Pre-trial Procedures Flashcards
Grounds for dismissing an indictment
- Deficient indictment
- Fails to charge actual crime
- Omits elements of crime
- Statute of limitations has run
- Improper venue or jurisdiction
- Defective grand jury proceedings
- Admission of unqualified grand juror
- Exclusion of grand juror based on race/gender
- Prosecutorial misconduct
- Constitutional violation
- Fifth Amendment double jeopardy clause
- Sixth Amendment right to speedy trial
- Fifth/Fourteenth Amendment due process clauses
Is a prosecutor required to present exculpatory evidence to a grand jury?
NO.
In United States v. Williams, the U.S. Supreme Court held that a prosecutor is not required to present exculpatory evidence to a grand jury.
That is because the grand jury’s function is merely to determine whether enough evidence exists to bring a criminal charge—not to determine guilt or innocence.
Accordingly, the grand jury need only hear evidence that supports the prosecutor’s side.
Jury panel challenges
-
Peremptory
* Disqualify potential juror for any reason except discrimination based on race, ethnicity, or sex -
For cause
* Disqualify potential juror for a stated reason for believing juror cannot be fair or impartial (eg, bias, prejudice, past experience)
What is a peremptory challenge?
A peremptory challenge is an objection to a potential juror that can be raised without any reason or explanation during the jury-selection process.
However, the Fourteenth Amendment equal protection clause prohibits striking potential jurors based solely on their race, ethnicity, or sex. In Batson v. Kentucky, the Supreme Court set forth a three-prong test to determine if the use of a peremptory challenge was discriminatory.
That test employs the following burden-shifting scheme:
- The moving party must establish a prima facie case of discrimination (e.g., the prosecution used peremptory challenges to strike only nonwhite jurors).
- The party who exercised the peremptory challenge must then provide a neutral reason for the peremptory challenge (e.g., the strikes were based on age, not race).
- If it does so, then the burden shifts back to the moving party to prove that the other party’s reason was pretextual (e.g., the prosecution struck a 21-year-old black man but not a 21-year-old white man).
Fourteenth Amendment EPC
The Fourteenth Amendment equal protection clause prohibits striking potential jurors based solely on their race, ethnicity, or sex.
Rights & privileges that may be invoked at grand jury proceedings
1. Constitutional rights
- Privilege against self-incrimination (Fifth Amendment)
- Equal protection (Fifth/Fourteenth Amendment)
- Congressmen’s privilege not to be questioned about legislative activities (speech or debate clause)
2. Privileges
- Attorney-client privilege
- Spousal privilege
- Marital communications privilege
- Psychotherapist-patient privilege
Is there a constitutional riight to have counsel present inside the grand jury room?
NO.
A grand jury witness may consult with an attorney outside the grand jury room, but there is no constitutional right to have counsel present inside the grand jury room.
Additionally, there is no constitutional right to present witnesses at a grand jury proceeding.
What is the purpose of grand jury proceedings?
Grand jury proceedings are used to determine whether probable cause exists to issue an indictment to charge a defendant with a particular crime.
In making this determination, a grand jury is generally not restricted to hearing evidence that would be admissible at trial.* This means that an indictment based on illegally obtained evidence or hearsay is constitutionally valid.
- *However, by federal statute, information obtained from an illegal wiretap cannot be presented to the grand jury.
Does a target of a grand jury investigation have a constitutional right to confront witnesses or present evidence?
NO.
A target of a grand jury investigation has no constitutional right to confront witnesses or present evidence.
Does a procedural defect–e.g., the unlawful dismissal of grand jurors–constitute grounds for dismissal of an indictment if it substantially impacts the grand jury’s decision to indict?
YES.
A procedural defect—e.g., the unlawful dismissal of grand jurors—that substantially impacts the grand jury’s decision to indict is grounds for dismissal of an indictment.
Can a grand jury consider evidence that was illegally obtained?
YES.
A prosecutor can present any relevant evidence at a grand jury proceeding—even if that evidence was illegally obtained.
Does the exclusionary rule prohibit the use of illegally obtained evidence at grand jury proceedings?
NO.
The exclusionary rule prohibits the use of illegally obtained evidence at trial—not grand jury proceedings.
Therefore, evidence from an unlawful Fourth Amendment search can be presented to the grand jury if that evidence is relevant to the grand jury’s probable-cause determination.
Batson Test
The Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from exercising peremptory challenges solely based on race or gender.
The Batson test requires that
(i) the moving party establishes a prima facie case of discrimination,
(ii) the party who exercised the challenge provides a nondiscriminatory explanation for the strike, and
(iii) the moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination.
“Use and derivative-use” Immunity
“Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness.
A witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted use and derivative-use immunity.
