FL Criminal Procedure

Question 1

T/F: You always have the right to representation by an attorney in a criminal proceeding.

Answer 1

True: You always have the right to representation by an attorney in a criminal proceeding.

Question 2

If the defendant is __________ (i.e., extremely poor), the state is required to provide __________ _________(a public defender). This includes ___________.

Answer 2

If the defendant is INDIGENT (i.e., extremely poor), the state is required to provide FREE COUNSEL (a public defender). This includes MISDEMEANORS.

Question 3

In what 3 situations is the state not required to provide counsel?

Answer 3

The state does not need to provide counsel if:

1. The defendant is not indigent,
2. The violation is not punishable by incarceration, OR
3. The violation is:
   a) A misdemeanor or ordinance violation, AND
   b) The judge certifies in writing, at least 15 days before trial, that the defendant will not be incarcerated if convicted.

Question 4

A defendant may waive the right to counsel, if the waiver is made how?

Answer 4

A defendant may waive the right to counsel, if the waiver is made:

1. Knowingly
2. Intelligently, and
3. Voluntarily

Question 5

When defendant wants to waive the right to counsel, what must the court inquire into?

Answer 5

The defendant must understand the right she is giving up, and the court must inquire as to her mental condition, age, experience, etc.

Question 6

Can a severely mentally ill defendant waive the right to counsel?

Answer 6

A defendant who is severely mentally ill probably cannot waive the right to counsel.

Question 7

Name the 4 ways a defendant can be compelled to appear in court

Answer 7

1. Arrest warrant
2. summons
3. Notice to appear
4. Capias

Question 8

Who can issue an arrest warrant and for what crimes?

Answer 8

Arrest warrant: Any state or county judge may issue an arrest warrant for a felony or misdemeanor.

Question 9

Who can issue a summons and for what crimes?

Answer 9

Summons: The clerk of the court can issue a summons instead of an arrest warrant, for misdemeanors only.

Question 10

Who can issue a notice to appear and for what crimes?

Answer 10

Notice to appear: A police officer can issue a notice to appear instead of arresting the defendant, for misdemeanors and ordinance violations.

Question 11

Who can issue a capias and when?

Answer 11

Capias: A judge can issue a capias (bench warrant) if a defendant fails to appear in court as required.
Judges can also issue a capias when formal charges are filed by information or indictment, and the defendant is at large (not in custody or on bail).

Question 12

What is the time limit to bring a defendant before a judge for a first appearance?

Answer 12

Every arrested person must be taken before a judicial officer within 24 hours.

Question 13

In what formats can a first appearance be held?

Answer 13

The appearance can be in person or by electronic device.

Question 14

Who must be given notice of the first appearance hearing and who must attend?

Answer 14

The public defender and state attorney must be given notice of the hearing and they must attend (unless the defendant has private counsel).

Question 15

T/F: An official record of the first appearance proceedings must be made.

Answer 15

True: An official record of the proceedings must be made.

Question 16

What is the purpose of the first appearance?

Answer 16

Purpose of this event: To inform defendant of the charges and advise her of her rights.

Question 17

At the first appearance, the judicial officer must advise the defendant of the ______________________ against her and provide a _________ of the charges.

Answer 17

At the first appearance, the judicial officer must advise the defendant of the CHARGES against her and provide a COPY of the charges.

Question 18

At the first appearance, the judge must also advise the defendant of what 3 rights?

Answer 18

The judge must also advise her of her right:

1. To remain silent, and that anything said may be used against her;
2. To counsel of choice, or appointment of counsel if indigent AND;
3. To communicate with counsel, her family, or her friends, and that the means will be provided for her to do so.

Question 19

After the first appearance, the judge may release the defendant on their own ____________ (“ROR”).

Answer 19

After the first appearance, the judge may release the defendant on their own RECOGNIZANCE (“ROR”).

Question 20

All defendants are presumptively eligible for ROR, unless?

