Criminal Procedure (Kaplan)

Question 1

Arrest

Answer 1

An arrest invokes the 4th Amendment. It must be based on probable cause.

Question 2

Probable cause

Answer 2

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.

Question 3

What information should be included in a proper arrest warrant?

Answer 3

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.

Question 4

Capias Warrant

Answer 4

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.

Question 4

What is a Notice to Appear?

Answer 4

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.

Question 5

24-hour Rule

Answer 5

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

Question 5

Contents of a Notice to Appear

Answer 5

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)

Question 6

What is required at first appearance?

Answer 6

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

Question 7

What are Probable Cause Determinations?

Answer 7

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.

Question 8

When is a probable cause determination made for a D in custody?

Answer 8

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.

Question 9

When is a probable cause determination made for a D on pretrial release?

Answer 9

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.

Question 10

Judicial determination of probable cause

Answer 10

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.

Question 11

What is an Adversarial Probable Cause Hearing?

Answer 11

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.

Question 12

What are the different ways to be formally charged?

Answer 12

1) Information

2) Indictment

3) Notice to Appear

Question 13

What is an Information?

Answer 13

This is the name of the formal charge made by the PROSECUTING ATTORNEY.

–This can be used for all charges EXCEPT CAPITAL OFFENSES.

Question 14

What is an Indictment?

Answer 14

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.

Question 15

One Man Grand Jury Power

Answer 15

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)

Question 16

How are capital crimes formally charged?

Answer 16

By indictment by a grand jury ONLY

Question 17

How are non-capital crimes formally charged?

Answer 17

By indictment or information

Question 18

What is the proper court for felony charges (and misdemeanors if properly joined together)?

Answer 18

Circuit Court

Question 19

How are misdemeanors formally charged?

Answer 19

By indictment, by information, or by notice to appear

Question 20

What is the proper court for misdemeanors charges?

Answer 20

County Court

Question 21

When must formal charges be filed?

Answer 21

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.

Question 22

Until when may the state extend the date a D is formally charged?

Answer 22

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.

Question 23

When is D not entitled to reasonable conditions of release on bail?

Answer 23

All Ds are entitled to reasonable conditions of release UNLESS:

1) D is charged w/ a crime punishable by death or life imprisonment; AND

2) Proof of guilt is evident or the presumption is great.

–Note: “Proof of guilt is evident or the presumption is great” is a HIGHER standard than beyond a reasonable doubt.

–In such a case, D can be held at 1st appearance and then must request an Arthur Hearing.

Question 24

What is an Arthur Hearing?

Answer 24

If it is determined by the judge that D is NOT substantively entitled to the right to bail (b/c D is (1) charged w/ a crime punishable by death or life imprisonment and (2) proof of guilt is evident or the presumption is great) then:

D can be held at 1st appearance and then must request an Arthur Hearing, which permits consideration of a bond for those accused of a capital felony. In this hearing, the defense will work to prove one or more factors that can lead a judge to agree to a bond amount.

Question 25

Conditions for Pre-trial Release

Answer 25

The judge determines the conditions of pre-trial release.

There is a presumption that a D will be released on non-monetary conditions.

Conditions must be “reasonable” and will be if they:

1) protect the community from physical harm;

2) assure the presence of D at trial; and

3) assure the integrity of the judicial process.

–Note: In general, a court will impose the least onerous condition to reasonably achieve the constitutional purpose of bail.

Question 26

Release options the court may consider

Answer 26

The court will impose one or more conditions of release as appropriate under the circumstances:

1) personal recognizance of D;

2) execute an unsecured appearance bond in an amount decided by the court;

3) place restrictions on travel, living arrangements, and association w/ others (esp. the victim);

4) place D in the custody of a supervising individual or organization;

5) issue a bail bond, w/ solvent sureties or cash deposit (i.e., secured bond or cash bond); or

6) any condition reasonably necessary to assure appearance (e.g., GPS monitoring).

Question 27

When may a Motion for Pretrial Detention be granted?

Answer 27

The state can file a written motion for pretrial detention for certain DANGEROUS CRIMES.

–This generally occurs when (1) D is charged with a dangerous crime that they likely committed and (2) no conditions of release are sufficient to protect the community.

