Criminal Procedure Flashcards
*Who has the right to the Sixth Amendment Right to Counsel
- EVERYONE has right to “effective assistance of counsel”
- US Sup. Ct requires states to provide counsel to indigent D where conviction is punishable by incarceration, and for one direct appeal of a criminal conviction (no right to choose).
When does Sixth Amendment right to counsel automatically attach?
When the person is formally charged with an offense. The right is specific to offense.
*When can state avoid providing counsel to indigent D’s?
o If the crime is a misdemeanor or ordinance violation and the judge files a written order certifying that the D will not be incarcerated at least 15 days before trial.
o If counsel was already appointed, court may discharge counsel unless D will be substantially disadvantaged, in which case the judge can keep counsel or give D time to prepare for trial or hire his own attorney.
How does a Defendant waive his 6th Amendment Right to Counsel
∆ may knowingly, intelligently and voluntarily waive right to counsel at any stage, judge must determine if ∆ is competent to proceed pro se (and is not suffering from any mental illness - different from competent to stand trial, which is a much lower standard)
Where is waiver of 6th amendment right to counsel made
o Waiver must be made in court and on the record, or in writing signed and subscribed by 2 witnesses. Judge must make sure the D understands the right he is giving up.
o At each court appearance, judge must ask if D wants counsel
Can attorney of record for D withdraw?
Attorney of record for D cannot withdraw, except upon court approval on good cause shown or until after: filing notice of appeal, or if not filing, the time for filing has expired; or after substitute counsel is appointed.
Is email service permitted in criminal cases?
It is MANDATORY in criminal cases. Certificate of service to be included with all documents. 3 days added for service by email.
*What are the requirements of a valid Arrest Warrant
- In writing and in the name of the State of Fla
- Person’s name or reasonably certain description
- Nature of the offense
- Command that person against whom the complaint is made be arrested and brought before a judge.
- Date and county where issued
- Signed by judge, with his title
- Amount of bail and return date.
*What is a Notice to Appear
Written order issued to person by law enforcement officer in lieu of arrest.
Notice requires the person to appear in court or at gov’t office at specified date and time
*When can you use a Notice to Appear
Misdemeanors or local ordinance violations in county court
*Notice to Appear is Appropriate UNLESS
- Accused fails to sufficiently identify himself
- Accused refuses to sign the Notice to Appeal
- Officer believes that not taking accused into custody creates an unreasonable risk of bodily injury to the accused or to others
- Accused has no ties to juris, or there is no reason to believe he will respond to notice
- Officer suspects that accused is wanted in other juris
- Accused has previously failed to appear.
*When must arrested person be taken before a judicial officer
Within 24 hours of arrest - “First Appearance”. Can be in person or via electronic audio visual device.
*What is required at First Appearance
- inform D of charge
- provide copy of complaint
- advise D of right to remain silent
- advise of 6th amendment right to counsel
- Tell D he has right to communicate with family and friends.
*Who is entitled to Pretrial Release?
Every D entitled to Pretrial Release upon reasonable conditions unless
- charged with a capitol offense OR
- charged with offense punishable by life and
- Proof of guilt is evident or presumption of guilt is great.
*What is a Capias
Bench warrant - issued by judge when D fails to appear in court as required, or when formal charges are filed by information or indictment.
*What happens if you fail to appear at First Appearance
results in issuance of bench warrant
When determining pretrial release, does judge adhere to rules of evidence?
Do not strictly adhere to rules of evidence.
*What conditions of pretrial release may court consider?
Bond, placing D in someone’s custody, restrictions upon travel, refraining from victim contact, GPS monitoring, etc. Ct can ROR unless D previously failed to appear - Presumption in favor of release on non monetary conditions
*How is a crime formally charged?
Indictment, information, notice to appear
*Indictment
Returned by a grand jury, signed by foreman and endorsed by state attorney
plain, concise and definite statement of essential facts, brought in name of state, cite the law violated, contain accused’s name, and state time and place of offense as precisely as possible.
*Information
Signed by state attorney or assistant under oath.
All prosecutions in circuit courts MUST be by indictment or information. Misd. and violations may be prosecuted by information in county court.
plain, concise and definite statement of essential facts, brought in name of state, cite the law violated, contain accused’s name, and state time and place of offense as precisely as possible.
*What is required for an Information in a felony case
state attorney must certify that he has received testimony under oath from at least one witness.
*When do the courts use an Affidavit, Docket Entry and Notice to Appear
For prosecutions for misd and municipal and cty ordinance viol in county court.
What does the 4th Amendment protect against
Protects against unreasonable government searches and seizures
When does a 4th amendment -seizure of PERSON occur?
A government seizure of a person occurs when a reasonable person would not feel free to terminate his encounter with a government agent under the totality of the circumstances.
What is a Terry Stop
A Terry Stop is a temporary seizure of a person used by the government to investigate potential criminal activity. Once a law enforcement officer begins a Terry Stop, he must take diligent steps to either confirm or dispel his suspicion of criminal activity.
When is an Arrest reasonable and allowed?
An arrest is reasonable when the government agent performing the arrest has probable cause to believe that the person seized has committed a crime.
How do you know if officer has probable cause?
A law enforcement officer generally has probable cause if the officer witnesses the commission of the crime or a person tells the officer that a crime has been committed.
What does police officer need to have in order to make a Terry stop ?
Reasonable suspicion
What is a reasonable suspicion?
Reasonable suspicion is based on articulable facts (i.e., more than a “hunch” – less than probable cause), that the person seized is or is about to be engaged in criminal activity.
Do you need an arrest warrant to arrest someone in their home?