Answer 20

All defendants are presumptively eligible for ROR, unless:

(1) The defendant is charged with a capital offense (punishable “life” or death), or a life offense (punishable by life in prison) AND the proof of guilt is evident or presumption of guilt is great OR
(2) No conditions of release can assure defendant’s appearance, community safety, or judicial integrity.

Question 21

Notwithstanding the rules regarding the right to pretrial release, the court may also retain custody of the defendant in what 7 situations?

Answer 21

Notwithstanding those rules, the court may also retain custody of the defendant if:

1. The defendant has previously violated conditions of release;
2. The defendant has threatened, intimidated, or injured a victim, potential witness, juror or judicial officer;
3. The defendant is charged with trafficking in controlled substances;
4. The defendant poses a threat of harm to the community;
5. The defendant is charged with DUI manslaughter;
6. The defendant was on probation, or other release pending completion of sentence; OR
7. The defendant has violated a condition of pretrial release.

Question 22

If the defendant remains in custody, the court must determine whether probable cause exists within _______ hours. This process is ___________.

Answer 22

If the defendant remains in custody, the court must determine whether probable cause exists within 48 hours. This process is NONADVERSARIAL.

Question 23

The nonadversarial probable cause determination is unnecessary when?

Answer 23

If the defendant was arrested pursuant to an arrest warrant, the court has already determined that probable cause exists, and no hearing is necessary.
If the court established probable cause at the first appearance, this hearing is also unnecessary

Question 24

How many extensions may the state obtain for the nonadversarial probable cause determination and for what reason?

Answer 24

The state may obtain two 24 hour extensions for good cause.

Question 25

What is the purpose of the nonadversarial probable cause determination?

Answer 25

Purpose of this event: To determine if we can keep the defendant in jail pending trial.

Question 26

If defendant is on pretrial release, but has significant _____________ on his liberty, he may request a probable cause determination within _______ days.
The court must then make a determination within ___ days, or ___________.

Answer 26

If defendant is on pretrial release, but has significant RESTRAINTS on his liberty, he may request a probable cause determination within 21 days.
The court must then make a determination within 7 days, or REMOVE THE RESTRAINTS.

Question 27

If the court determines that there is no probable cause, the defendant will be ________. However, this does not bar ___________ or ______________. The only thing determined at this stage is whether the state has probable cause to _____________ the defendant’s liberty (in or out of custody).

Answer 27

If the court determines that there is no probable cause, the defendant will be RELEASED. However, this does not bar PROSECUTION or RE-ARREST. The only thing determined at this stage is whether the state has probable cause to RESTRICT the defendant’s liberty (in or out of custody).

Question 28

Even if a defendant is released because of no probable cause, if _______ __________ is obtained, the state can re-arrest.
Even without new evidence, ___________ can continue. The state just can’t keep the defendant in _______________ pending trial.

Answer 28

Even if a defendant is released because of no probable cause, if NEW EVIDENCE is obtained, the state can re-arrest.
Even without new evidence, PROSECUTION can continue. The state just can’t keep the defendant in CUSTODY pending trial.

Question 29

If a ___________ defendant has not been charged with a crime within _____ days, she has the right to an adversarial preliminary hearing.

Answer 29

If a FELONY defendant has not been charged with a crime within 21 days, she has the right to an adversarial preliminary hearing.

Question 30

What is the purpose of an adversarial preliminary hearing? Who may be summoned at this hearing?

Answer 30

The purpose of this hearing is to determine whether there is probable cause to support felony charges and continued detention. Witnesses may be summoned and examined.

Question 31

T/F: The court will allow the state to keep a defendant in custody indefinitely without formal charges.

Answer 31

False: The court will NOT allow the state to keep a defendant in custody indefinitely without formal charges.

Question 32

If the defendant is in custody, the state has ______ days from _____________ to charge her with a crime.

