Federal Procedure Flashcards
Where do the FRCP apply?
US District courts
US District courts of appeals
USSC
US territories
What are the requirements of a complaint?
- written AND
- states essential facts AND
- under oath AND
- made before a magistrate/judicial officer
When is an arrest warrant issued?
- if a complaint establishes probable cause OR
2. if a defendant fails to appear on a summons
When is a summons issued?
At the request of an attorney for the government
What are the requirements of a warrant?
- defendant’s name AND
- offense charged AND
- command that defendant be arrested and brought before a judge AND
- signed by a judge
How is a warrant issued?
- def arrested AND
2. def shown a copy of the warrant
How is a personal summons issued?
personal service on the defendant OR
leaving a copy at the residence with a person of a suitable age AND mailing a copy to defendant’s last known address
How is a summons issued on an organization?
- delivered to an agent AND
2. mailed to organization’s last known address of principle place of business
What does an officer do after executing a warrant?
Return it to a judge (can be done electronically)
When can evidence obtained from a warrant be suppressed?
Where there is a finding of bad faith
What must a judge tell a defendant at initial appearance?
- content of complaint AND
- right to counsel AND
- circumstances for pretrial release AND
- preliminary hearing (only if D came in under a criminal complaint) AND
- 5th Amendment rights
- right to notice consulate
- right to an identity hearing
When must a preliminary hearing be held?
within 14 days after IA if the defendant is in custody:
within 21 days after IA if defendant is out of custody
What are the defendant’s rights at a preliminary hearing?
Cross examination
Introduction of evidence
Can a defendant challenge illegally acquired evidence at a preliminary hearing?
Nope
How many members in a grand jury?
16-23 (there may also be alternates).
16 is a quorum for purposes of hearing testimony
What are the responsibilities of a grand jury foreperson?
- Administer oath AND
- Sign indictments AND
- Record number of jurors concurring AND
- File record with the clerk
When may a grand jury indict/’return of indictment’?
When 12 jurors concur (quorum for purposes of returning of indictment)
When may offenses be joined?
- When they are of same/similar character OR
- When they are the same act or transaction OR
- They are part of a common scheme or plan
When may the defendant move to dismiss for lack of jurisdiction?
At any time during the pendency of the case
May a defendant be held after the court dismisses his case for a defect in the indictment/information?
Yes, for a “specified amount of time” (unclear as to how long that can be)
What is the process for a a defendant to notify the government of an alibi defense?
- government requests notice of alibi w/ time/date/place of offense
- within 14 days after the government’s request, the defendant responds with
- place of alibi
- name of alibi
- address of alibi
- phone number of alibi
When may a defendant’s statements made during a psychological exam be admitted?
- at a competency proceeding OR
2. at a capital sentencing
Under what circumstances are depositions taken in federal cases?
- to preserve testimony for trial (like a motion to perpetuate testimony) OR
- under exceptional circumstances when the interests of justice require OR
- if a detained material witness requests
When may a defendant be present for a deposition?
When he is in custody or out of custody but NOT if the witness is outside the united states
What discovery must the government disclose prior to trial?
- defendant’s oral/written statements AND
- defendant’s criminal record AND
- documentes objects:
- material to the case OR
- obtained from the defendant OR
- that the government will use at trial - Reports of exams, tests, experts
When may venue be transferred?
- defendant states in writing that he wishes to plea AND
- defendant waives right to trial where complaint is pending AND
- defendant files statement in transferee court AND
- the AUSAs in both districts approve the transfer
When may a case be decided by fewer than 12 jurors?
- the parties stipulate in writing OR
- the court finds it necessary to excuse juror for good cause OR
- the defendant waives right to jury trial, government consents and court approves
How many peremptory challenges in a capital case?
20
How many peremptory challenges in a felony case?
6
How many peremptory challenges in a felony case with joint defendants?
10
How many peremptory challenges in a misdemeanor case?
3
When may a substitute judge sit for another judge during trial?
The original judge is sick, injured or dead AND the substitute judge certifies familiarity with the trial record
When may a party move to produce a witness’s statement?
After the witness has testified on direct exam
What rights are triggered by a party moving to disclose a witness’s statement
- disclosure of the entire AND
2. a recess to examine the statement
What happens when a party ordered to produce a statement disobeys the order?
- The witness’s testimony must be stricken OR
2. The court may declare a mistrial
At what type of hearing may a party move to produce a statement?
preliminary hearing
sentencing
probation revocation hearing
detention hearing
How must a party object to jury instructions?
- state specific legal objection AND
2. object before the jury retires to deliberate
Aside from the crime charged, what else can a jury return a guilty verdict upon?
- necessarily included lesser OR
- attempt OR
- attempt to commit a necessarily included offense
What must the government do before seeking a forfeiture?
Notice the defendant in the indictment or information
When must the court arrest judgement?
upon defendant’s or its own motion if the court does not have jurisdiction
When must the defendant move to arrest judgement?
within 14 days of the verdict or finding of guilt
When may a motion for new trial be filed?
- 3 years after the verdict if based on newly-discovered evidence OR
- 14 days after the verdict for any other reason
What qualifies a person to serve on a grand jury?
Must be 18+ years old, must not be a convicted felon
When may a grand jury be challenged?
If it is not lawfully drawn, selected or if members are not qualified
If one juror is not qualified, is the indictment dismissed?
No, as long as 12 jurors are qualified
Who may be present at a grand jury proceeding?
Witnesses
government
interpreter
court reporter
Who may be present during grand jury deliberation and voting?
Jurors only
Who may speak about what happened during grand jury proceedings?
Witness who testified can disclose their testimony to anyone.
How may a defendant get the minutes of grand jury proceedings?
- defendant shows a particularized need THEN
2. the court then balances the need for secrecy with the possible injustice
When must an initial appearance occur?
“without unreasonable delay” - but no specific time period.
Where does an initial appearance take place if the defendant is arrested in a different jurisdiction than where the crime took place?
Either where the defendant was arrested or where the crime took place
What information is contained in a pretrial services report?
Ties to the community, flight risk, danger to the community.
When can pretrial detention be ordered?
After a hearing, upon a showing of flight risk, and danger to the community
Under what circumstances is there a rebuttable presumption that the defendant is a flight risk?
If the defendant is charged with a serious drug offense or a violent crime
What prohibits a judicial officer from imposing a particular financial condition for release?
If that condition results in the defendant’s detention
When must a detention hearing take place?
Immediately, though the defendant can seek a 5 day continuance and the government can seek a 3 day continuance (from the date of IA) (these dates don’t include weekends or holidays).
If a defendant commits a felony offense while on release, what additional sentence does he face?
up to 10 years, to be imposed consecutively
If a defendant commits a misdemeanor offense while on release, what additional sentence does he face?
up to 1 year, to be imposed consecutively
What is the federal speedy trial period?
- 70 days from whichever is later of either:
- Filing date of indictment; or
- date D appeared before judicial officer of the court in which such charge is pending.
- Trial can’t start less than 30 days from date of D first appears through counsel or waives counsel
Under what circumstances is there no statute of limitations for federal offenses?
- Capital offenses
- when the defendant is a fugitive
- offenses involving children (sexual abuse, physical abuse, kidnapping)
What is the normal statute of limitations for a federal offense?
An indictment/information must be filed within 5 years from the offense date
What is the process for a defendant to raise an insanity defense?
- notice the government in writing
- notice the government of intent to use expert testimony
- the government may ask for court-appointed experts
What is the process for raising a public authority defense?
- notice government in writing
- state law enforcement agency involved
- state law enforcement individual involved
- government responds within 14-21 days, admitting or denying that the defendant acted under public authority
- defendant gives government names, numbers and addresses it intends to call to establish public authority defense
- government provides names, addresses and numbers of witnesses it intends to call to oppose public authority defense
When must the defendant move for judgement of acquittal during trial?
After the close of the government’s evidence, before submission of the case to the jury
What is the time limit for a defendant to move for a JOA after trial?
14 days
If the court reserves on JOA, when may the court rule?
Before or after verdict
When may the court take additional testimony in deciding a motion for a new trial?
Where the defendant waived a jury trial (bench)
When computing time periods, are weekends and holidays included?
Yes
When computing time periods, is the day of the event included?
No
When computing time periods, is the last day of the period included?
Yes, unless the last day is a weekend or holiday
Consequence for anyone (other than testifying witness) to disclose grand jury testimony?
Criminal contempt
How long does government have to file an indictment?
Must be filed within 30 days from date of arrest or service of summons.
*Unless grand jury hasn’t been in session in district during that 30 day period. If this is the case there’s a 30 day extension.
Can a Defendant plead guilty & be sentenced in a jurisdiction other than where prosecution is pending?
Yes (Rule 20). D can plead guilty in district they were arrested in IF:
(1) US Attorneys in both districts must agree; AND
(2) D must state in writing that he wants to plead guilty in another district.
What is Jencks Act material?
Says that AFTER a witness called by the gov’t has testified on DX, the court, on motion of either party, shall order the gov’t to turn over any statement of the witness in the possession of the gov’t.
-Must turn over entire statement unless it contains privileged information - then court may conduct an in camera review to determine if statement does in fact contain privileged information. In this case they’ll produce a redacted statement.
What factors are considered at a detention hearing?
- Weight of the evidence
- history & characteristics
- criminal history
Waiver of Speedy Trial
Waiver must be for a specified period of time.
Other exceptions to normal 5 year statute of limitations
Terrorism - 8 years
Financial Institution - 10 years
Securities Fraud Offenses & Tax Cases - 6 years
