Right to Counsel and Preliminary Proceedings

Question 1

State must provide counsel for:

Answer 1

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.

Question 2

Defense Atty standards in capital cases

Answer 2

Lead counsel must have:

1. 5 years exp in criminal litigation
2. Have tried as lead counsel in at least 9 complex cases.
3. Exp with expert witnesses
4. Attended at least 12 hrs legal education for defense of capital cases

Question 3

Compelling D to appear in court

Answer 3

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.

Question 4

Notice to appear

Answer 4

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

Question 5

First appearance

Answer 5

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

Question 6

Pre-trial release

Answer 6

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

Question 7

Release after failure to appear

Answer 7

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

Question 8

A judge of an equal or inferior court may not modify or set a condition of release unless they:

Answer 8

Any of the below:

1. Imposed the conditions or amnt of bond
2. Chief judge of the circuit where trial held
3. Judge trying case
4. 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

Question 9

Pre-trial detention

Answer 9

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.

Question 10

Detention hearing

Answer 10

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

Question 11

Non-adversary Probable Cause determination

Answer 11

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.

Question 12

Adversary preliminary hearing

Answer 12

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

Question 13

Release in 30 days

Answer 13

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.