Right to Counsel and Preliminary Proceedings Flashcards

1
Q

State must provide counsel for:

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Defense Atty standards in capital cases

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Compelling D to appear in court

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Notice to appear

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

First appearance

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Pre-trial release

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Release after failure to appear

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Pre-trial detention

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Detention hearing

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Non-adversary Probable Cause determination

A

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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Adversary preliminary hearing

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Release in 30 days

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly