Right to Counsel and Preliminary Proceedings Flashcards
State must provide counsel for:
Indigent or partially indigent persons where conviction is punishable by incarceration.
Also, Juveniles and one appeal.
Note: If not a felony and D will not be incarcerated (decided by judge 15 days in advance), no need to provide counsel.
Defense Atty standards in capital cases
Lead counsel must have:
- 5 years exp in criminal litigation
- Have tried as lead counsel in at least 9 complex cases.
- Exp with expert witnesses
- Attended at least 12 hrs legal education for defense of capital cases
Compelling D to appear in court
State or county judge can issue arrest warrant for felony or misdemeanor, or clerk can issue a summons for a misdemeanor.
-Judge may issue bench warrant when D has failed to appear, or when charges are filed and D is neither in custody or out on bail.
Notice to appear
Arresting or booking officer may issue a “notice to appear” in lieu of arrest for misdemeanors and municipal/county ordinances.
UNLESS
i. D fails to sign notice
ii. D presents unreasonable harm to himself or others
iii. D is a flight risk
First appearance
Arrested person who is not released must be taken before judicial officer w/i 24 hours.
-Failure to adhere to 24 hours rule entitles D to release but does not bar prosecution
Pre-trial release
Accused entitled to pretrial release.
UNLESS
i. Where offense is punishable by life in prison or death and proof of guilt is evident.
-or-
ii. Where no conditions of release can assure D’s appearance and community safety
Release after failure to appear
If D willfully fails to appear, then voluntarily surrenders, is not eligible for release on recognizance.
If D forfeits bond, not eligible for bond unless at least $2000, or two times original bond, whichever is greater
A judge of an equal or inferior court may not modify or set a condition of release unless they:
Any of the below:
- Imposed the conditions or amnt of bond
- Chief judge of the circuit where trial held
- Judge trying case
- First appearance judge authorized by judge initially setting condition
-D may file writ of habeas corpus if court fixes bail and refuses to reduce it
Pre-trial detention
Can be ordered if:
i. D poses a threat of harm to community
- and-
ii. Previously violated conditions of release or parole.
- and-
iii. No condition will assure D’s appearance
-State may move for pretrial detention if above is met. Court must hold hearing w/i 5 days of motion.
Detention hearing
D entitled to counsel and may present/cross-examine witnesses.
- Detention order must not be based soley on hearsay.
- Exclusionary rule applies
- D’s testimony may not be used substantively against him at trial
*detention orders are appealable
Non-adversary Probable Cause determination
D’s in custody entitled to a probable cause determination (unless arrested by warrant)
i. Must be made w/i 48 hours of arrest
(two 24-hr continuances are available)
- D not in custody may file w/i 21 days of arrest for motion of probable cause determination, and magistrate must make determination w/i 7 days
- If probable cause not found, D released on recognizance. But prosecution not barred.
Adversary preliminary hearing
Felony D not charged w/i 21 days has right to adversary preliminary hearing to determine if probable cause exists.
-W’s may be summoned, statements by D may be used against him
Release in 30 days
If D in custody and not charged by information or indictment w/i 30 days of arrest, he MUST be released by 33rd day unless good cause shown, in which case must be released by 40th day.