Pretrial Procedures

Question 1

A defendant’s liberty can only be restricted on a finding of . . .

Answer 1

probable cause

Question 2

Where there has already been a finding of probable cause, whether through a warrant or an arrest, what need not happen?

Answer 2

a preliminary hearing, because the preliminary hearing is for finding probable cause.

Question 3

If probable cause has not already been found, and there are significant restraints on the arrestee’s liberty, what must happen?

Answer 3

a preliminary hearing must be held within a reasonable time.

Question 4

For purposes of a preliminary hearing, what is a reasonable time?

Answer 4

48 hours

Question 5

What is the remedy for the failure to have a preliminary hearing to establish probable cause?

Answer 5

exclusion of unconstitutionally gained evidence.

Question 6

In most states, a defendant can be let out on bail unless what?

Answer 6

unless the offense is a capital offense.

Question 7

When can the refusal of a court to grant bail or the setting of excessive bail be appealed?

Answer 7

immediately

Question 8

Under the Bail Reform Act, an arrestee can be held without bail if what?

Answer 8

if they pose a danger or would fail to appear in court.

Question 9

Has the Eighth Amendment’s provision of bail been incorporated against the states?

Answer 9

no

Question 10

Has the Fifth Amendment’s right to indictment by grand jury been incorporated against the states?

Answer 10

no, but many states require indictment by a grand jury.

Question 11

Does the defendant have a right to notice that the grand jury is considering an indictment against him?

Answer 11

no

Question 12

Does the defendant have a right to confront witnesses against him at a grand jury?

Answer 12

no

Question 13

Does a defendant have the right to present evidence at a grand jury?

Answer 13

no

Question 14

Does a witness before a grand jury have the right to Miranda warnings before testifying before a grand jury?

Answer 14

no

Question 15

Is a grand jury witness entitled to notice that they are being considered as a potential defendant?

Answer 15

no

Question 16

Does a grand jury witness have a right to counsel at a grand jury?

Answer 16

no

Question 17

What kind of evidence can a grand jury base its decision to hand down an indictment on?

Answer 17

any evidence, whether constitutionally obtained or not.

Question 18

Can the grand jury witness refuse to answer questions of him at a grand jury?

Answer 18

yes, he may refuse to answer specific questions while answering others.

Question 19

A grand jury can consider indicting someone for . . .

Answer 19

any reason.

Question 20

Does a grand jury need probable cause to hand down an indictment?

Answer 20

no

Question 21

What will happen when a defendant has been convicted on an indictment that was handed down by a grand jury from which minorities were excluded?

Answer 21

the conviction will be overturned, regardless of harmless error.

Question 22

What standard is used in determining whether a defendant’s speedy trial rights have been violated?

Answer 22

the totality of the circumstances.

Question 23

What factors are considered in determining whether a defendant’s speedy trial rights have been violated?

Answer 23

the length of delay, reason for the delay, whether the defendant asserted his right, and prejudice to the defendant.

Question 24

What is the remedy for a violation of a defendant’s speedy trial rights?

Answer 24

dismissal with prejudice.

Question 25

The right to a speedy trial does not attach until a defendant has been . . .

Answer 25

arrested or charged.

Question 26

What must happen if a defendant is charged and incarcerated in another jurisdiction?

Answer 26

reasonable efforts must be made to obtain the presence of the defendant.

Question 27

What is the result of the prosecution indefinitely suspending charges?

Answer 27

it is a violation of the speedy trial rights of the defendant.

Question 28

Must a defendant know what the charges are in order for speedy trial rights to attach?

Answer 28

no

Question 29

What is the government’s duty regarding exculpatory evidence?

Answer 29

the government has the duty to disclose all exculpatory evidence that is material to the defendant.

Question 30

If the prosecution fails to disclose material exculpatory evidence to the defense, the defendant can argue it is a violation of the Due Process Clause if he can prove . . .

Answer 30

1) the evidence is favorable to him because it either impeaches or is exculpatory; and 2) prejudice has resulted.

Question 31

If the defendant is going to use an alibi or insanity defense, what must he do?

Answer 31

he must notify the prosecution and give them a list of witnesses.

Question 32

If a defendant plans on using an alibi, what must the prosecution provide the defendant?

Answer 32

a list of witnesses it will use to rebut the alibi.

Question 33

Insanity

Answer 33

a defense to a criminal charge based on the defendant’s mental condition at the time he committed the charged crime.

Question 34

Incompetency

Answer 34

a bar to trial; not a defense.

Question 35

Incompetency is based on a defendant’s mental state at . . .

Answer 35

the time of trial, not at the time of the crime.

Question 36

Where a defendant is incompetent, but later regains his competency, can he be tried?

Answer 36

yes, once he gains his competency back.

Question 37

A defendant is incompetent if he either:

Answer 37

1) lacks a rational as well as factual understanding of the charges and proceedings; or 2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding.

Question 38

A state can place what standard of proof on the defendant to prove he is incompetent to stand trial?

Answer 38

preponderance of the evidence.

Question 39

Can a defendant who has successfully asserted the insanity defense be confined to a mental hospital for a term longer than the maximum period of incarceration for the offense?

Answer 39

yes