Yes. Without a warrant, officers can arrest an individual inside the home only if there is consent to enter or exigent circumstances (i.e., emergencies). Otherwise wait until they are on the street.
Can police make an evidentiary search and seizure without a warrant under the 4th amendment
Absent an exception, an evidentiary search and seizure by the gov’t without a warrant is UNLAWFUL.
When does a “search” occur for purposes of the 4th amendment
For 4th Amendment purposes, a “search” occurs when a government agent physically intrudes into an area where a person has a reasonable expectation of privacy
When does the 4th Amendment not apply to search?
When it is not performed by the government
Where does person has reasonable expectation of privacy
The home, The backyard of the home (i.e., the "curtilage"), A hotel room, An office, AND Luggage.
Areas where you DO NOT have a reasonable expectation of privacy
Public streets;
Open fields (even if the open field is private property);
Abandoned property (trash on curb);
Anything visible from public airspace; AND
Anything that can be seen from public space (with or without sensory enhancing devices that are generally available to the public – e.g., binoculars, flashlight, etc.).
Fact specific; Totality of circumstances
Is a search without a warrant lawful?
Absent an exception to the warrant requirement, a government search that physically intrudes into an area where a person has a reasonable expectation of privacy is unlawful UNLESS the government agent performing the search properly executes a valid search warrant.
In order for search warrant to be valid, it must
Be issued by a neutral magistrate;
Be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND
Describe the place and property to be searched with particularity.
What happens if warrant fails to meet requirements
If a warrant fails to meet these three requirements, the warrant is invalid, and the recovered evidence will generally be excluded from the prosecutor’s case-in-chief (unless an exception to the search warrant requirement applies).
Evidence recovered from an invalid search warrant will generally NOT be excluded if the search warrant is:
Facially valid; AND
The police in good faith believed that the search warrant was valid.
When can a warrant be invalidated on the grounds of a falsehood?
- Search warrant is based on false statement
- Made by an officer, either intentionally or recklessly
- Material in finding of p.c.
Do police have to knock and announce when executing a search warrant?
Police have to knock and announce, but if they don’t the evidence obtained will still be usable.
Exceptions to 4th Amendment Search Warrant Req’t
(E) Exigent circumstances
(S) Search incident to lawful arrest (SILA)
(C) Consent
(A) Automobiles
(P) Plain View
(E) Evidence obtained from administrative searches
(S) Stop and frisk
Exigent Circumstances.
Law enforcement officers may conduct a search without a warrant if:
-“hot pursuit” of a suspect (felony);
- officers or public are in immediate danger; OR
-evidence would spoil or disappear in the time it would take to obtain a warrant.
However, a warrant is necessary for a search if the officers create the exigent circumstances.
Search Incident to a Lawful Arrest (SILA).
Law enforcement officers may conduct a search for weapons or evidence without a warrant if the search occurs at the time that a lawful arrest is made. The scope of the search is generally limited to objects within the reach of the arrestee. If the arrest is made in a home, adjoining rooms may also be searched to ensure officer safety (i.e., other assailants that may be lying in wait).
Consent
Law enforcement officers may conduct a search without a warrant if a person voluntarily consents to a search. Officers do NOT have to inform the subject that she has the right to refuse consent to the search.
Apparent Authority
A third party with apparent authority can consent to a search of the premises. However, officers cannot search over a present occupant’s objection (e.g., if one occupant consents and the other occupant refuses, officers cannot search the property).
Automobiles
Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime. They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).
Plain View.
Law enforcement officers may seize evidence without a warrant if:
The officers are legally on the premises;
The evidence is observed (with any of the five senses) in plain view; AND
There is probable cause to believe the items are evidence of a crime or contraband.
Administrative Searches.
Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both:
Reasonable; AND
Conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer. (e.g., airplane boarding areas, international borders, roadblocks for drunk drivers, etc.)
Stop and Frisk (Terry Stops)
Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” — less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.
During a Terry stop, an officer can frisk a suspect for WEAPONS without a warrant; however, the officer cannot initiate a search for EVIDENCE. If the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.
What cases do the Fla Rules of Criminal Procedure apply to?
all criminal proceedings in state courts including proceedings involving direct and indirect criminal contempt, proceedings to vacate, set aside or correct a sentence, and vehicular and pedestrian traffic offenses
What cases don’t the Fla Rules of Criminal Procedure apply to?
- direct or indirect criminal contempt of a court acting in any appellate capacity
- hearings on insanity at time of execution in capital cases
Purpose and Construction of Fla Rules of Criminal Procedure
-just determination of every criminal proceeding
They should be construed to secure simplicity in procedure and fairness in administration
State or Prosecuting Attorney defined
The prosecuting authority representing the state of Florida
What and who must be served in a criminal proceeding
What: every pleading following the initial indictment, every written notice, motion, demand or similar document
Who: on each party
Additional methods of service (e-mail is mandatory)
-Hand delivery
-Leaving it at atty’s office with secretary or in conspicuous place
-If office is closed or no office, leaving it at place pf abode with person over 15
-mail, deemed complete on mailing
Fax, deemed complete when transmission is complete
Who signs Certificate of service
- must be signed by the attorney and included with every document
- is prima facie proof of service in compliance with rule.
Rules regarding Computations of Time for motions, pleadings
same as civil, except for periods of time less than 7 days for First Appearance, PreTrial Detention and NonAdversary PC Determination.
Can the court enlarge time to complete acts, e.g. filings?
Court for GOOD CAUSE may extend the time for completion of a certain act
Request for extension of time BEFORE expiration of period
court can extend with or without notice
Request for extension of time AFTER expiration of period
upon motion and notice of expiration, court may permit the act to be done if the result of excusable neglect
Matters in which NO EXTENSION of time is available
- Motions for new trial,
- judgment of acquittal,
- notice of appeal
Do pleadings need to be verified?
