Pre-Trial procedures

Question 1

Bail

Answer 1

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

Question 2

Grand Juries

Answer 2

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

Question 3

Prosecutor’s Duty to disclose Exculpatory Info

Answer 3

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

Question 4

Right to speedy Trial

Answer 4

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

Question 5

Right to Unbiased Judge

Answer 5

Bias is present if judge has ACTUAL MALICE against D or a FINANCIAL INTEREST in the outcome of the case

Question 6

Right to Jury Trial

Answer 6

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

Question 7

Number of Jurors and Unanimity

Answer 7

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

Question 8

Jury Pool

Answer 8

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

Question 9

Peremptory Challenges

Answer 9

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

Question 10

Right to Counsel

Answer 10

Exists at all critical stages of a prosecution, including trial

Question 11

Voir Dire Questioning on Racial Bias

Answer 11

D allowed to question as to racial prejudice if race is bound up in the case or if accused of an interracial CAPITAL crime

Question 12

Voir Dire Death Penalty

Answer 12

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

Question 13

Ineffective Assistance of Counsel

Answer 13

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.

Question 14

Right to Self-representation

Answer 14

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

Question 15

Right to Confront Witnesses

Answer 15

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

Question 16

Guilty Plea Judge Requirements

Answer 16

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

Question 17

Guilty Plea Requirements

Answer 17

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

Question 18

Death Panalty

Answer 18

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

Question 19

Double Jeopardy

Answer 19

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)

Question 20

Permitted Retrials

Answer 20

(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)

Question 21

“Same Offense” for double jeopardy

Answer 21

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

Question 22

Compelled Testimony

Answer 22

Fifth amendment privilege of self-incrimination can be invoked by any PERSON (not corp) in ANY type of case

Question 23

Waiver of Fifth Amendment

Answer 23

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

Question 24

Scope of Fifth Amendment protection

Answer 24

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

Question 25

Fifth Amendment and prosecutor’s conduct

Answer 25

unconstitutional for prosecutor to make negative comments on D’s failure to testify or choice to remain silent. But subject to harmless error test

Exception: CAN comment on d’s failure to take the stand or remain silent in response to defense’s assertion that D was not allowed to explain his side of the story

NOTE: suspect’s choice to remain silent BEFORE miranda warnings may be used against him in court

Question 26

Fifth Amendment Exceptions

Answer 26

(1) Grant of immunity (can be compelled to answer questions if prosecution grants immunity)
(2) No possibility of incrimination (e.g. SoL has run, no Fifth Amendment protection)
(3) Waiver (D who takes the witness stand waives all privilege)