Federal Procedure Flashcards
What are the three types of courts in federal court?
District—trial
Circuit—appeals
Supreme Court
What are the types of judges in federal court?
District court judge—article 3
Magistrate
Info on district judges
Nominated by president, confirmed by senate
Appointed for life
can’t have pay cut
Info on magistrates
Jurisdiction, how are they appointed, term limit?
Only jurisdiction by statute and delegated by district judges
Appointed by majority of district judges
Term of 8 years
Levels of crime in federal court
Felony—more than a year imprisonment
Misdemeanor—less than a year
Petty offenses—class b or c misdemeanor or infraction
Class B—less than 6 months
Class C—less than 30 days
Infraction—less than 5 days
How are crimes charged in federal court
Criminal complaint, indictment, Information
Where do the rights for an indictment come from?
5th Amendment and Rule 7–punishable by death or imprisonment of more than 1 year should be indicted by grand jury
How many members on a grand jury
16-23 members
How many grand jurors for a quorum
16
Qualifications for grand jury
US Citizen
18 Y/O
Reside in judicial district
No pending felony charges
Never convicted of felony unless rights restored
Secrecy of a grand jury
All proceedings recorded but AG keeps it
No disclosure by juror, interpreter, court reporter, AG
Punishment is contempt
Witnesses not bound by secrecy
What standard must a grand jury find to indict?
Probable cause that crime was committed and D is the person who did it
How many grand jurors must concur in the return?
12
How is the indictment returned?
In open court
To a magistrate
Explain forfeiture
Must be in indictment or information
Doesn’t need to be specific as to what or how much
Timing of return of an indictment
30 days if arrested on complaint from date of arrest or service of the summons
Any exceptions to timing of return of indictment?
No grand jury in session during 30 day period then additional 30 days may be granted
Can be waived
When can an Information be used in federal court
Misdemeanors or petty offenses—less than a year of imprisonment
Felonies if waiving indictment
How can a defendant waive an indictment?
In open court after being advised of charges and rights
Explain. Transfer plea and sentencing
Can switch to where a defendant lives if done in writing and wishes to plead guilty
Who must agree for transfer plea?
Defendant plus prosecutors in both districts
Which crimes have no statute of limitations in federal court
Capital offenses
Crimes against children
Terrorism crimes involving death or serious injury
Fugitives from justice
What is the statute of limitations for most federal crimes
5 years
Statute of limitations on crimes against financial institutions
10 years
Statute of limitations on theft of art work
20 years
Statute of limitations on nationality, citizenship and passports
10 years
Statute of limitations on arson
10 years
Statute of limitations on tax fraud
6 years
How long for initial appearance in federal court
“Without unnecessary delay
What must someone charged with a felony be advised of at his initial appearance (IA)
Charges
Right to counsel
Right to bond hearing
Right to preliminary hearing
Right to remain silent
Right to consular notification if not US citizen
Where does initial appearance take place
Where the offense was allegedly committed if arrested there
If arrest in other place, there unless in adjacent district and can occur promptly there
What must defendant charged with a misdemeanor be advised of at initial appearance?
Charges
Right to counsel
Right to remain silent
Right to trial before judge or jury (unless waived or if petty offense)
Right to preliminary hearing
Right to consular if not US citizen
What is a preliminary hearing in federal court
probable cause hearing
When must a preliminary hearing happen
14 days of arrest if in custody
21 days if out of custody
Who presides over preliminary hearings
Magistrate
What can and cannot be done at a preliminary hearing
Cross examine witnesses, introduce evidence
Can’t object on 4th amendment grounds
What happens if magistrate finds no PC at prelim hearing?
Magistrate must dismiss and discharge BUT gov’t can later refile
What are the options for release in federal court
- Personal recognizance or unsecured bond
- Conditions
- Temporarily detained for conditional release violation or deportation
- Detained
What is the presumption for release/detention?
Usually ROR unless it will not assure appearance or danger
What happens at a bond hearing in federal court
Right to have counsel
Can testify, present witnesses and evidence
No admissibility rules apply
When does a bond hearing occur
At initial appearance—or gov’t can ask for 3 days and Def can ask for 5 (not including weekends/holidays)
Defendant is detained for this
What offenses have a presumption of detention?
Crime of violence, max is life or death, controlled substance with penalty of more than 10 years, crimes involving children
What grounds specific to the offender can be used for pretrial detention?
Serious flight risk, serious risk that they will obstruct justice or threaten intimidate witness or juror
What factors must be considered for release decisions?
Circumstances of offense
Weight of evidence against person
History of person
If on probation or supervision
What’s the standard for moving for detention based on danger to the community
Clear and convincing that he is dangerous
What is the standard for moving for detention based on flight risk
preponderance of the evidence that no conditions will ensure presence
What constitutional rights to discovery exist?
ONLY Brady and Giglio
What discovery must the government produce if requested per rule 16?
Any relevant statement by the defendant (oral or written) if they knew or should know it exists
Prior record
Inspect and copy any books, documents, data, photos, etc IF material to defense, gov’t intends to use it, or belonged to the defendant
Results of physical/mental exam or any scientific test
Expert witness info
What’s not subject to disclosure
Grand jury transcripts
Reports, memo other internal gov’t documents, statements by witnesses
When must a discovery conference occur?
14 days after arraignment
What is Jencks Material
Statement by witness shall NOT be disclosed until after direct examination
When can depositions be ordered?
To preserve evidence for trial in exceptional circumstances in the interest of justice
When does a lack of jurisdiction motion have to be filed?
Anytime
When must an alibi defense be disclosed
Within 14 days of gov’t request
What must be disclosed for an insanity defense
Expert and report disclosure
What’s required to waive a jury trial
Defendant must waive in writing, government consents, court approves
Can a jury have less than 12 members?
Consent or 11 can return verdict without stipulation if good cause to excuse a juror
How many peremptory challenges?
Capital: 20
Felony: Gov’t 6; def 10
Misdemeanor: 3
Can allow more for multiple co-defs
How long to move for or renew JOA after verdict?
14 days
When must motion for new trial be filed?
14 days after verdict
If appeal pending, after remand only
Newly discovered evidence: 3 years
What must the court advise the defendant of before accepting plea?
-Right to plead not guilty
-right to lawyer at all stages
-Right to jury trial
-Right to confront and cross witnesses
-Waiver of these rights
-Nature of each charge
-Max penalties
-Mandatory minimums
-Forfeiture if applicable
-Courts ability for restitution
-Courts obligation for special assessment
-Courts obligations to calculate guidelines
-If agreed waiving right to appeal
-Deportation
-In perjury charge, can use any statement
When can a plea be withdrawn and why?
Before accepting the plea for any reason
After but if before sentence, if court rejects it or fair and just reason for requesting it
How to calculate time in federal cases?
Exclude day of event, count every day unless ends on weekend or holiday then next business day
What is the federal rule of speedy trial?
70 days from filing date or IA (whichever is later)
Doesn’t include delays for things like competency or pretrial motions or joinder etc
What’s the quickest time for a trial
No less than 30 days from first appearance with counsel
At what point does the judge remind the prosecutor of Brady obligations?
First court date with defense attorney and prosecutor