Question 28

If the state files a motion for pretrial detention, when must the hearing be held?

Answer 28

The pretrial detention hearing must be held within 5 days of filing OR 5 days of taking the person into custody, whichever is LATER.

–Exception: The state is entitled to one 5-day continuance with good cause. However, the continuance cannot go beyond 10 days, unless the delay is sought by D.

Question 29

When must the court enter an order after a pretrial detention hearing is held?

Answer 29

The court must enter an order within 24 hours of the pretrial detention hearing.

Question 30

Arraignment

Answer 30

1) Must be done in open court or via audiovisual device;

2) D is informed of the charges against him;

3) If represented by counsel or if D has waived counsel, D may enter a plea;

4) If unrepresented, the court advises D of their right to counsel and may appoint a public defender if D qualifies.

–Note: A WRITTEN plea of NOT GUILTY PRIOR to arraignment is considered a WAIVER of arraignment.

Question 31

Pleas

Answer 31

How may D plead?

1) Guilty
2) Not Guilty
3) Nolo Contendere (no contest)

–Ds may, w/ the consent of the court AND the state, enter a plea to a LESSER INCLUDED offense.

Question 32

Nolo contendere

Answer 32

D may only enter into this plea with the consent of the court.

This plea neither accepts nor denies the charges. Instead, it accepts the punishment of the court and determines the plea to be in their best interest.

–Unlike a guilty plea, this CANNOT be used as an admission in a civil proceeding. (since it’s not an admission of guilt)

Question 33

Where must a plea be entered?

Answer 33

All pleas should be made in open court and should be entered into by THE DEFENDANT.

–EXCEPTION: Written plea of not guilty entered by D’s counsel.

–EXCEPTION: Misdemeanor plea in asbentia (permits D to enter the plea w/o actually appearing in court)

The judge must ensure the plea is VOLUNTARY, FULLY UNDERSTOOD and there is sufficient FACTUAL BASIS.

Question 34

Communications of Plea Negotiations

Answer 34

If D is represented by counsel, the state MUST communicate w/ defense counsel.

If D is unrepresented, the communications between the state and D must be ON THE RECORD.

Question 35

Judicial Review of Plea Agreements

Answer 35

The trial judge may request the terms of any plea agreement and the reasons for the plea prior to acceptance of the plea.

–The court is NOT bound to accept the plea agreement between the state and the defense, but does so more often than not.

Question 36

Judicial Involvement in Plea Negotiations

Answer 36

A judge may not:

1) initiate the plea bargain discussion;

2) become involved w/o being invited by the parties; and

3) suggest to D that further consequences will result.

–This protects D from judicial vindictiveness, which may arise if the judge violates these rules and D then gets a harsher sentence.

Question 37

Can D withdraw from a guilty plea when a judge imposes a higher sentence than agreed upon?

Answer 37

Whether a D can withdraw a guilty plea when a judge imposes a higher sentence than agreed upon depends on the terms of the plea agreement:

1) If a plea CALLS for a SPECIFIC SENTENCE, and the judge wishes to impose a greater sentence, D is entitled to WITHDRAW FROM THE PLEA.

2) If a plea RECOMMENDS a certain sentence and the prosecutor abides by the recommendation, but a judge sentences higher, a plea may NOT BE WITHDRAWN.

–Note: A withdrawn plea MAY NOT be used against a D at a later trial.

Question 38

Types of Pretrial Motions

Answer 38

1) Motions to Dismiss

2) Motion for Continuance

3) Motion to Suppress Evidence in Unlawful Search

4) Motion to Suppress a Confession or Admission

5) Motion to Perpetuate Testimony

6) Motion for Change of Venue

7) Motion to Disqualify a Judge

8) Motion to Protect the Identity of a Sexual Assault Victim

9) Motion to Expedite

Question 39

When should a Motion to Dismiss be made?

Answer 39

Unless the court grants further time, defense motions to dismiss charges should be made either BEFORE or AT ARRAIGNMENT, except:

1) for objections based on FUNDAMENTAL GROUNDS; or

2) with PERMISSION OF THE COURT.

