CRIMMINAL PROCEDURE

Question 1

Double Jeopardy

Answer 1

The 5th amendment provides that no person shall be twice put in jeopardy for the same offense. The general rule is that two crimes do not constitute the same offense if each crme requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

Question 2

Scope of Right to Counsel

Answer 2

The state must offer to provide counsel for indigent or partially indigent person charged with crimes punishable by incarceration, including juvenile offenses, and for one direct appeal of a criminal conviction.

Question 3

When may the state avoid providing counsel

Answer 3

The state may avoid providing counsel if the offense is not a felony and the judge agrees at least 15 days in advance that the defendant will not be incarcerated

Question 4

Notice to Appear

Answer 4

A notice to appear is a promise by the defendant to return to court. An arresting office or booking officer generally may issue a notice to appear in lieu of physical arrest for misdemeanors and violation of municipal or county ordinances.

Question 5

When Notice to Appear may not be issued

Answer 5

A notice to appear may not be issued by the arresting officer if
i) the accused fails or refuses to sign the notice to appear, identify themself, or supply required information
ii) The officer reasonably believes the accused’s liberty presents an unreasonable risk of bodily harm to the accused or others
iii) the accused has no ties with the jdx or there is a substantial risk that they will refused to respond to the notice
iv) the officer suspects that the accused may be wanted for another crime or
v) it appears that the accused has previously violated a notice, summons, or release condition in the past

Question 6

The Right to Pretrial Release

Answer 6

All persons in custody for the alleged commission of a crime are entitled to pretrial release on reasonable conditions, unless
1. charged with a capital offense or an offense punishable by life imprisonment and
2. proof of guilt is evidenct or the presumption of guilt is great

Question 7

Release after failure to appear

Answer 7

A defendant who willfully and knowingly fails to appear and then voluntarily surrenders is not eligible for release on recognizance.

Question 8

Modification of bond

Answer 8

An application to modify bond may be made by either party with at least 3 hours notice to the attorney or defense counsel. A judge of a court of equal or inferior jurisdiction may not modify or set a condition of release, unless the judge imposed the conditions or amount of bond if the chief judge of the circuit where the trial is to be held, has been assigned to try the case or it the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set the conditions of release.

Question 9

First Appearance

Answer 9

The first appearance is an administrative hearing. An arrested person who is not released must be taken before a judicial officer within 24 hours of arrest. The state atty and public defender (if no private counsel) must be given notice of the hearing and must attend

Question 10

What occurs during the first appearance?

Answer 10

Counsel is appointed, the judicial officer advises the defendant of the charges and his rights, release conditions are set, and if the paperwork is ready, a probable cause determination. Failure to comply with the 24 hour requirement entitles the defendant to release but does not bar prosecution.

Question 11

Probable Cause determination

Answer 11

Persons in custody or under significant restraints on their liberty are entitled to a neutral magistrate’s determination of probable cause. If a person was arrested pursuant to a valid warrant, no further determination is required.

Question 12

Nonadversary Probable Cause Determination

Answer 12

A nonadversary probable cause determination acts as a check on the police.
When the defendant is in custody, a probable cause determination must be made within 48 hours of arrest if an arrest warrant was not obtained prior to the defendant’s arrest. The state is permitted two 24 hour extensions for good cause.
When the defendant is on pretrial release, he may file within 21 days of arrest a motion for a probable cause determination if their liberty is significantly restrained. If the magistrate finds a significant restraint, the magistrate must make a probable cause determination within 7 days of the motion.
If probable cause is found, the defendant is held to answer the charges. If probable cause is not found or the time periods are not complied with, the defendant is released.

Question 13

Adversary Preliminary Hearing

Answer 13

An adversary preliminary hearing is a special probable cause hearing for some defendants. Its purpose is to encourage the prosecutor to file charges against the defendant.
A felony defendant who is detained and who is not charged within 21 days of arrest has a right to an adversary preliminary hearing to determine whether probable cause exists to support the felony charges. The hearing is an adversary hearing with counsel and evidence. Statements by the defendant may be used against them. If probable cause is not found, the defendant is released unless an information or indictment has been filed, in which case the defendant is released on recognizance. If the defendant remains in custody and is not charged by information or indictment within 30 days of arrest, the defendant must be released by the 33rd day. The state may receive an additional 7 days to hold the defendant if the state shows good cause why a charge has not been filed. If extra time is granted, the defendant must be released by the 40th day.
21 - 30 - 33 - 40

Question 14

Additional Nonadversary PC Determination

Answer 14

If a magistrate has found no probable cause or if the time for a nonadversary probable cause determination has not been complied with, the magistrate may thereafter make an additional non adversary probable cause determination.