Answer 32

If the defendant is in custody, the state has 30 days from ARREST to charge her with a crime.

Question 33

If the state hasn’t filed charges on the 30th day, the court must release the defendant by the _______ day. The court must __________ the state of this deadline.
If the state shows good cause for the delay, this period can be extended up to _________ days.
By the 40th day, the state must _______ _________ the defendant with a crime. Otherwise the defendant will be released – ____ extensions.

Answer 33

If the state hasn’t filed charges on the 30th day, the court must release the defendant by the 33rd day. The court must NOTIFY the state of this deadline.
If the state shows good cause for the delay, this period can be extended up to 40 days.
By the 40th day, the state must FORMALLY CHARGE the defendant with a crime. Otherwise the defendant will be released – NO extensions.

Question 34

Name the 2 ways a defendant can be formally charged with a crime

Answer 34

By indictment and by information

Question 35

Who is an indictment returned by? What is it allowed for? What is it required for?

Answer 35

Indictment:
Returned by: grand jury
Allowed for: Any crime
Required for: Capital crimes

Question 36

Who is an information filed by? What is it allowed for? What is it required for?

Answer 36

Information:
Filed by: state attorney
Allowed for: Any non-capital crime
Required for: none. All crimes that can be charged by information can also be charged by indictment (but not vice versa).
Note: Misdemeanors and ordinance violations can also be prosecuted by affidavit, docket entry, or notice to appear.

Question 37

The charging document must be sufficiently clear to enable the defendant to what?

Answer 37

The charging document must be sufficiently clear to enable the defendant to understand the charges.

Question 38

What must the charging document contain?

Answer 38

It must contain the following:

1. Nature: A plain, concise, definite written statements of the facts constituting the offense.
2. Caption: No formal caption is required (e.g., State v. Johnson).
3. Authority: A statement that prosecution is brought by the state of Florida, whether the charge is brought by grand jury or the state attorney, and the date of filing.
4. Allegation of Facts: Citation of Law Involved: Each count must allege the essential facts and recite the law violated.
5. Information About the Accused: Name, race, gender, and birthdate, when known. Fictitious names or descriptions are acceptable.
6. Time and Place: Statement of time and place, as definitely as possible.
7. Intent to Defraud: If the defendant is charged with fraud.
8. No Incorporation by Reference Not Permitted: Each charging instrument must stand on its own. The instrument cannot incorporate other instruments or documents by reference.
9. Indictment: Endorsement and Signature: The signature of the foreman of grand jury and endorsement by the state of attorney.
10. Information: Signature and Oath: The state attorney must sign under oath, stating good faith. If the information charges a felony, the state attorney must certify that he has received testimony under oath from at least one material witness.

Question 39

Defects in the indictment or information are not grounds to dismiss a charge, UNLESS what?

Answer 39

Defects in the indictment or information are not grounds to dismiss a charge, UNLESS:

1. The count is so vague, indistinct, and indefinite as to mislead the defendant and embarrass him in the preparation of his defense, OR
2. It is so vague that it exposes him to a risk of prosecution for the same offense after acquittal.

Question 40

The defendant makes his response to the charges at __________.

Answer 40

The defendant makes his response to the charges at ARRAIGNMENT.

Question 41

What 3 response options are there for entry of plea?

Answer 41

Guilty
Not guilty
Nolo Contendere (no contest)

Question 42

What happens if the defendant stands mute at arraignment?

Answer 42

The court automatically enters a not guilty plea.

Question 43

The defendant must be _________ in court to enter a plea of guilty or no contest. The defendant may enter a plea of not guilty in ________, through his attorney (or make a not guilty plea in person).

Answer 43

The defendant must be PRESENT in court to enter a plea of guilty or no contest. The defendant may enter a plea of not guilty in WRITING, through his attorney (or make a not guilty plea in person).

