Pre-Trial Procedure in Trial Court

Question 1

T/F: When selecting the jury, peremptory challenges may be used without justification or reason.

Answer 1

True. Peremptory challenges are ones that may be exercised without any reason or justification given. The number of peremptory challenges available depends on both the charged offense and the number of defendants being tried together.

Question 2

What may a potential juror be challenged for cause by?

Answer 2

A prospective juror may be challenged for cause if:

(i) is not a qualified voter in the state and county;
(ii) has been convicted or is charged with theft or any felony;
(iii) is insane;
(iv) is a witness in the case;
(v) has a bodily defect (such as legal blindness) that renders him unfit for service in this case;
(vi) is related within the third degree to D, the victim or any prosecutor;
(vii) served on the grand jury that indicted D or on a petit jury in a previous trial of the same case;
(viii) has a bias or prejudice in favor or against D;
(ix) has formed an opinion as to the D’s guilt or innocence; or
(x) cannot read or write.

Question 3

When can there be a jury shuffle?

Answer 3

A jury shuffle must be made before voir dire begins. A jury shuffle occurs when prospective jurors are re-seated in a random manner. Either side may request a jury shuffle; however the jurors should only be shuffled once. If a shuffle is requested and made, the other side is not entitled to shuffle the jury again.

Question 4

Are written statements of witness and police reports subject to pretrial inspection?

Answer 4

Yes. Written statements of witnesses and police offense reports are subject to pretrial inspection. But D’s right of inspection is limited by the state’s “work product” protection. D may not inspect any material that falls within that protection, including notes, work product of counsel and matters otherwise privileged.

Question 5

Following D’s timely request, the state must produce certain items for inspection and copying. The order for production of these items:

Answer 5

The order of production of the items which must be produced pursuant to the D’s right to inspection and copying may not authorize removal of such evidence from the possession of the prosecution. Any inspection must be in the presence of a representative of the state.

Question 6

In a criminal trial, the state inadvertently left off the name of the sole eyewitness to the crime from the witness list. The trial court should:

Answer 6

The trial court has discretion as to whether it may permit a witness to testify where the witness was left off the state’s witness list because D should have anticipated that the state would have the eyewitness testify.

If the trial court finds that (i) the state’s omission was not in bad faith, or (ii) the defense should have anticipated the witness’s testimony anyway, then the trial court should, in its discretion, permit the witness to testify.

Question 7

T/F: The parties are required in all instances to disclose the names and addresses of expert witnesses that they may call at trial one week prior to jury selection.

Answer 7

False, a trial court may order disclosure, but not later than the 20th day before jury selection is to begin.

Question 8

The defendant wants to have the jury consider a recommendation that the sentence be probated. What must be included in the pretrial motion?

Answer 8

If the defendant wishes to have the jury consider a recommendation that the sentence be probated, the motion must state that the defendant has not previously been convicted of a felony. The motion must be sworn and filed timely, before the trial begins.

Question 9

What is the purpose of arraignment?

Answer 9

The arraignment takes place in the trial court. During the arraignment, the accused enters a plea (not guilty, guilty, nolo contendere); focus on accused’s identity; and if it has not been done before, the judge appoints counsel.

Question 10

T/F: If negotiating a plea deal with a prosecutor, D’s statements are inadmissible if they result in a plea of nolo contendere but the plea is later withdrawn.

Answer 10

True.

Question 11

How can D introduce introduce that they were insane at the time they committed the crime?

Answer 11

D must give notice of the defense’s intent to introduce such evidence (filed) 20 days before trial

Question 12

What’s the different between pleaing “guitly” versus “nolo contendere”?

Answer 12

In criminal prosecution, none.

But if civil litigation arises from the same incident, a plea of guilty can be used as evidence against D. If D had pled nolo contendere, this could not be used as evidence against them.

Question 13

What must a trial judge inform a D if they have pled guilty or nolo contendere in a criminal trial?

