Pretrial Procedures

Question 1

Use of Grand Jury

Answer 1

Grand Juries issue indictments

The fifth amendment right to indictment by a grand jury has not been incorporated into the fourteenth amendment, but some state constitutions require grand jury indictment.

Question 2

GA Grand Juries

Answer 2

GA uses grand juries as part of the charging process.

An arrestee who is refused bail is entitled to have the charge heard by a grand jury within 90 days after the date of confinement.

If the person is arrested for a crime for which the death penalty is sought, the court may grant an extension of no more than 90 days upon motion of the district attorney and with good cause shown.

If a grand jury does not consider the charges within the time period allowed, the defendant is entitled to have bail set.

Question 3

Secrecy and Defendant’s Lack of Access (Grand Jury)

Answer 3

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.

Question 4

Right to Counsel or Miranda Warnings (Grand Jury)

Answer 4

A witness subpoenaed to testify before a 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.

Question 5

Evidence at Grand Jury

Answer 5

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 grounds that it is based on illegally obtained evidence.

Question 6

Subpoena Challenge (Grand Jury)

Answer 6

There is no right to challenge a subpoena on the fourth amendment grounds that the grand jury lacked probable cause or any other reason at all

Question 7

Exclusion of Minorities (Grand Jury)

Answer 7

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

Question 8

Initial/First Appearance

Answer 8

Soon after arrest, the defendant must be brought before a magistrate who will advise the defendant of their rights, set bail, and appoint counsel if necessary

Question 9

GA Initial Appearance

Answer 9

In GA, the first appearance must take place no more than 72 hours after arrest

Question 10

Bail

Answer 10

Most states create a right to be released on bail unless the charge is a capital one.

To comply with the constitutional prohibition on excessive bail, the amount should generally be no greater than is necessary to ensure the defendant’s presence at trial.

However, bail may be denied, and the accused detailed pending trial, based on proof of danger to the community.

Question 11

Preliminary Hearing for Probable Cause to Detain

Answer 11

The government needs probable cause that a defendant committed the charged offense to bind them over for trial and to either impose bail or detail the defendant until trial.

A pretrial hearing (Gerstein hearing) is held after arrest but before trial to determine whether probable cause for detention exists. The hearing is unnecessary if probable cause has already been determined. This is the case if:

1) A grand jury has issued an indictment; or
2) a magistrate has issued an arrest warrant

(Really just applies to warrantless arrests)

Question 12

Timing for Preliminary Hearing

Answer 12

If probable cause has not already been determined and there is significant constraints on the arrestee’s liberty (jail or bail), a preliminary hearing to determine probable cause must be held within a reasonable time.

The court has determined that 48 hours is presumptively reasonable.

Question 13

GA Preliminary Hearing

Answer 13

In GA, this is known as a commitment hearing. It is held to determine whether there is sufficient reason to suspect the defendant’s guilt and to require them to appear and answer before a court.

The court has a duty to commit the case so long as probable cause is found to exist.

The return of an indictment eliminates the necessity for such a hearing.

Question 14

Right to Speedy Trial

Answer 14

All criminal defendants have the sixth amendment right to a speedy trial.

A determination of whether this right has been violated is evaluated in the totality of the circumstances considering (1) the length of delay, (2) the reason for delay, (3) whether the defendant asserted their right, and (4) prejudice to the defendant.

The remedy for violation of the right to a speedy trial is dismissal with prejudice.

Question 15

When Right to Speedy Trial Attaches

Answer 15

The right 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.

It is a violation of the right to a speedy trial to permit the prosecution to indefinitely suspect charges

NOTE – the defendant does not need to know of the charges for the speedy trial rights to attach

Question 16

Prosecutor’s Duty to Disclose Evidence

Answer 16

The government has a duty to disclose material, exculpatory evidence to the defendant (Brady Rule)

Faillure 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 - meaning there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial

Question 17

Alibi and Insanity Defense

Answer 17

If the defendant is going to use an alibi or insanity defense, they must notify the prosecution.

If alibi - must give the prosecution a list of their witnesses & prosecution must give defendant a list of witnesses they will use to rebut

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.

Question 18

Incompetency

Answer 18

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 the burden on the defendant of proving incompetency by a preponderance of the evidence (requiring clear and convincing evidence is unconstitutional)

NOTE – if proven, it is not a defense but rather bars trial until the defendant regains competency