Question 44

Not guilty plea: Raises ________ defenses

Answer 44

Not guilty plea: Raises FACUTAL defenses

Question 45

Pretrial Motion to dismiss: Raises _______ defenses:

Answer 45

Pretrial Motion to dismiss: Raises LEGAL defenses:

Question 46

A pretrial motion to dismiss must be filed when?

Answer 46

A motion to dismiss must be filed at arraignment, or before.

Question 47

What defense motions may be filed at any time?

Answer 47

These defense motions may be filed at any time:

1. Defendant had been pardoned for the offense charged;
2. Defendant previously had been placed in jeopardy for the same offense
3. Defendant had been granted immunity; OR
4. That no facts are in dispute, and the facts do not constitute a prima facie case of guilt.

Question 48

The grounds to disqualify a judge are the ____________ in civil or criminal cases.

Answer 48

The grounds to disqualify a judge are the SAME in civil or criminal cases.

Question 49

Name the four grounds to disqualify a judge?

Answer 49

Either side may file a motion to disqualify the judge on grounds that:

1. The judge is prejudiced for or against a party;
2. The judge is related to the defendant within the third degree;
3. The judge is related within the third degree to any lawyer in the case or to any judge who participated as a lower court judge in a decision to be reviewed by the judge; or
4. The judge is a material witness in the case.

Question 50

The second judge is harder to disqualify. The second judge must _______________ that she is prejudiced.

Answer 50

The second judge is harder to disqualify. The second judge must ADMIT that she is prejudiced.

Question 51

Defendants often enter into “plea agreements” where they agree to admit _________ in exchange for a __________. The ______ may impose conditions upon the plea.

Answer 51

Defendants often enter into “plea agreements” where they agree to admit GUILT in exchange for a REDUCED SENTENCE. The STATE may impose conditions upon the plea.

Question 52

Conditions imposed upon plea agreements are only enforceable if they are made ________ of the plea and entered into the record in ____________.

Answer 52

Conditions imposed upon plea agreements are only enforceable if they are made PART of the plea and entered into the record in OPEN COURT.

Question 53

When may a defendant file a demand for speedy trial?

Answer 53

A defendant may file a demand for “speedy trial” at any time after formal charges are filed.

Question 54

What does a demand for a speedy trial signify?

Answer 54

The demand signifies that the defendant is available and will be prepared for trial within 5 days.

Question 55

How many days does the state have after the demand is filed to bring the defendant to trial? What happens if the state fails to do so?

Answer 55

The state then has 50 days after the demand to bring the defendant to trial. If the state fails to bring a trial, the case can be dismissed, with jeopardy attached.

Question 56

When does trial begin?

Answer 56

When the jury venire is sworn for jury selection. Not when the actual jury is sworn for trial!

Question 57

Can you withdraw a demand for speedy trial?

Answer 57

Once the demand is entered, it is locked in. A speedy trial demand can only be withdrawn for good cause OR with consent of the prosecution.

Question 58

When should the trial begin for misdemeanors with & without a demand?

Answer 58

Misdemeanors:
No demand for speedy trial: 90 days from arrest
Demand for speedy trial: 50 days from demand

Question 59

When should the trial begin for felonies with & without a demand?

Answer 59

Felony:
No demand for speedy trial: 175 days from arrest
Demand for speedy trial: 50 days from demand

Question 60

When should the trial begin for any retrial with & without a demand?

Answer 60

Any retrial:
No demand: 90 days from order for a new trial/mistrail
Demand for speedy trial: 50 days from demand

Question 61

If the state fails to meet the deadline (50, 90, or 175 days), the defendant can file a ______________________ of __________ of speedy trial time.
The court then must hold a hearing on the motion within _____ days, to hear any excuses from the state.
If the state cannot show good cause for the delay, the defendant must be tried within ______ days.
If the defendant is not tried within 10 days, __________ attaches, the charges are ___________ , and the case is forever barred.