However, the court may entertain a motion to dismiss at any time on any of the following grounds:

–D has been PARDONED by the charged offense;

–D has been placed in JEOPARDY for the charged offense;

–D has been GRANTED IMMUNITY for the charged offense; or

–Where there are NO MATERIAL DISPUTED FACTS, and the undisputed facts do NOT establish a PRIMA FACIE CASE of guilt.

Note: The facts on which the motion is based should be alleged SPECIFICALLY and the motion SWORN TO.

Question 40

Traverse (Demurrer)

Answer 40

If the state wishes to challenge the defense motion to dismiss charges, it must file a traverse or demurrer.

–A traverse denies WITH SPECIFICITY the MATERIAL FACTS contained in the motion to dismiss.

–Any facts not specifically denied by the state are deemed admitted.

Note: If the state files a traverse denying w/ specificity the material facts contained in the motion to dismiss or lists additional facts not cited by the defense, then the court MUST DENY the motion to dismiss.

Question 41

Motion for Continuance

Answer 41

1) Must be filed WHEN THE CASE IS SET FOR TRIAL; and

2) Must CERTIFY that the motion is made IN GOOD FAITH and not solely for the purposes of delay.

–Exception: Good cause or issues arose after case was set for trial.

Question 42

When must a Motion to Suppress Evidence in Unlawful Search be made?

Answer 42

Must be made BEFORE TRIAL, UNLESS:

1) Grounds were unknown w/ due diligence;

2) opportunity did not exist; or

3) the court allows it.

–Note: Motions to suppress evidence must be done before trial b/c the point is to do BEFORE the jury hears it.

Question 43

Grounds for filing a Motion to Suppress Evidence in Unlawful Search

Answer 43

1) Property was illegally seized w/o a warrant;

2) The warrant is insufficient on its face;

3) The property seized is not the property described in the warrant (aka exceeds the scope of the warrant);

4) There was no probable cause for believing the existence of the grounds on which the warrant was issued; or

5) The warrant was illegally executed.

Question 44

What are the requirements for a Motion to Suppress Evidence in Unlawful Search?

Answer 44

The motion to suppress evidence must clearly state the following:

1) The PARTICULAR EVIDENCE sought to be dismissed;

2) The REASON for the suppression; and

3) The GENERAL FACTS supporting the motion.

–If the motion is legally sufficient = hearing

–If legally insufficient = denied w/o a hearing

Question 45

Who has the burden of proof during a hearing for a motion to suppress evidence?

Answer 45

-If the evidence was obtained WITH A WARRANT, the burden of proof is on THE D to show that the evidence is INADMISSIBLE.

-If the evidence was obtained WITHOUT A WARRANT, the burden of proof is on THE STATE.

Question 46

When may a Motion to Suppress a Confession or Admission be filed?

Answer 46

Before trial, UNLESS the opportunity did not exist before trial, or D was not aware of the grounds.

–Note: If made during trial, jeopardy has attached. Therefore, a granted motion to suppress would NOT be subject to appellate review. (aka the state can’t appeal it)

Question 47

What must be stated in a Motion to Suppress a Confession or Admission?

Answer 47

A Motion to Suppress a Confession or Admission must identify with PARTICULARITY:

1) the statement to be suppressed;

2) the reasons for suppression; and

3) the factual basis for the motion.

–At the hearing on motion to suppress, the court hears evidence in order to rule on the motion.

Question 48

Motion to Perpetuate Testimony

Answer 48

A motion to perpetuate testimony (to reduce testimony to writing) may be made if a witness resides out of the territorial jurisdiction or may be unable to attend a trial or hearing.

–This MUST be verified or supported by the affidavit of at least one credible person.

Question 49

Requirements for a Motion to Perpetuate Testimony

Answer 49

The motion must include the following:

1) the grounds for the motion;

2) supporting facts; and

3) that the testimony is MATERIAL and NECESSARY to prevent a failure of justice.

NOTE: This is a pre trial motion to get a deposition before discovery has officially begun.

Question 50

Requirements for a Motion for Change of Venue

Answer 50

A motion for change of venue must:

1) be made 10 days BEFORE TRIAL unless good cause is shown;

2) be IN WRITING and accompanied by affidavits of the moving party and AT LEAST 2 OTHER PERSONS setting out the factual basis for the motion; and

3) state the change of venue is needed b/c the moving party cannot have a FAIR AND IMPARTIAL TRIAL where the case is pending.

