Pretrial Rights

Question 1

Grand Jury

Answer 1

Is used to assess evidence presented by a P with no adversarial process and decide whether to issue a “True Bill of Indictment” Does not apply to the states.

Question 2

Grand Jury: Indictment Req.

Answer 2

For federal cases, the Fifth Amendment requires indictment by grand jury in order to bring to trial any charge with an authorized penalty of more than six months’ confinement

Question 3

Grand Jury as an Investigatory Tool

Answer 3

The GJ is not an adversarial hearing:

• the suspect has no right to be present and no right to assistance of counsel
• the P presents evidence to GJ without a confrontation process
• the P has no obligation to present exculpatory evidence to GJ

Question 4

Bail Hearing

Answer 4

Initiates the formal adversarial process, but is not a critical stage.

Question 5

Prohibition Against Excessive Bail

Answer 5

There is no constitutional right to bail, but if appropriate, it may not be excessive.

Question 6

Plea Bargaining

Answer 6

The D may be convicted based upon conviction BRD or by his plea of guilty. A plea must be knowing, voluntary, and intelligent, which means that the accused must be informed of the general nature of the offense he is pleading guilty to and the direct consequences of pleading guilty.

Question 7

Alford Pleas

Answer 7

The defendant may plead guilty without admitting guilt. This plea requires other evidence introduced to support the court’s finding of guilt.

Question 8

Charging Discretion

Answer 8

A charge that produces a discriminatory effect based on a discriminatory motive violates equal protection. But the D must show that similarly situated Ds were charged disparately.

Question 9

Increasing the Charge on Retrial

Answer 9

When a P increases the severity of a charge after a D successfully appeals and is subject to retrial, it will violate DP unless the record includes new evidence that supports the increase in charge severity.

Question 10

Sixth Amendment Right to a Speedy Trial

Answer 10

Violation of this right is based on the TOC including the length of delay, reason for delay, and demand for speedy trial.

Question 11

Right to a Speedy Trial: Length of Delay

Answer 11

Generally, more than one year since Ds arrest/formal charge triggers an inquiry, but defense-requested delays (including motions) are deducted from duration calculation.

Question 12

Right to a Speedy Trial: Reason for Delay

Answer 12

A “good” reason is one that the prosecution has no control over, as opposed to one that the prosecution could have avoided by due diligence.

Question 13

Right to a Speedy Trial: Demand for Speedy Trial

Answer 13

If the D failed to make such a demand it normally indicates that the D did not consider the delay prejudicial

Question 14

Right to a Speedy Trial: When the D Establishes an Unreasonably Long Delay

Answer 14

When a D establishes an unreasonably long delay for no good reason, the ultimate question will be whether the delay resulted in prejudice that undermined the values protected by the right. There are 3 types of prejudice:

• anxiety
• oppressive pre-trial incarceration
• degradation of evidence compromising the accuracy of the trial

Question 15

Remedy for Sixth Amendment Right to a Speedy Trial Violation

Answer 15

Dismissal with prejudice (meaning the P can never re-try the case).

Question 16

Discovery

Answer 16

If the D can show after conviction that the P failed to disclose evidence that was both favorable and material, DP requires a new trial.

Question 17

Disclosure of Favorable Evidence

Answer 17

The P is obligated to disclose certain evidence that is favorable for the D.

• If D makes discovery request –> any evidence that would help defense is considered favorable and must be disclosed.
• If the D does not make a discovery request –> only evidence that is obviously exculpatory is considered favorable and must be disclosed.

Question 18

Material Evidence

Answer 18

Even if the defense proves that the P withheld favorable evidence, the conviction will be upheld unless the evidence was also material (would have created reasonable probability of a different outcome).

Question 19

Destruction of Evidence

Answer 19

Violates DP only where the D can show bad faith. The D will have to show that the destroyed evidence could have only helped him.