LA BAR EXAM NON-CODE TOPIC 3 CRIMINAL PROCEDURE STATUTORY LOUISIANA Flashcards
At the joint trial of Nathan and Kimberly, the following events or testimonies occurred. Address the following issues that arose either before or during the trial.
Kimberly was arrested for possession of a firearm by a convicted felon. However, before the state can bring its charges, the United States Department of Justice indicts and convicts her for the same offense. Her lawyer files a motion to quash the indictment claiming that she cannot now be charged with the identical crime by the state of Louisiana. How should the judge rule on this issue?
The judge should deny the motion to quash. Under the “dual sovereignty” doctrine, the Double Jeopardy Clause of the Fifth Amendment applies only to prosecutions for the same criminal act by the same sovereign. The federal government and the State of Louisiana are separate sovereigns; both can bring separate prosecutions for the same criminal act.
During the voir dire process, a prospective juror revealed that she lived in Heather’s condo building and that she had seen Heather in the building on a few occasions. They spoke to each other but never had a conversation nor socialized together. Are defense lawyers entitled to strike the prospective juror?
No, the defense lawyers are not “entitled to strike the prospective juror. A challenge for cause to the juror exists if
“[t]he relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant … is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.” [La.
Code of Crim. Proc. art. 797(3)] Merely being casually acquainted with a defendant is not sufficient ground for a challenge for cause.
Address the following issues that arose either before or during Kyle’s trial. Explain your answers fully.
(1) The indictment filed against Kyle charged him with the crimes that occurred at the check- cashing store as well as the incident involving Jenny. Prosecutors later superseded the indictment to add drug possession charges. Kyle’s lawyer objected to the amended indictment. How should the judge rule?
The judge should quash the superseding indictment for misjoinder of offenses. In Louisiana, the state may charge two or more offenses in the same indictment in a separate count for each offense if: (i) they are of the same or similar character, or (ii) they are based on the same act or transaction or two or more acts or transactions connected together or part of a common scheme, and (iii) they are triable by the same mode of trial. Where offenses are charged in one indictment under any circumstances not stated above, there is a misjoinder. The only proper attack is a motion to quash. In this case, Jenny’s drug possession charges are unrelated to Kyle’s crimes at the check cashing store and the carjacking. Thus, the superseding indictment should be quashed.
(2) Kyle’s case was allotted to a judge who, years earlier was a law partner of Kyle’s attorney. Will prosecutors be able to force the judge’s recusal?
No, prosecutors will not be able to force the judge’s recusal. In a criminal case a judge of any court must be recused when he has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause. In this case, the judge presiding over Kyle’s case was associated with Kyle’s attorney “years earlier.” There is no indication that the judge was in any other way involved in the cause or was the law partner of Kyle’s attorney at any point when Kyle’s attorney has been involved in Kyle’s case.
Therefore, the prosecution has no grounds for the judge’s recusal.
(5) Prosecutors also realized, after the trial had started, that the indictment mistakenly described Jenny’s car as a 2007 Honda Accord, when in fact it was a 2008 Honda Civic.
In open court, they requested leave of the court to amend the indictment to accurately describe the car. How should the judge rule?
The court should allow the leave of court for the prosecution to amend the indictment to accurately describe the car. When there is a variance between the allegations of an indictment or bill of particulars which state the particulars of the offense, and the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence. Therefore, the court should permit the prosecution to amend the indictment to accurately describe Jenny’s car as a 2008 Honda Civic.
The joint criminal trial of Dr. Green and Jack is about to begin.
1) Although they have been charged together, is it possible for Dr. Green’s attorney to get his client tried without Jack? Discuss.
It is possible for Dr. Green’s attorney to get Dr. Green tried without Jack. Severance of defendants will be granted where justice requires. It is likely that Dr. Green will blame Jack for the criminal charges and that Jack will likely lay the blame on Dr. Green. Thus, Dr. Green’s lawyer may consider filing a motion to sever.
2) There has been a lot of pretrial publicity including media coverage of the arrests. The local press has run a story on the case every day for the past month, referring to Dr. Green and Jack as “ The Drug Docs.” What action should their attorneys take regarding this publicity, and what will be the likely outcome? Discuss.
The defense lawyers should file a motion for a change of venue. The court must grant a motion for change of venue if the applicant proves that by reason of prejudice existing in the public mind or for any other reason a fair and impartial trial cannot be obtained in the present parish. Here, the “local press has run a story on the case every day for the past month” and has referred to Dr. Green and Jack as “The Drug Docs.” This pretrial publicity, from both a quantitative and qualitative standpoint, seems highly prejudicial. Thus, the court probably should grant the motion.
(3) At the start of the trial, what should the lawyers do to try to preserve the integrity of each witness’s testimony? Discuss.
The lawyers should move for sequestration of all trial witnesses. On request from a party, the court must order that witnesses be excluded from the courtroom and that they must refrain from discussing the facts of the case with anyone other than counsel in the case. Note, however, that certain witnesses (e.g., parties and victims) may not be excluded.
5) At the end of the trial, Dr. Green and Jack are convicted on all counts. After the jury foreman announces the verdict, the judge asks the attorneys if there is any other matter that needs to be addressed. What, if anything, should they do? Discuss.
The defense lawyers should request that the clerk poll the jury to determine whether each juror, in fact, voted to find each defendant “guilty” of each count. If the number required to reach a verdict do not answer “yes,” the court may remand the jury for further deliberation or declare a mistrial.