Question 51

Requirements for a Motion to Disqualify a Judge

Answer 51

The motion must allege in writing and be sworn to that the judge is either:

1) prejudiced for or against a party;

2) related within the 3rd degree to a D or lawyer in the case or to any judge who participated as a lower court judge in the case; OR

3) a material witness in the case.

Question 52

Result if a Motion to Disqualify a Judge is legally sufficient on its face

Answer 52

If a Motion to Disqualify a Judge is legally sufficient on its face:

1) The first judge is AUTOMATICALLY disqualified.

2) If D seeks to disqualify a second judge, the disqualification is NOT automatic UNLESS the judge admits the prejudice.

Question 53

Motion to Protect Identity of Sexual Assault Victim

Answer 53

The state or a victim in a sexual assault case may obtain an order to keep confidential any record that would reveal the victim’s name or address, or a photograph of the victim.

Question 54

Motion to Expedite

Answer 54

The state may move to expedite a case involving:

1) Abuse of a child under 16 who is a victim of abuse; or

2) A victim or a witness to a sexual criminal act, an elderly person, or a disabled adult.

Question 55

Types of Pretrial Notices

Answer 55

1) Notice of Alibi Defense

2) Insanity Defense

3) Notice of Battered-Spouse Syndrome Defense

Question 56

Timing for a Notice of Alibi Defense

Answer 56

Upon written demand of the prosecuting attorney, a D MUST file and serve a notice of intention to rely on the alibi defense 10 days BEFORE TRIAL.

Question 57

Requirements for a Notice of Alibi Defense

Answer 57

Must contain specific information regarding:

1) The location where D claims to have been; and

2) The names and addresses of witnesses that will establish the alibi.

–Response: After receipt of notice, the prosecutor must provide names and addresses that will rebut the alibi.

Question 58

Requirements for Notice of Intent to Rely on the Not Guilty by Reason of Insanity Defense

Answer 58

This notice must be given no later than 15 days AFTER THE ARRAIGNMENT or FILING OF A WRITTEN PLEA of not guilty.

–Penalty: If written notice is not provided with the above time frame, D will be precluded from offering evidence to support this defense.

Question 59

Notice of Battered-Spouse Syndrome Defense

Answer 59

Notice must be given no later than 30 days BEFORE THE START OF TRIAL.

–If notice is not provided then D will not be allowed to provide evidence to support this defense.

Question 60

Joinder of Offenses

Answer 60

Two or more offenses in the same court may be joined if:

1) Based on same act or transaction; OR

2) Based on two or more connected acts or transactions (can be requested by the state or the defense).

Question 61

Joinder of Defendants

Answer 61

Ds can be joined if:

1) Each D is charged w/ accountability for EACH OFFENSE charged;

2) Each D is charged w/ CONSPIRACY and SOME of the Ds are also charged w/ ONE OR MORE ACTS IN FURTHERANCE of the conspiracy; or

3) Several offenses charged were the part of a COMMON SCHEME OR PLAN.

Question 62

Severance of Offenses

Answer 62

The court must sever IMPROPERLY CHARGED offenses on timely motion.

Properly charged offenses shall be severed:

–BEFORE TRIAL: if severance is appropriate to promote FAIR DETERMINATION of guilt or innocence of each offense

–DURING TRIAL: with D’s consent AND if severance is NECESSARY to achieve fair determination of guilt or innocence of each offense.

Question 63

Severance of Defendants

Answer 63

BEFORE TRIAL:
1) If necessary to protect a D’s speedy trial right; or

2) If appropriate to promote fair determination of D’s guilt or innocence.

DURING TRIAL:
1) With the D’s consent AND if necessary to achieve fair determination of D’s guilt or innocence.

Question 64

What options does the state have if a co-defendant alleges that a statement to be used by another D implicates him? (A Burton Issue)

Answer 64

If there is a Burton issue, the state has 3 options:

1) In a joint trial = do not use statement at all

2) In a joint trial = redact relevant portions of statement

3) Sever Ds and have separate trials.