Answer 61

If the state fails to meet the deadline (50, 90, or 175 days), the defendant can file a NOTICE of EXPIRATION of speedy trial time.
The court then must hold a hearing on the motion within 5 days, to hear any excuses from the state.
If the state cannot show good cause for the delay, the defendant must be tried within 10 days.
If the defendant is not tried within 10 days, JEOPARDY attaches, the charges are DISMISSED, and the case is forever barred.

Question 62

When the deadline to bring defendant to trial expires, the state has a maximum of ______ days to bring the defendant to trial.
The Florida Supreme Court has held that violation of the 5 day or 10 day deadlines are “harmless” as long as the defendant is brought to trial within _____ days.

Answer 62

When the deadline expires, the state has a maximum of 15 days to bring the defendant to trial.
5 days for the hearing on the motion PLUS 10 days to commence trial.
The Florida Supreme Court has held that violation of the 5 day or 10 day deadlines are “harmless” as long as the defendant is brought to trial within 15 days. (State v. Salzero)

Question 63

A case will not be barred upon expiration of the speedy trial time in what 4 circumstances?

Answer 63

A case will not be barred upon expiration of the speedy trial time if:

1. A valid extension has been granted and has not expired,
2. The failure to hold the trial is due to the defendant, a co-defendant, or their counsel,
3. The defendant or his counsel was unavailable for a proceeding where their presence was required by the rules, or
4. The demand for a speedy trial was invalid.

Question 64

If there were exceptional circumstances that were not forseeable, the court may waive or extend the time for speedy trial before expiration in what 6 circumstances?

Answer 64

If there were exceptional circumstances that were not forseeable, the court may waive or extend the time for speedy trial before expiration:

1. Unexpected unavailability of a necessary witness,
2. Unusual complexity of the case that makes timely preparation unreasonable,
3. Evidence currently unavailable that will become available,
4. Unexpected developments necessitating delay,
5. Accommodation of a co-defendant, or
6. Where defendant has caused major delay or disruption.

Question 65

Even without exceptional circumstances, the deadline for speedy trial can be extended if the prosecution ____________________ or by order of the chief justice of the Florida supreme court. General congestion of the court calendar is ___ an excuse for delay.

Answer 65

Even without exceptional circumstances, the deadline for speedy trial can be extended if the prosecution CONSENTS or by order of the chief justice of the Florida supreme court. General congestion of the court calendar is NOT an excuse for delay.

Question 66

Insanity is an ___________defense to a crime:

1. At the time of the ______________________, the defendant did not know what he was doing or its consequences, or
2. The defendant knew what he was doing and the consequences, but did not know it was ______________.

Answer 66

Insanity is an AFFIRMATIVE defense to a crime:

1. At the time of the INCIDENT, the defendant did not know what he was doing or its consequences, or
2. The defendant knew what he was doing and the consequences, but did not know it was WRONG.

Question 67

The defendant has the burden of proving his insanity by _________________ evidence.

Answer 67

The defendant has the burden of proving his insanity by CLEAR AND CONVINCING evidence.

Question 68

If the defense intends to rely on the insanity defense, notice must be filed within _______ days of arraignment (if possible).

Answer 68

If the defense intends to rely on the insanity defense, notice must be filed within 15 days of arraignment (if possible).

Question 69

If the defendant is acquitted by reason of insanity, the court may do what?

Answer 69

If the defendant is acquitted by reason of insanity, the court may order hospitalization, treatment, or complete discharge.

Question 70

Incompetency means that the defendant does not understand what?

Answer 70

Incompetency means that the defendant does not understand the nature of the trial proceedings.

Question 71

An incompetent person can be tried, but he cannot be ____________

Answer 71

An incompetent person can be tried, but he cannot be PUNISHED

Question 72

To be competent to stand for trial, a defendant must be able to ______________________ with his lawyer and understand the proceedings against him

Answer 72

To be competent to stand for trial, a defendant must be able to CONSULT with his lawyer and understand the proceedings against him

Question 73

What can the court order for an incompetent defendant and for how long? What if the court determines the defendant cannot be made competent?

