Criminal Procedure (Celebration) Flashcards
When must an indigent person be appointed counsel?
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.
What is a notice to appear?
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.
If a D has a prior felony conviction, can an arresting officer still issue a notice to appear?
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.
Can an arresting officer still issue a notice to appear if D refuses to sign it?
NO - if D refuses to sign the notice to appear, the arresting officer may NOT issue the notice to appear.
Can an arresting officer still issue a notice to appear if D has no ties with the jurisdiction?
No - if D has no ties with the jurisdiction, the officer may NOT issue the notice.
Can a D charged with a notice to appear have the right to participate in discovery?
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.
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?
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.
When is a D entitled to a nonadversary preliminary hearing?
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.
When is D entitled to bail?
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)
What may the judge take into consideration in determining the form of pretrial release?
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.
What limitations may the court place upon D when granting bail?
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.
When is it determined whether D is entitled to pretrial release?
At the first appearance.
When may a D file a motion for a nonadversary probable cause hearing?
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.
Notes on Bail
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.
If the State wants to keep a D detained after bail has been set, what should the State do?
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.
When must a first appearance take place?
As a general rule, the first appearance of an arrested person is before a judicial officer within 24 hours of arrest.
What happens if there is a delay in presentment for D’s first appearance?
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.
What happens at first appearance?
-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.
What is an Indictment?
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.
What is an Information?
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.
Joinder of Offenses and Defendants / Severance of Offenses and Defendants
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.
Motion for Dismissal of a Charge on a Related Offense
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.
When is a later trial on related charges permissible?
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.
When must the court order severance of defendants and separate trial?
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.