Question 15

Pretrial Detention

Answer 15

A court may order pretrial detention if it finds that any of the following exist.
1. Defendant poses a threat of harm to the community. (If the defendant is presently charged with dangerous crime, substantial probability committed the crime, facts show a disregard for the safety of the community, no conditions of release reasonably sufficient to protect the community from the risk of harm)
2. Defendant is charged with trafficking controlled substances and there is substantial probability that the defendant has committed the offense and defendant may flee.
3. Defendant has obstructed or attempted to obstruct judicial process.
4. defendant previously violated conditions of release.
5. Defendant is charged with DUI manslaughter and substantial probability they committed the crime and poses a threat to community.
6. Defendant was on probation, parole, or other release pending completion of sentence for a dangerous crime
7. Defendant has violated one or more conditions of pretrial release or bond
8. Defendant is a reoffender, habitual violent felony offender, three time violent felony offender, or violent career criminal.

Question 16

Procedure for obtaining Pretrial Detention

Answer 16

The state may move for pretrial detention when the statutory criteria have been met. The motion must contain the grounds and facts on which it is based and a certificate that the state attorney has received testimony under oath supporting the grounds and facts. A hearing must be held in the trial court within 5 days of the motion or the defendant’s arrest pursuant to the motion.

Question 17

Defendant’s Rights at Hearing for Pretrial Detention

Answer 17

At the detention hearing, the defendant is entitled to counsel and may present and cross examine witnesses. Strict rules of evidence do not apply but a detention order may not be based on all hearsay. The exclusionary rule applies, and the defendant’s testimony may not be used substantively against them at trial .

Question 18

Indictment

Answer 18

An indictment is returned by a grand jury. Any crime may be, and all capital crimes must be, prosecuted by indictment

Question 19

Information

Answer 19

An information is a paper filed by the state attorney or an assistant. The state attorney’s office may prosecute any noncapital crime by filing an information. Misdemeanors and ordinance violations may be prosecuted in county court by information.

Question 20

Technical Requirements for an Indictment or Information

Answer 20

An indictment or information must allege the essential facts of the offense and recite the law violated. Formal defects may be amended on motion at any time before trial. NICE SANTA
Name or alias + race, gender, and DOB
Intent to defraud (general terms)
Caption (not essential)
Endorsement and signature
Signature and oath
Authority under whose auspices the indictment or information is being filed
Nature of the offense
Time and place - where and when the offense occurred
Allegation of facts.

Question 21

Docket Entry, Affidavit, NTA

Answer 21

Misdemeanors and ordinance violations may be prosecute din county court by docket entry, affidavit, or NTA

Question 22

Will an indictment/information be dismissed for defects?

Answer 22

No count of any indictment or information will be dismissed unless the count is so vague, indistinct, and indefinite as to mislead the defendant and embarrass them in the preparation of their defense or expose them after conviction or acquittal to substantial danger of a new prosecution for the same offense

Question 23

Defendant’s right to a copy of charging instrument

Answer 23

The defendant has a right to a copy of the charging instrument at least 24 hours before the defendant is required to plead. If the defendant does not receive a copy but pleads anyway, the request is considered waived.

Question 24

Joinder of Offenses

Answer 24

Offenses may be joined in one indictment or information if based on the same or connected acts or transactions

Question 25

Joinder of Defendants

Answer 25

An indictment or information may charge two or more defendants if
1. each defendant is charged in each count
2. each defendant is charged with the same count of conspiracy and some defendants are also charged with a substantive offense or
3. the offenses are all part of a common scheme or plan

Question 26

Consolidation of offenses

Answer 26

Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side. A defendant may move before trial to consolidate all state charges against them and may move for dismissal of charges unreasonably not consolidated.

Question 27

Severance of offenses

Answer 27

A defendant has a right to sever charges improperly joined. If the charges are properly joined, either side has a right to severance if
i) before trial, it can be shown that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense or
ii) during trial, the defendant consents and severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense

Question 28

Severance of Defendants

Answer 28

Before trial, either the state or a defendant may move for severance of defendants upon a showing that it is necessary to protect a defendant’s right to speedy trial or that it is appropriate to promote a fair determination of the guilt or innocence of one or more defendants.
During trial, the defendant must consent, and there must be a showing the severance is necessary to achieve a fair determination of the guilt or innocence of one or more the defendants.

