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Criminal Procedure > Pretrial Procedures > Flashcards

Pretrial Procedures Flashcards

1
Q

What is required to charge a defendant with a crime?

A

There must be probable cause to prosecute and detain a defendant

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2
Q

What are the three ways to determine probable cause?

A
  • Grand Juries
    An arrest warrant has been issued by a magistrate
    Gerstein Hearing
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3
Q

What do grand juries do?

A
  • Issue Indictments - determine whether there is probable cause to prosecute.
  • Proceedings are secret
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4
Q

Fifth Amendment right to a grand jury in federal courts

A

Anyone charged with a federal felony is entitled to a grand jury pursuant to the 5th Amendment of the U.S

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5
Q

Right to a Grand Jury in Michigan

A
  • Michigan does not recognize grand juries.
  • The right to a grand jury indictment clause is not considered binding on the states
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6
Q

Can a grand jury base their indictment on evidence that is not admissible at trial?

A

Yes

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7
Q

Is a witness entitled to a lawyer in the grand jury room?

A

No. At most they can have a lawyer outside the door to consult with from time to time

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8
Q

Define: Gerstein hearing/Probable Cause Hearing

A
  • Determines whether probably cause existed to arrest the D is necessary unless an indictment was issued by a grand jury or if an arrest warrant was issued by a magistrate
  • Must be held within 48 hours of arrest
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9
Q

Define: Initial Appearance

A
  • When the D attends a hearing there the magistrate will advise the D of their constitutional rights, appoint counsel, set bail, and inform the D of the charges set forth in the complaint.
  • This appearance occurs after a Gerstein hearing and may be combined with it.
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10
Q

Bail

A
  • Set to help ensure that a defendant shows up to trial
  • Cannot be unduly high
  • Judge must consider defendant’s individual circumstances when fixing bail (amount of evidence, ability to pay, character, ties to community)
  • Decisions regarding bail are immediately appealable
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11
Q

A judge may not accept a plea until they are satisfied that:

A
  • the D is competent to enter into the plea and to do so voluntarily
  • the D understands the nature of the charges, and
  • the D understands the consequences of the plea
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12
Q

When may a Defendant withdraw a guilty plea before sentencing?

A

For Any reason at all

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13
Q

When may a Defendant withdraw a guilty plea after sentencing?

A
  • If the D can show a fair and just reason such as:
  • the plea was involuntary
  • the D did not have effective assistance of counsel
  • the wrong court heard the plea so there is a jurisdictional problem, or
  • the prosecutor did not act as promised
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14
Q

Mandatory Discovery Disclosures by Defendant

A

Notify the prosecution of any alibi defense as well as the names and addresses of any alibi witnesses and any refuting witnesses

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15
Q

Mandatory Discovery Disclosures from Prosecution

A

Disclose all material evidence that is favorable to the defendant or where there is a reasonable probability it is favorable to the Defendant

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16
Q

How to prove ineffective counsel

A

Defendant has burden of showing:

their lawyer’s performance was deficient and fell below an “objective standard of reasonableness”, and

there is a reasonably probability that but for the ineffective counsel, the result would have been different

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17
Q

What is prosecutorial misconduct?

A

If the prosecutor makes extremely prejudicial comments without any facts to support the allegations, then the Due Process Clause may be violated

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18
Q

Requirement of Judges

A

The judge must be fair so the defendant is properly afforded due process under the 14th Amendment

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19
Q

Right to a Trial by Jury

A

If a defendant is charged with a crime punishable by more than 6 months in prison, they have a right to a trial by jury

20
Q

Do jury verdicts have to be unanimous?

A

Yes, as of 2020, the 6th Amendment right to an impartial jury guarantees that verdicts must be unanimous in both state and federal criminal cases

21
Q

Challenging a Juror

A

Either side may exclude jurors for cause (biased, unfair)

and

Each side may exclude 3 jurors for no reason though not due to race, ethnicity, or gender

22
Q

How to establish a prima facie showing of juror selection discrimination based on race

A

The opponent of the challenge must show:

  • the D is a member of a cognizable racial group
  • preemptory challenged are being exercised to exclude members of a certain racial group, and
  • the circumstances raise an inferred that the exclusion was based on race

Then the peremptory challenge maker must come forward with a race-neutral explanation

Court must decide if burden was met - if was based on race the challenge must be vacated

23
Q

Role of the Jury

A

The jury decides whether every element of the crime is proved beyond a reasonable doubt

24
Q

Jury Cross-Sectional Requirement

A
  • The jury pool must represent a cross-section of the community
  • It does not matter if the jury itself is diverse - but the pool must be diverse
25
Q

What ensures the right to a speedy trial?

