Pretrial Procedures Flashcards
What is required to restrict defendant’s liberty?
A finding of probable cause.
If probable cause already determined (arrest pursuant to either warrant or grand jury indictment), then no preliminary probable cause hearing required.
If probable cause not already determined and there are significant constraints on defendant’s liberty (jail or bail but not release on recognizance) then there must be a preliminary hearing to determine probable cause within a reasonable time (usually 48 hours)
What is the nature of a preliminary probable cause hearing?
informal, non-adversarial
No real remedy for denial of the hearing, but evidence discovered as a result of unlawful detention is subject to exclusion
Is there a right to be released on bail?
Under most state constitutions, yes, unless capital offense – exception for bail where arrestees pose danger or would fail to appear at trial
What is required for bail?
set no higher than necessary to assure appearance at trial –
What is the result of refusal to grant bail or the setting of excessive bail?
Immediate appeal
Does the 8A bail provision apply to states?
SCOTUS has never said so, but if a state provides for bail then an arbitrary denial of it violates due process
Is a grand jury indictment required?
The 5A gives a right to indictment by grand jury not incorporated into 5A but some state constitutions also require
Regularly used federally and in eastern US
More common to file by information in the west
What is the nature of a grand jury proceeding?
Secret
What are a defendant’s rights re: a grand jury considering an indictment against them?
No right to notice that it is occurring
No right to be present or confront witnesses at the proceeding
No right to introduce evidence
What evidence can be offered to a grand jury?
The grand jury can base an indictment on evidence that would be inadmissible at trial and an indicted defendant cannot quash an indictment on the grounds that it was based on illegally obtained evidence
What are a grand jury witness’s rights?
No right to receive Miranda
No right to be warned that they are a potential defendant
No right to attorney
Must appear if called
May refuse to answer specific questions based on privilege against self-incrimination
What are the key differences between grand jury proceedings and criminal trials?
Grand jury witness has no right to counsel present during testimony (unlike criminal defendant)
Grand jury may consider evidence that would be excluded at a trial (hearsay or illegally obtained evidence)
Grand jury witness must appear if called, unlike a criminal defendant who has the right not to testify
Does a grand jury need probable cause to subpoena a witness?
No – no right to challenge a subpoena on 4A grounds
What is the effect on a conviction where the indictment was issued by a grand jury from which members of a minority group were excluded?
Reversed without regard to harmlessness of error (on the MBE really the only defect sufficient to quash a grand jury indictment(
How is a violation of a defendant’s 6A right to a speedy trial determined?
Totality of the circumstances
Factors: length of delay, reason for delay, whether defendant asserted right, prejudice to defendant
