Criminal Procedure (Celebration)

Question 1

When must an indigent person be appointed counsel?

Answer 1

Counsel may be provided to indigents in all criminal proceedings and other adversary proceedings, whether classified as civil or criminal.

However, in accordance with the Federal Constitution, an idigent must be provided counsel if he is prosecuted for an offense punishable by imprisonment.

Counsel is NOT required for a misdemeanor or violation of a municipal ordinance if the judge states in writing, prior to trial, that D will not be imprisoned if convicted.

Question 2

What is a notice to appear?

Answer 2

An accused charged with a misdemeanor or violation of a municipal ordinance may be brought before the court by a “notice to appear” which is a written order issued by a law enforcement officer in lieu of physical arrest, requiring a person accused of violating the law to appear at a designated court or government office at a specified time.

-NOTE: Only appropriate for MISDEMEANORS (not felonies); I.e., actions brought in county court.

Question 3

If a D has a prior felony conviction, can an arresting officer still issue a notice to appear?

Answer 3

Yes - the fact that D has a prior felony conviction has no bearing on whether or not an arresting officer can issue a notice to appear.

-That fact is taken into account if the arresting officer refuses to issue a notice to appear and the booking officer at the station is considering whether to issue a notice.

Question 4

Can an arresting officer still issue a notice to appear if D refuses to sign it?

Answer 4

NO - if D refuses to sign the notice to appear, the arresting officer may NOT issue the notice to appear.

Question 5

Can an arresting officer still issue a notice to appear if D has no ties with the jurisdiction?

Answer 5

No - if D has no ties with the jurisdiction, the officer may NOT issue the notice.

Question 6

Can a D charged with a notice to appear have the right to participate in discovery?

Answer 6

Yes - although Ds charged by a notice to appear have the right to participate in discovery, there are limitations on all D’s rights.

For example, a D may NOT depose persons disclosed on the prosecutor’s witness list who are designated as persons who performed only ministerial functions with regard to the case or whom the prosecutor does not intend to call at trial and whose knowledge of the case is contained in reports made available to D.

-D is always entitled to the witness lists and exhibits.

-Further discovery is limited to names and addresses of witnesses and tangible evidence in the possession of the prosecution.

Question 7

If the arresting officer refuses to issue a notice to appear, can the booking officer do so? If so, what factors may the booking officer consider?

Answer 7

Yes, if the arresting officer refuses to issue a notice to appear, the booking officer may do so.

The booking officer will consider:

1) the accused’s character and mental condition;

2) the accused’s residencein the community;

3) family tie’s in the community;

4) employment record;

5) past records of convictions (but NOT his record of arrests); and

6) past history of appearances at court proceedings.

Question 8

When is a D entitled to a nonadversary preliminary hearing?

Answer 8

A D who is in custody has a right to a nonadversary preliminary hearing within 72 hours of arrest only if he is:

1) in custody; and

2) has been arrested WITHOUT A WARRANT.

-The nonadversary preliminary hearing is used to determine probable cause; but if D was arrested with a warrant, then probable cause has already been determined.

Question 9

When is D entitled to bail?

Answer 9

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, a person in custody is entitled to bail before conviction.

-Note: The court may NOT deny bail based on the fact that the charge is a felony and D has a prior record of conviction. (however this may be taken into consideration in determing the form of pretrial release)

Question 10

What may the judge take into consideration in determining the form of pretrial release?

Answer 10

In determining the form of pretrial release, the judge may take into account:

1) the nature and circumstances of the offense charged;

2) the penalty provided by law;

3) D’s past and present conduct;

4) any record of convictions (but NOT his record of arrests);

5) D’s previous flight to avoid prosecution and failure to appear at court proceedings;

6) D’s family ties;

7) length of residence in the community;

8) employment history;

9) financial resources; and

10) mental condition.

Question 11

What limitations may the court place upon D when granting bail?

Answer 11

In granting bail, the court may:

1) restrict D’s travel;

2) restrict D’s associates;

3) restrict D’s place of abode;

4) require a bail bond (on which the attorney may NOT act as surety); or

5) impose reasonable conditions designed to assure D’s appearance at trial.

Note: The court may release D on his own personal recognizanze, in the custody of a specified person, on execution of an appearance or bail bond, or with any other restrictions as may be deemed necessary.

Question 12

When is it determined whether D is entitled to pretrial release?

Answer 12

At the first appearance.

Question 13

When may a D file a motion for a nonadversary probable cause hearing?

