FRCP - Initial Appearance & Grand Jury

Question 1

Initial Appearance

Arrest by INS or ICE

Answer 1

Not “arrest” for Rule 5 purposes

Question 2

Initial Appearance

“Civil Detention” = arrest?

Answer 2

Not “arrest” for Rule 5 purposes

Question 3

Initial Appearance

How is delay related to State detention treated?

Answer 3

Generally, delay for State arrest not factored for Rule 5; however, must look to how much FED working with State

Question 4

Initial Appearance

What kind of offenses does Rule 5 apply?

Answer 4

“Non-status” offenses

Question 5

Initial Appearance

What’s the remedy for violation of Rule 5?

Answer 5

Suppression of Statement - NOT dismissal

Question 6

Initial Appearance

What is considered “unnecessary delay”?

Answer 6

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

Question 7

Factors to be considered for voluntariness of confession?

Answer 7

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.

Question 8

Presentment before Mag.

When must be done?

Answer 8

18 USC § 3501

Generally, within 6 hours of arrest

Question 9

Explain admissibility of D statements after arrest and before presentment?

Answer 9

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

Question 10

What must a Magistrate warn at presentment?

Answer 10

1. Complaint
2. Affidavit
3. Right to Counsel
4. Right to not make statement

Question 11

When SHALL CRT have a detention hearing?

Answer 11

1. When Gov’t requests it
2. Crime of Violence
3. Serious Felony

Question 12

When MAY CRT have detention hearing?

Answer 12

If serious risk of:

1. flight;
2. obstruction of justice;
3. threatening witness or juror

Question 13

Code provision for Detention Hearing

Answer 13

18 USC § 3142 - Release or detention of a defendant pending trial

Question 14

When is there a presumption of detention?

Answer 14

1. charged with Crime of Violence
2. Capital Offense
3. 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

Question 15

Explain how a detention hearing may be continued?

Answer 15

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).

Question 16

What is the Burden of Proof at Detention Hearings? (without presumption)

Answer 16

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

Question 17

D may request a De Novo hearing before a District Court Judge

Answer 17

Yep

Question 18

When must a Preliminary Hearing be held?

Answer 18

14 days after Initial Appearance if D in custody
21 days after Initial Appearance if D no in custody
Rule 5.1

Question 19

Preliminary Hearing - no counsel

Answer 19

5th Cir. held prejudice to D

Question 20

Preliminary Hearing - no transcript

Answer 20

5th. Cir. held prejudice to D

Question 21

Purpose of Preliminary Hearing

Answer 21

determine if PC for Complaint

No need for hearing if Indictment or Information already filed

Question 22

How many people on Grand Jury?

Answer 22

16 - 23

Question 23

What can a D challenge the Grand Jury based on?

Answer 23

1. Not lawfully summoned;
2. Not lawfully drawn;
3. Not lawfully selected.

Question 24

What can D challenge a Grand JUROR based on?

Answer 24

not legally qualified to serve

Question 25

So, how do you challenge Indictment based on bad Grand Jury?

Answer 25

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

Question 26

How can Grand Jury secrecy be enforced?

Answer 26

Enforce by Contempt

Cannot obligate WITNESS to maintain secrecy

Question 27

What must the Gov’t do when they disclose information from the Grand Jury?

Answer 27

Gov’t must provide CRT a list of all those whom disclosure was made to AND certify those persons advised of secrecy

Question 28

Can a Grand Jury witness invoke their 5th Amendment Right?

Answer 28

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)

Question 29

When must an Indictment be filed?

Answer 29

Punishable by death or confinement for more than 1 year (unless contempt)

Question 30

What must an Indictment contain?

Answer 30

“plain, concise, and definite written statement of the essential facts constituting the offense charged”

MUST give the customary or official citation to the statute

Question 31

When may an Indictment by amended?

Answer 31

Anytime before verdict UNLESS it

1. adds or changes offense
2. Violates a substantial right of D

Question 32

What is a Bill of Particulars?

Answer 32

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

Question 33

Does filing Information toll SOL?

Answer 33

Yes, even in a felony case.

Question 34

Variance of Indictment and proof at trial

Answer 34

Only reversible if “substantial right affected”

Question 35

When must you challenge an Indictment?

Answer 35

Before trial, unless it doesn’t state an offense

Question 36

Surplusage in Indictment challenge?

Answer 36

D may challenge surplus language based on prejudice if “nonessential”