Question 65

Discovery Election

Answer 65

Discovery election is accomplished by:

1) filing WRITTEN NOTICE w/ the court and prosecuting attorney;

2) PARTICIPATION; OR

3) KNOWINGLY AND PURPOSEFULLY sharing in the discovery of a co-D.

–Note: After the filing of a charging document, D MAY elect to participate in discovery pursuant to FRCP.

–Discovery is controlled by rules, there is no constitutional right to discovery (other than for Brady material).

Question 66

D’s Obligations Regardless of Discovery

Answer 66

After filing of a charging document, the court MAY require D to do the following (subject to constitutional limitations):

1) Appear in a lineup;

2) Speak for identification by a witness;

3) Be fingerprinted;

4) Pose for photographs (but not reenacting the crime);

5) Try on clothing;

6) Fingernail swabs;

7) Bodily samples (hair and blood) so long as not an unreasonable intrusion;

8) Handwriting sample; or

9) Reasonable physical or mental exams.

Question 67

State’s Obligations for Discovery

Answer 67

IF D ELECTS to participate in discovery and follows the written notice procedure, the state MUST provide discovery to the defense WITHIN 15 DAYS.

This includes:
1) Names and addresses of all persons relevant;

2) Names and addresses of all persons who are witnesses to D’s statements;

3) Any statements from those above;

4) Written or recorded statements by D or a co-D;

5) Substance of oral statements made by D;

6) Tangible papers or objects that:
–(I) belong to D;

–(ii) are intended to be used by the prosecution; or

–(iii) are in possession of law enforcement that can be tested for DNA.

7) Informants: Any material from CIs (but need not disclose the identity of the CI);

8) Any searches, seizures, or electronic surveillances and docs obtained in such and any electronic surveillances of D’s premises or conversations;

9) Reports of any experts made in connection w/ the case (including results of physical or mental exams and scientific tests).

–MANDATORY (BRADY MATERIAL): Regardless of D opting into discovery, the state MUST provide all exculpatory material. This requires disclosure of any material information within the state’s possession or control that tends to negate D’s guilt.

–Once the prosecutor’s discovery is received, D may inspect, copy, test and photograph the material disclosed and within the state’s control (except for child pornography which must not be reproduced or duplicated, but must be made available for inspection by D)

Question 68

Categories of Witnesses

Answer 68

Witnesses must be broken into category A, B, C.

Category A = All witnesses who did ANYTHING IMPORTANT.

Category B = Not categorized as A or C.

Category C = Witnesses who only performed ministerial duties.

Question 69

D’s Right to Depose Witnesses

Answer 69

Depends on (1) the type of crime and (2) the category of the witness:

1) FELONIES: D has right to depose Category A witnesses. Category B witnesses only on GOOD CAUSE. Category C witnesses only upon a showing that they were MISCATEGORIZED.

2) MISDEMEANORS: Depositions are allowed for GOOD CAUSE ONLY.

Question 70

D’s Obligations if Opting into Discovery

Answer 70

D must respond within 15 days of receipt of the prosecutor’s discovery exhibit with:

1) Names and addresses of all persons D expects to call at trial or hearing;

2) Written statements of those witnesses;

3) Reports of experts; and

4) Tangible papers or objects (if intended to be used at trial or hearing).

NOTE: Any disclosure may be restricted upon a showing of substantial risk of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment.

–Discovery obligations for both parties are ONGOING.

Question 71

What things are not subject to discovery?

Answer 71

1) Work Product

2) Confidential informant UNLESS the CI is produced at a hearing or trial OR a failure to disclose the identity will infringe on the constitutional rights of the accused.

Question 72

Richardson Hearing

Answer 72

A Richardson Hearing MUST be held if there are allegations of discovery violations to determine:

1) Was there a violation?

2) Was it willful or inadvertent?

3) Was it material?

4) Was it prejudicial?

5) If so, what is the appropriate remedy of relief?

Question 73

Remedies for Discovery Violations

Answer 73

The court may:

1) order a party to comply w/ discovery

2) grant a continuance or mistrial;

3) exclude a witness or evidentiary material; or

4) grant any order it deems just under the circumstances.

–Willful violations of discovery can subject an attorney (or pro se D) to sanctions, including but not limited to (1) contempt proceedings and (2) assessment costs.