Unless otherwise specifically provided, every pleading or document of a party represetned by an attorney need not be verified.
*When is counsel provided to indigent defendants
-when person is formally charged, or as soon as feasible after custodial restraint, or at first appearance before committing judge, whichever occurs earliest.
What is a capital trial?
A case where the state has not formally waived the death penalty on the record
What is a capital appeal?
An appeal of a case in which the death penalty has been imposed
What is a capital postconviction proceeding?
where D is still under the sentence of death.
*How are attorneys chosen in capital cases, appeals and postconviction proceedings
Every circuit maintains a list of qualified conflict attorneys to be appointed to capital case.
In exceptional circumstances, court can deviate from rules, court must enter an order specifying the exceptional circumstances requiring deviation and the explicit determination that chosen counsel will provide competent representation
Minimum requirements for Lead counsel in capital cases
- 5 years litigation experience in the field of criminal law
- prior experience in at least 9 jury trials of serious and complex cases
- experienced in use of experts and evidence
- within the last 2 years completed 12 hours of CLE devoted to capital cases
Minimum requirements for Co-counsel in capital cases
- qualify as LEAD or
- 3 years litigation experience in the field of criminal law
- prior experience in at least 3 jury trials of serious and complex cases
- experienced in use of experts and evidence
- within the last 2 years completed 12 hours of CLE devoted to capital cases
Minimum requirements for Appellate Counsel in capital cases
- 5 years litigation experience in the field of criminal law
- prior experience in at least 1 appeal
- within the last 2 years completed 12 hours of CLE devoted to capital cases
Duties of State Attorney, criminal intake
The state attorney shall provide the personnel or procedure for criminal intake in the judicial system.
All sworn complaints charging the commission of a
criminal offense shall be filed in the office of the clerk of the circuit court and delivered to the state attorney for further proceeding
What is a Committing Judge
Each state and county judge is a committing judge and may issues a summons to, or warrant for the arrest of a person
Judge may take testimony under oath to determine if there is reasonable ground to believe the complaint is true.
What are the grounds for Pre-trial detention (when court does not have to release upon reasonable conditions)
- D poses a threat of harm to community;
- has previously violated conditions on release or parole AND
- no condition of release will reassure the D’s appearance.
*When can motion for pre-trial detention be filed and what must it contain
o State may file motion for detention at first appearance or at any time before trial.
o It must contain grounds and facts upon which it is based, and certification that state attorney has received testimony supporting grounds and facts.
*When is a Hearing on Pre-trial Detention held?
Court WILL conduct hearing absent exigent circumstances. Must be held within 5 days of filing the motion, with one continuance permitted upon showing of good cause.
–Final order must be rendered within 24 hours.
*How long can D be held pending hearing for pre-trial detention?
10 days, unless D was cause of delay.
*What evidence is admissible at hearing
- Hearsay evidence is admissible, but cannot be sole basis for the court’s finding that pretrial detention is warranted.
- Evidence seized in violation of constitution is inadmissible.
- Rules of evidence do not apply
*Can testimony from pretrial detention hearing be used against D in subsequent proceedings?
No, except for perjury and impeachment
*Order for Pretrial Detention - when is it issued, how and what must it contain?
Must be entered within 24 hours of hearing, either orally or in writing, but must contain findings of fact and supporting conclusions of law.
*Who is entitled to an ADVERSARIAL probable cause hearing?
To determine whether probable cause exists to support the charge
-D who has not been charged by information or indictment within 21 days of arrest or service of capias may seek an adversarial p.c. hearing on any FELONY charge pending against them.
*Who is entitled to a NONADVERSARIAL Probable cause hearing
A D who is in custody and who has not had a probable cause determination is entitled to one within 48 hours of arrest.
- if D is not in custody, he can move for a p.c. determination if conditions of release are a significant restraint on his liberty.
- If arrest warrant was issued, they have already had a probable cause determination and are not entitled to another one.
*Can continuances be granted for NONADVERSARIAL Probable cause hearing?
Yes. Ct may grant a 24-hour continuance due to an extraordinary circumstance, and an additional 24 hour continuance with a showing that the extraordinary circumstance still exists.
o If state does not comply with time periods, D can be released on notice (24 hours)
*Must D be present for NONADVERSARIAL Probable cause hearing?
No
*What happens if probable cause is found in a p.c. hearing?
D is held to answer the charges
*What if no probable cause is found in a p.c. hearing?
D must be released, but this does NOT act as a bar to prosecution, it only precludes a restraint on liberty except for appearance at trial.
*What happens if State Does Not hold NONADVERSARIAL Probable cause hearing w/in time limits but an information or indictment is filed.
D shall be ROR or released under a summons to appear at a specific date or time.
*Requirements for a finding of p.c. or no p.c. in a NONADVERSARIAL Probable cause hearing
Must be made in writing, signed by the judge and filed, together with evidence of p.c., with the clerk of court.
*Procedure for Adversarial PC hearing
o Both sides appear, present W’s and anything D says can be used against him.
o Court’s order must be in writing
*What happens if PC not found in an Adversarial PC Hearing, but an information or indictment is filed?
D is ROR on condition that he appear at future court proceedings in case
*Time for filing formal charges if D is IN CUSTODY
W/in 30 days from date of arrest or service of capias.
*What happens if state does not charge D w/in 30 days of arrest or service of capias
-On day 30, on notice to state, court shall order ROR on 33rd day unless state files formal charges by then.
