voir dire is PERMISSIBLE; may reveal community sentiment.
What is the original jurisdiction of the district courts? Parish and city courts?
- Jurisdiction over state felonies; 2. Misdemeanors. Parish/city courts: Jurisdiction over offenses/misdemeanors and parochial/municipal ordianances within their respective territiroies. Mayor’s courts–ordinance violations; Justices of the Peace–littering.
What is the appellate jurisdiction ot the LA Sumpreme Court? Courts of Appeals? District Court?
- SCT: Appeals from district court DIRECTLY to La Supt Ct where the death penality is imposed; or, a statute or ordinance has been declared unconstitutiona; 2. COA–appeals from district courts in all other cases triable to a jury are to appropriate COA; 3. District court–appeals from parish/city/mayor’s court are to district court.
What is the trial court’s jurisdiction on appeal?
Trial court LOSES jurisdiction upon entering an order of appeal; except: to CORRECT an illegal sntence; or to impose a sentence under the habitual criminal staute. In all other circs, use writ process.
What is arrest?
Arrest is the taking of one person into custody by another; there must be an ACTUAL STOP or an IMMINENT ACTUAL STOP. 1. Actual stop–need either the application of phys force or submission to an officer’s show of authority. Running away is NOT an arrest; 2. Imminent actual stop–police come on individual with such force that any attempt to flee will be futile. Look at proximity; surrounded; drawn weapons; whether suspect is on foot/vehicle; number of police officers.
Who may issue an arrest warrant?
An arrest warrant may be issued by ANY magistrate, which included not only judges with jurisdiction over criminal cases but also justices of the peace.
What cosntitutes probable cause?
D’s admission of crime/implication of another person is probably cause to arrest the other person. Reputation of other person/need for prompt action–all factors in determining whether unverified information supplies probable cause.
When may a warrant be issued?
- A warrant may ONLY issue when a person executes an AFFIDAVIT that she believes that another person has committed a crime; AND 2. The magistrate has PC to believe that the designated person has committed a crime.
When does a MJ have probable cause to believe that the designated person committed a crime?
- Similar standard to search/sexizure that leads to a reasonable belief that person arrested committed a crime; 2. MJ is NOT restricted to the affidavit in making the probable cause determination.
Who may execute the warrant?
- Warrant may be executed by ANY police officer that 2. Has authority within TERRITORIAL JURISDICTION where arrest to be made; and 3. Police office officer in close pursuit of an arrestee may enter another parish and make the arrest.
When may a PRIVATE person make an arrest?
In LA, a private person may make an arrest ONLY when the arrested person has committed a felony. Note: shopkeeper’s privilage; a merchant/employee may detain a person whom she has reas cause to believe has comitted a theft; such detention may NOT exceed 60 min unless reassons supporting the detention, but NO authority to conduct a search. Triggering electronic device creates PC.
Can a law enforcement officer arrest a person without a warrant?
Yes. A law enforcement officer MAY arrest a person WITHOUT a warrant where the offier has PC to believe that the person has committed a crime. Court looks at the knowledge of ALL police officers, not only the arresting officer. HOWEVER, if the police want to enter a person’s RESIDENCE to arrest her, they must have an arrest or search warrant.
Can an officer use reasonable force to effecuate the arrest?
In making a lawful arrest, an officer may use REAS FORCE to make the arrest and overcome resistance. An officer who has announced her authority and purpose may BREAK OPEN ANY DOOR if refused/obstructed but NO announcement is required where it would be unnecessary/dangerous/allow escape/destruction of evidence.
Does Louisiana law permit stop and frisk for temporary questioning?
By statute, a law enforcement officer may: 1. Stop a person in a public place; 2. Whom she reasonably suspects is committing/has committed/is about to commit a crime; and 3. May demand his name, address, an explanation of her actions; 4. If an officer reasonably suspects she is in danger, may frisk outer clothing of person stopped; 5. Officer may seize weapon found.
What is the standard for temporary detention for questioning?
PROBABLE CASUE TO SUSPECT. 1. Particularized/objective basis for suspecting person stopped of criminal activity; 2. Reas cause to suspect–articuable facts that create reas suspeicion; 3. NOT a mere hunch or guess; 4. Facts would make OBJECTIVE officer suspicious; officer’s subjective intentions are irrelevant.
Can a police officer make an arrest for a state traffic violation that is a misdemeanor?
- Yes, in Louisiana, a police officer may make an arrest for a misdemeanor committed in her presence; may arrest drivers of vehicles that commit traffic violations in their presence. Generally, police officer should issue a summons and release the driver if the dirver promises to appear at the hearing. Note: in LA, police cannot search car or driver bc of a violation of the seatbelt law.
What information must be provided ot person who is booked?
Person who is booked must be told of: 1. Charge; 2. Right to communicate with and procure counsel; and 3. Right to a preliminary examination when chraged with a felony. Note: there ay not be any legal consequences when not informed of these items.
What is a defendant’s right to counsel?
In a criminal case, Defendant has a constitutional right to counsel under the Sixth and Fourteenth Aemndments to the U.S. Constituion LA Constitution. NOTE: IN LAW, if a SENTENCE OF IMPRIONMENT could be imposed, the right to counsel attaches. Assigned counsel in CAPITAL cases must have been admitted to the bar for at least five years.
How can a defendant waive right to counsel?
- MINUTES of the ocurt must show EITHER that D was rep by counsel or that D was informed by the court of her right to counsel and she waived that right. Court will NOT presume waiver from a silent record.
