Trial

Question 1

Every person arrested is entitled to a speedy and public trial, which is a right granted by:

Answer 1

6th Amendment of the U.S. Constitution and the Florida Constitution, Article 1, Section 16

Question 2

Defendants must be brought to trial:

Answer 2

within 90 days of arrest for misdemeanor charges; and

within 175 days of arrest for felony charges

Question 3

Every person charged with a crime by indictment or information has the right to demand a trial:

Answer 3

within 60 days by filing, and serving on the prosecution, a separate pleading called “Demand for Speedy Trial.”

Question 4

Once a Demand for Speedy Trial has been filed, a calendar call must be held:

Answer 4

no more than 5 days from the filing of the demand, with notice to all parties, in order to announce the demand in pen court, and to set the case for trial, which must commence no fewer than 5 days, and no more than 45 days, from the calendar call.

Question 5

By making a demand for Speedy Trial, the defendant agrees that:

Answer 5

He will be ready for trial in 5 days.

Question 6

After a defendant makes a demand for speedy trial, he may neither:

Answer 6

continue taking discovery nor may he withdraw the demand without leave of court

Question 7

If there is not a demand for speedy trial the defense may file a notice of expiration of speedy trial, and the court will:

Answer 7

hold a hearing on the notice no later than 5 days from the date of the filing of the notice of expiration of speedy trial time, and unless the court finds that an exceptional circumstance exists, shall order the defendnat be brought to trial within 10 days

Question 8

When will an exceptional circumstance exist that would prevent a defendant from being brought to trial within 10 days of the hearing on the notice of expiration of speedy trial?

Answer 8

1) where the court has ordered an extension of time, which has not expired;
2) specific evidence or testimony is not available, despite diligent efforts, but will become available at a later time; or
3) the accused has caused a major delay or disruption of preparation of proceedings, such as preventing the attendance of witnesses or otherwise’
4) failure to commence the trial within the time period is attributable to the defendant or the defense counsel;
5) the defendant was not continually available for trial because he failed to appear personally or through counsel or sought a continuance
5) the defendant’s speedy trial demand was procedurally invalid

Question 9

When does a trial commence?

Answer 9

When the jury panel is sworn for voir dire or, on waiver of a jury trial, when the trial proceedings begin before the judge.

Question 10

When does jeopardy attach?

Answer 10

Jeopardy attaches in a jury trial AFTER jury selection at the point when the trial jury is sworn - not before jury selection at the point when the venire from which the trial jury will be chosen is sworn.

Question 11

Limitations on the right to Speedy Trial:

Answer 11

1) When a person is in federal custody or incarcerated outside of Florida, and charged with a crime under Florida law, the person does not have the right to a speedy trial upon demand until that persons returns to the JX of the court in which the Florida charge is pending, and written notice of return is filed with the court and served on the prosecutor.
2) A notice of the expiration of the time for a speedy trial is timely if filed and served on or after the expiration of the time period. Such notice filed before expiration of the time period is invalid and will be stricken on motion by the prosecuting attorney

Question 12

A defendant not brought to trail within the 10-day period following the notice for expiration of speedy trial:

Answer 12

is entitled to discharge forever.

Question 13

Examination of the Jury - what may the court and attorneys do?

Answer 13

The court may examine the prospective jurors individually or collectively.

The state and defense have a right to examine the jurors orally on voir dire, with the court determining the order of examination. The right of the parties to conduct oral examination of the jurors is preserved.

Question 14

When may a juror be challenged for cause?

Answer 14

The most common reason is that the juror has already formed an opinion about the case.

Question 15

Who determines the validity of a challenge of a juror for cause?

Answer 15

The court. Parties may examine the challenged juror and other material witnesses.

If the court sustains the challenge for cause, the juror is discharged

Question 16

What is a peremptory challenge?

Answer 16

A challenge without a specific reason for striking the juror.

Question 17

What kinds of preemptory challenges are unconstitutional?

Answer 17

Those made on race, ethnicity, or similar group identity

Question 18

What is the Melbourne Test?