-If good cause is shown by the state, court may order that D is not released until 40th day
NO EXTENSION BEYOND 4O DAYS
*Are capital crimes prosecuted by indictment or information?
Indictment
*Are crimes prosecuted in circuit circuit prosecuted by indictment or information?
Either
What is joinder of offenses and defendants
The act of the state charging two or more offenses or defendants in the same information or indictment
When may OFFENSES be joined?
- triable in same court
- based on same act or transaction, or two or more connected acts or transactions.
When may DEFENDANTS be joined
- Each D is charged with accountability for each offense charged OR
- Each D is charged with conspiracy and some of the D’s are also charged with one or more acts in furtherance of the conspiracy OR
- Several offenses charged were part of same plan or scheme.
What is consolidated of related offenses
-done by the court after a motion by one of the parties. If party fails to move, it is waived.
What is a related offense?
- triable in the same court
- based on the same act or transaction, or two or more connected acts or transactions
If state or D makes timely motion for consolidation, what MUST court do?
Grant the motion.
Does D have a right to Severance of Charges
D has right to severance of any improperly joined charges. And either state or D may move for severance if:
BEFORE TRIAL it can be shown that severance is proper to fairly determine guilt or innocence, or
DURING TRIAL if D consents and severance is necessary for a fair determination.
Does D or state have a right to Severance of Defendants
D or state has right to sever Ds jointly charged if necessary for a fair determination, before or during trial. D must consent during trial.
Where one D talks, and state wants to use statement, what are its choices?
- joint trial w/o statement,
- joint trial, but redact statement to remove references to the other D, or
- severance.
*What is an arraignment?
-D’s formal response in open court to the formal charges. May be waived if D files a written plea.
*How is an arraignment conducted?
May be conducted in person or by electric audiovisual device.
*What happens if corporation fails to appear for arraignment?
Court enters not guilty plea.
*Where must a plea be entered?
In open court, unless written plea or in a misdemeanor plea in absentia.
*Who is the ultimate sentencer?
The court!
*Plea negotiations between state and pro se D
must be on the record
*Is the court bound to accept the plea agreement between state and D?
No, but it does more often than not.
*Requirements for Guilty Plea
Must be a voluntary and intelligent waiver recorded on the record after ∆ informed of the (1) nature of the charge, including crucial elements, (2) maximum penalty with any mandatory minimum, (3) ∆ has right to plead not guilty, but a (4) guilty plea waives right to jury trial.
*Guilty plea is a waiver of which right?
Sixth Amendment right to jury trial.
*When can a guilty plea be withdrawn before sentencing?
If permitted by the court in its discretion, and upon a showing of good cause.
*When can a guilty plea be withdrawn after sentencing?
Only on the following grounds: lack of subject matter jurisdiction, violation of the plea agreement, plea was involuntary, sentencing error, as otherwise provided by law.
*What does D need to acknowledge for a guilty plea?
That he is guilty OR that he believes the plea is in his best interest.
*What must court determine to accept guilty plea?
that there is a factual basis for the plea; that it is voluntary (judge asks a bunch of questions like a voir dire); that D acknowledges her guilt or feels that the plea is in her best interest. Failure to follow procedures does not render the plea void absent a showing of prejudice
*When is the presence of D req’d in court?
First appearance Arraignment Pretrial conferences Beginning of trial (it can be continued in D's absence) All proceedings where jury is present Evidentiary proceedings Verdict Judgment
When can D be tried in absentia?
For misdemeanors, or if he is removed for disruptive conduct
Corps may be present through counsel.
When should a MTD be made and what must it raise?
At arraignment, unless court grants further time.
o Must raise all defenses, or they are waived except juris objections or “fundamental grounds” (e.g. statute void for vagueness)
What grounds may be raised by MTD any time?
D has been pardoned for offense
D has been placed in jeopardy for the same offense
D has been granted immunity
There are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt - motion must be sworn to.
If state wishes to challenge a MTD, what must a file
A traverse, or demurrer
What is a Traverse
Denies with specificity the material facts contained in the MTD. Any facts not specifically denied are admitted.
If state files traverse, what must court do?
Deny MTD
Effect of court granting MTD
- court may order D held for a reasonable period of time pending state filing new indictment or information
- if state does not file within that period of time, and D is in custody, he mist be released unless other charges are pending
- if state does not file and D is out on bail, D and sureties shall be exonerated and monies returned.
When is a Motion to Suppress Illegally Obtained Evidence made?
Before or during trial. DJ issues if during trial.
Grounds for Motion to Suppress Illegally Obtained Evidence
Illegal seizure without a warrant
Warrant is insufficient on its face
Property seized is not that described in the warrant
Warrant was obtained with no probable cause
Warrant was illegally executed.
When does a court hold a hearing on a Motion to Suppress Illegally Obtained Evidence
If motion is legally sufficient, court holds a hearing. If not legally sufficient, it is denied w/o a hearing.
Requirements - Motion to Suppress Confession or Admission because it was illegally obtained
o Motion must identify with particularity: (i) statement to be suppressed; (ii) reasons for suppression; and (iii) factual basis for motion.
Who can make Motion to Suppress Confession or Admission because it was illegally obtained
Court or D
When should Motion to Suppress Confession or Admission be made
Shall be made before trial unless D was not aware of grounds. Court can take evidence to rule on motion.
What must accompany a Motion for Continuance
o Must be accompanied by a certificate of good faith signed by attorney.
What is a Motion to Depose to Perpetuate Testimony
o Made after filing indictment but at least 10 days before trial.
o Either side can move to secure testimony of material witnesses who live beyond the territorial juris of the court, or who may be unable to testify at trial
o Cannot use depo if witness can be produced at trial
What is a Motion to Change Venue and when can it be made
o Either side may move if D cannot get an impartial trial in the county (publicity alone not enough)
o Made no later than 10 days before trial, in writing and accompanied by a certificate of good faith and affidavits.
o If granted, court is to give priority to county that closely resembles the demographic composition of the original venue.