When does the right to counsel attach?
LA Constitution provides that the ACCUSED has a RIGHT TO COUNSEL at EACH stage of the proceedings. Right attaches NO LATER than FIRST COURT APPEARING or judicial hearing, even though defendant has not yet been indicted.
Within what time frame must a person in custody be brought before judge for appointment of counsel?
Person in custody must be brought before judge within 72 HOURS for appointment of counsel. If bail has not been set, it should be set at this time. Requirement may be satisifed telephonically; appointment of counsel after 72 hour deadline cures defect.
What constitute STAGES of proceeding for the purpose of the right to counsel attaching?
- Preliminary examination; 2. Arraignment; 3. Trial; 4. Sentencing; 5. Appeal; 6. Custodial interrogation; line-up or questioning after proceedings have commenced; 7. Examination of D by sanity comission.
Does a witness have a right to counsel during a grand jury?
- WITNESS–no right to have cousnel present in grand jury room; 2. TARGET WITNESS of a grand jury investigation–right to have counsel present, but counsel is prohibited from objecting/addressing/arguing before grand jury; evidence obtained from a witness who subseqently becomes a target may not be USED against him, although a witness may waive this right.
What is the corpus delicti rule?
Louisiana follows the common law rule on corpus delicti–there must be proof independent of the confession to establish existence of crime.
When may a defendant file motion to suppress evidence?
- Defendant may file a pretrial motion to suppress evidence unconstitutionally obtained or inadmissible on other grounds. 2. EXPANSION OF STANDING–IN LA, ANY person adversely affected by a search and seizure has standing to raise its illegality in the appropriate court. Howeve,r evidence illegally obtained from X usd together with other evidence to support a warrant to search Y is not suppressible.
What are the time limits to file a motion to suppress?
- Motion must be filed within 15 DAYS after arraignment, unless facs are unknown or defendant is otherwise excused.
What is the state’s burden of proof on a suppression motion?
- State has burden of proving admissibility of confession beyond a reasonable doubt; 2. In cases of warrantless searches, state has burden of showing probable cause and search warrant exception; 3. Defendant has BURDEN in all other cases. Note: if facts are dispute, the court holds a suppression hearing. D may testify without being cross-examined on other matters.
What happens if D fails to file a motion to suppress?
- Failure to file motion is a waiver. 2. Any adverse ruling is binding at trial. 3. State must lay a foundation for the confession at trial. Denial of opportunity to show confession unworthy of belief is a deprivate of due process.
Who may conduct and who has a right to a preliminary examination?
- Magistrates (judges with criminal jurisdiction/Justices of the Peace) have authority to conduct preliminary examinations; 2. A defendant arested on a felong charge has a right to a prelimianr examination UNLESS/UNTILL she has been indicted by a grand jury.
What is the purpose and form of a preliminary examination?
- Both state and defendant may call witnesses who are subject to cross-exam. D may NOT subpoena a child-victim as a witness without permission of the court. 2. Purpose of the perlim exam BEFORE indictment is to determine PC, purpose of prelim exam AFTER indictment is perpeutation of testimony and fixing bail. A finding of no PC at prelim exam results in release from custody but is no impediment to prosecution.
When must a probable cause determination be made for a warrantless arrest?
When the state combines the probable cause determination with other pretrial proceedings it must provide the PC determination not later than 48 hours after arrest for those arrested without a warrant. NOTE: In LA, police officer must promptly complete affidavit of PC and submit it to the magistrate; person in custody is entitled to a determination of PC after arrest; Determination is made by mag, and there is no adversary proceeding; MJ’s determination does nto affect D;s right to a PE; if PC determination is not made, arrestee is relased on own recognizance.
What is bail?
Bail is defined as the security given by a person to secure his appearance before the proper court when required. 1. In noncapital cases, defendants have a general right to bail; can be denied for certain crimes of gun violence/drug offenses; or if court finds by CLEAR AND CONVINCING evidence that person would be a danger to other person or community; 2. In CAPITAL cases, bail is neither required NOR prohibited.
Is bail allowed after conviction?
Bail shall be allowed, but only if offense punishable or sentence imposed is less than five years and not if court finds dangerounsness. 1. In FELONY cases, bail is set individually; 2. In MISDEMEANOR cases or in NONCAPITAL FELONIES, except for Orleans parish, bail schedules are permissible. Note: bail may be increased/decreased after original setting. MJ’s bail decisions may be challenged by application for supervisory writs–excessive bail is prohibited.
What are the methods for instituting procecutions?
- INDICTMENT: Offenses punishable by death or life imprisonment may ONLY be commenced by indictment (murder/rape/kidnap); 2. INDICTMENT or INFORMATION–other prosecutions in district court may be commenced by indictment OR information; 3. Ordinance violations/oother prosecutions may be commenced by affidavit or information; 4. Family/juvenile prosecutions may be commenced by indictment/information/affidavit.
What is an indictment?
- Written accusation of crime made by grand jury; 2. Requires concurrence of NINE grand jurors; 3. Must be endorsed “true bill”; 4. Must be signed by foreperson. Note: failure of grand jury to indict does NOT preclude subsequent filing of indictment, information, or affidavit.
What is an information/affidavit?
- Information–written accusation of crime made by DA or city prosecutor; 2. Affidavit–written accusation of crime made under oath and signed by affiant. Note: prosecutions in district courts may be initiated by indictment or information.