Answer 18

A test to see if an attorney’s peremptory challenge is unconstitutional.

1) The attorney must make a timely objection to the use of the peremptory challenge and must allege that the venireman in question is a member of a distinct racial, ethnic, or like kind group;
2) The burden of proof then shifts to the attorney making the strike, who must present a race-neutral justification for the challenge;
3) If the explanation is facially race neutral and the court believes that the explanation is not pretextual, then the strike will be allowed.

Question 19

Each party is allowed a certain number of peremptory challenges, depending upon the type of case:

Answer 19

1) For felonies punishable by death or life imprisonment, 10 challenges;
2) for all other felonies, 6 challenges; and
3) for misdemeanors, 3 challenges

Question 20

If two or more co-defendants are tried jointly, each defendant is allowed the number or peremptory challenges to the corresponding charge (10 each, 6 each, or 3 each) and the state:

Answer 20

is allowed the same number of challenges that all the defendants are allowed.

Ex: 2 co-defendants in a capital murder trial, state gets 20 challenges and each defendant gets 10.

Question 21

Either party may move the court to hear the challenge of jurors:

Answer 21

outside the presence of the jury panel so that he jury is not aware of the nature of the challenge, which party is making the challenge, or the basis of the court’s ruling, if the challenge is for cause.

Question 22

Challenges to prospective jurors must be made before the jury is sworn unless:

Answer 22

The court permits a challenge for good cause to be made after the jury is sworn, but before any evidence is presented

Question 23

If a defendant chooses to testify at trial, he is subject to:

Answer 23

examination as any other witness. He may not be compelled to give testimony against himself.

Question 24

If the defendant does not testify at trial, the prosecution may not:

Answer 24

comment about this to the jury

Question 25

What is the order of things after the close of evidence?

Answer 25

1) Prosecution makes summation;
2) Defense makes summation;
3) Prosecution makes rebuttal closing

Question 26

May a defendant waive the right to a jury trial?

Answer 26

Yes, with the consent of the state.

Question 27

How many jurors for capital, non-capital felony and misdemeanor cases?

Answer 27

Capital cases: 12 jurors
Non-capital felonies: 6 jurors
Misdemeanors: 6 jurors

Question 28

Are alternate jurors allowed?

Answer 28

Yes, the court will allow alternates in the event that jurors who, subsequent to impaneling, have become unable or disqualified to perform juror services, before the jury retires to consider a verdict

Question 29

What is the rule for witness sequestration?

Answer 29

At the request of either party, or on its own motion, the court must exclude witnesses from the courtroom (but may not exclude the defendant). An exception is made for a person whose presence is essential to the presentation of the party’s case.

Question 30

What is the corpus delicti rule?

Answer 30

Before a confession can be received into evidence, there must be a judicial finding that the prosecution has provided substantial evidence as to the elements of the crime.

*Florida no longer follows this common law rule for sex crimes and money laundering crimes

Question 31

What happens when the prosecution’s case is circumstantial in all its material particulars?

Answer 31

The prosecution must not only prove guilt beyond a reasonable doubt, but must also eliminate every reasonable alternative hypothesis of innocence.

Question 32

A witness who is summoned to a criminal trial by subpoena must remain in attendance until:

Answer 32

excused by the court or both parties.

If the witness does not remain, he may be held in criminal contempt of court.

Question 33

Motion for Judgment of Acquittal may be made:

Answer 33

At the close of the prosecution’s case in chief

Question 34

A motion for judgment of acquittal asks:

Answer 34

Whether some evidence of each element of the offense is present.

If there is such a finding of evidence the motion for judgment of acquittal will be denied.

If the motion is denied the defense does not waive anything by presenting a defense case.

Question 35

At the close of all the evidence, the defense may renew a Motion for Judgment of Acquittal, and if it should have been granted:

Answer 35

The conviction will be reversed on appeal (even if defense provided one of the missing elements)

Question 36

In non-capital cases, he judge may not instruct the jurors:

Answer 36

as the to sentence to be imposed.

Question 37

When are jury instructions given?