A

The 6th amendment

Attaches when the D is arrested or charged

26
Q

What is the remedy for an unreasonably delayed trial?

A

Dismissal with prejudice

27
Q

What to consider when determining whether Defendant was denied the right to a speedy trial

A
  • The length of the delay
  • the reason for the delay
  • when the defendant asserted their right
  • the prejudice to the defendant in the delay
28
Q

Requesting a New Trial for Newly Discovered Evidence

A

The Defendant must show:

  1. the evidence itself is newly discovered
  2. it is not merely cumulative
  3. it would render a different result probable on retrial, and
  4. the defendant could not with reasonable diligence have produced it at trial
29
Q

Appeal and Error - General Rule

A

If the Defendant is convicted and appeals, the defendant must demonstrate that an error was made at trial

30
Q

Standards of Review on Appeal

A
  • Plain Error
  • Harmless Error Test
  • Test for Jury Decisions
  • Test for Judicial Decisions
31
Q

Appeal - Plain Error

A
  • A plain error is appropriate for an error that affects the defendant’s substantial rights.
  • This is appealable even if the parties did not object during trial
32
Q

Appeal - Harmless Error Test

A

if evidence is improperly admitted at trial and the defendant is found guilty, that verdict will stand so long as the government can prove beyond a reasonable doubt that the error was harmless

33
Q

Appeal - Test for Jury Decisions

A

a Defendant can appeal a jury’s decision if it can show no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”

34
Q

Appeal - Test for Judicial Decisions

A

Discretionary decisions made by the judge will be evaluated under the “abuse of discretion” standard and will generally be upheld.

35
Q

Punishment Rule of Law

A

Punishment cannot be excessive or “grossly disproportionate” in comparison to the crime

36
Q

Life without Parole

A

A Juvenile who is convicted of a non-homicide offense may not be sentenced to life without parole

37
Q

Death Penalty

A

It is unconstitutional for a statute to mandate that the death penalty is automatically imposed in some cases, as a jury must be allowed to consider all mitigating evidence

38
Q

What defendants cannot be given the death penalty?

A
  • Defendants with “mental retardation”
  • Defendants who are insane at the time of execution is to take place
  • Defendants who were minors when they committed the crime
  • Defendants who rape an adult woman or child if the victim did not die
  • Defendants who are convicted of a felony murder but “neither took life, attempted to take life, nor intended to take life”
39
Q

Double Jeopardy Rule

A

The 5th Amendment states that no person shall be subject to “the same offense to be twice put in jeopardy of life or limb”

40
Q

When Jeopardy Attaches

A
  • Jury Trial: when the jury is impaneled and sworn
  • Bench Trial: when the first witness is sworn
  • Plea Bargaining: when the court accepts an unconditional guilty plea
41
Q

When does Double Jeopardy not apply?

A

When there are different sovereigns trying the case

42
Q

What are the same sovereign?

A

States and municipalities within

43
Q

What are not the same sovereigns?

A
  • The state and federal government: thus, defendant can be tried in both state and federal court
  • Different states
44
Q

What does double Jeopardy prevent?

A

Reprosecution after acquittal, after conviction, and for the same offense

45
Q

Blockburger Test

A
  • The government may sparely try and punish the defendant for two crimes if each contains an element that the other does not.
  • In that instance the two crimes are not considered to be the “same offense”
46
Q

How to figure out if two crimes are the same offense

A
  • Break down the elements of each crime and then draw a circle around an element that is not in the other crime
  • There must be a circle in each offense for it to be a different offense
  • if there are two circles, they are different offenses

Examples:

  • A d cannot be tried for larceny and later tried for robbery
  • A D can be tried for rape and later tried for statutory rape arising out of the same incident
47
Q

Exceptions to the Double Jeopardy Rule that Permit Retrial

A
  • Deadlocked jury: the jury cannot make a decision
  • Appeal is successful: there is a successful appeal unless reversal is based on the fact that the prosecution did not meet their burden of proof
  • Manifest Necessity: required mistrial - ex: jury hears evidence they shouldn’t have
  • Plea Agreement Breach: defendant breaches the plea bargain

Criminal Procedure (5 decks)

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