Answer 73

The court may order examinations, and involuntary treatments for Up to 5 years for felonies, or 1 year for misdemeanors
If the court determines that the defendant cannot be made competent and that he cannot be involuntarily committed, the charges must be dropped without prejudice.

Question 74

What does an alibi allege?

Answer 74

An alibi alleges that the defendant could not have been responsible, because she was somewhere else at the time

Question 75

If the defendant raises an alibi as a defense, the prosecutor can demand ______________________.

Answer 75

If the defendant raises an alibi as a defense, the prosecutor can demand NOTICE.

Question 76

If the prosecutor demands notice for an alibi defense, what must a defendant do? what must be included in the response?

Answer 76

The defendant must answer with details about the alibi, at least 10 days prior to trial (or at another time directed by the court).
The answer must state:
1. Where the defendant was at the time of the crime, and
2. The names and addresses of any witnesses he may offer to prove the alibi.

Question 77

After a defendant answers about his alibi defense, the state then has ____ days in which to notify the defense of its rebuttal witnesses and their addresses.

Answer 77

After a defendant answers about his alibi defense, the state then has 5 days in which to notify the defense of its rebuttal witnesses and their addresses.

Question 78

If the state did not have proper notice of an alibi witness, the court can ______________________ the witness from testifying.

Answer 78

If the state did not have proper notice of an alibi witness, the court can PREVENT the witness from testifying.

Question 79

T/F: The duties in regard to an alibi defense duties are continuing duties until the time of trial.

Answer 79

True: These duties are continuing duties until the time of trial.

Question 80

Defendants are ________ permitted to be present at depositions, unless the parties stipulate or for good cause

Answer 80

Defendants are NOT permitted to be present at depositions, unless the parties stipulate or for good cause

Question 81

T/F: Upon stipulation and consent of the witness, statements may be taken by a recorded telephone conversation instead of deposition, and in such cases, the witness need not be under oath.

Answer 81

TRUE: Upon stipulation and consent of the witness, statements may be taken by a recorded telephone conversation instead of deposition, and in such cases, the witness need not be under oath.

Question 82

Depositions may be used for ______________________ at trial.

Answer 82

Depositions may be used for IMPEACHMENT at trial.

Question 83

Number of jurors at trial
Capital cases: ______ jurors.
All other criminal cases: ______ jurors.

Answer 83

Number of jurors at trial
Capital cases: 12 jurors.
All other criminal cases: 6 jurors.

Question 84

What is a challenge for cause? How many do you get?

Answer 84

Cause: Each side has the right to disqualify any potential juror for cause.
Examples: legal or factual incompetence, relationship to the case, prejudice, etc.
Both sides have unlimited challenges for cause.

Question 85

What is a peremptory challenge? For what basis can you not use these for?

Answer 85

Peremptory: Each side also has the right to disqualify a certain number of potential jurors, without giving a reason.
Example: “He looks like he wasn’t paying attention.”
Peremptory challenges cannot be used on the basis of race, sex, or any classification subject to strict scrutiny.

Question 86

Limits on peremptory challenges
Capital cases: each side gets _____
All other felonies: each side gets _____
Misdemeanors: each side gets _____

Multiple defendants: What does each defendant get? what does the prosecution get?

Answer 86

Limits on peremptory challenges
Capital cases: each side gets 10
All other felonies: each side gets 6
Misdemeanors: each side gets 3

Multiple defendants: Each defendant gets the allocated number and the prosecution gets the sum total of peremptories granted to defendants. We must have the same number of strikes on each side of the “v.”

Question 87

The court may permit the selection of one or more ___________ jurors.

Answer 87

The court may permit the selection of one or more ALTERNATE jurors.

