Kaplan Pgs 408-414 Pretrial Flashcards
What is an indictment?
A written accusation of charges against the defendant issued by a grand jury after reviewing the prosecution’s evidence
Is there a fifth amendment right to a grand jury?
Yes, in all federal felony cases
Can an accused waive a grand jury hearing?
Yes, except in capital offences in federal court
How many people are usually on a grand jury?
Between 16 and 23. 12 of whom must agree in order to issue an indictment
How does a grand jury issue an indictment?
Through its foreperson in open court
Because grand juries are done in secret, what rights does the accused not have?
- he doesn’t have the right to be present
– he doesn’t have the right to know that a grand jury is considering evidence against him
Can a grand jury subpoena evidence or testimony as part of its investigation?
Yes and they can do this without probable cause
Does a grand jury witness have a right to counsel?
No except for consultation outside of the grand jury room
Do you have to give a Miranda warning to a potential defendant that is testifying at a grand jury proceeding?
No
Does perjury apply to a grand jury witness?
Yes, they are sworn
What happens to a later conviction that happened on an indictment that came from a grand jury pool that was chosen in a racially discriminatory way?
The later conviction is reversed
What is information?
A written accusation of the charges filed in the name of the state by a prosecutor based on information that is submitted by the police or private citizens
What is information an alternative to?
A grand jury indictment
When is information generally used?
For misdemeanours
What usually happens at booking?
This occurs when the defendant first arrives at the police station or jail and he is often photographed, fingerprinted, informed of the criminal charges, and allowed to make a phone call
What is a bail hearing?
An individualized hearing which is used to determine whether bail should be granted or denied
Is a bail hearing considered to be a critical stage such that the right to attorney accompanies it?
No
What is the purpose of bail?
To make sure that the defendant will come to trial
Is there a constitutional right to bail?
No
What does the eighth amendment say about bail?
It prohibits excessive bail
What is a preliminary hearing?
An adversarial procedure used to determine probable cause to prosecute. Evidence is presented by both sides and the defendant can assert defences
Is there a constitutional right to a preliminary hearing?
No
When do preliminary hearings usually occur?
If a defendant was arrested without a warrant or a grand jury indictment
What are the general pre-trial procedures that go from arrest to trial?
– indictment by a grand jury – information – booking – bail hearing – preliminary hearing – arraignment - motions – plea-bargaining
What is an arraignment?
When the defendant is given formal notice of the charges against him and advised by the court of his rights
Does the right to counsel attach to arraignment?
Yes
At the arraignment what does the defendant do?
He answers the indictment, decides if it will be trial by judge or jury, and enters his plea
If a defendant pleads not guilty at an arraignment, what happens?
A trial date is set
If a defendant pleads nolo contendere what does that mean?
He can forgo a trial without admitting guilt. This means that his plea is not admissible to prove guilt in a later criminal or civil case
If a defendant pleads guilty, what does he waive?
A jury trial. The judge then determines if the plea was voluntarily and intelligently made
If a defendant pleads guilty, what does the judge have to make sure the defendant understands?
– the nature of the charges against him
– the maximum possible sentence and mandatory minimums
– the fact that he has a right not to plead guilty
– that by pleading guilty the right to a jury trial is waived
After a formal indictment, what are the motions that a defendant can raise?
Motion to dismiss, motion to suppress evidence, motion to compel discovery
What is plea-bargaining?
When the defendant agrees to plead guilty to an offence in return for prosecutor’s recommendation of a lesser sentence or dismissal of a charge
Who is a plea bargain enforcible against?
The prosecutor, not the judge
What is a plea bargain viewed as?
Contract negotiation. So the prosecutor can drive a hard bargain and even threaten the defendant with a more serious charge if he does not plead guilty
What happens when the right to a speedy trial has been violated?
Complete dismissal of the charges occurs
When does the right to a speedy trial attach?
Once the defendant is accused which can mean upon being arrested or upon filing charges
What does the speedy trial act require with regard to timing for trial?
There must be a federal indictment within 30 days of arrest and trial must be within 70 days of the indictment
What are the factors that are weighed with regard to violations of the right to a speedy trial?
– the length of the delay
– reason for the delay [if the defendant willfully delayed or if the prosecution delayed in good faith]
– the defendant’s assertion of his right to a speedy trial
– prejudice to the defendant in the form of oppressive incarceration, memory loss for witnesses, loss of evidence, anxiety to the defendant, etc.
The prosecution has a limited right to compel discovery of what kind of information from the defendant?
He can be compelled to notify the prosecution in advance of an alibi defence including names and addresses of alibi witnesses and those refuting the alibi
Once the defence request it, what must the prosecution disclose?
Evidence that is favourable to the defendant
If the prosecution fails to disclose evidence in violation of the discovery rules, what is the defendant entitled to?
A new trial
