Crimminal Prosecutions for Fraud

Question 1

Information is….

Answer 1

An information is a charging document stating that the person or persons named or described committed an offense. An information may be signed only by the prosecutor without the involvement of the grand jury. A misdemeanor may be charged by either an indictment or information.

Question 2

When are Miranda warnings required?

Answer 2

Miranda warnings (named after the Miranda v. Arizona U.S. Supreme Court case) are required only if the suspect is (1) interrogated (2) while held in custody (3) by law enforcement. Certain exceptions to the warning requirement apply, such as when immediate questioning is necessary to ensure public safety. The warnings generally are not required when a person is being questioned by private parties.
Probable cause is an issue in several constitutional rights issues, such as search and seizure laws, but is not directly relevant to whether officers must provide a subject with Miranda warnings.

Question 3

Immunity order protect only for…

Answer 3

An immunity order protects the witness only from prosecution of past crimes about which his testimony is compelled; other undiscovered crimes are not covered, nor is the witness immune from prosecution for perjury based on the immunized testimony. Such testimony may also be used against a witness in a civil proceeding

Question 4

T or F:
In the course of a criminal investigation, the prosecution may apply for a court order compelling testimony from a witness under a grant of immunity.

Answer 4

In the course of a grand jury investigation or trial, the prosecution may apply for a court order compelling testimony from a witness under a grant of immunity. Since immunized testimony cannot be used against the witness in any criminal proceeding, such an order does not violate Fifth Amendment protections.
Although it is legally permissible to prosecute an immunized witness on the basis of other testimony and evidence, as a matter of practice this is seldom done because of policy considerations and the difficulty of demonstrating—as the law requires—that the subsequent prosecution was not in any way based on the compelled testimony. A decision to immunize a witness is solely within the discretion of the prosecution. If the application meets statutory requirements, the court must grant the order.

Question 5

The reading of the indictment or information in open court where the defendant pleads to the charges is called:

Answer 5

The arraignment takes place in open court and consists of the reading of the charges in the indictment or information. The defendant may plead guilty, not guilty, or nolo contendere.

Question 6

What are the accused rights during a grand jury hearing?

Answer 6

The grand jury hearing is a nonadversarial proceeding. The accused has no right to be informed of its deliberations, to know the evidence against him, or to confront the accusers. The accused also has no absolute right to appear before the grand jury, and if he does, he may not be accompanied by counsel. The accused may, however, periodically leave the grand jury to consult with his attorney.

Question 7

Brady vs Maryland: evidence of defense.

Answer 7

The prosecutor has an ethical responsibility not to use evidence that is false and must correct testimony that he knows is false. In 1963, the Supreme Court (in the case of Brady v. Maryland, 373 U.S. 83) expanded the prosecution’s duty further. Under Brady, the prosecution must disclose all evidence requested by the defendant that is material to guilt or punishment (i.e., evidence that would tend to exculpate him or reduce his penalty). The government is expressly forbidden from concealing evidence that would call the charges into question.

Question 8

When does appellate court reverse a conviction?

Answer 8

An appellate court will not reverse a conviction unless it finds error that affected the “substantial rights” of the defendant; “harmless error,” not affecting the jury’s decision, is tolerated.

Question 9

In the U.S. federal legal system, which of the following must be charged by indictment?

Answer 9

In the U.S. federal legal system, all offenses punishable by death must be charged by an indictment; all felonies (crimes punishable by imprisonment for more than one year or at hard labor) must be charged by indictment unless indictment is waived by the defendant. If the indictment is waived, the prosecution may proceed by filing an information.
Misdemeanor crimes may be charged by indictment or information.

Question 10

During the opening statement by the prosecution, prosecution is permitted to?

Answer 10

In the U.S. federal legal system, all offenses punishable by death must be charged by an indictment; all felonies (crimes punishable by imprisonment for more than one year or at hard labor) must be charged by indictment unless indictment is waived by the defendant. If the indictment is waived, the prosecution may proceed by filing an information.
Misdemeanor crimes may be charged by indictment or information.

Question 11

Pete played a subordinate role in a securities fraud scheme, and the prosecution obtained a court order compelling Pete to testify against the leader of the scheme under a grant of immunity. If there are private parties who want to sue Pete for damages resulting from his participation in the fraud, will they be able to use his compelled testimony as evidence in a civil trial?

Answer 11

Yes, because immunity orders only prevent the use of the witness’s testimony in criminal proceedings.

In the course of a grand jury investigation or trial, the prosecution may apply for a court order compelling testimony from a witness under a grant of immunity. Since immunized testimony cannot be used against the witness in any criminal proceeding, such an order does not violate Fifth Amendment protections.
An immunity order protects a witness only from prosecution for past crimes about which his testimony is compelled; other, undiscovered crimes are not covered, nor is the witness immune from prosecution for perjury based on the immunized testimony. Such testimony also may be used against the witness in a civil proceeding.

Question 12

A defendant in a criminal prosecution requests that the prosecution turn over relevant documents and tangible objects, reports of examinations, and expert witness reports during the pretrial phase. Is the prosecution entitled to corresponding items from the defense?

Answer 12

True
In the pretrial discovery phase of criminal litigation, if the defendant requests disclosure of the prosecution’s documents and tangible objects, reports of examinations and tests, and its expert witnesses, then the prosecution is correspondingly entitled to disclosure of these items from the defense.

The prosecution is not, of course, entitled to disclosure of the defendant’s work product, nor is it entitled to statements made by prospective witnesses to the defendant or his attorneys.

If defense team did not make any request from prosecution during pre-trail, the defense does not have to turn over requested items from the prosecution.

