PRETRIAL PROCEDURES Flashcards
1
Q
PRELIMINARY HEARING TO DETERMINE
PROBABLE CAUSE TO DETAIN
A
- D ’s liberty can be restricted only for PC.
- If PC has been determined (ex. arrest was pursuant to warrant), no prelim hearing to determine PC needed.
- If PC has not been determined & there are significant constraints on arrestee’s liberty (ex. jail/bail, but not release on bond), prelim hearing to determine PC must be held w/in reasonable time (ex. 48 hours).
- Hearing is informal, nonadversarial proceeding.
- No real remedy for denial of hearing, but evidence discovered as result of unlawful detention can be excluded under exclusionary rule.
2
Q
PRETRIAL DETENTION—BAIL
A
- Most state constitutions create right to be released on bail unless charge is a capital one.
- Bail can be set no higher than is necessary to assure D’s appearance at trial.
- Refusal to grant bail/setting of excessive bail may be appealed immediately;
- Arrestees can be held w/o bail if they pose a danger/would fail to appear at trial.
3
Q
Tip
A
Since SC has never held 8th am provision for bail applies to states, 8th am is not a very strong argument against state’s denial of bail. If, however, state provides for bail (& most states do), arbitrary denials of bail will violate due process—detainees must be given opportunity to prove eligibility.
4
Q
Defendant Incompetent to Stand Trial
A
- Standards for commitment & release of Ds incompetent to stand trial must be essentially
identical w/ those for commitment of persons not charged w/ a crime; otherwise there is a denial of equal protection.
5
Q
Use of Grand Jury
A
- 5th am right to indictment by grand jury has not been incorporated into 14th am, but some state constitutions require grand jury indictment.
- Most states east of Mississippi & federal system use grand jury in charging process.
6
Q
Grand Jury Proceedings: Secrecy and Defendant’s Lack of Access
A
- Grand jury proceedings are conducted in secret.
- D has no right to notice that grand jury is considering
an indictment against them, to be present & confront
witnesses at proceeding, or to introduce evidence b/f grand jury.
7
Q
GJP: No Right to Counsel or to Miranda Warnings
A
- A witness subpoenaed to testify b/f grand jury does not have right to receive Miranda warnings, nor to warning that they are a “potential D” when called to testify b/f grand jury.
- Witnesses have no right to have attorney present.
8
Q
GJP: No Right to Have Evidence Excluded
A
- A grand jury may base indictment on evidence that would be inadmissible at trial, & indicted D may not
have indictment quashed on ground that it is based on illegally obtained evidence.
9
Q
GJP: No Right to Challenge Subpoena
A
- There is no right to challenge a subpoena on 4th am grounds that grand jury lacked “PC”—or any reason at all—to call a witness for questioning.
10
Q
GJP:Exclusion of Minorities
A
- Conviction resulting from indictment issued by grand jury from which members of a minority group have been excluded will be reversed w/o regard to harmlessness of error.
11
Q
Tip
A
- For purposes MBE , keep in mind these major differences between grand jury proceedings & criminal trials:
- “D” (grand jury witness) has no right to have counsel present during grand jury testimony.
- Grand jury may consider evidence that would be excluded at criminal trial (ex. illegally obtained evidence/hearsay).
- “D” (grand jury witness) must appear if called, although they can refuse to answer specific questions on grounds they may incriminate them.
12
Q
Tip
A
For purposes of MBE, exclusion of minorities is about the only defect sufficient to quash a grand jury indictment.
13
Q
SPEEDY TRIAL: Standards
A
- Determination on if D’s 6th am right to a speedy trial has been violated is made by TOC
- Factors: length of delay, reason for delay, whether D asserted their right, & prejudice to D.
- Remedy: dismissal w/ prejudice.
14
Q
When Right to Speedy Trial Attaches
A
- Right does not attach until D has been arrested/ charged.
- If D is charged & incarcerated in another jurisdiction, reasonable efforts must be made to obtain presence of D
- It is a violation for prosecution to indefinitely suspend charges.
- D does not need to know of charges for right to attach
15
Q
Tip
A
When a speedy trial issue is raised in a question, first check timing—has D been arrested/charged? If not, no right to a speedy trial.
16
Q
PROSECUTORIAL DUTY TO DISCLOSE
EXCULPATORY INFORMATION AND
NOTICE OF DEFENSES: Prosecutor’s Duty to Disclose Exculpatory Evidence
A
- Gov has duty to disclose material, exculpatory
evidence to D. - Failure to disclose such evidence—whether willful/ unintentional—violates DP & is grounds for reversing conviction if D can prove that:
(1) evidence is favorable to D b/c it impeaches/ is exculpatory; and
(2) prejudice has resulted (there is reasonable
probability that result of case would have been
different if undisclosed evidence had been presented at trial).
17
Q
Notice of Alibi and Intent to Present Insanity
Defense
A
- If D is going to use an alibi/insanity defense, they must notify prosecution.
- If alibi is to be used, D must give prosecution a list of witnesses.
- Prosecution must give D a list of witnesses it will use to rebut defense.
- Prosecutor may not comment at trial on D’s failure to produce a witness named as supporting alibi/on failure to present alibi itself
18
Q
COMPETENCY TO STAND TRIAL: Competency and Insanity Distinguished
A
- Insanity is defense to criminal charge based on D’s mental condition at time they committed charged crime.
- D acquitted by reason of insanity may not be retried & convicted, but may be hospitalized under some circumstances.
- Incompetency to stand trial is not defense to charge,
but a bar to trial. - Based on D’s mental condition at time of trial.
- If D later regains competency, they can then be tried & convicted.
19
Q
Due Process Standard
A
- D is incompetent to stand trial if they either
(1) lack rational & factual understanding of charges & proceedings, or
(2) lack sufficient present ability to consult w/ their lawyer w/ reasonable degree of understanding. - State may place on D burden of proving
incompetency by preponderance of evidence, but
requiring D to show incompetency by “clear & convincing” evidence is unconstitutional.
20
Q
Detention of Defendant
A
- D who has successfully asserted insanity defense may be confined to a mental hospital for a term longer than max period of incarceration for offense.
- D cannot be indefinitely committed after regaining sanity merely b/c D is unable to prove themself not dangerous to others.
