FRCP - Initial Appearance & Grand Jury Flashcards
Initial Appearance
Arrest by INS or ICE
Not “arrest” for Rule 5 purposes
Initial Appearance
“Civil Detention” = arrest?
Not “arrest” for Rule 5 purposes
Initial Appearance
How is delay related to State detention treated?
Generally, delay for State arrest not factored for Rule 5; however, must look to how much FED working with State
Initial Appearance
What kind of offenses does Rule 5 apply?
“Non-status” offenses
Initial Appearance
What’s the remedy for violation of Rule 5?
Suppression of Statement - NOT dismissal
Initial Appearance
What is considered “unnecessary delay”?
6 hours or “reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer”
18 USC § 3501 - Admissibility of confessions
Factors to be considered for voluntariness of confession?
18 USC § 3501
all the circumstances including:
(1) the time elapsing between arrest and arraignment (if it was made after arrest and before arraignment),
(2) if D knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession,
(3) if D was advised or knew that he was not required to make any statement and that any such statement could be used against him,
(4) if D had been advised prior to questioning of his right to counsel; and
(5) if D was without the assistance of counsel when questioned and when giving such confession.
Presentment before Mag.
When must be done?
18 USC § 3501
Generally, within 6 hours of arrest
Explain admissibility of D statements after arrest and before presentment?
18 USC § 3501
If presentment within 6 hours & vol. OK
If presentment after 6 hours, delay is REASONABLE, and vol. OK
If present after 6 hours, delay unreasonable NOT OK
If presentment after 6 hours, delay reasonable, but not vol. NOT OK
What must a Magistrate warn at presentment?
- Complaint
- Affidavit
- Right to Counsel
- Right to not make statement
When SHALL CRT have a detention hearing?
- When Gov’t requests it
- Crime of Violence
- Serious Felony
When MAY CRT have detention hearing?
If serious risk of:
- flight;
- obstruction of justice;
- threatening witness or juror
Code provision for Detention Hearing
18 USC § 3142 - Release or detention of a defendant pending trial
When is there a presumption of detention?
- charged with Crime of Violence
- Capital Offense
- 10 year drug crime
AND
Been convicted of 1,2, or 3 while on pretrial release w/in 5 years
or w/in 5 years of confinement
Explain how a detention hearing may be continued?
Immediately upon first appearance before the judicial officer unless that person, or Gov’t, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days (not including any intermediate Saturday, Sunday, or legal holiday), and a continuance on motion of the attorney for the Gov’t may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday).
What is the Burden of Proof at Detention Hearings? (without presumption)
Gov’t must prove by clear and convincing evidence “no condition or combination of conditions” will ensure “safety of any other person and the community”
Gov’t must prove “risk of flight” by preponderance
D may request a De Novo hearing before a District Court Judge
Yep
When must a Preliminary Hearing be held?
14 days after Initial Appearance if D in custody
21 days after Initial Appearance if D no in custody
Rule 5.1
Preliminary Hearing - no counsel
5th Cir. held prejudice to D
Preliminary Hearing - no transcript
5th. Cir. held prejudice to D
Purpose of Preliminary Hearing
determine if PC for Complaint
No need for hearing if Indictment or Information already filed
How many people on Grand Jury?
16 - 23
What can a D challenge the Grand Jury based on?
- Not lawfully summoned;
- Not lawfully drawn;
- Not lawfully selected.
What can D challenge a Grand JUROR based on?
not legally qualified to serve
So, how do you challenge Indictment based on bad Grand Jury?
Move to Dismiss Indictment
file within 7 days (discovery rule)
Must show:
1. Excluded group is distinctive in community;
2. Group’s representation is “source” of selection is unfair or unreasonable compared to actual community;
3. SYSTEMATIC EXCLUSION
How can Grand Jury secrecy be enforced?
Enforce by Contempt
Cannot obligate WITNESS to maintain secrecy
What must the Gov’t do when they disclose information from the Grand Jury?
Gov’t must provide CRT a list of all those whom disclosure was made to AND certify those persons advised of secrecy
Can a Grand Jury witness invoke their 5th Amendment Right?
Invocation of 5th Amendment Right OK
Unless, given immunity (“use” or “transactional”) - then witness can be held in civil contempt - jailed up to 18 months (life of the Grand Jury)
When must an Indictment be filed?
Punishable by death or confinement for more than 1 year (unless contempt)
What must an Indictment contain?
“plain, concise, and definite written statement of the essential facts constituting the offense charged”
MUST give the customary or official citation to the statute
When may an Indictment by amended?
Anytime before verdict UNLESS it
- adds or changes offense
- Violates a substantial right of D
What is a Bill of Particulars?
D files motion requesting before or within 14 days after arraignment
Requires Gov’t to reveal “necessary” information
CRT has discretion
Reversal ONLY if actual surprise
Does filing Information toll SOL?
Yes, even in a felony case.
Variance of Indictment and proof at trial
Only reversible if “substantial right affected”
When must you challenge an Indictment?
Before trial, unless it doesn’t state an offense
Surplusage in Indictment challenge?
D may challenge surplus language based on prejudice if “nonessential”