Who can make a Motion to Disqualify Judge, on what grounds and when?
o May be made by either side if judge is: prejudiced against any party; related within the third degree to any lawyer or judge who participated in case; judge is a material witness.
o Must be made w/in 10 days of discovering facts that form basis of motion. Judge must rule w/in 30 days.
Elements of a Motion to Protect Sexual Assault Victim
o Must be granted if petitioner can show that: (i) identity is not already known to the community; (ii)victim has not voluntarily called public attention to the offense; (iv) identity has not otherwise become a reasonable part of the public concern, (v) disclosure would be offensive to a reasonable person, (vi) disclosure of identity would: endanger victim, cause severe emotional or mental harm, make her unwilling to testify.
Right to Speedy Trial is guaranteed by what amendment?
6th Amendment
When does right to speedy trial attach?
At arrest or when formally charged
When must you have trial WITHOUT demand for speedy trial
Misdemeanor: w/in 90 days of arrest
Felony: within 175 days of arrest
D’s motion to continue waives speedy trial.
Does not matter if D is in custody!
When must you have trial WITH demand for speedy trial
Upon filing and serving Demand for Speedy Trial and serving it on state, D is entitled to a trial within 60 DAYS.
-calendar call w/in 5 days of demand
What happens if D files a Demand for Speedy Trial.
– it is a representation that D is available for trial within 5 days. After filing, D is not entitled to a continuance or to withdraw demand absent good cause.
What happens at calendar call for speedy trial?
Trial to be set no less than 5 days and no more than 45 days from calendar call
What happens if no trial within 50 days of Demand for Speedy Trial?
D to file “Notice of Expiration of Speedy Trial”. Court must hold a hearing within 5 days and order D to be tried within 10 days. If there is no trial within 10 days, D will forever be discharged.
Exceptions to Req’t that D be tried w/in 10 days of Notice of Expiration of Speedy Trial
- time extension has already been granted and not yet expired
- failure to hold trial is D’s or counsel’s fault
- D is unavailable for trial
- Speedy trial demand is invalid
When must a Motion for Rehearing be filed
- state may file w/in 10 days of subject order
- response filed w/in 10 days of service of motion
- trial court must issue order w/in 15 days of response, but no later than 40 days from date of order of which rehearing is sough.
- if no order w/in 40 days, motion deemed denied.
Notice of Discovery served by D - when must state respond?
15 days
When must D provide discovery
D has 15 days from receipt of state’s discovery to provide reciprocal discovery
Are there ongoing discovery obligations for both parties?
Yes
Is state req’d to turn over exculpatory evidence?
yes
What documents are not discoverable?
Attorney work product; confidential informants, unless good cause shown.
What is Nolle Prosequi
state drops charges
Notice of Alibi - when is it due?
If prosecutor demands notice, D must answer not less than 10 days prior to trial; state then has 5 days to to notify defense of of rebuttal witnesses
Can a person with an intellectual disability be sentenced to death?
No. IQ less than 70.
Procedure for determining intellectual disability.
D must file written motion no later than 90 days prior to trial, or at such time as is ordered by court.
-experts appointed, and court conduct evidentiary hearing.
How is a claim of intellectual disability waived?
Claim is waived if not timely filed
What happens if court finds intellectual disability
Court enters written order prohibiting execution.
When does D need to notify court of intention to rely on insanity defense
Within 15 days after arraignment.
Court can extend time limit for good cause shown.
What does D need to file to rely on insanity defense
-statement of particulars that includes nature of insanity and names and addresses of witnesses
What happens if D is acquitted by reason of insanity?
Court must determine whether D meets statutory criteria for commitment
Competency Test - what is required to determine if D is competent to stand trial?
D is incompetent to stand trial if at the time of trial, ∆ either (i) lacks a rational and factual understanding of the charges and proceedings OR (ii) lacks sufficient present ability to consult with counsel with a reasonable degree of understanding.
Bar to conducting trial.
Who has BOP on competence?
∆ has BOP by a preponderance of the evidence. Case can proceed if ∆ subsequently becomes competent.
What happens if court determines that D is incompetent?
If found incompetent, court can: order commitment if statutory req’ts are met; may be released on bail for up to one year and then case dismissed w/o prejudice (after 5 years for felony, 1 yr for misd) if recovery unlikely.
Scope of Competence Examination
Court may order D to be examined by up to 3 experts, and attorneys from either side may be present at examination.
What if D is taking Psychotropic Medication
D is not incompetent merely b/c he is on meds. If D under treatment proceeds to trial, the court will explain the situation to the jury at the beginning of trial on defense counsel’s motion.
Discovery obligation is ____ and ____
continuing and reciprocal
What must prosecutor provide in discovery
- witnesses
- witness statements
- D statements
- grand jury transcript of D’s testimony, not full minutes
- tangible papers or objects obtained from D
- whether state has confidential informant
- search and seizure related docs
- expert statements and reports
- tangible papers that could be tested for DNA
- all other tangible papers.
What must D provide in discoery
- witnesses
- witness statements
- tangible papers/objects to be used at trial.
When are depositions permissible?
In all felony cases
In misdemeanor cases only on showing of good cause
Who can be deposed?
- eye W’s, alibi and rebuttal, expert exculpatory, child hearsay w’s
- only upon showing of good cause - owners of property, transporting officer, booking officer, records and evidence custodians
Who cannot be deposed
W’s who performed only ministerial functions and are not expected to be called trial - their knowledge is set out in a report that has been provided to defense.
