Kaplan Pgs 408-414 Pretrial

Question 1

What is an indictment?

Answer 1

A written accusation of charges against the defendant issued by a grand jury after reviewing the prosecution’s evidence

Question 2

Is there a fifth amendment right to a grand jury?

Answer 2

Yes, in all federal felony cases

Question 3

Can an accused waive a grand jury hearing?

Answer 3

Yes, except in capital offences in federal court

Question 4

How many people are usually on a grand jury?

Answer 4

Between 16 and 23. 12 of whom must agree in order to issue an indictment

Question 5

How does a grand jury issue an indictment?

Answer 5

Through its foreperson in open court

Question 6

Because grand juries are done in secret, what rights does the accused not have?

Answer 6

• 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

Question 7

Can a grand jury subpoena evidence or testimony as part of its investigation?

Answer 7

Yes and they can do this without probable cause

Question 8

Does a grand jury witness have a right to counsel?

Answer 8

No except for consultation outside of the grand jury room

Question 9

Do you have to give a Miranda warning to a potential defendant that is testifying at a grand jury proceeding?

Answer 9

No

Question 10

Does perjury apply to a grand jury witness?

Answer 10

Yes, they are sworn

Question 11

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?

Answer 11

The later conviction is reversed

Question 12

What is information?

Answer 12

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

Question 13

What is information an alternative to?

Answer 13

A grand jury indictment

Question 14

When is information generally used?

Answer 14

For misdemeanours

Question 15

What usually happens at booking?

Answer 15

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

Question 16

What is a bail hearing?

Answer 16

An individualized hearing which is used to determine whether bail should be granted or denied

Question 17

Is a bail hearing considered to be a critical stage such that the right to attorney accompanies it?

Answer 17

No

Question 18

What is the purpose of bail?

Answer 18

To make sure that the defendant will come to trial

Question 19

Is there a constitutional right to bail?

Answer 19

No

Question 20

What does the eighth amendment say about bail?

Answer 20

It prohibits excessive bail

Question 21

What is a preliminary hearing?

Answer 21

An adversarial procedure used to determine probable cause to prosecute. Evidence is presented by both sides and the defendant can assert defences

Question 22

Is there a constitutional right to a preliminary hearing?

Answer 22

No

Question 23

When do preliminary hearings usually occur?

Answer 23

If a defendant was arrested without a warrant or a grand jury indictment

Question 24

What are the general pre-trial procedures that go from arrest to trial?

Answer 24

– indictment by a grand jury
– information
– booking
– bail hearing
– preliminary hearing
– arraignment
- motions
– plea-bargaining

Question 25

What is an arraignment?

Answer 25

When the defendant is given formal notice of the charges against him and advised by the court of his rights

Question 26

Does the right to counsel attach to arraignment?

Answer 26

Yes

Question 27

At the arraignment what does the defendant do?

Answer 27

He answers the indictment, decides if it will be trial by judge or jury, and enters his plea

Question 28

If a defendant pleads not guilty at an arraignment, what happens?

Answer 28

A trial date is set

Question 29

If a defendant pleads nolo contendere what does that mean?

Answer 29

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

Question 30

If a defendant pleads guilty, what does he waive?

Answer 30

A jury trial. The judge then determines if the plea was voluntarily and intelligently made

Question 31

If a defendant pleads guilty, what does the judge have to make sure the defendant understands?

Answer 31

– 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

Question 32

After a formal indictment, what are the motions that a defendant can raise?

Answer 32

Motion to dismiss, motion to suppress evidence, motion to compel discovery

Question 33

What is plea-bargaining?

Answer 33

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

Question 34

Who is a plea bargain enforcible against?

Answer 34

The prosecutor, not the judge

Question 35

What is a plea bargain viewed as?

Answer 35

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

Question 36

What happens when the right to a speedy trial has been violated?

Answer 36

Complete dismissal of the charges occurs

Question 37

When does the right to a speedy trial attach?

Answer 37

Once the defendant is accused which can mean upon being arrested or upon filing charges

Question 38

What does the speedy trial act require with regard to timing for trial?

Answer 38

There must be a federal indictment within 30 days of arrest and trial must be within 70 days of the indictment

Question 39

What are the factors that are weighed with regard to violations of the right to a speedy trial?

Answer 39

– 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.

Question 40

The prosecution has a limited right to compel discovery of what kind of information from the defendant?

Answer 40

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

Question 41

Once the defence request it, what must the prosecution disclose?

Answer 41

Evidence that is favourable to the defendant

Question 42

If the prosecution fails to disclose evidence in violation of the discovery rules, what is the defendant entitled to?

Answer 42

A new trial