Answer 13

1. range of punishment they face
2. recommendations by State aren’t binding
3. limited right, after a guilty plea, to appeal
4. if non-US citizen: plea may result in deportation (in writing and orally)
5. ask if there is a plea bargain

Question 14

T/F: D must sign admonishments regarding a plea for guilty.

Answer 14

False. D can plead guilty even if they cannot sign the admonishment because this can be agreed to in writing or orally.

Question 15

D offers the plea pursuant to a plea bargain calling for probation. But the judge decides to impose 20 years’ imprisonment.

What is the result?

Answer 15

D has right to withdraw plea.

Question 16

T/F: A guilty plea can be withdrawn at any time before the trial court takes the matter under advisement.

Answer 16

True.

Question 17

D withdrew their guilty plea. Can the State introduce evidence at trial that they first pleaded guilty?

Answer 17

No. Evidence Rule 410 makes inadmissible withdrawn pleas of guilty or nolo contendere.

Question 18

What is the point of a pre-trial hearing and conference?

Answer 18

A trial judge can set a case for pre-trial hearing and conference. If set, parties must, 7 days before it:

a) enter any special plea
b) make challenges to indictment
c) make motions for continuances, change of venue, suppress evidence
d) make requests for discovery
e) raise claims of entrapment

Question 19

The trial judge schedules a pre-trial hearing and conference. How, if at all, does this affect how defense counsel needs to go about challenging the indictment?

Answer 19

The motion to “quash” must be filed 7 days before the pretrial hearing, instead of just before trial begins. If not filed then, it cannot be raised later except by permission of the court on the basis of good cause.

Question 20

T/F: D has a right to be present at any pretrial proceeding.

Answer 20

True.

Question 21

What is a motion in liminne?

Answer 21

A motion in limine is a pre-trial motion that asks for either (or both):

1) pre-trial ruling on the merits of some question of evidence or procedure that will arise during trial; or
2) a pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury

Question 22

In response to a motion in limine, the trial judge rules that the State may ask a defense witness about specified prior misdemeanor convictions. What are D’s rights following the trial?

Answer 22

D may appeal on this issue only if D objected at trial when State asked the defense witness.

Question 23

Defense counsel makes a motion in limine, asking that the court order the prosecutor to make no reference during jury selection of x. The trial court grants the motion and so orders the prosecutor.

If the prosecutor makes reference to x during the jury selection, what should defense counsel do?

Answer 23

Defense counsel should object to the reference as if the motion in limine has not been granted. This preserves error.

Question 24

Describe a motion to suppress.

Answer 24

A motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible. This is one of the many things that must be raised if the trial court has set a pre-trial hearing and conference.

Most often, this motion is used to raise a contention that evidence has been illegally obtained or a confession is inadmissible.

Question 25

If defense counsel wants to raise the admissibility of evidence, when should counsel raise this issue?

Answer 25

Either make a pre-trial motion to suppress the evidence OR wait and object to evidence when the State offers it at trial.

Question 26

If counsel raises the matter by a pre-trial motion to suppress evidence and the judge denies the motion, what else must defense counsel do to preserve the question for consideration on appeal from a conviction?

Answer 26

Nothing.

Question 27

T/F: D can testify at a pre-trial hearing only on issues related to that hearing.

Answer 27

True.

Question 28

T/F: On D’s request, State must provide the defense with a list of expert witnesses it may call at trial at least 20 days before jury selection.

Answer 28

True.

Question 29

Either side may be permitted to depose a witness. What does this process look like?

Answer 29

The trial judge must issue an order authorizing the deposition. To obtain this order, the party must file a motion supported by an affidavit stating “good reason” for the deposition. Notice must be given and a hearing will be held, where “good reason” can be shown.

Question 30

A trial judge has authority to order the State to permit D to inspect certain things (‘real discovery’). When must inspection be ordered?