Can D waive jury trial
Yes, if state consents and waiver is in writing
Number of jurors
12 -capital cases
6-all other criminal cases
Alternate jurors - when are they released
- non-capital cases - are released when jury retires
- capital cases: alternate jurors to remain in courtroom when jury retires, and then are instructed that in the event of conviction the alternate may be recalled.
How many peremptory challenges?
10 - capital and life case
6 - any other felonies
3 - misdemeanors
plus one additional for an alternate juror
Sequestering of juries - who decides whether to sequester?
- in court’s discretion
- once deliberations start in capital cases, must be sequestered until they reach a verdict.
Who has access to list of prospective jurors?
Each party has right to request it.
How can you make a Challenge to Jury Panel
If the entire panel is selected in some illegal fashion, D or state may, by written motion, challenge the panel before any juror is questioned.
Noone has right to have any particular group represented on jury panel
Challenges for Cause
No limits, but must state grounds on which challenge is based.
When should challenges be made
Before jury is sworn. Although court may allow challenges for cause after jury is sworn but before evidence is presented.
Motion for Judgment of Acquittal-when made
At close of state’s case, or at close of all evidence
Equivalent to to motion for a directed verdict, except no req’t that it be made twice like a directed verdict
Motion for JOA-what must it state
Grounds on which it is based
When can D renew motion
Upon verdict of guilty or discharge because of hung jury, within 10 days.
Who selects jury foreperson?
Jury
What can jurors take to jury room?
- copy of formal charging instruments
- any materials in evidence
- verdict forms
- copy of all jury instructions
How does the court handle a jury request to review evidence or for additional instructions
On jurors request, after notice to both sides, they may hear again evidence that has been presented during trial in open court, in presence of all parties.
Jurors may request add’l instructions, which judge can give after notice to both sides. Or judge may recall jury on his own to give further or corrected instructions.
Can jury be recalled to hear additional evidence?
No, not once they retire.
Do jury verdicts need to be unanimous?
Yes, except for penalty phase of capital trial
Polling the jury - what is it?
Either side or the judge may ask each individual juror if that is their verdict.
Is Judicial comment on verdict allowed?
Judge not allowed to criticize or comment
What happens if verdict is ambiguous or defective?
Judge can send jury back for further deliberations. If ambiguity or defect cannot be cured, a mistrial is declared.
Determination of Attempts or Lesser Included Offenses
On any charge for which there is the substantive crime of attempt, or which includes lesser crimes, D may be convicted of any one of them, but not more than one for each count.
When are jurors discharged?
- when verdict received
- when court finds that there is no reasonable -probability that jurors will agree on a verdict
- necessity - courthouse on fire
- both sides agree to discharge
Irregularities in Verdict - when are they waived?
are waived unless objection is made before jury is discharged.
Grounds for New Trial - where prejudice need not be proved
New trial required if:
- Jurors decided verdict by lot (by chance not deliberation)
- Verdict is contrary to law or to the weight of the evidence
- New and material evidence discovered which, if introduced at trial, would probably have changed the verdict and could not have been obtained by reasonable diligence.
When must motion for new trial be made
Non-capital cases: within 10 days after the rendition of the verdict
Capital cases: w/in 10 days of written final judgment of conviction
After filing of the charging document, Defendant may be required to participate in the following without violating his rights
appear in lineup
speak for id purposes
be fingerprinted
pose for photos NOT involving reenactment of scene
try on articles of clothing
permit taking of specimens under fingernails
permit taking of blood hair or other samples
submit to reasonable physical or medical inspection of body.
May a D adjudicated guilty of NON CAPITAL crime be released on bail pending appeal?
Yes, at the discretion of either the trial or appellate court.
D must establish that appeal is taken in good faith and is not frivolous.
Release on bail may not be granted to (i) one who has previously been convicted of a prior felony and not had his civil rights restored or (ii) who has other felony charges pending where probable cause has been found
Grounds for New Trial - where prejudice needs to be proved
Court MUST grant new trial if one of these grounds and prejudice is proved
- D was involuntarily absent
- Jury received evidence out of court
- Juror is guilty of misconduct
- Prosecutor is guilty of misconduct
- Judge ruled incorrectly on law
- Judge gave jury wrong instructions
- D did not receive fair trial
Motion in Arrest of Judgment - when made
- Like a tardy MTD
- must be filed w/in 10 days of verdict
Motion in Arrest of Judgment - grounds
- formal charging instrument cannot support a conviction
- court lacks jurisdiction
- verdict is so uncertain that it doesn’t appear jury convicted D of crime charged
- verdict clearly convicts the defendant of an offense not proper under formal charging instrument
What may the court do when evidence sustains only conviction of lesser offense
Court may find D guilty of lesser degree.
May judge sentence D despite pending motion for new trial or in arrest of judgment?
Yes, he may do so either before or after filing motion.
Effect of granting new trial
State may retry D for no higher crime than that of which she was found guilty in the first trial.
What is a judgment?
Adjudication by court that D is either guilty or not guilty.
What is rendition of judgment?
Shall be rendered in open court, and in writing, signed by the judge. Judge may w/hold adjudication of guilty if he places D on probation.
D needs to be informed of right to appeal.
Judgment on Informal Verdict
If a verdict is rendered from which it can be clearly understood that the jurors intended to acquit the defendant, a judgment of not guilty shall be rendered
thereon even though the verdict is defective. No judgment of guilty shall be rendered on a verdict unless the jurors clearly express in it a finding of guilt of the defendant
If D is released pending appeal, what must he agree to?
