Pretrial Procedures

Question 1

Initiation of Charges

Answer 1

Methods of Determining Probable Cause

5A - all federal felony charges must be initiated by indictment unless the D waives indictment

• all indicitment claims that there is probably cause to believe the D committed the crimes charged

Proceed - states can use grand jury or information

• Information - there must be a preliminary hearing before a neutral judge to determine whether there is probable cause

Question 2

Proceedings before the Grand Jury

Answer 2

• Grand juries can consider evidence that involves hearsay or that has been obtained in violation of the constitution in deciding whether to indict
• Prosecutors have no duty to present exclupatory evidence to the grand jury
• Defendants do not have the right to appear or testify before the grand jury or to call witnesses
• WItnessess do not have the right to bring counsel within the grand jury room, althought they can elave the grand jury room to consult with their lawyers
• Grand jury proceeedings are held in secret
• Grand jury does not have to be unanimous, can be majority

Ohio - requires a grand jury for any case which might result in death penalty or life imprisonment and every other felony case

Prosecutor will prsent case to grand jury and interrogate witnesses; if witness refuses to answer then informs court in writing of question that was refused; court may then uphold refusal or order witness to answer; if still refuses the court can hold in contempt

Question 3

D’s Competence to Stand Trial

Answer 3

Test - can D comprehend the nature of the proceedings against him and can assist his lawyer in defending the case

Note - if D is incompetent, then trial can’t proceed; if competent to stand trial, then can waive right to trial and to plead guilty

Ohio - D presumed competent ; court/prosecutor/defense can raise issue of competence and court will hold hearing; if trial already began then will hold hearing only for good cause

D has burden of proving incompetency by preponderance of the evidence

RUle - cannot understand nature or

Question 4

Bail

Answer 4

8A - excessive bail shall not be set, but does not state outright that bail must be offered pending trial

Rule - bail is available unless the D poses either a flight risk or a danger to community; there is a presumption in favor of release pending trial and a presumption against release after conviction

Note - court can impose pretrial release condition on D such as reporting requirements, house arrest, monitoring, avoidance of certain locations or people, etc.

Question 5

Guilty Pleas

Answer 5

General - guilty plea waives the variousd trial rights a defendant would otherwise have, such as the right to put the prosecution to its proof, trial by jury, challenge the introduction of evidence, to appeal if conviction, etc.

Validity - for a guilty plea to be valid, D must knowingly and intelligently waive these rights which is accomplished through plea allocution where the judge:

• informs the D of his rights and ensures that the D understands those rights
• informs the D of the possible sentences
• makes sure there is a factual basis for the plea
• determines that the plea did not result from improper force, threat, or promises
• that D understands the immigration consequences of pleading guilty

Improper Allocution - if D given improper allocution, then D can challenge his plea and conviction is wiped out

6A - plea process is critical stage; entitled to effective assistance of counsel; absent effective assistance he can withdraw his guilty plea