Question 74

Right to a Speedy Trial: Timing (w/o Demand)

Answer 74

Misdemeanors = within 90 days of arrest

Felonies = within 175 days of arrest

Question 75

Right to a Speedy Trial: Timing (Upon Demand)

Answer 75

Upon filing a written “demand for speedy trial” and serving it on the state, D is entitled to trial WITHIN 60 DAYS.

By filing a demand, D is certifying that D:

1) Is available for trial;

2) Diligently investigated for the case; and

3) Is ready for trial WITHIN 5 DAYS.

–Note: A demand can be stricken upon a showing by the state that D has not diligently investigated or will not be prepared for trial.

–Procedure: Upon demand, there will be a calendar call within 5 days and trial set within 45 days,

Question 76

What happens if the speedy trial time period expires?

Answer 76

D files a “notice of expiration of speedy trial” and serves a copy on the state.

The court holds a HEARING on the notice WITHIN 5 DAYS and the TRIAL is to commence WITHIN 10 DAYS, UNLESS:

1) Time extension has already been granted by the court;

2) Failure to hold trial is a D, co-D, or defense counsel’s fault;

3) D or counsel failed to attend a required proceeding; or

4) Speedy trial demand is invalid.

–REMEDY: If there’s no trial within 10 days and it’s not the fault of D, then on “motion for discharge” by D or the court, the D will be FOREVER DISCHARGED from the crime.

Question 77

When is the trial deemed to have commenced?

Answer 77

IN A JURY TRIAL: upon the swearing in of the voir dire panel.

–This means if you start picking a jury within speedy trial but the actual trial does not happen untIl after speedy trial runs, there is NO VIOLATION.

IN A BENCH TRIAL: Upon proceedings beginning with the judge.

–TIMING: The time periods begin (1) when the person is ARRESTED for the alleged crime OR (2) when the person is given NOTICE TO APPEAR.

Question 78

Timing for a Mistrial or New Trial

Answer 78

If D is to be re-tried after a mistrial, or an appeal granting new trial, D shall be brought to trial:

1) WITHIN 90 DAYS IF NO DEMAND for a speedy trial is made; or

2) WITHIN 60 DAYS IF A DEMAND for a speedy trial is filed, which means D can file a motion for discharge after 70 days.

Question 79

State’s Rights for a Speedy Trial

Answer 79

The state attorney may file a demand for speedy trial if the following 3 conditions are met:

1) The state has met its discovery obligations

2) The court has granted at least 3 continuances on D’s request over the state’s objection; and

3) In a felony case, if it is not resolved within 175 days after the date that formal charges were filed and D was arrested OR the date that D received a notice to appear.

–Timing: The court schedules calendar call within 5 days and trial within 45 days after that.

Question 80

Waiver of Jury Trial

Answer 80

D may waive a jury trial if:

1) The state consents;

2) D submits a waiver of jury trial in writing; and

3) The waiver is knowing, intelligent and voluntary.

Question 81

Number of Jurors

Answer 81

Capital cases: 12 jurors

All other criminal cases: 6 jurors.

Question 82

When are Alternate Jurors released from their duties?

Answer 82

Non-capital cases: Alternate jurors are released at the time that the jury retires (when the jury goes to the jury room to consider their verdict and for deliberation at the close of the case)

Capital cases: Alt jurors remain in courtroom during trial

Question 83

Challenges to Prospective Jurors

Answer 83

Challenges must be made:

1) Outside the presence of the jury, and they may be oral but must state the grounds; and

2) BEFORE the jury is SWORN, unless the court permits a challenge for GOOD CAUSE to be made after the jury is sworn, but BEFORE the evidence is presented.

Question 84

Peremptory Challenges

Answer 84

Capital cases + cases punishable by life = 10 peremptory challenges

Felonies (not punishable by death or life in prison) = 6 peremptory challenges

Misdemeanors = 3 peremptory challenges

Plus 1 = an additional peremptory for an alt juror

–Peremptory challenges cannot be used to exclude persons on the basis of sex or racial group, or any other group subject to strict scrutiny.

–Additional peremptory challenges can be granted at the judge’s discretion.

