Pretrial Procedures Flashcards
What is required to charge a defendant with a crime?
There must be probable cause to prosecute and detain a defendant
What are the three ways to determine probable cause?
- Grand Juries
An arrest warrant has been issued by a magistrate
Gerstein Hearing
What do grand juries do?
- Issue Indictments - determine whether there is probable cause to prosecute.
- Proceedings are secret
Fifth Amendment right to a grand jury in federal courts
Anyone charged with a federal felony is entitled to a grand jury pursuant to the 5th Amendment of the U.S
Right to a Grand Jury in Michigan
- Michigan does not recognize grand juries.
- The right to a grand jury indictment clause is not considered binding on the states
Can a grand jury base their indictment on evidence that is not admissible at trial?
Yes
Is a witness entitled to a lawyer in the grand jury room?
No. At most they can have a lawyer outside the door to consult with from time to time
Define: Gerstein hearing/Probable Cause Hearing
- 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
Define: Initial Appearance
- 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.
Bail
- 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
A judge may not accept a plea until they are satisfied that:
- 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
When may a Defendant withdraw a guilty plea before sentencing?
For Any reason at all
When may a Defendant withdraw a guilty plea after sentencing?
- 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
Mandatory Discovery Disclosures by Defendant
Notify the prosecution of any alibi defense as well as the names and addresses of any alibi witnesses and any refuting witnesses
Mandatory Discovery Disclosures from Prosecution
Disclose all material evidence that is favorable to the defendant or where there is a reasonable probability it is favorable to the Defendant
How to prove ineffective counsel
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
What is prosecutorial misconduct?
If the prosecutor makes extremely prejudicial comments without any facts to support the allegations, then the Due Process Clause may be violated
Requirement of Judges
The judge must be fair so the defendant is properly afforded due process under the 14th Amendment
Right to a Trial by Jury
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
Do jury verdicts have to be unanimous?
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
Challenging a Juror
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
How to establish a prima facie showing of juror selection discrimination based on race
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
Role of the Jury
The jury decides whether every element of the crime is proved beyond a reasonable doubt
Jury Cross-Sectional Requirement
- 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
What ensures the right to a speedy trial?
The 6th amendment
Attaches when the D is arrested or charged
What is the remedy for an unreasonably delayed trial?
Dismissal with prejudice
What to consider when determining whether Defendant was denied the right to a speedy trial
- The length of the delay
- the reason for the delay
- when the defendant asserted their right
- the prejudice to the defendant in the delay
Requesting a New Trial for Newly Discovered Evidence
The Defendant must show:
- the evidence itself is newly discovered
- it is not merely cumulative
- it would render a different result probable on retrial, and
- the defendant could not with reasonable diligence have produced it at trial
Appeal and Error - General Rule
If the Defendant is convicted and appeals, the defendant must demonstrate that an error was made at trial
Standards of Review on Appeal
- Plain Error
- Harmless Error Test
- Test for Jury Decisions
- Test for Judicial Decisions
Appeal - Plain Error
- 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
Appeal - Harmless Error Test
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
Appeal - Test for Jury Decisions
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”
Appeal - Test for Judicial Decisions
Discretionary decisions made by the judge will be evaluated under the “abuse of discretion” standard and will generally be upheld.
Punishment Rule of Law
Punishment cannot be excessive or “grossly disproportionate” in comparison to the crime
Life without Parole
A Juvenile who is convicted of a non-homicide offense may not be sentenced to life without parole
Death Penalty
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
What defendants cannot be given the death penalty?
- 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”
Double Jeopardy Rule
The 5th Amendment states that no person shall be subject to “the same offense to be twice put in jeopardy of life or limb”
When Jeopardy Attaches
- 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
When does Double Jeopardy not apply?
When there are different sovereigns trying the case
What are the same sovereign?
States and municipalities within
What are not the same sovereigns?
- The state and federal government: thus, defendant can be tried in both state and federal court
- Different states
What does double Jeopardy prevent?
Reprosecution after acquittal, after conviction, and for the same offense
Blockburger Test
- 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”
How to figure out if two crimes are the same offense
- 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
Exceptions to the Double Jeopardy Rule that Permit Retrial
- 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