Answer 13

A D who has been released from custody BEFORE a determination has been made as to probable cause may, WITHIN 21 DAYS OF HIS ARREST, and when able to show that the conditions of his release put a significant restraint on his liberty, file a motion for a nonadversary probable cause hearing.

Question 14

Notes on Bail

Answer 14

1) Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption great, a person in custody is entitled to bail before conviction.

2) D may seek reduction of bail or release through habeas corpus action.

3) Bail may not be used for the purpose of preventive detention before trial.

4) There is a statutory presumption in favor of release on non-monteray conditions.

Question 15

If the State wants to keep a D detained after bail has been set, what should the State do?

Answer 15

If the State wants to keep D detained, they would have to file a motion for pretrial detention at the first appearance which is held within 24 hours of arrest.

Question 16

When must a first appearance take place?

Answer 16

As a general rule, the first appearance of an arrested person is before a judicial officer within 24 hours of arrest.

Question 17

What happens if there is a delay in presentment for D’s first appearance?

Answer 17

A delay in presentment before a judicial officer entitles D to immediate release, but not to dismissal of the charges.

-However, there is no requirement that D be released on his own recognizance. The court may still require bail.

-A delay in presentment may render a confession invalid if there is a showing that the delay induced the confession.

Question 18

What happens at first appearance?

Answer 18

-Held within 24 hours of D’s arrest

-D must be informed of the charge, provided with a copy of the complaint, and given his Miranda warnings.

-If the magistrate determines that D is entitled to court-appointed counsel and desires counsel, counsel must be appointed at this time.

-Also, at first appearance, the judge must determine whether D is entitled to pretrial release and, if so, on what terms and conditions.

-Note: While a plea of guilty / not guilty may be made at the first appearance, it is not required. It is required at arraignment.

Question 19

What is an Indictment?

Answer 19

An indictment is an instrument returned by a grand jury after it has heard a presentation of the evidence against D by the prosecution.

-Note: Although an indictment is required in capital crimes, it is also appropriate when charging a felony or misdemeanor.

-NOTE: ALL CAPITAL CHARGES must be charged by an indictment.

Question 20

What is an Information?

Answer 20

The information is a charging document signed UNDER OATH by the state attorney or assistant state attorney which affirms her good faith in instituting the prosecution; AND,

in FELONY cases, certifies the receipt of testimony under oath from a material witness or witnesses to the offense.

-NOTE: Most felonies are charged by an information.

-It is a plain, concise and definite written statement of the essential facts of the crime charged.

-It may be amended prior to trial to cure formal defects and necessary allegations can be stricken as surplusage.

-The information must contain the essential facts of the offense charged, citing the statute, rule or regulation which has been violated (and an intent to defraud must be specifically alleged if it is an element of the offense).

-The information must be signed by the state attorney or assistant state attorney affirming her good faith in instituting a prosecution. Therefore, if this signature is not present, the information is invalid.

-An information is not valid if it does not contain the time and place of the offense.

Question 21

Joinder of Offenses and Defendants / Severance of Offenses and Defendants

Answer 21

Although economy and efficiency may be served by joinder of offenses and defendants, and by consolidation of related offenses which could have been joined in the same indictment or information but were filed separately,

fairness and the elimination of possible prejudice to D may call for severance of offenses and defendants.

-NOTE: Offenses which are UNRELATED in terms of time or sequence, though similar in nature, cannot be consolidated.

Question 22

Motion for Dismissal of a Charge on a Related Offense

Answer 22

If D has actually been tried for an offense, he may move for dismissal of a charge on a related offense if he was unaware of the charge, or if there was no such charge, at the time of the first trial.

-The purpose of this rule is to protect defendants from successive prosecutions based on essentially the same conduct.

-Multiple offenses are related if they are triable in the same court and are based on the same or connected acts or transactions. Such offenses MUST be tried together.

Question 23

When is a later trial on related charges permissible?

Answer 23

1) If D knows before trial that the related offenses have been charged, and his motion to consolidate has been denied, or if he has waived the right to consolidate, he may be subsequently tried on the related charge.

2) A later trial on a related charge is also possible if the prosecution was unable, by due diligence, to obtain evidence to warrant charging such other offense at the time of the first disposition.

Question 24

When must the court order severance of defendants and separate trial?

Answer 24

The court must order severance of defendants and separate trial on a showing that it is necessary to protect D’s right to speedy trial or it is necessary to a fair determination of guilt or innocence.

Question 25

What happens if the state intends to offer into evidence the statement of a co-defendant which refers to D and which may not be admissible?