Question 29

Bruton Problem

Answer 29

A Bruton issue arises when a defendant’s statement implicates a co-defendant.
Bruton requires the state to choose 1 of 3.
1. Omit the statement completely at a joint trial
2. Use the statement in a joint trial after removing references to the co-defendant, as long as the co-defendant will not be prejudiced or
3. sever the defendants

Question 30

Period Stated in Hours

Answer 30

In computing time periods, if the period is stated in hours, the count begins immediately on occurrence of the triggering event, Hours during the weekend or holidays are also included. If the period would end during a weekend or legal holiday, the period continues to run until the same time on the next business day.

Question 31

Period Stated in Days or Longer Unit

Answer 31

Begin counting from the next day that is not Sat, Sund, or legal holiday. Weekend days and legal holidays also are not included if the period is less than 7 days (except for first appearance, pretrial detention, or nonadversary PC hearing). If the period is 7 days or more, weekend days and holidays are included.

Question 32

When may a motion for acquittal be made?

Answer 32

After a guilty verdict or mistral, at the close of all of the evidence, and at the close of the state’s case.

Question 33

Speedy Trial Requirements

Answer 33

If the defendant is charged with a misdemeanor, they are entitled to trial 90 days from arrest/custody, or notice to appear. If the defendant makes a demand for speedy trial, trial must be had within 50 days of demand.
If the defendant is charged with a felony, defendant’s trial must be had within 175 days from arrest/custody. If the defendant makes a demand for speedy trial, trial must be had within 50 days from demand.
If a retrial, 90 days from order awarding new trial or 50 days upon demand for speedy trial.

Question 34

Presentence Report Disclosure Requirements

Answer 34

Prior to sentencing, the judge must disclose to both parties all factual matters in the presentence investigative report and the judge may disclose to the parties any other contents of the PSI. Any matter released to one party must be released to the other.

Question 35

When a new trial is granted, what charge may the defendant be retried for?

Answer 35

When a new trial is granted, the new trial shall proceed in all respects as if no former trial had occured except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or offense, the defendant thereafter cannot be prosecuted for a higher degree of the same offense than that of which the defendant was convicted.
So if tried for 1st degree and found guilty of manslaughter, cannot be retried for 1st degree.

Question 36

What may the jury take into deliberations?

Answer 36

The jury may take a copy of the charges, instructions and verdict forms, as well as all things received in evidence except deposition testimony.

Question 37

Is the defendant required to be present for the arraignment?

Answer 37

The defendant need not appear at arraignment where a written plea of not guilty has been entered. The defendant must appear at first appearance and all proceedings where the jury is present.

Question 38

A motion to disqualify the judge in a criminal proceeding must

Answer 38

Be in writing, set forth the factual basis of the grounds for disqualification, be sworn by the party, and be certified by the attorney that the motion and statements are made in GF>

Question 39

If there is no probable cause found at an adversary preliminary hearing for a felony defendant, is the defendant released from custody

Answer 39

Yes.

Question 40

When must a demand for an alibi be complied with?

Answer 40

The defendant must answer the demand no less than 10 days prior to trial or when the court directs. The state then has 5 days from the answer to provide the identity of rebuttal witnesses.

Question 41

What must a motion to supress evidence contain

Answer 41

A statement of facts on which the motion is based, the reasons for suppression, and a particular description of evidence to be suppressed.

Question 42

Plea for multiple charges throught the state

Answer 42

Once a defendant has entered a plea at arraingment, the defendant may, with the court’s permission, plea duilty or nolo to any charges pending against him in the state over which the court would have jdx. When permitted by law, the defendant may also plead to charges pending in a court of lesser jdx. The prosecutors in the other cases must consent in writing. By pleading to other charges, the defendant waives venue and any non jdx defects relating to the other charges.

Question 43

When may the jury be discharged

Answer 43

When their verdict has been received, when the court, after sufficient time, finds that there is no reasonable probability that the jurors can agree on a verdict, when a necessity exists for their discharge, when the defendant and the prosecuting atty consent to the discharge.

Question 44

When are presentence investigative reports mandatory

Answer 44

if the judge, who has discretion as to what sentence to impose, wants to place the defendant in prison for his first felony OR if the defendant has been found guilty of a felony and is under the age of 18 OR if the judge, who has discretion, sentences the defendant to prison as a result of a probation violation for which the judge previously dispensed w/ a presentence investigative report.

Question 45

When can a court modify a sentence

Answer 45

A court may correct an illegal sentence at any time and may reduce or modify a legal sentence within 60 days after either imposition of the sentence or receipt of an appellate court mandate or order of dismissal.