D must agree that:
- he will prosecute his appeal
- he will surrender himself for execution of judgment or sentence upon affirmance or dismissal of appeal
- he will submit himself to process of court if new trial is ordered
- he will not leave jurisdiction without court permission
Petition to Seal or Expunge
D may make motion to seal or expunge record. State may traverse or demur. Court cannot issue decision for 30 days. If petition is granted, court will direct sealing.
Reasons why sentence shouldn’t be pronounced
D is insane
D has been pardoned
D is not the same person who was convicted
If D is facing death penalty, she is pregnant.
May court depart from sentencing guidelines pursuant to a plea bargain?
yes
Sentencing Guidelines
Guided by these factors:
- sentencing should be neutral w/r//t race, sex, socioeconomic status
- primary purpose is punishment
- punishment should fit severity
- punishment should increase with length and nature of D’s criminal history
- judge may depart from sentencing guidelines if he provides written reasons
Criminal Punishment Code Worksheet
Used to compute the subtotal and total sentence points
Presentence Investigation Report
Mandatory to place any D in prison for first felony, or if D is under 18. Judge may dispense with PSI if he places D on probation
PSI Disclosure
Prior to sentencing, Judge MUST disclose to both parties all factual matters, and may disclose any other contents of the PSI.
Procedure when Pardon Is alleged as Cause Not to Sentence
Court will hold an evidentiary hearing
Sentencing Hearing in Capital Cases
Both sides permitted to introduce evidence of aggravation or mitigation and to cross-x each other’s W’s. Each side given equal opportunity for one argument
Multiple Sentences of Imprisonment - how do they run?
Deemed to run concurrently unless sentencing judge rules otherwise.
Motion to Correct Sentencing Error
Motion under Rule 3.800(b) may be made to sentencing court in time allowed to file a notice of appeal. A sentencing error may not be raised on appeal unless it had first been brought to the attention of the sentencing court, either at time of sentencing or by motion to correct.
Motion under Rule 3.800(a) is to correct an illegal sentence or error in scoresheet calculation, and may be made at any time.
Death Penalty Case may be appealed to who?
Supreme Court.
Who can apply for a reduction in sentence and when?
Court may sua sponte or on motion, reduce a sentence imposed within 60 days after any of the following:
-imposition of sentence
-receipt of an appellate court mandate
Death sentences and mandatory minimum sentences cannot be reduced.
What is Direct Criminal Contempt
Contemptuous conduct in open court. Judge may adjudicate the D guilty of contempt and should recite facts on which it is based.
What is Indirect Criminal contempt
Contemptuous conduct outside the court’s presence, can be brought by OSC, or by motion. Judge can hold hearing, and decides all issues of law and fact. Disqual of judge is mandatory if contempt is of her personally. Judgment pronounced in open court and recites facts on which it was based.
Motion for Post Conviction DNA Testing
D found guilty of committing a crime may petition court to order examination of physical evidence that might exonerate D. It may be filed at any time after judgment and sentence becomes final.
Court may hold hearing.
Contents of Motion for Post DNA testing
- identify physical evidence containing DNA
- why it wasn’t tested previously, or how methods have changed
- statement of how evidence will exonerate D
What court must determine on motion for Post DNA Testing
- whether it has been shown that evidence that contains DNA still exists
- results of DNA testing would likely be admissible
- reasonable probability that movant would have been acquitted or would have received a lesser sentence if DNA evidence had been admitted at trial.
What does 5th Amendment protect against
no person shall be compelled in any criminal case to be a witness against himself.
What is the Miranda Rule
Any incriminating statement obtained as a result of custodial interrogation (i.e., suspect is in custody and subject to police interrogation) may NOT be used against the suspect at a subsequent trial UNLESS the police informed the suspect of his Miranda rights.
Difference Between 5th Amendment Violation and Miranda Violation
5th Amend - Involuntary statement is inadmissible, plus all evidence stemming from it is inadmissible
Miranda violation - no fruit of the poisonous tree. And statements obtained in violation can be used to impeach witness.
5th Amendment violation - involuntary statement
When police use tactics that overbear suspect’s free will (it’s a high level)
Factors to Determine Involuntary Statement - 5th Amendment
-length of time
-location
-tactics bring used (police can use deceit and trickery)
-use of physical pain
-mental or emotional condition of suspect
-age of suspect
TOTALITY of CIRCUMSTANCES
What is a custodial interrogation?
Custodial. A person is in custody when he reasonably believes that he is NOT free to leave (e.g., in the back of a police cruiser). More than a Terry stop.
Interrogation. A person is subject to an interrogation when the police know or should know that their words or actions are likely to elicit an incriminating response. (no location req’t). Miranda does NOT protect volunteered statements, as they are, by definition, not the product of interrogation.
What are your Miranda rights?
When a person is in custody, the police MUST inform the person of her Miranda rights before subjecting her to a police interrogation. This includes informing the subject:
She has the right to remain silent;
Any statement she makes may be used against her in court;
She has the right to consult an attorney and to have the attorney present during questioning; AND
She has the right to have an attorney appointed if she cannot afford one.
5th Amendment Right to Counsel
Once D invokes right to counsel, police must stop questioning. Two week rule - police can ask again two weeks later. Or if D re-initiates the interrogation
What does Miranda NOT protect
Miranda does NOT protect volunteered statements, as they are, by definition, not the product of interrogation.
When is Miranda violated
Miranda is violated if:
The police fail to give Miranda warnings before a custodial interrogation; OR
The police fail to cease interrogation of a person after she has affirmatively invoked her right to remain silent or her right to counsel.
