Pretrial procedures Flashcards
Charging: constitutional requirements
Under the Fifth Amendment’s Presentment Clause, all federal felony charges must be initiated by indictment by a grand jury unless the defendant waives indictment.
The Presentment Clause has not be incorporated to the states, which are thus free to proceed either by grand jury indictment or by information.
Probable cause requirement
An indictment by grand jury requires probable cause.
If a state proceeds by information, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause.
Grand jury proceedings: evidence
Grand juries can consider evidence that has been illegally obtained in addition to hearsay evidence in deciding whether there is probable cause to indict.
Grand jury proceedings: right to counsel
(1) Defendants:
They do not have the right to testify before the grand jury or to call witnesses.
(2) Witnesses:
They do not have the right to counsel within the grand jury room, although they can (and as a matter of practice, do) leave the grand jury room to consult with their lawyers.
Grand jury proceedings
They are held in secret, and a grand jury need not be unanimous in voting to indict.
Competence to stand trial
The test is whether the defendant:
(1) comprehends the nature of the proceedings against him and
(2) can assist her lawyer in defending the case.
If a defendant is competent to stand trial, she is also competent to plead guilty and to waive the right to trial.
Guilty pleas: waiver
When a defendant pleads guilty, she waives various trial rights, for example, the rights:
- To put the prosecution to its proof;
- To confront and produce witnesses;
- To trial by jury;
- To challenge the introduction of evidence;
- To appeal if there is a conviction.
Guilty pleas: plea allocution
For a guilty plea to be valid, the defendant must knowingly and intelligently waive her rights.
This is done through plea allocution, where the judge:
- Informs the defendant of her rights and ensures that the defendant understands those rights;
- informs the defendant of the possible sentences;
- Informs the defendant of the immigration consequences of a guilty plea, although the judge need not inform the defendant of other collateral consequences;
- Makes sure there is a factual basis for the plea; and
- Determines that the plea did not result from force, coercion, threats, or promises.
Guilty pleas: challenges to the agreement
If a defendant challenges the plea agreement and succeeds in reopening the case, the prosecution can reinstate all charges, including those it dropped in exchange for the plea bargain.
Guilty pleas: assistance of counsel
The defendant is entitled to competent assistance form counsel in the plea bargaining process, although it is an open question whether the defendant is entitled to counsel in advance of a charging decision.
Bail: Eighth Amendment
The Eighth Amendment forbids the setting of excessive bail but does not state outright that bail must be offered pending trial.
The Eighth Amendment Excessive Bail Clause requires that, when bail is set, it cannot be excessive, i.e., set higher than an amount reasonably calculated to ensure the defendant’s presence at trial.
Bail: general rule
It is available unless the defendant poses either a flight risk or a danger to the community.
There is a presumption in favor of bail.
Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of particular people, or reporting requirements.
Grand jury proceedings: exculpatory evidence
The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury, even if it is requested by the grand jurors.
Thus, a grand jury indictment cannot be dismissed for the prosecutor’s failure to present exculpatory evidence, unless the prosecutor violated a preexisting constitutional or legislative rule.
Grand jury proceedings: Equal Protections
A defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.
Because discrimination in grand jury selection undermines the structural integrity of the judicial process, a conviction obtained as a result of such discrimination is not subject to the harmless error review.
Grand jury proceedings: rights of witnesses
A grand jury witness has no Fifth Amendment right to counsel in the grand jury room. The witness may, however, consult with an attorney outside the grand jury room.
Additionally, a witness has no Sixth Amendment right to present witnesses or to introduce evidence at a grand jury proceeding.
A witness before a grand jury is not entitled to be informed that she is a subject of the grand jury’s investigation.
