Pretrial Procedures Flashcards
A defendant’s liberty can only be restricted on a finding of . . .
probable cause
Where there has already been a finding of probable cause, whether through a warrant or an arrest, what need not happen?
a preliminary hearing, because the preliminary hearing is for finding probable cause.
If probable cause has not already been found, and there are significant restraints on the arrestee’s liberty, what must happen?
a preliminary hearing must be held within a reasonable time.
For purposes of a preliminary hearing, what is a reasonable time?
48 hours
What is the remedy for the failure to have a preliminary hearing to establish probable cause?
exclusion of unconstitutionally gained evidence.
In most states, a defendant can be let out on bail unless what?
unless the offense is a capital offense.
When can the refusal of a court to grant bail or the setting of excessive bail be appealed?
immediately
Under the Bail Reform Act, an arrestee can be held without bail if what?
if they pose a danger or would fail to appear in court.
Has the Eighth Amendment’s provision of bail been incorporated against the states?
no
Has the Fifth Amendment’s right to indictment by grand jury been incorporated against the states?
no, but many states require indictment by a grand jury.
Does the defendant have a right to notice that the grand jury is considering an indictment against him?
no
Does the defendant have a right to confront witnesses against him at a grand jury?
no
Does a defendant have the right to present evidence at a grand jury?
no
Does a witness before a grand jury have the right to Miranda warnings before testifying before a grand jury?
no
Is a grand jury witness entitled to notice that they are being considered as a potential defendant?
no
Does a grand jury witness have a right to counsel at a grand jury?
no
What kind of evidence can a grand jury base its decision to hand down an indictment on?
any evidence, whether constitutionally obtained or not.
Can the grand jury witness refuse to answer questions of him at a grand jury?
yes, he may refuse to answer specific questions while answering others.
A grand jury can consider indicting someone for . . .
any reason.
Does a grand jury need probable cause to hand down an indictment?
no
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?
the conviction will be overturned, regardless of harmless error.
What standard is used in determining whether a defendant’s speedy trial rights have been violated?
the totality of the circumstances.
What factors are considered in determining whether a defendant’s speedy trial rights have been violated?
the length of delay, reason for the delay, whether the defendant asserted his right, and prejudice to the defendant.
What is the remedy for a violation of a defendant’s speedy trial rights?
dismissal with prejudice.
