Pre-Trial procedures Flashcards
Bail
bail issues are immediately appealable
generally bail can’t be set higher than necessary to assure the D’s appearance at trial
Arrestees may be held w/o bail if they pose a danger or would fail to appear at trial. But, arbitrary denials of bail will violate DUE PROCESS
Grand Juries
Exclusion does not apply
Secret proceedings. D has no right to notice, appear, or send witnesses
Witnesses compelled to testify at GJ proceedings have no right for Miranda warnings or have an attorney present. Witness MUST appear but can REFUSE to answer specific questions based on self-incrimination
Excluding minorities from GJ proceedings is just about the only way to quash a GJ indictment
Prosecutor’s Duty to disclose Exculpatory Info
prosecutor’s failure to disclose evidence (willful or inadvertent) violates Due Process and may be grounds for reversal
Will reverse if: (1) favorable to D, and (2) prejudice has resulted – REASONABLE PROBABILITY that the result would have been different had the info been disclosed
Right to speedy Trial
Totality of circumstances standard. Right attaches when D is ARRESTED or CHARGED (look for this).
Factors include (1) length of delay, (2) reason for delay, (3) whether D asserted right, and (4) prejudice to D
Remedy: dismissal with prejudice
Right to Unbiased Judge
Bias is present if judge has ACTUAL MALICE against D or a FINANCIAL INTEREST in the outcome of the case
Right to Jury Trial
Triggered if D is tried for offense which has a MAX SENTENCE EXCEEDING (MORE THAN) SIX MONTHS. If up to six months, no right to trial
Number of Jurors and Unanimity
Minimum number of jurors permissible is 6. If use six, must be UNANIMOUS
No constitutional right to 12 jurors. Has approved 10-2, 9-3, but probably wouldn’t approve 8-4
Jury Pool
Right to have the jury pool reflect a fair cross-section of the community BUT no right to have the in panel jury itself reflect a fair cross section of the community
Peremptory Challenges
Challenge to exclude a prospective juror for ANY REASON WHATSOEVER
BUT, unconstitutional to exercise peremptory challenges on account of RACE or GENDER (Violates equal protection)
(1) D must show facts or circumstances that raise an INFERENCE that the exclusion as based on race or gender, (2) prosecutor must come forward with a RACE-NEUTRAL EXPLANATION; (3) judge then determines whether peremptory challenge was genuine
Right to Counsel
Exists at all critical stages of a prosecution, including trial
Voir Dire Questioning on Racial Bias
D allowed to question as to racial prejudice if race is bound up in the case or if accused of an interracial CAPITAL crime
Voir Dire Death Penalty
If jury is to decide whether D is to be sentenced to death, D may be allowed to ask jurors if they would automatically give the death penalty upon guilty verdict. If yes, MUST be excluded for cause
Ineffective Assistance of Counsel
There must be (1) deficient performance by counsel and (2) but for cause – result of the proceeding would have been different
must specify PARTICULAR ERRORS. Cannot base claim on inexperience, lack of preparation, gravity of charges, complexity, etc.
Right to Self-representation
D has right to defend so long as his waiver of trial counsel is KNOWING and INTELLIGENT and he is COMPETENT to proceed pro se
Up to Judge’ discretion. Can still be mentally competent but judge determiens otherwise
Right to Confront Witnesses
Sixth amendment grants right to confront adverse witnesses, but not absolute.
Face-to-face confrontation NOT required when preventing such confrontation serves an important public purpose (child witnesses and trauma)
D who is disruptive may be removed, thereby relinquishing his right to confrontation
Guilty Plea Judge Requirements
Judge must specifically address D ON THE RECORD RECORD about the following: (1) the nature of the charge; (2) the maximum possible penalty and any mandatory minimum penalty; (3) that D has a right to plead not guilty and that he is waiving his right to trial if pleas
Guilty Plea Requirements
Plea must be VOLUNTARY AND INTELLIGENT (threatening a more serious crime charge is not involuntary)
Must have JURISDICTION
Must have EFFECTIVE ASSISTANCE OF COUNSEL
Prosecutor must KEEP UP THEIR END OF THE PLEA BARGAIN
Death Panalty
Statutes that do not give D a chance to present MITIGATING EVIDENCE is Unconstitutional
Can’t be automatic.
Only the jury can determine the aggravating factors justifying imposition of the death penalty
Can’t be a minor or retarded
Double Jeopardy
Attaches in a jury trial when THE JURY IS SWORN
attaches in a bench trial when the FIRST WITNESS IS SWORN
Does not attach to civil proceedings (e.g. can have tax fraud prosecution, then civil proceeding to collect the back taxes)
Permitted Retrials
(1) jury unable to agree upon a verdict (hung jury)
(2) mistrials for MANIFEST NECESSITY (medical emergencies, for example
(3) retrial after SUCCESSFUL APPEAL (but note, can’t be retried for a more serious offense on appeal, like murder upon appeal of manslaughter
(4) breach of an agreed upon plea bargain by the D (when D breaches plea bargain, plea and sentence can be withdrawn and original charges reinstated)
“Same Offense” for double jeopardy
Two crimes do not constitute the same offense if EACH crime requires proof an ADDITIONAL element that the other does not
Also not same offense if charged by different sovereigns (state and federal is fine)
NOTE: being put in jeopardy for a greater offense BARS RETRIAL for any lesser offense.
Ex: tried for robbery, can’t be retried for larceny and vice versa
Exception: Battery and Murder. If D convicted of battery and victim later dies, can be prosecuted for murder
Compelled Testimony
Fifth amendment privilege of self-incrimination can be invoked by any PERSON (not corp) in ANY type of case
Waiver of Fifth Amendment
Must assert privilege the FIRST TIME the question is asked or you wave it for all subsequent criminal prosecutions
Thus, must assert privilege in civil proceedings to prevent it from being waived in later criminal proceedings
Scope of Fifth Amendment protection
Violation does NOT occur until person’s compelled statements are used against him in a criminal case
protects against compelled testimony, but NOT physical evidence used to incriminate.
Ex: prosecution may compel a person to produce (1) blood; (2) handwriting; (3) voice; (4) hair; (5) subject himself to lineup
