Criminal Procedure (Grossman) Flashcards
Computation of Time
1) Day of event triggering time limit not counted.
2) If last day is a Saturday, Sunday or legal holiday, go to the next day which is not a Saturday, Sunday or legal holiday.
3) If time period is 7 days or less, do NOT count a Saturday, Sunday or legal holiday.
Formal Charging Instruments: Timeline for Filing
1) An indictment of information must be filed WITHIN 30 DAYS OF ARREST.
2) On the 30th day, the judge may give a 3-day extension for GOOD CAUSE.
3) If not filed within 40 days, defendant is ROR’ed (released on his own recognizance)
Note: ROR does NOT mean you can’t re-arrest D and then charge him with a crime (i.e., release does not bar future prosecution; this does not implicate speedy trial)
What must be included within the indictment or information?
There must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.
-If a count of any indictment or information is too vague, indistinct, or indefinite, then D can have it dismissed.
Arraignment
-This is done in open court
-The charges are read to D
-D called upon to enter a plea of guilty, not guilty, or nolo contendere
-The case is usually set for trial at this time
-D must be given a reasonable amount of time after arraignment to prepare for trial
Adversary Preliminary Hearing
A FELONY DEFENDANT who has not been charged by indictment or information WITHIN 21 DAYS OF ARREST or service of capias is entitled to an ADVERSARY PRELIMINARY HEARING to determine whether probable cause exists for the felony charge.
-If D has been in custody for more than 21 days and has not been formally charged, then D has this right to a hearing (which is done on the record).
Nonadversary Probable Cause Determination
-This is held within 48 hours
-A court may grant up to two 24-hour extensions for exceptional circumstances
-This may be done at 1st appearance (typically done here)
-Usually, it’s really just judge and D (attorneys are present but not prepped yet)
Capias
A capias is a bench warrant issued by the judge.
Notice to Appear
This is done in lieu of physical arrest for the violation of a misdemeanor.
Arrest Warrant Form
1) Must be in writing
2) Set out the nature of the charge
3) Name of the accused
4) Order accused to be arrested and brought before judge
5) Dated and signed
6) Endorsed w/ bail amount
When can an arrest be made without a warrant?
There are four situations where an arrest can be made without a warrant:
1) When another officer holds a valid warranty for the suspect’s arrest.
2) When a felony or misdemeanor is committed in the officer’s presence.
3) When an officer has PROBABLE CAUSE to believe a felony has been committed.
4) When an officer has PROBABLE CAUSE for certain enumerated misdemeanors.
First Appearance
This is done within 24 hours of arrest.
Arrestee is advised of:
1) Right to remain silent
2) Right to counsel
3) Right to communicate w/ family and friends
-If deemed indigent, counsel shall be appointed
-Bail set or ROR’ed
Probable Cause (for an arrest warrant)
A judge has probable cause when he/she:
“reasonably believes that the person complained against has committed an offense within the trial court’s jurisdiction.”
Arrest Warrant
Issued by a judge upon:
1) a sworn complaint;
2) stating PROBABLE CAUSE.
Time for Filing: Motion to Dismiss
At or before arraignment UNLESS the court grants additional time for filing.
-All legal defenses waived if not raised in a timely manner
-Certain FUNDAMENTAL grounds may be raised at any time, such as:
1) Pardon
2) Double Jeopardy
3) Immunity
4) The facts do not constitute a prima facie case of guilt
What types of fundamental grounds may be raised at any time?
Certain FUNDAMENTAL grounds may be raised at any time, such as:
1) Pardon
2) Double Jeopardy
3) Immunity
4) The facts do not constitute a prima facie case of guilt
Motion to Suppress Evidence (Unlawful Search)
Every motion to suppress evidence shall state clearly:
1) the particular evidence sought to be suppressed;
2) the reasons for suppression;
3) a general statement of the facts on which the motion is based.
