Pre-Trial Procedures

Question 1

Arrest

Answer 1

• warrant by an arrest (signed by judge = probable cause established)

cops need probable cause to arrest you

Question 2

Capias

Answer 2

Arrest warrant, but the case has already begun aka a BENCH WARRANT

usually occurs when a defendant did not show up to a hearing

Question 3

Notice to Appear

Answer 3

• only in misdemeanor cases
• police officer can issue a Notice to Appear (NTA) instead of taking you to jail
• is a type of arrest
• you have to sign the NTA. if you don’t, cop can take you to jail
• have to arrest you if you are a flight risk, have failed to appear, are suspected of being wanted for another crime, or cop believes you present an unreasonable risk of harm to yourself or others

Question 4

First Appearance

Answer 4

• Must happen within 24 hours of arrest for SOMEONE IN CUSTODY
• defendant can appear remotely
• failure to comply with the 24-hour requirement entitles defendant to release but does not bar prosecution

3 things must happen:
1. judge tells defendant what he was arrested for
2. judge determines conditions of pre-trial release
3. judge has to tell defendant he has a right to remain silent, right to a lawyer, and right to speak to his family and lawyer.

Question 5

Pre-trial release conditions

Answer 5

Unless charged with a capital offense, or one punishable by life, every person is entitled to pretrial release on reasonable conditions.

Question 6

Bail Bond

Answer 6

Max fee for bail bondsmen = 10% of bail amount
- you pay the bail guy only the fee but you don’t get that back

Question 7

Cash for Bail

Answer 7

Monetary bail amount can be paid in cash.
At end of case, you get your $ back.
if you miss a court date, capias is issued = you don’t get back what you paid

Question 8

ROR

Answer 8

Release on Recognizance
- you’re released from custody on your promise to return for your hearing
- can only get ROR once

Question 9

Restrictions on Defendant’s Liberty During Pre-Trial Release

Answer 9

• no travel outside of country
• no contact with victim
• house arrest
• GPS Ankle monitor
• Restrictions to a certain county

if any is violated, judge issues a bench warrant and we go back to a 1st appearance

Question 10

Probable Cause Determinations Generally

Answer 10

Doesn’t apply to NTA
Only in-custody defendants
MAY apply to some house arrest defendants

Question 11

Non-Adversarial PC Determinations

Answer 11

no witnesses or hearings. judge only looks at papers:
- affidavits
- arrest reports

MUST OCCUR WITHIN 48 HOURS OF ARREST & happens automatically

Question 12

Non-Adversarial PC Determination Results

Answer 12

If PC found: case carries on
if NO PC found: defendant released from custody & charges are dismissed

Question 13

Adversarial PC Determinations

Answer 13

Not automatic.
has to be requested by a FELONY defendant in custody for 21 days after arrest without charges being filed

• witnesses, testimony, subpoena power all allowed

Question 14

Adversarial PC Determination Results

Answer 14

if PC found: case carries on
if NO PC found: defendant gets released from custody
- unless the state has filed charges –> then defendant gets released on ROR (case still pending & state still has jurisdiction over you)

Question 15

Types of Charging documents

Answer 15

1. indictment
2. information
3. NTA
4. Affidavit
5. Docket Entry

Question 16

Indictment

Answer 16

Prosecutor goes to a grand jury and convinces them to issue an indictment, which lists the charges.
- any crime may be and all capital crimes MUST be prosecuted by an indictment
- must include defendant’s name, race, DOB, gender (when known)
- must allege the essential facts and recite the law violated

Question 17

Information

Answer 17

Document signed by prosecutor listing the charges.

Question 18

Docs to charge misdemeanors

Answer 18

indictments, informations, and NTA

Question 19

Docs to charge felonies

Answer 19

can only use an indictment or an information

• 1st degree murder seeking the death penalty requires an indictment

Question 20

Time Limits for Filing Charges

Answer 20

if defendant NOT in custody: no time limit
if defendant in custody: 30 days from arrest to file charges
- if not filed on 30th day, prosecutor gets an extra 3 days (until 33rd day)
- if not filed by 33rd day, prosecutor can request an extension until the 40th day (has to show good cause)

if not filed by 40th day, defendant gets released on ROR

Question 21

Arraignment

Answer 21

where you enter your plea: guilty, not guilty, or no contest
1. judge reads you your charges
2. how do you plea
3. judge inquires ab whether you have counsel

Question 22

Modification of Bond

Answer 22

application to modify bond may be made by either party with at least 3 hours’ notice to the attorney or defense counsel

Question 23

PreTrial Detention

Answer 23

Ct may order pretrial detention if:
- defendant has previously violated conditions of release
- defendant has obstructed the judicial process
- defendant is charged with drug trafficking
- defendant is charged with DUI manslaughter
- defendant poses a threat of harm to the community
- defendant was on probation, parole, or other release pending completion
- defendant has violated one or more conditions of pretrial release or bond
- the defendant has been sentence (or Prosec seeking to sentence) as a prison releasee reoffender

Question 24

Certain Dangerous Crimes

Answer 24

Defendant is arrested & there’s probable cause that he committed a capital felony, life felony, or a first degree felony, state MUST file a motion for pre-trial detention

Question 25

Motion for Pre-Trial Detention - Court ruling

Answer 25

A court MUST order pretrial detention if the court finds the following:
- there is substantial probability that the defendant committed the offense; and
- based on the defendant’s past and present patterns of behavior, consideration of factors such as nature & circumstances, weight of evidence, family and community ties, and any other relevant facts, no conditions of release or bail will reasonably protect the community from risk of physical harm, ensure the presence of D at trial, or assure the integrity of the judicial process

Question 26

Pleas

Answer 26

guilty; not guilty; nolo contendere (no contest)
- judge must ensure that a please is voluntary & fully understood, adn that a factual basis for it exists
- court may permit, and for good case must permit, withdrawal of a guilty plea before sentencing