Answer 25

If the state intends to offer into evidence the statement of a co-defendant which refers to D and which may not be admissible, such statement must be made available for consideration by the court and D’s counsel.

If the court finds that the statement is INADMISSIBLE AGAINST ONE DEFENDANT, the state must elect to either:

1) conduct a joint trial at which the statement will not be admitted;

2) conduct a joint trial admitting the statement but with all references to the moving defendant deleted, providing that the result will not prejudice the moving defendant; or

3) sever the trials.

Question 26

Can multiple defendants be charged in the same indictment or information?

Answer 26

YES - multiple defendants may be charged in the same indictment or information.

-Each D must be accountable for each offense charged.

-Ds can also be joined if all are charged with conspiracy and only some are charged with offenses committed in furtherance of the conspiracy.

-Similarly, if there is a common scheme or plan, Ds may be joined even though not all are charged in each count.

Question 26

What must be included on an arrest warrant?

Answer 26

An arrest warrant must:

1) be signed by the magistrate judge;

2) state the nature of the offense;

3) state the date and county of issuance;

4) call for the offender’s arrest and presentment before a magistrate; and

5) identify the arrestee with reasonable certainty.

NOTE: If the offense is bailable, it must state the amount of bail and the return date.

-The warrant need not state any prior convictions of D nor need it state the name of the arresting officer. Further, it need not identify the offender by name if his name is unknown.

Question 27

What is the 4th amendment known for?

Answer 27

The 4th amendment protects citizens against unreasonable searches and seizures.

Question 28

What is the 5th amendment known for?

Answer 28

The 5th Amendment is known for the privilege against self-incrimination.

This privilege not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also permits him to refuse to answer official questions put to him in any other proceeding, whether civil or criminal, formal or informal, if the answers might incriminate him in future criminal proceedings.

Question 29

What is the 6th amendment known for?

Answer 29

This amendment gives citizens the right to assistance of counsel along with rights to a speedy trial and confrontation of witnesses.

Question 30

Can an arresting officer still issue a notice to appear if D refuses to identify himself properly?

Answer 30

NO - an arresting officer may NOT issue a notice to appear if the accused fails or refuses to identify himself sufficiently or to supply the required information.

Question 31

Does D have a right to counsel present for a line-up post-indictment?

Answer 31

YES - a right to counsel does arise for a line-up post-indictment.

Because a criminal D has a right to counsel AT ALL CRITICAL STAGES OF THE CRIMINAL PROCESS - as commencing with formal prosecutorial proceedings - he is entitled to have counsel present at any post-indictment lineup in which he is required to participate.

Question 31

Does D have a right to counsel when the accused photograph is being shown with photographs of other suspects?

What about when the accused is giving the police a writing sample?

Answer 31

No, because this is not considered a critical stage of the criminal process.

The presence of counsel is not required at a scientific identification made by the police for the purposes of investigation, such as taking a required handwriting sample.

Counsel likewise has no right to be present when the victim is attempting to identify the criminal through photographs.

Because the physical evidence can be examined later, these types of identification are NOT considered critical stages.

Question 32

Non-Adversary Probable Cause Hearing

Answer 32

A defendant who is in custody (and was arrested WITHOUT A WARRANT) has a right to a non-adversary probable cause hearing WITHIN 48 HOURS OF HIS ARREST.

Generally, probable cause will be determined at the first appearance. The state has the right to TWO 24-HOUR extensions upon a showing of EXTRAORDINARY CIRCUMSTANCES.

-This makes 96 hours total.

-This non-adversary probable cause hearing is similar to the hearing necessary for the issuance of an arrest warrant.

Question 33

When does the time period for computing speedy trial end?

Answer 33

The time period for computing speedy trial rights ends when the jury selection process begins, i.e., when the jury is sworn for voir dire.

Question 34

Arraignment

Answer 34

Arraignment must be conducted in open court with the defendant present personally or, in the discretion of the court, by audiovisual device.

The judge, clerk or prosecuting attorney presents the charges to D either orally or by reading the indictment or information.

Question 35

Can arraignment be waived?

Answer 35

D may waive the presentation, and arraignment is deemed waived if D’s counsel files a written plea of not guilty at or before arraignment.

Arraignment may be waived if D pleads to the charges and proceeds to trial without objection.

Question 36

Are subsequent proceedings invalidated by a lack of arraignment?

Answer 36

NO - subsequent proceedings are NOT invalidated by a lack of arraignment. A valid conviction cures any defect in arraignment.

-Therefore, the conviction will not be reversed, nor will the sentence be vacated or a new trial ordered.