Semester 2 Flashcards
What is the prosecutor’s role?
The prosecutor’s role is to seek justice.
Who has discretion in the criminal justice process?
There are 3 types of criminal justice discretion: Prosecutorial, Judicial, and Jury.
How do prosecutors have discretion?
Prosecutors have discretion over both who to charge, and what to charge someone with.
How does a jury have discretion?
Juries may exercise discretion by ignoring the law, what is known as jury nullification.
When does selective prosecution violate due process?
If the prosecutor has a discriminatory intent AND it has a discriminatory effect, due process is violated.
Who has the burden and what must be shown for selective prosecution?
The defendant has the burden to show that she received different treatment than similarly situated people (effect) and a discriminatory purpose (intent).
Selective prosecution is not a defense to the crime, rather an unconstitutional basis for the charge.
What is vindictive prosecution?
Vindictive prosecution is added or new charges in response to the exercise of constitutional rights.
Adding charges pre-trial for refusing plea is not vindictive.
What are 2 formal charging mechanisms?
Grand Jury and Preliminary Hearing
What terms of art describe grand jury results?
True Bill (indictment) and No Bill
Who has a 5A Constitutional right to a grand jury?
Persons accused of federal crimes have a constitutional right to a grand jury indictment. Some state constitutions give a right to grand jury.
How large are federal grand juries?
Federal grand jury is 16 to 23 people who convene for up to 18 months.
What are some differences between a grand jury and a preliminary hearing?
A grand jury is ex parte. A preliminary hearing is an adversarial process, the right to counsel, right to be present applies.
2 reasons for criminal joinder…
Joinder of offenses if same defendant and same/similar character, act or transaction, of common scheme or plan.
Joinder of defendants if in the same act, transaction, or series of transactions.
When might joined case/defendants be severed?
Rule 14 allows relief at discretion of the court if joinder is prejudicial because of Irreconcilable conflict or Bruton issues.
What is the threshold to sever on irreconcilable conflict?
The court will only sever if a “serious risk to a specific trial right or will keep jury from reliable judgment”
What is a Bruton problem?
When joint defendants, and the non-testimonial admission of one implicates another in conflict with the Confrontation clause.
How are Bruton problems cured?
A limiting instruction is not enough to cure Bruton issue. The court may restrict the use of the evidence, sever trials, or redact the confession (“complete redaction”) with a limiting instruction.
What must be included in an indictment?
A plain concise statement of the facts, enough to put the defendant on notice of the charges and punishments against him.
What is duplicity in an indictment?
When 2 or more offenses are in a single count. This is correctable.
What is multiplicity in an indictment?
When the same offense is in multiple counts. This is correctable.
What is a Superseding indictment?
When additional evidence is found after indictment, the indictment may be modified.
What is the fix for obvious clerical or non-substantive errors in an indictment?
The indictment may be fixed by an amendment.
What is a variance to an indictment?
When evidence from trial proves facts not alleged in indictment; if non-prejudicial the court may allow constructive amendment, if prejudicial the court may dismiss the indictment.
What is the difference between a Bill of Attainder and an Ex Post Facto law?
Bill of Attainder targets specific people or identifiable groups of people.
Ex Post Facto changes the consequences of an previous act.
What does the 8th Amendment say about bail?
The 8th Amendment prohibits excessive bail, but does not guarantee bail.
What are the types of bail (pre-trial release)?
Own recognizance;
Conditional (drug testing, rehab, etc),
Bonded (securing return).
What is a Nebbia hearing?
A Nebbia hearing, or bail source hearing, is used to determine if bail funds were obtained illegally. Using illegally obtained funds for release provide less incentive to return for trial.
Substantive vs Procedural Due Process…
If one has been deprived of life, liberty, or property by the government, due process must be followed.
Substantive due process is regulation that shocks the conscious.
Procedural due process says that the process must be fair.
Bail is granted based on _____?
Bail is granted based on flight risk and danger to the community. The government has the burden to support denying bail by Clear and Convincing evidence.
When does the burden for bail hearings shift?
For post-conviction, pending appeal bail hearings, the defendant has the burden because the presumption of innocence is gone.
Must prove not a flight risk and there is a substantial question of law/fact likely to get a reversal.
What factors do courts consider to determine if flight risk or danger to community?
Seriousness of offense; Punishment faced; Prior criminal record; Ties to community; Defendant character; Defendant financial status; Any other relevant info.