Question 13

Since a grand jury can only indict an individual, not sentence him, do witnesses who appear before a grand jury have a Fifth Amendment right against self-incrimination?

Answer 13

The grand jury has the right to subpoena witnesses and documents, and refusals to appear or produce may be punishable as contempt, with fines or jail terms until the subpoena is complied with or the grand jury term expires. A witness or target of the grand jury retains the Fifth Amendment right against self-incrimination.

Question 14

A criminal defendant’s prior convictions usually are NOT introduced at trial unless the defendant takes the stand? T/F

Answer 14

If a defendant testifies on his or her own behalf in a criminal trial, he or she is subject to cross-examination just like any other witness, and the prosecution may impeach his or her credibility by showing prior convictions. This usually is a death blow to the defense, and it is the reason why many defendants do not testify.

Question 15

Motion to suppress evidence is

Answer 15

In a motion to suppress evidence, the defense argues that evidence was improperly obtained, is impertinent or unduly prejudicial, or violates some other right such as the privilege against self-incrimination. In many cases, motions to exclude evidence—decided at a suppression hearing, where the judge (without a jury) rules on the propriety of the government’s conduct—are more important than the trial itself. If the defense is able to exclude illegally seized narcotics, a tainted confession, or critical books and records, the prosecution might be forced to dismiss the charges (at least temporarily) for lack of adequate proof. On the other hand, an unsuccessful suppression motion might be followed by renewed interest by the defendant in a plea bargain.

Question 16

In closing arguments, who starts and ends?

Answer 16

The prosecution argues first, the defense follows, and the prosecution has the opportunity for final rebuttal. In most cases, the defense’s closing argument focuses on attacking the motives and credibility of the government’s witnesses and emphasizes the heavy burden of proof the government bears.

Question 17

What type of challenge occurs when the defense attorney in a criminal trial excuses a juror for no reason?

Answer 17

Most criminal cases are tried by a jury of 12 with at least two alternates, but the parties may stipulate to a lesser number. The jury is expected to be impartial. The parties or the court may ask questions of the prospective jurors to determine their suitability. Each party may remove any number of prospective jurors for cause, such as admitted bias or prejudice, and each side has a limited number of peremptory challenges, depending on the offense charged, under which a party may strike a prospective juror without having to provide a reason. The prosecution may not use its peremptory challenges, however, in a way solely influenced by racial factors. The defendant also may challenge the entire jury pool—called the venire—if the selection procedures systematically exclude certain groups, such as minorities, women, or young people.

Question 18

Common legal defense asserted by defendants in criminal cases?

Answer 18

A defense is an assertion by a defendant in a criminal or civil suit that seeks to explain away the defendant’s guilt or civil liability for damages. For instance, the increased use of the undercover approach in criminal investigations has led to an increase in the use of entrapment defenses. Entrapment occurs when law enforcement officers or government agents induce a person to commit a crime that he is not previously disposed to commit.
Other common defenses in criminal cases include: alibi, consent, de minimis infraction (trivial), duress, entrapment, ignorance, mistake, insanity, necessity, protection of property, self-defense, public duty, legal impossibility, and protection of others. Also pertinent in the matter of defense are questions involving statutes of limitations, proper venue, and proper jurisdiction.

Question 19

the Supreme Court held that police may briefly detain and question a person for investigative purposes if there are probable causes? T/F?

Answer 19

False:

In Terry vs. Ohio, 392 U.S. 1 (1968), the Supreme Court held that police may briefly detain and question a person for investigative purposes if there are specific “articulable” reasons to do so. The decision imposes a lesser standard than probable cause.

Question 20

Generally, deferred prosecution agreements occur when

Answer 20

Generally, deferred prosecution agreements occur when prosecutors file criminal charges against a company, but then agree not to prosecute the claims as long as the company successfully complies with the deferral agreement’s terms. These requirements typically focus on getting the business to reform its policies and reduce the risk of illegal practices. Essentially, deferred prosecution agreements help companies avoid indictment, trial, and conviction while providing prosecutors with another channel for disposing of a corporate case that punishes malfeasance and effectuates changes in a company’s culture.

Question 21

Probation is.

Answer 21

Probation is the suspension of an offender’s sentence in return for a promise of good behavior. Many laypersons confuse probation with parole. Although parole is functionally similar to probation, parole occurs after the offender has served at least part of his lawful sentence. Probation typically is a sentence imposed prior to (and instead of) incarceration. Probation laws vary from state to state, but the offender typically is placed under the control and guidance of a probation officer, who is to see to it that the conditions that are established are met.

Question 22

During the closing arguments, what are the particularly high standards the prosecutor is held to

Answer 22

The prosecutor is held to a particularly high standard during the closing arguments. He may not misstate the evidence, express a personal opinion as to the defendant’s guilt or the credibility of witnesses, or otherwise make prejudicial or inflammatory remarks. The prosecutor is expected to stick to the facts and to the reasonable inferences that may be drawn therefrom.

After both sides have presented their evidence, they make their closing arguments to the jury. The closing arguments provide the jury with a final opportunity to hear each side’s position. The prosecution delivers its closing argument first, the defense follows, and the prosecution has the opportunity for final rebuttal.
Closing arguments are not evidence, but are the attorney’s summaries of the evidence presented during the trial.
The remarks in closing arguments are limited to issues pertinent to the case and confined to evidence presented during the trial.

Question 23

venire

Answer 23

Each party may remove any number of prospective jurors for cause. The defendant also may challenge the entire jury pool—called the venire—if the selection process systematically excludes certain groups, such as minorities, women, or young people.