Exceptions to Miranda requirement
The police are NOT required to give Miranda warnings before questioning a suspect:
When the public’s safety is at risk;
When the suspect being questioned is not aware that the interrogator is a police officer (e.g., undercover police officers); OR
If the questioning is biographical for routine booking purposes.
Harmless error rule
If evidence in violation of Miranda is admitted at trial, a guilty verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence.
Difference between 5th amendment and 6th amendment right to counsel
5th amendment - needs to be affirmatively invoked after being given Miranda warnings
6th amendment - automatically attaches when D is formally charged
6th Amendment Right to Counsel requires attorney to be present during these parts of litigation
Critical stages- basically anything between formal charges through sentencing.
A preliminary hearing to determine probable cause to prosecute the defendant,
Post-indictment lineups/in-person identifications;
Post-indictment interrogations;
All parts of the trial process;
Plea bargaining process;
Guilty pleas;
Sentencing; AND
Appeals as a matter of right.
6th Amendment Right to Counsel does not require attorney to be present during these parts of litigation
A preliminary hearing to determine probable cause to detain the defendant;
Pre-charge lineups;
Taking of fingerprints/DNA samples;
Discretionary appeals; AND
Post-convictions proceedings (e.g., parole/probation hearings).
How to prove ineffective assistance of counsel?
To prove ineffective assistance, a defendant must show:
- That his trial lawyer’s performance fell below an objective standard of reasonableness; AND
- A reasonable probability that the result of the proceeding would have been different BUT FOR his counsel’s unprofessional errors. (Think of it as a negligence standard)
Three main types of identification procedures
Photo arrays
Pre-indictment lineups
Post indictment lineups
Photo array
Neither the defendant nor his attorney has the right to be present, but the police must turn over the photo array to the defendant.
Preindictment lineup
The defendant does NOT have a 6th Amendment right to have counsel present during a pre-indictment lineup.
Post indictment lineup
The defendant has a 6th Amendment right to have counsel present during a post-indictment lineup. If that right is violated, then evidence that the witness identified the defendant at the lineup MUST be excluded.
Under what circumstances can court exclude evidence from a lineup
If the lineup was impermissibly suggestive, the court can exclude the evidence of it. However, the witness is permitted to identify the defendant in court if the prosecution can establish by clear and convincing evidence that the witness would have identified the defendant even without the suggestive lineup.
Remedy for constitutional violation in a pre-trial identification
an unconstitutional pre-trial ID makes an in-court ID inadmissible unless there is an independent source for the ID based upon the witness’s credibility and personal observations at the time of the crime.
In a motion to suppress an unconstitutional pre-trial identification, who has BOP
o Gov’t BOP in motion to suppress: (1) counsel was present; (2) accused waived; or (3) independent source.
o ∆ has BOP to prove due process violation.
Due process standard for pretrial identification
∆’s DP right violated when identification is unnecessarily and extremely suggestive, leading to
substantial likelihood of misidentification.
Evidence obtained in violation of the defendant’s 4th, 5th, or 6th Amendment rights (fruit of poisonous tree) is ___________ in a criminal case.
Inadmissible unless an exception applies
Exceptions to inadmissibility of evidence obtained in violation of the defendant’s 4th, 5th, or 6th Amendment rights
- Miranda (n/a to fruit of poisonous tree)
- independent source
- inevitability (decomposing body)
- attenuation (intervening events, time passes, D confesses in his own free will)
- police executing warrant in good faith (4th amendment-facially valid search warrant))
- knock and announce (4th amendment)
- impeachment purposes (except involuntary confession)
When can statement obtained in violation of Miranda be used?
Can be admitted to impeach defendant
Can involuntary statement ever be used?
No. Not even for impeachment.
Testimonial Privilege
available to ∆ or witness in any proceeding where incriminating testimony sought
Waiver of Testimonial Privilege
(i) ∆ takes the stand; (ii) witness making statements; (iii) grant of immunity.
Transactional Immunity
grants blanket immunity from prosecution for any crimes witness to which testifies.
Use and Derivative Use Immunity
grants immunity from prosecution for testimony and evidence discovered, unless independent source established to support criminal charge.
Under what amendments do you have a right to a fair trial
6A and 14A → ∆ presumed innocent until gov’t proves guilt beyond a reasonable doubt. ∆ has BOP for all affirmative and insanity defenses.
What is double jeopardy?
5A and 14A right against being tried twice for the same criminal offense (and lesser included offenses).
When does your double jeopardy right attach?
Jury Trial → empaneling of sworn jury; Bench Trial → 1st witness sworn; Juvenile → commencement of the adjudicatory trial; not applicable for subsequent civil claims.
What are the exceptions to the double jeopardy rule that permit retrial
o hung jury, mistrial, upon successful appeal based on the weight of the evidence, not sufficiency—but retrial may not be for a more serious offense.
o Collateral estoppel prohibits retrial after acquittal or successful appeal based on the sufficiency of the evidence.
Blockburger Test
no double jeopardy violation if each crime requires proof of an additional element that the other does not, despite using the same facts to prove both crimes. BUT, where two crimes are the same, multiple punishments are permissible if there was a legislative intent for cumulative punishment.
Is there a prohibition on trials for same offense in different tribunals (fed’l vs. state)?
No.
When must D provide notice of claiming Battered Wife syndrome defense?
30 days prior to trial
Additional procedures for when there has been a motion challenging D’s competence to stand trial
- Testimony other than that of may be introduced by either side
- Court must immediately fix a time for hearing to determine D’s mental condition
- Court may order D taken into custody until determination of competence is made.
What can court do in D, who is out on bail, does not show up after 1st day of trial?
- can proceed w/trial without him;
- can issue a warrant for his arrest
