Pretrial Procedures Flashcards
What is the preliminary hearing to determine probable cause to detain?
A defendant’s liberty can be restricted only on a finding of probable cause. If probable cause has already been determined (for example, the arrest was pursuant to a warrant or a grand jury indictment), no preliminary hearing to determine probable cause need be held. If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail, but not release on recognizance), a preliminary hearing to determine probable cause must be held within a reasonable time (for example, 48 hours). The hearing is an informal, nonadversarial proceeding. There is no real remedy for a denial of the hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.
What is the pretrial detention (bail)?
Most state constitutions create a right to be released on bail unless the charge is a capital one. Generally, bail can be set no higher than is necessary to assure the defendant’s appearance at trial. Refusal to grant bail or the setting of excessive bail may be appealed immediately; however, the Supreme Court has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial.
What if the defendant is incompetent to stand trial?
Standards for commitment and subsequent release of defendants incompetent to stand trial must be essentially identical with those for commitment of persons not charged with a crime; otherwise there is a denial of equal protection.
What is the use of a grand jury?
The Fifth Amendment right to indictment by grand jury has not been incorporated into the Fourteenth Amendment, but some state constitutions require grand jury indictment. Most states east of the Mississippi and the federal system use the grand jury as a regular part of the charging process. Western states generally charge by filing an information—a written accusation of the crime prepared and presented by the prosecutor.
How are grand jury proceedings conducted?
Grand jury proceedings are conducted in secret. The defendant has no right to notice that the grand jury is considering an indictment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.
Does the D have a right to counsel or Miranda?
A witness subpoenaed to testify before the grand jury does not have the right to receive Miranda warnings, nor is a witness entitled to a warning that they are a “potential defendant” when called to testify before the grand jury. Witnesses have no right to have an attorney present.
Should evidence be excluded?
A grand jury may base its indictment on evidence that would be inadmissible at trial, and an indicted defendant may not have the indictment quashed on the ground that it is based on illegally obtained evidence.
Can you challenge a subpoena under a grand jury proceeding?
There is no right to challenge a subpoena on the Fourth Amendment grounds that the grand jury lacked “probable cause”—or any reason at all—to call a witness for questioning.
What happens if minorities are excluded in grand jury proceedings?
A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to harmlessness of error.
What are the standards for a speedy trial?
A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances. Factors considered are the length of delay, reason for delay, whether defendant asserted their right, and prejudice to defendant. The remedy for a violation of the right to a speedy trial is dismissal with prejudice.
When does the right to a speedy trial attach?
The right to a speedy trial does not attach until the defendant has been arrested or charged. If the defendant is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to obtain the presence of the defendant. Also, it is a violation of the right to a speedy trial to permit the prosecution to indefinitely suspend charges.
Note: The defendant does not need to know of the charges for the speedy trial rights to attach.
What is the prosecutor’s duty to disclose exculpatory evidence?
The government has a duty to disclose material, exculpatory evidence to the defendant. Failure to disclose such evidence—whether willful or inadvertent—violates the Due Process Clause and is grounds for reversing a conviction if the defendant can prove that: (1) the evidence is favorable to the defendant because it either impeaches or is exculpatory; and (2) prejudice has resulted (that is, there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).
When does there need to be notice of an alibi or and intent to present insanity as a defense?
If the defendant is going to use an alibi or insanity defense, they must notify the prosecution. If an alibi is to be used, the defendant must give the prosecution a list of their witnesses. The prosecution must give the defendant a list of the witnesses it will use to rebut the defense. The prosecutor may not comment at trial on the defendant’s failure to produce a witness named as supporting the alibi or on failure to present the alibi itself.
How are competency and insanity distinguished?
Insanity is a defense to a criminal charge based on the defendant’s mental condition at the time they committed the charged crime. A defendant acquitted by reason of insanity may not be retried and convicted, although they may be hospitalized under some circumstances. Incompetency to stand trial, on the other hand, is not a defense to the charge, but rather is a bar to trial. It is based on the defendant’s mental condition at the time of trial. If the defendant later regains competency, they can then be tried and convicted
What is the due process standard for competency?
A defendant is incompetent to stand trial if they either (1) lack a rational as well as factual understanding of the charges and proceedings, or (2) lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding. The state may place on the defendant the burden of proving incompetency by a preponderance of the evidence, but requiring the defendant to show incompetency by “clear and convincing” evidence is unconstitutional.