Answer 30

Inspection must be ordered if the thing:

• is a tangible thing
• constitutes material evidence
• is in the possession of the State; and
• is not “work product” of the State

Question 31

While preparing for trial, counsel for D seeks information from and access to matters from the State. Can defense counsel before trial: get access to the written confession D made to police?

Answer 31

Yes. This is material evidence in the possession of the State and not work product of the State.

Question 32

While preparing for trial, counsel for D seeks information from and access to matters from the State. Can defense counsel before trial: get access to a memo from an assistant defense attorney to the prosecutor who will try the case regarding how to most effectively cross-examine the defense witness?

Answer 32

No, this is State’s work product.

Question 33

While preparing for trial, counsel for D seeks information from and access to matters from the State. Can defense counsel before trial: examine the report of the State Crime Lab tech who examined the drugs or blood for the prosecution?

Answer 33

Yes, this is material evidence in possession of the State.

Question 34

While preparing for trial, counsel for D seeks information from and access to matters from the State. Can defense counsel before trial: examine police reports of the investigating officers?

Answer 34

Yes, this is material evidence in possession of the state. Police reports and witness statements are no longer covered by work product.

Question 35

While preparing for trial, counsel for D seeks information from and access to matters from the State. Can defense counsel before trial: get the names of the witnesses who appeared before the grand jury and testified regarding the matter?

Answer 35

Yes. The prosecutor should have endorsed this information on the indictment. If the prosecutor does not, the court may cure this by ordering it provided.

Question 36

While preparing for trial, counsel for D seeks information from and access to matters from the State. Can defense counsel before trial: get the testimony of witnesses who testified before the grand jury?

Answer 36

Only if D can show “particularized need” for this.

Question 37

Defense counsel makes a motion requesting a list of all the State’s witnesses. How should the trial court rule on this motion?

Answer 37

Grant the motion because D has a right to such list.

Question 38

T/F: Whether to exclude testimony of an unlisted witness is discretionary with the trial judge.

Answer 38

True. The trial judge considers whether the omission (from witness list) was intentional and whether defense received actual notice that witness would testify.

Question 39

Defense counsel files a motion to compel the State to reveal the identity of its informant. How should the court rule?

Answer 39

Court should overrule the motion to compel because the identity of an informant is generally privileged and can be withheld by the State. Disclosure may be required if:

• informant provided info by which State obtained evidence in a way that D claims was illegal, then court has discretion to require disclosure if necessary to establish informant’s reliability OR
• upon showing the informant can provide testimony necessary to a fair determination of guilt-innocence, the court must order disclosure

Question 40

When are a D’s due process rights violated under Brady v. Maryland?

Hint: this is about exculpatory evidence (evidence favorable to D in a criminal trial that exonerates or tends to exonerate D of guilt.)

Answer 40

If prosecution fails to disclose favorable info that is in its possession AND this info is “material” (if it had been disclosed, there is a reasonable probability the outcome of the case would have been different).

Question 41

Police interview an eyewitness for D’s case who identifies A as B’s assailant. The officers determine that this identification was in error. What is the State’s obligation, if any, regarding this evidence?

Answer 41

This is exculpatory evidence (favorable to D in a criminal trial that exonerates or tends to) that must be disclosed to the defense in time for the defense to make use of it in or in preparing for trial.

Question 42

T/F: Criminal proceedings cannot continue if D is incompetent to stand trial.

Answer 42

True.

Question 43

When is D incompetent to stand trial?

Answer 43

D is incompetent to stand trial if either:

• lacks capacity to consult with counsel with a reasonable degree of rational understanding or
• lacks a rational and factual understanding of the proceedings

If after being found incompetent to stand trial the accused’s condition improves, the D can be determined competent and prosecution can proceed.

Question 44

What happens of the defense, State, or trial court on a motion raises that D might be incompetent?

Answer 44

Trial judge makes a preliminary inquiry. If this shows significant evidence of incompetency, the judge must hold a full hearing. If either party or the judge requests, determination must be made by a jury.