Pretrial Rights & Procedures

Question 1

Grand Jury Indictment

Answer 1

1.) A grand jury indictment is a written accusation stating the charges against the defendant issued by a
grand jury after it reviews the prosecution’s evidence

2. ) A grand jury is not an adversarial hearing; it is an investigatory tool. Therefore:
   * the defendant has no right to be present and no right to assistance of counsel;
   * the prosecution presents evidence to the grand jury without a confrontation process;
   * the prosecution has no obligation to present clearly exculpatory evidence to the grand jury; and
   * no Miranda warnings are needed

Question 2

Bail Hearing

Answer 2

1.) A defendant is entitled to an individualized hearing to determine whether bail should be granted or
denied

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

Question 3

Plea Bargaining

Answer 3

1.) A defendant may be convicted based only upon his plea

2.) The plea must be knowing, voluntary, and intelligent
**The defendant must be informed of the general nature of the offense that they are pleading
guilty to

Question 4

Right to Speedy Trial

Answer 4

1.) The right to a speedy trial is guaranteed by the Sixth Amendment
*The clock begins running once the defendant is accused by formal charge or is arrested for a
crime

2.) Only remedy for constitutional right violation is dismissal with prejudice (the prosecution can never retry the case)

Question 5

Violation of the right to a speedy trial is based on the totality of the circumstances. Factors include:

Answer 5

1.) Length of delay: Generally, more than one year triggers inquiry, but defense-requested
delays, including motions, are excluded from this duration calculation

2.) Reason for delay: 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

3.) Demand for speedy trial: Not essential, but if the defendant failed to make a demand, normally
this indicates that the defendant did not consider the delay prejudicial

**unreasonable delay normally must result in prejudice to the defendant (i.e., degradation of evidence)

Question 6

Discovery

Answer 6

1. ) It is a violation of due process for the prosecution to fail to disclose to the defendant evidence both favorable and material
2. ) If prosecution fails to disclose favorable evidence, the defendant is entitled to a new trial (or sentencing) if the evidence was also material

**If the defendant makes a discovery request, any evidence that would tend to help the defense must be disclosed

**If the defendant does not make a discovery request, only evidence that is clearly exculpatory must be disclosed

3.) The prosecution is not required to disclose this information to a criminal defendant before plea
bargaining or entering into a plea agreement

Question 7

Material Evidence (define)

Answer 7

Evidence is considered material if it would have created a reasonable probability of a
different outcome (i.e., if disclosed, it would have created reasonable doubt)