Question 85

Peremptory Challenges in Co-Defendant Cases

Answer 85

EACH D gets the peremptory challenges allowed under this rule; and

the state gets the sum of all Ds.

Question 86

Challenges for Cause

Answer 86

Unlimited for-cause challenges for any juror showing:

1) Legal or factual competence;

2) Relationship to the parties or the case; or

3) Prejudice.

Question 87

How to Protect an Appellate Review of an Improperly Denied Cause Challenge

Answer 87

To Protect an Appellate Review of an Improperly Denied Cause Challenge, D must:

1) Object to the juror;

2) Exhaust all peremptory challenges;

3) Request additional peremptory challenges; and

4) Identify a specific juror he would have excused, if possible.

Question 88

Juror Questioning of Witnesses

Answer 88

Jurors may be allowed to submit questions to ask witnesses (at the judge’s discretion).

Procedure if juror questions are allowed:

1) Questions are in writing;

2) Trial judge reviews the question outside jury’s presence;

3) Counsel has opportunity to object outside of jury’s presence; and

4) Counsel is allowed to ask follow-up questions.

–If juror’s question is not allowed, the juror must not discuss the question w/ the jury, and must not hold it against either party.

Question 89

Jury Deliberations

Answer 89

Jury may be sequestered at trial court’s discretion.

May separate after jury instructions and reconvene to deliberate.

In NON-CAPITAL deliberations, may permit jurors to separate but only after cautionary instructions.

CAPITAL CASES: Once deliberations start, jurors are to remain sequestered until they reach a verdict UNLESS there are special circumstances of emergency, accident, or special necessity.

–But jurors may separate between the guilt and penalty phases if there’s no prejudice.

Question 90

Order of Trial

Answer 90

1) State’s opening statement;

2) D’s opening statement (may be reserved until beg. of D’s case);

3) State’s case;

4) D’s case; then

5) State’s rebuttal case (if it chooses).

Then closing arguments.

–Capital Cases Only: There is an additional PENALTY PHASE where each side can call witnesses and introduce evidence. Each side is permitted one closing argument; the State goes first.

Question 91

Final Closing Arguments

Answer 91

In all criminal trials, except sentencing phase of capital trials:

1) State’s initial closing;

2) D’s closing;

3) State’s rebuttal.

If the state doesn’t give an initial closing argument, D can still give one.

If D waives closing, the state does NOT get rebuttal closing.

Question 92

Motion for Judgment of Acquittal

Answer 92

The court may grant a motion for judgment of acquittal at the close of the state’s case OR at the close of all the evidence. The motion must state the grounds for which it’s based.

–If D makes a motion at the close of the state’s case, the presentation of a defense case does NOT waive D’s earlier motion for judgment of acquittal.

–Upon a verdict of guilty or discharge b/c of a hung jury, the defense can renew its motion WITHIN 10 DAYS.

Question 93

Subpoenas

Answer 93

Can be used for testimony before the court or to produce tangible evidence.

Subpoenas must state:

1) the name;

2) the court;

3) the title of action; and

4) command the person to appear or produce evidence at a specific time and place.

Question 94

Quashing Subpoenas

Answer 94

A person may move to quash a subpoena. The judge may quash or modify the subpoena if deemed UNREASONABLE and OPPRESSIVE.

–The judge may also order the subpoenaing party to front costs.

Question 95

Timing of Jury Instructions

Answer 95

Jury instructions must be read to the jury BEFORE or AFTER closing arguments and may be read at any time during trial.

–If substantive law instructions are given before closing, the judge must give procedural instructions after closing.

Question 96

Jury Instruction Requirements

Answer 96

1) Must be given orally and in writing;

2) Standard jury instruction should be used unless erroneous or inapplicable.

–Written requests for additional instructions can be made by either party at the close of evidence.

–The jury may also be given verdict forms and copies of all evidence in the case, and a copy of the charging document.

Question 97

Objections to Jury Instructions

Answer 97

Must be made BEFORE the jury retires or the objection is WAIVED.

–Jurors may not be recalled to hear new evidence, but upon their request and in the judge’s discretion, they can rehear evidence already given or get further instructions.