-Before taking evidence on the motion, the court shall determine the legal sufficiency of the motion. (if insufficient, the motion will be denied)
Speedy Trial (Duration)
D has a right to a speedy trial, which means the trial should commence:
1) Within 175 DAYS for a FELONY
2) Within 90 DAYS for a MISDEMEANOR
-Starts with the day of arrest
-Any delay attributed to defense waives speedy trial
-These are the default rules assuming no demand for speedy trial has been made
Speedy Trial (Upon Demand)
D may demand for a speedy trial
-Trial must commence within 50 days from demand (whenever there’s a demand for speedy trial, trial must commence within 50 days)
Speedy Trial for Retrial after a mistrial, order of new trial or reversal
Trial must commence within 90 days for retrial after a mistrial, order of new trial, or reversal.
-If demand for speedy trial is made, retrial must commence within 50 DAYS of demand.
Expiration of Time Limit for Speedy Trial
After the expiration of the speedy trial time limit, the defense shall serve a notice of expiration on the State.
-A hearing must be held within 5 days (5-10 rule = recaptured time)
-During the hearing, the court shall determine whether the delay is attributable to the defense (i.e., if it’s the defense’s fault, then the judge may extend the time), or if it’s not the defense’s fault, then trial MUST COMMENCE WITHIN 10 DAYS of the hearing or D is DISCHARGED FROM PROSECUTION (and double jeopardy attaches)
When may an extension of time be granted for Speedy Trial?
Extension of time may be granted BEFORE time runs out:
1) By stipulation
2) By court order
3) For exceptional circumstances:
—unavailability of the witness(es)
—unavailability of evidence
—unforeseen circumstances affecting trial (i.e., unusual complexity)
—Evidence currently unavailable (that will become available)
—D has caused major delay or disruption
How does D elect to engage in discovery?
After the filing of an information, D may elect to engage in discovery by:
1) Filing a Notice of Discovery;
2) Taking a deposition; or
3) Other specified activity directed at finding out about the State’s case.
-If D elects to engage in discovery, D is bound to make disclosures to the prosecution (including the disclosure of alibi witnesses)
Prosecutor’s Discovery Obligations upon Notice from D
Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to D and permit D to inspect, copy, test, and photograph the following information and material within the state’s possession or control (except child porn which may not be copied/reproduced):
1) names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto
2) witness statements
3) any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries
4) any written or recorded statements and the substance of any oral statements made by a codefendant
5) those portions of recorded grand jury minutes that contain testimony of the defendant
6) tangible evidence; and
7) reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.
Matters not subject to disclosure for discovery
-Identity of Confidential Informants
-No need to disclose unless:
1) Confidential informants will testify
2) Non-disclosure violates the constitutional rights of the accused
Defense Discovery Obligations: What must be disclosed?
If D opts into discovery, then within 15 days of receiving the State’s witness list, D must disclose:
1) Names and addresses of witnesses
2) Witness statements
3) Expert reports
4) Tangible evidence
Prosecutor’s Discovery Obligations w/o Notice from D
Without regard for whether D has elected to participate in discovery, a prosecutor MUST disclose EXCULPATORY EVIDENCE (i.e., Brady Material).
-The court may prohibit the state from introducing into evidence any of the material not disclosed, so as to secure and maintain fairness in the just determination of the court.
Motion to Suppress Confession or Admission
Motion must:
1) Identify w/ particularity any statement sought to be suppressed;
2) State the reasons for suppression; and
3) Give a general statement of the facts on which the motion is based.
Defense Discovery Obligations: What may D be required to do?
Upon proper motion and order, D may be required to:
1) Appear in a lineup
2) Speak for identification by witness
3) Provide specimens (i.e., DNA)
4) Be fingerprinted
5) Pose for photographs not involving reenactment of a scene
6) Try on articles of clothing
7) Submit to a reasonable physical or medical inspection of the defendant’s body.