Question 88

All alternate jurors are discharged _______________ the jury deliberates (unless they replace a juror who cannot continue).

Answer 88

All alternate jurors are discharged BEFORE the jury deliberates (unless they replace a juror who cannot continue).

Question 89

In _______________ cases, alternate jurors are excused at the end of trial, with instructions to remain seated in the courtroom momentarily while the jury retires for deliberation.
After the jury is out of the courtroom, the alternates are given additional instructions that they may have to _______________ for an another hearing should the defendant be convicted of a capital offense. The alternates are then excused.

Answer 89

In CAPITAL cases, alternate jurors are excused at the end of trial, with instructions to remain seated in the courtroom momentarily while the jury retires for deliberation.
After the jury is out of the courtroom, the alternates are given additional instructions that they may have to RETURN for an another hearing should the defendant be convicted of a capital offense. The alternates are then excused.

Question 90

Waiver of jury (Judge acts as factfinder): If the defendant wishes to waive the right to a jury, he must do so in _______________ and the state must _______________.

Answer 90

Waiver of jury (Judge acts as factfinder): If the defendant wishes to waive the right to a jury, he must do so in WRITING and the state must CONSENT.

Question 91

Waiver of complete jury: In rare instances, the jury can deliberate with less than the full amount of jurors, if there is less than the required amount and no alternate.
The defendant can decide to proceed with the incomplete jury, if what?
Does the state need to consent?
What if the defendant refuses to proceed?

Answer 91

Waiver of complete jury: In rare instances, the jury can deliberate with less than the full amount of jurors, if there is less than the required amount and no alternate.
The defendant can decide to proceed with the incomplete jury, if the waiver is knowing, intelligent, voluntary and on the record.
The state does not need to consent to this and it does not need to be in writing.
If the defendant refuses to proceed or cannot make a waiver, the court will declare a mistrial.

Question 92

What is Witness sequestration? What do we call this in court?

Answer 92

Witnesses are not allowed in the courtroom to hear the testimony of other witnesses. We are afraid it will contaminate their recollection.
We call this invoking “the rule”.

Question 93

The witness may remain in the courtroom and hear other testimony of the witnesses in what 3 circumstances? Can the court still exclude in these circumstances?

Answer 93

The witness may remain in the courtroom and hear other testimony if the witness is:

1. The victim,
2. The victim’s next of kin, or
3. The parent, guardian, or lawful representative of a minor child victim.

If the state makes a motion and the court determines that their presence is prejudicial, the court can exclude the victim, parents, etc.

Question 94

View by jury: The jury may be taken to a _________ to view a scene that is relevant to the crime.
Who must be present at the viewing?

Answer 94

View by jury: The jury may be taken to a LOCATION to view a scene that is relevant to the crime.

The judge and the defendant must be present at the viewing (unless the defendant is excused by the court).
The attorneys may be present, but are not required.

Question 95

The trial judge must instruct the jury on the ___________ of the case. Instructions may be given ______ or _________ closing arguments.
The judge can also provide appropriate instructions _________the trial.

Answer 95

The trial judge must instruct the jury on the LAW of the case. Instructions may be given BEFORE or AFTER closing arguments.
The judge can also provide appropriate instructions DURING the trial.

Question 96

The court must provide the jury a _______________ copy of the jury instructions to take to the jury room during deliberation.

Answer 96

The court must also provide the jury a WRITTEN copy of the jury instructions to take to the jury room during deliberation.

Question 97

The judge may also permit the jurors to take what into the jury room?

Answer 97

The judge may also permit the jurors to take the following materials into the jury room:
A copy of the formal charging instrument(s);
Any materials in evidence (except depositions);
Juror notebooks; and
Verdict forms approved by the court.

Question 98

What can the jury not hear when they retire to deliberate? What can they rehear?

Answer 98

Once the jury retires to deliberate, they cannot be called back to hear additional evidence.
However, jurors can request to rehear evidence that has already been given.

