Criminal Procedure: Pretrial Procedures—from Charging to Trial and Everything in Between Flashcards
Charging a defendant with a crime
There must be probable cause to prosecute or detain the defendant.
There are three ways to determine probable cause:
(1) grand juries
(2) an arrest warrant has been issued by magistrate (this shows probable cause)
(3) Gerstein hearing: A probable cause hearing (Gerstein hearing) to determine whether probable cause existed to arrest the defendant is necessary unless an indictment was issued by a
grand jury or an arrest warrant was issued by a magistrate. It must be held within 48 hours of arrest.
Bail
Bail cannot be “unduly high” (e.g., $2,000,000 for a minor offense) BUT it does not matter that bail is not affordable.
Judge must consider the defendant’s individual circumstances when fixing bail.
Decisions regarding bail are immediately appealable.
Plea bargaining
Plea bargains (defendant agreeing to a lesser charge or lesser sentence in lieu of going to trial) are enforceable.
Evidentiary disclosure
Defense must be granted the same discovery rights that are granted to the prosecution.
Rights at trial: counsel
Each defendant has the right to counsel (but may waive this right). U.S. Supreme Court has held that this right to counsel extends to the first appeal in criminal trials.
This right implies that the counsel is effective.
Defendant may try to prove that he had ineffective assistance of counsel.
Rights at trial: judge
The judge must be fair so the defendant is properly afforded due process under the 14th Amendment.
Rights at trial: jury
Criminal defendants have the right to a fair and impartial jury under the Sixth Amendment. This means that jurors cannot bring in outside evidence or communicate with a witness. This is juror misconduct although it may not be harmful enough to grant a retrial.
Rights at trial: selection of a jury
Before beginning, the court should give the jury instructions and have them sworn in before beginning voir dire.
The scope of voir dire is to determine whether there are grounds for challenges for cause and to gain knowledge to facilitate an intelligent exercise of peremptory challenges.
Rights at trial: role of jury
The jury decides whether every element of the crime is proved beyond a reasonable doubt.
Note that the right to a jury trial does not extend to sentencing proceedings.
What does the jury pool have to look like?
Cross-sectional requirement:
The jury pool must represent a cross-section of the community.
It does not matter if the jury itself is diverse (the jury can be extremely un-diverse, so long as the pool the jury was picked from is diverse).
Right to a speedy trial under the Sixth Amendment
This attaches when the defendant is arrested or charged.
Rights at trial: Punishment
The Eighth Amendment prohibits cruel and unusual punishment. This has been applied to fines, bail, and the death penalty, etc.
Rule of law: punishment cannot be excessive or “grossly disproportionate” in comparison to the crime.
Rights at trial: Life without parole
The Supreme Court has held that a juvenile who is convicted of a non-homicide offense may not be sentenced to life without parole.
Rights at trial: Death penalty
It is unconstitutional for a statute to mandate that the death penalty is automatically
imposed in some cases, as a jury must be allowed to consider all mitigating evidence.
Defendants who cannot be given the death penalty:
(1) Defendants with mental retardation
(2) Defendants who are mentally insane at the time execution is to take place
(3) Defendants who were minors (below the age of 18) when they committed the crime
(4) Defendants who rape an adult woman or child if the victim did not die
(5) Defendants who are convicted of felony murder but “neither took life, attempted to take life, nor intended to take life.”
Double jeopardy
The 5th Amendment states that no person shall be subject to “the same offence to be twice put in jeopardy of life or limb.” This is the guarantee against double jeopardy.
Double jeopardy only applies when it is the same sovereign trying the case.
Double Jeopardy Clause prevents reprosecution after acquittal, after conviction, and for the same
offense.
Double jeopardy: are they the same sovereign?
Double jeopardy only applies when it is the same sovereign trying the case.