–Reasonable notice of the time and location of the appearance shall be given by the prosecuting attorney to the defendant and his or her counsel
Sanctions for Failure to Comply w/ Discovery Obligations
Failure to comply with discovery obligations may cause:
1) Order compelling disclosure
2) Continuance
3) Mistrial
4) Exclusion of witness or evidence (i.e., alibi witness)
5) Other sanctions as deemed appropriate (i.e., contempt, assessment of costs)
Right to Jury Trial
-Right to jury trial in all criminal prosecutions
-Right to waive jury trial w/ consent of state
-12 jurors in capital cases; 6 jurors in all other criminal cases (capital cases are those involving the death penalty or life in prison)
How many jurors for capital cases? How many jurors for non-capital cases?
-12 jurors in capital cases; 6 jurors in all other criminal cases (capital cases are those involving the death penalty or life in prison)
Alternate Jurors
-Court may impanel alternate jurors
-Number of alternates up to court
-Alternates replace regular jurors in order in which they were selected
-Alternates excused when the jury retires to consider verdict (except in capital cases)
Challenges to Jurors (when are they made?)
Typically, challenges are made before a juror is sworn in.
-If good cause is shown, a challenge may be made after juror is sworn in, but before the taking of evidence commences (jury back strike).
Challenges to Jurors (procedure)
-Made outside hearing of jury
-Made orally
-If for cause, reason must be stated
-Court may take evidence on challenge for cause
-If the challenge is sustained, the juror is excused
Peremptory Challenges
Number of peremptory challenges:
-10 for felonies punishable by death or life in prison
-6 for other felonies
-3 for misdemeanors
The court may allow additional peremptory challenges at its discretion.
Note: 1 peremptory challenge allowed for each alt. juror.
-Peremptory challenges to regular jurors do not carry over to alternates.
Regulation of Jury
The jury hears the case in a body:
-they may be sequestered
-in capital cases, they may separate between the rendition of the verdict and beg. of the penalty phase.
Juror Questions
Court may allow (discretionary)
-Procedure:
1) Questions submitted in writing;
2) The trial judge shall review outside the presence of jury;
3) Lawyers may object to the question outside the presence of the jury.
Motion for Judgment of Acquittal
Made either at the close of evidence for the State; or at the close of all evidence.
-Not waived by subsequent introduction of evidence on behalf of D.
-May be renewed within 10 DAYS of reception of verdict.
Jury Instructions
-MUST be in writing
-Given before or after final arguments
-Given orally w/ written record
-Counsel may make written requests for instruction
-Objections to instructions made before jury deliberations
-Court reporter transcribes instructions and files them in court files
Materials to Jury Room
Discretionary materials:
1) copy of formal charging instructions
2) verdict forms
3) any material in evidence (EXCEPT DEPOSITIONS)
Mandatory materials:
1) written jury instructions
Polling the Jury
-Done at the request of either party
-Each juror individually asked if the verdict is his/hers
-If juror dissents, the jury is sent back for further deliberations
-Jury cannot be polled after it is discharged
Motion to Interview Jurors
-Made within 10 DAYS of the verdict (15 days for civ pro)
-Identify the juror or jurors
-State why you believe the verdict may be challenged
-After notice and a hearing, the judge may allow the interview
Motion for New Trial: when should it be made?
Within 10 days of the verdict.
-Can be made orally.
Grounds for Motion for New Trial
1) Verdict decided by lot
2) Verdict contrary to law or weight of evidence
3) New evidence discovered which:
–Is material
–Could not be discovered before w/ reasonable diligence
–Would probably change verdict
When MUST the court grant a new trial?
A new trial must be granted if any of the following is established AND the substantial rights of D were prejudiced:
1) Juror receives evidence outside of the court
2) Juror is guilty of misconduct
3) Prosecutor is guilty of misconduct
4) Jurors separated w/o permission during deliberations
5) For any reason beyond D’s control, D did not receive a fair trial.
Motion for Arrest of Judgment
This motion may be granted only if:
1) The charging document was so defective that it won’t support the conviction;
2) The court was without jurisdiction;
3) The verdict is too uncertain; or
4) Conviction of the offense is not supported by the charging document.
Presentence Investigative Report
A PSI is mandatory if the judge wants to place any D in prison for his 1st felony or for anyone found guilty of a felony while under the age of 18.
-The judge may dispense with a PSI in those cases if she places D on probation.