Question 98

Types of Post-Trial Motions

Answer 98

1) Motion to Interview Juror

2) Motion for New Trial

3) Motion for Arrest of Judgment

4) Motion for Reduction or Modification/Correction of Sentence

5) Motion for Post-Conviction Relief

Question 99

Motion to Interview Juror

Answer 99

Must be made within 10 DAYS of the verdict unless good cause is shown. The motion must:

1) state the name of the juror to be interviewed; and

2) give reasons for the interview.

If motion granted, the interview must be conducted in the presence of the court and the parties.

Question 100

Motion for New Trial

Answer 100

The court may grant a new trial on D’s motion or on the court’s own motion if A VERDICT HAS BEEN RENDERED or D has BEEN FOUND GUILTY.

Motion for new trial must be made within:

Non-capital cases: 10 days of verdict.

Capital cases: 10 days of the filing of the final judgment and sentence.

Question 101

Grounds to Grant a Motion for New Trial

Answer 101

A new trial is required if:

1) Jurors decided verdict by lot; (aka by chance)

2) The verdict is contrary to law or to weight of the evidence; or

3) Newly discovered evidence that, if introduced at trial, would probably have changed the verdict.

–The evidence must be MATERIAL and could not have been EASILY OBTAINED BY REASONABLE DILIGENCE.

If prejudice to D is established, the court must grant a new trial if:
1) D is not present at any proceeding where presence is required;

2) The jury received evidence out of court;

3) Jurors separated w/o leave of court;

4) Any juror was guilty of misconduct

5) Prosecutor was guilty of misconduct;

6) The court erred in deciding matter of law during course of trial;

7) Judge gave erroneous jury instruction or refused to give proper instruction; or

8) Any other reason that deprived D of a fair trial.

Question 102

Motion for Arrest of Judgment

Answer 102

This is like a late motion to dismiss, available on the grounds that:

1) the indictment or information was so defective it will not support a judgment of conviction;

2) the court lacks jurisdiction over the matter;

3) the verdict is so uncertain as to be defective; or

4) D is convicted of an offense not in contemplation of the information or indictment.

–NOTE: A motion for arrest of judgment must be made within 10 days of the jury verdict.

Question 103

Motion for Reduction or Modification/Correction of Sentence

Answer 103

The state can move for a correction for the benefit of D or if there was a scrivener’s error.

–Can’t increase the sentence, ONLY reduce it.

Any party may move at any time after the direct appeal has concluded to correct an:

1) Illegal sentence;

2) Error in the scoresheet calculation; or

3) Where time served was not properly granted.

NOTE: A court may reduce a sentence WITHIN 60 DAYS AFTER:
a) Imposition of the sentence;
b) Receipt of an appellate court mandate affirming the sentence; OR
c) Receipt of the final order in any further appeal.

Reduction or modification is NOT permitted where:
i) the death penalty is imposed;
ii) the trial judge imposed the minimum mandatory sentence; or
iii) the trial judge has no sentencing discretion.

Question 104

Direct Criminal Contempt

Answer 104

Is an act or insult committed in the presence of the judge or court.

Judgment and sentence may be pronounced summarily, but D has a right to present EXCUSING or MITIGATING evidence.

Question 105

Indirect Criminal Contempt

Answer 105

Occurs outside the presence of the judge or court.

Here, the judge issues an order to show cause and holds a hearing with the judge, a prosecutor and D.

–D is entitled to counsel and to present witnesses.

NOTE: The judge MUST disqualify herself if it was regarding her personally.

Question 106

Motion for Post-Conviction Relief

Answer 106

A motion for post-conviction relief is presented to the sentencing court to raise many issues, including, but not limited to the following:

1) Constitutional issues;

2) Lack of jurisdiction;

3) Involuntary plea;

4) Collateral attacks; or

5) Ineffective assistance of counsel, etc.

–TIMING: The motion must be made WITHIN 2 YEARS after the sentence is imposed UNLESS there is newly discovered evidence.

–A hearing is held unless the records of the case show that no relief is warranted

–A party may appeal the court’s order denying the post-conviction motion

–A party may file a petition to test DNA claiming it would exonerate or mitigate D’s sentence. The petition must allege the evidence was not previously tested, or that testing was inconclusive and new techniques would likely result in a definitive result. This petition may be filed at any time.