Criminal Procedure (Kaplan) Flashcards
Arrest
An arrest invokes the 4th Amendment. It must be based on probable cause.
Probable cause
Is based on a totality of the circumstances, including trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has or is committing a crime.
What information should be included in a proper arrest warrant?
An arrest warrant must:
1) Be in writing and in the name of the State of Florida;
2) Substantially set forth the nature of the offense;
3) Name the person to be arrested or at least a reasonably certain description if the name is unknown, and include a photograph if reasonably available;
4) Command that the person be arrested and brought before a judge;
5) State the date when the arrest warrant is issued, AND the county where issued;
6) Be signed by the judge and include the title of the office; and
7) Set the amount of bail or other conditions of release, and the return date, for offenses where a right to bail exists.
–Note: Defects are fixable. No arrest warrant will be dismissed nor will any person in custody be discharged b/c of a defect in the form of a warrant. Instead, the warrant may be amended by the judge to remedy such defect.
Capias Warrant
An official court document issued BY THE JUDGE authorizing the police to arrest people when a D has failed to appear or when formal charges have been filed and the D is not in custody or out on bail.
What is a Notice to Appear?
A written order to appear issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or govt offfice at a specified date and time.
–Note: An arrest warrant will be issued if a person signs a written notice to appear and fails to respond to the notice to appear.
–This method of filing formal charges may ONLY be used for MISDEMEANORS.
24-hour Rule
Every arrested person MUST appear before a judicial officer within 24 hours of arrest, either in person or via electronic audiovisual device.
–The judge, public defender (or appointed defender) and the state attorney
Contents of a Notice to Appear
1) Name and address of the accused;
2) Date of offense;
3) Offenses charged;
4) Counts of each offense;
5) Time and place that the accused is to appear in court;
6) Name and address of the trial court having jurisdiction to try the offenses charged;
7) Name of the arresting officer;
8) Names of any other persons charged at the same time; and
9) Signature of the accused. (this is important to prove they had notice to appear)
What is required at first appearance?
The Judge:
1) asks if D has counsel and informs of right to Counsel and that one will be appointed if D cannot afford;
2) advises D of the Charge and provide a copy of the complaint;
3) advises D of the right to remain silent (Close your mouth);
4) advises D of right to Communicate w/ counsel, family or friends; and
5) advises D of the Conditions of pretrial release.
**Think 5 C’s
What are Probable Cause Determinations?
These are non-adversarial proceedings. Therefore, D does not need to be present, but generally is.
When the probable cause determination is made depends on the circumstances.
–When an arrest is made pursuant to a warrant, probable cause has ALREADY been determined. (no further determination is required)
–An information or indictment (formal charges) filed prior to a probable cause determination will trump a no probable cause finding b/c probable cause was already determined as a basis for filing these types of formal charges.
When is a probable cause determination made for a D in custody?
Generally done at 1st appearance (within 24 hours of arrest) but, MUST be done within 48 hours of arrest for persons in custody.
–Exception: Upon a showing of extraordinary circumstances, the proceeding can be continued for two 24-hour periods past the original 48 hours.
When is a probable cause determination made for a D on pretrial release?
Ds who are out of custody MAY file a motion for a non-adversarial probable cause determination IF it can be established that there is a SIGNIFICANT RESTRAINT ON THEIR LIBERTY.
–The motion must be filed within 21 days from the date of the arrest; and
–Notice must be given to the state.
Exception: A judge who finds SIGNIFICANT RESTRAINTS ON D’s LIBERTY must make a probable cause determination within 7 days of filing the motion.
Judicial determination of probable cause
This is the same probable cause standard as for an arrest warrant (based on the totality of the circumstances, including trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has or is committing a crime).
–Probable cause may be based on a sworn complaint, affidavit, deposition under oath, or testimony under oath (will generally be a probable cause affidavit).
–If probable cause is found, D is HELD to answer for the charges.
–If probable cause is NOT found, D is RELEASED on his own recognizance BUT THE CASE IS NOT DISMISSED.
What is an Adversarial Probable Cause Hearing?
This may occur if no information is filed by the prosecutor within 21 days of arrest, D is then entitled to an adversarial probable cause hearing.
–Note: Late filing of the information does NOT cure the defect (aka it doesn’t eliminate D’s entitlement to this hearing)
At this hearing, witnesses must be called in the presence of D.
D also has the right to cross-examine witnesses.
What are the different ways to be formally charged?
1) Information
2) Indictment
3) Notice to Appear
What is an Information?
This is the name of the formal charge made by the PROSECUTING ATTORNEY.
–This can be used for all charges EXCEPT CAPITAL OFFENSES.
What is an Indictment?
This is the name of the formal charge made by the GRAND JURY.
–This can be used for any offense BUT MUST be used for capital offenses.
One Man Grand Jury Power
FL has adopted this rule. where a prosecutor investigating and preparing charges may issue a subpoena upon his own signature and w/o leave of court.
(Prosecutor may indict by One Man Grand Jury Power)
How are capital crimes formally charged?
By indictment by a grand jury ONLY
How are non-capital crimes formally charged?
By indictment or information
What is the proper court for felony charges (and misdemeanors if properly joined together)?
Circuit Court
How are misdemeanors formally charged?
By indictment, by information, or by notice to appear
What is the proper court for misdemeanors charges?
County Court
When must formal charges be filed?
Formal charges must be filed:
1) within 30 days of arrest; OR
2) from the date of the service of a CAPIAS WARRANT.
–With good cause, the state may extend to 40 days. (But no D may remain in custody past 40 days unless they have been formally charged)
–Without good cause, D MUST be released on the 33rd day.
Until when may the state extend the date a D is formally charged?
With good cause, the state may extend to 40 days. (But no D may remain in custody past 40 days unless they have been formally charged)
Without good cause, D MUST be released on the 33rd day.