Pretrial Procedures Flashcards
What is required before detaining someone?
A person’s liberty cannot be restricted without a finding of PC. If PC was not found upon arrest, then need to have a preliminary hearing wrt PC (IF there are significant constraints on person’s liberty- jail, bail, etc).
hearing must be held within a reasonable time (48 hours)
exclusionary rule applies to hearing
What are arrestees right to bail? Where do they come from?
Most state constitutions create a right to be released on bail unless its a capital charge. (8A provision re bail doesn’t apply to the states). But, if state provides for bail and arbitrarily denies it, can be DPC claim.
Generally, excessive bails are invalid - can be set no higher than necessary to assure D presence at trial.
What protections are not available to D’s during grand jury proceedings?
- D (“grand jury witness”) has no right to have counsel present during testimony
- jury may consider evidence that would be excluded at the criminal trial (hearsay, illegally obtained evidence)
- D must appear if called - but can refuse to answer specific q’s that may incriminate (5A)
- D has no right to notice that jury is considering indictment against them
- witness subpeonaed has not right to receive Miranda
- no right to challenge subpoena on PC grounds (i.e. don’t need PC to call witness to questioning)
What is the one reason (on exam) grand jury proceedings may be reversed?
If minorities were excluded from the grand jury. Do NOT need to show harmlessness of error to reverse.
What is the right to a speedy trial? When does it attach?
6A provides right to a speedy trial. Right attaches once the D has been arrested or charged, NOT before. (D does not need to know of arrest/charge).
Whether right is violated depends on the totality of the circumstances, look to: length of delay , reason fro delay, whether D asserted their rights, prejudice to D.
Note: indefinite suspension of charges violates 6A.
What evidence must the prosecutor disclose to D pretrial? What is the result if it isn’t disclosed?
Prosecutor has duty to disclose exculpatory evidence to D. Failure to do so violates DPC.
Conviction will be reversed for failure to disclose, if D can show that:
- evidence is favorable to D (impeaches or is exculpatory)
- prejudice has resulted, i.e. reasonable probability that the result of the case would have been different
What must D notify P of prior to trial?
If D is going to use an alibi or insanity defense, they must notify P before trial.
If alibi is used, must give list of witnesses. P must give D list of witnesses if they are going to rebut.
What’s the difference between insanity and incompetency?
Insanity = defense to crime, at time of crime Incompetency = incompetent to stand trial, at time of trial (here, if they regain competency can be tried and convicted later)
What is the standard for showing incompetency?
D is incompetent to stand trial if (a) lack a rational and factual understanding of the charges and proceedings OR (b) lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding
