Pre-Trial Procedures, from Charging to Trial - And Everything in Between Flashcards
There must be probable cause to prosecute to charge/detain defendant
(Three ways to determine whether there is PC)
Option 1 - Grand Juries - issue indictments; that is, they determine whether there is PC to prosecute, 5th amend says anyone charged w/a FY is entitled to GJ but MI does not recongize. Not entitled to lawyer and no exclusionary rule.
Option 2 - Arrest Warrant had been issued by magistrate (this shows PC)
Option 3 - Gerstein Hearing
(1) PC Hearing - determine whether PC existed to arrest the def unless an indictment was issued by Grand Jury. Then (2) Initial Appearance - hring where the magi will advise the def of his constitutional rights, appoint counsel, set bail, and informs him of the charges set forth in the complaint.
Charging in Michigan
First Step: Arraignment - talk generally about arraignment - arriagnment must take place no later than 48 hours after arrest and beyond that time period the delay is presumptively invalid.
Preliminary Examinations: Defendant cahrged with FY have right to a preliminary exam (subsitute for Grand Jury) A judge determines whether is PC and prosecutor proves PC (interpreted to mean a debatable question of fact).
Pleas
Plea bargain
How to Withdraw a Guilty Plea
Plea bargain - Just think of Judge - A judge may not accpt the plea until he or she is statisfied that….
How to Withdraw a Guilty Plea - A defendant may withdraw a guilty plea:
- Before sentencing - for any reason or no reason at all!
- After Sentencing - the defendant can show a fair and just reason such as:
a. plea is involuntary
b. he did not have effective assistance of counsel
c. the wrong court heard plea - jurisdictional issue
d. the prosecutor does not act as promised
Plea Bargain in Michigan
Requirements: One needs a factual basis for the plea
Involvement of Judge: the Judge should not state on the record the length of the sentence that, based on the information available to the judge, appears to be appropriate for charge offense unless a party requests it (P v. Cobbs)
Role of the Prosecutor and Judge in Plea Bargaining - Prosecutor has wide degree to charge but, the prosecutor has no right to dictate the sentence. The prosecutor’s role in sentencing is limited to informing the court of the charge.
Sentencing Guidelines - People v. Lockridge - guidelines by legislature violates a defendant’s 6th amendment right to a jury trial. It violates the Constitution because it allows judges to find by a proponderance of the evidence facts that are used to compel an increase in the mandatory minimum punishment (instead of beyond a reasonable doubt) the guidelines are now only advisory.
Discovery in a Criminal Case
Evidentiary Disclosure
- By the Defendant - Defense must notify the prosecution of any alibi defense as well as the names and addresses of any refuting witnesses
- By Prosecutor - Must disclose all material evidence that is favorable to the defendant or where there is a reasonable probability it is favorable to the defendant. this is called the Brady rule.
This includes evidence that negates guilty, that would reduce the potential sentence and evidence that bears on the creditbility of a witness
Michigan Discovery Rules
(in addition to the “Evidentiary Disclosure” flash card”
- parties must comply w/requests for names/addresses of witnesses, any written or recorded statement (except def’s), criminal records used for impeachment, CV of any expert, list of all criminal convictions, description and opportunity to inspect any physical evidence.
- upon REQUEST, the prosecutor must provide the def w/affidavit, warrants, and plea agreements. However, prosecutor does not have to disclose work product (preparation for litigation)
- A prosecutor must also send the def or his attorney a witness list. Prosecution shall provide to the defendant reasonable assistance to locate and serve the witness. No penality on prosecutor if a witness fails to appear after subpoenaed.
Rights at Trial
COUNSEL
Ea. Def has the right to counsel (but may waive this right) The U.S. Supreme Court has held that this right to counsel extends to the first appeal in crim trials
MICHIGAN - “An indigent def has a right to an appointed atty whenever the offense charged requires on conviction a min. term in jail or the court determines it might sentence to a term of incarceration, even if suspended.
If an indigent def is w/o an atty and has not waived the right, the crt may not sentence the def to jail.
Defendant may try to prove that he had ineffective assistance of counsel.
Def has burden of proving:
- His lawyer’s performance was deficient and fell below an “objective standard of reasonableness,” and
- There is a reasonable probability that but for the ineffective assistance the result would have been different
Prosecutorial misconduct - If the pros. makes extremely prejudicial comments w/o any facts to support allegations, then the 4th Amendment’s guarantee of due process may be violated.
Michigan Right to Self-Representation
Right to counsel is a 6th amendment right but if a def wants to represent himself the trial court must (1) make sure the waiver request is unequivocal (2) make sure the waiver is knowingly, intelligently, and voluntarily made, (3) be satisfied that the defendant will not disrupt, unduly inconenience, and burden the court and the administration of court business.
The trial court must also explain the charges, maximum potential sentence and mandatory minimum sentence, advise him of risks of self-representation (all on the record) and afford him the opportunity to consult with counsel.
Juries
Criminal Defendants have the right to a fair and impartial jury under the 6th amendment this means that jurors cannot bring in outside evidence or communicating with a witness.
This juror misconduct although it may not be harmful enought to grant a retrial
Criminal defs have a right to a trial by jury when the crime they are charged for is punishable by more than 6 months in prison (regardless of the sentence imposed)
MICHIGAN - A defendant has a right to a jury trial in all criminal prosecutions in which there is a possibility of any jail time (this includes misd.)
Number of Jurors
In Federal Trial - the verdict must be unanimous
However, it is constitutional for states to allow nonunanimous verdicts
(something like a 9-3 verdict would be permissible, an 8-4 verdict probably would not)
If there is a six person jury the verdict must be unanimous
MICHIGAN - 12 person jurors are mandatory unless the offense is a misd. or the parties have stipulated otherwise. Jury verdicts must be unanimous.
MICHIGAN
Jury Selection
B4 starting - crt gives jury instructions and sworn in B4 voir dire.
The scope of voir dire is to determine whether there are grounds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of peremptory challenges. the crt and or lawyers can conduct
MICHIGAN
Challenging a Juror
FOR CAUSE - either side may move to exclude jurors “for cause” - meaning that there is a specific reason to believe that the juror is not fair, unbiased, or capable of serving as a juror in the proceeding.
PEREMPTORY CHALLENGES - Both sides are allowed to exclude jurors for no reason at al (but note that jurors cannot be excluded solely on the basis of race, ethnicity, or gender)
Federal Laaw - Three peremptory challenges are generally allowed.
Michigan Law - 5 in Criminal cases (unless defendant faces life in prison the def gets 12), 2 in civil cases (but the crt may grant more for cause)
Role of Jury
AND
What does the jury pool have to look like?
The jury decides whether every element of the crime is proved beyond a reasonable doubt.
Cross sectional requirement - the jury pool must represent a cross-section of the community. It does not matter if the jury itself is diverse (the jury can be extremely un-diverse, so long as the pool the jury was picked from is diverse.
Right to a Speedy Trial under the Sixth Amendment
- This attaches when arrested or charged
- The remedy is dismissal of the case with prejudice.
- Consider the following factors to see if the defendant was denied his right: Length of delay, reason for delay, when the defendant asserted his right, prejudice to the defendant from the delay.
MICHIGAN - Def is presumed to have been prejudiced if there is a delay of 18 months or more.
Punishment
- The 8th Amendment prohibits cruel and unusual punishment. this has been applied to fines, bail, and the death penalty.
- Rule of Law: Punishment cannot be excessive or “grossly disproportionate” in comparison to the crime.
- Death Penalty (jury must consider this not automatic)
some defendants cannot be given the death penalty
- mental retardation
- insane at the time execution is to take place
- minors (below 18) when crime committed
- rape an adult woman or child if victim didnt die
- convicted of FY murder but neither took like, attempted to, nor intended to
Double Jeopardy
The 5th Amendment states that no person shall be “subject for the same offense to be twice put in jeopardy or life or limb”
- Jeopardy only attaches when the defendant has been in jeopardy
JT - jury swon in, BT - 1st witness sworn, Plea - when unconditioned PG is accepted by the court
- Double jeopardy applies to criminal cases only
- Double jeopardy only applies when it is the same sovereign trying the case.
- The double jeopardy clause prevents both reprosecution after acquittal and after conviction (prosecutor can retry a case from an appeal unless the guilty verdict was set aside based on the insufficiency of evidence presented at trial) and reprosecution for the same offense.
Double Jeopardy
Re-Prosecution - Same Offense
Use the Blockburger Test
The government may separately try and punish the defendant for two crimes if each contains an element that the orther does not. In that instance, the two crimes are NOT considered to be the “same offenses”
HOW TO FIGURE OUT IF SAME OFFENSE? Break down the elements then draw a circle around an element that is NOT in the other crime. There will be a red circle in ea. offense for it be a different offense. If there are two red circles, they are different offense.
Greater and Lesser Included Offenses
- If jeopardy has attached for the “greater” offense (e.g. if defendant was convicted, or he had a jury tiral and was acquitted), one cannot be tried for the lesser offense.
- If jeopardy has attached for the “lesser” offense, one cannot be tried for the greater offense.
Four Exceptions to the Double Jeopardy Rule that permit retrial
1. Deadlocked Jury - Jury cannot make a decision.
2. Appeal is successful - unless reversal is based on fact that prosecution didn’t meet burden of proof.
3. Manifest Necessity - requires mistrial (Courts are quick to find this, especially if the defendant has requested or consented that the case be dismissed due to mistrial).
4. Plea Agreement Breach - Defendant breaches plea agreement.
Burdens of Proof and Persuasion
The prosecution is required to prove every element beyond a reasonable doubt.
The defendant may be required to prove his affirmative defense.