Question 99

All jury verdicts must be what?

Answer 99

All jury verdicts must be unanimous.

Question 100

The court cannot ___________________ or __________ the verdict, but may thank the jurors generally for their service.

Answer 100

The court cannot PRAISE or CRITICIZE the verdict, but may thank the jurors generally for their service.

Question 101

If there are multiple defendants, what must the verdict indicate as to each? How can jurors decide for each defendant?

Answer 101

If there are multiple defendants, the verdict must indicate how it applies to each individual. Jurors may convict or acquit one defendant, while remaining hung as to any other.

Question 102

What is Polling the jury? When must it take place?

Answer 102

Either side (or the judge) may ask the jurors to individually confirm that they agree with the verdict. If there is dissent, the jury is sent back for further deliberation.
Polling must take place before the verdict is recorded or the jury has been discharged.

Question 103

Who can interview jurors? When must a party move to do this?

Answer 103

Either party may move to interview any number of jurors after the trial, if he has reason to believe the verdict may be subject to challenge.
The party must make the motion within 10 days after the verdict (unless extended for good cause).

Question 104

What is a Presentencing investigative report (PSI)? When must the court obtain this report? When is it not required?

Answer 104

In some circumstances, the court is required to obtain a report about the defendant’s life circumstances, before imposing a jail sentence:

1. A defendant charged with their first felony; or
2. A defendant who committed a crime as a minor.

If the defendant fits either of those categories, and the judge has discretion to impose a jail sentence, we must have a PSI.
If jail will not be imposed (e.g., the sentence will be probation), then no PSI is required.

Question 105

What is a Motion for judgment of acquittal? When must this motion be made?

Answer 105

Motion for judgment of acquittal is the equivalent of a civil motion for a directed verdict. The judge takes the case away from the jury, because no reasonable jury could return a verdict in favor of the prosecution.

During trial: This motion must be made at the close of the state’s case.
Post-trial: The defense can also make the motion after a guilty verdict or mistrial. (w/in 10 days after verdict)

Question 106

When must a court grant a new trial?

Answer 106

The trial court must grant a new trial if any of the following occur:

1. The jurors decided the case by lot (i.e., at random);
2. The verdict is contrary to law or weight of the evidence; or
3. Newly discovered evidence came to light that would probably change the outcome of the case, and the defendant, with reasonable diligence, could not have discovered and produced the evidence for trial.

Question 107

The trial court must also grant a new trial under what 8 circumstances that are shown to have prejudiced “substantial rights” of the defendant?

Answer 107

The trial court must also grant a new trial if any of the following occurred, but only if it prejudiced “substantial rights” of the defendant:

1. The defendant was involuntary absent when his presence was required under the rules;
2. The jury received evidence out of court;
3. The jurors separated without permission;
4. A juror is guilty of misconduct;
5. The prosecutor is guilty of misconduct;
6. The judge ruled incorrectly on the law during the trial;
7. The judge gave the jury the wrong instructions; OR
8. The defendant did not receive a fair trial, for any reason beyond his control.

Question 108

What is a Motion in arrest of judgment? When must it be filed?

Answer 108

A motion in arrest of judgment is like a very tardy motion to dismiss.
Essentially, this motion says that there was a fatal procedural defect in the trial, and the verdict cannot stand.
Timeliness: The Motion in Arrest of Judgment must be filed within 10 days after the verdict (same as the Motion for Judgment of Acquittal)

Question 109

On what grounds may a motion in arrest of judgment be granted?

Answer 109

The motion is granted only on one or more of the following grounds:

1. Formal charging instruments is so defective that it cannot support a conviction.
2. Court lacks jurisdiction.
3. Verdict is so uncertain that it does not appear the jurors convicted the defendant of an offense under the formal charging instrument; OR
4. Verdict clearly convicts the defendant of an offense not proper under the formal charging instrument on which he was tried.