Answer 37

At the conclusion of closing arguments, and at such other times as the court deems appropriate

Question 38

How are instructions given to the jury?

Answer 38

Read to the juries and given to them in writing

Question 39

When may a party file a request to have the court instruct the jury on the law?

Answer 39

At the close of evidence (or earlier if the court directs)

Question 40

What must a party do in order to preserve the right to appeal the giving of or failure to give a particular jury instruction?

Answer 40

The party must make a specific objection, which is recorded by the court reporter, and may be heard out of the jury’s presence stating the grounds for it.

Question 41

What is the sequence of summation of closing arguments when multiple defendants are involved?

Answer 41

1) Prosecution summation
2) First defendant summation
3) Second defendant summation (and so on)
4) Ending with prosecution’s rebuttal

Question 42

What does the jury take with it when retiring to deliberate?

Answer 42

1) The charging document
2) The verdict forms
3) Jury instructions
4) Any evidence except contraband

Question 43

May the jurors request additional instructions or to have testimony read to them?

Answer 43

Yes, and they will be escorted into the courtroom by the officer in charge, and the court may give the additional instructions or order the testimony read to them. Also, the court may , sua sponte, recall the jury from its deliberations to give it additional, or correct erroneous, instructions.

None of this may done until the prosecution and defense have been notified.

Question 44

The jury may not be recalled to:

Answer 44

hear additional (new) evidence once it has retired to the jury room for deliberations.

Question 45

The court should never inquire of the jury:

Answer 45

as to numerical division on an ultimate issue.

Question 46

Is sequestration of jurors allowed?

Answer 46

Yes, at the discretion of the court.

Question 47

In capital cases, jurors will be sequestered:

Answer 47

once they have retired to consider the verdict. The jurors remain sequestered until a verdict has been reached or until they are discharged by the court.

Question 48

A verdict will be entered on the record and the jurors discharged unless:

Answer 48

There is disagreement among the jurors, or a request that the jury be polled

Question 49

If a defendant is charged with different offenses, the jury’s verdict form:

Answer 49

must specify the counts or offenses on which the jury has found the defendant guilty.

Question 50

When two or more defendants are tried jointly, the jury may render a verdict:

Answer 50

as to any or all defendants, so long as the jurors are unanimous

Question 51

Who may request the jury to be polled?

Answer 51

Either the prosecution or the defense. The court may do so sua sponte

Question 52

When the jury is polled:

Answer 52

each juror is asked if the verdict rendered is the jury’s verdict and his individual verdict.

Question 53

If a juror indicates that the verdict rendered is not his or the jury’s verdict, the court will:

Answer 53

either declare a mistrial or send the jury back to further consider a verdict.

Question 54

A motion to poll the jury is not allowed once:

Answer 54

the jury verdict is recorded or the jurors are discharged.

Question 55

Today there are 2 grounds for inquiry into a verdict:

Answer 55

1) If a juror conducted his own inquiry or there was outside influence
2) Racial/gender/ethnic bias - if a juror contacts attorney or the court and says there was racial discrimination ongoing

Question 56

When must the court grant a motion for new trial:

Answer 56

1) If the jurors decided the verdict by lot;
2) The verdict is contrary to the law;
3) The verdict is contrary to the weight of the evidence;
4) New and material evidence is discovered, which if introduced at trial would probably have changed the verdict or finding, and the defendant could not have discovered the evidence and produced it at trial, even by use of reasonable diligence; or
5) the substantial rights of the defendant were prejudiced

Question 57

What is the effect of granting a new trial when the defendant has been found guilty of a lesser-degree or lesser-included offense?

Answer 57

The new trial shall proceed in all respects as if the earlier trial had not taken place; except that, in the new trial, the defendant cannot be prosecuted for a higher degree of the same offense or a higher offense than that of which he was convicted.

Question 58

In a new trial, the testimony given during the earlier trial:

Answer 58

may not be read into evidence at the new trial unless a person who testified is absent from the sate, mentally incompetent to be a witness, physically unable to appear, or dead.

The party attempting to introduce evidence of the absent party must show due diligence in attempting to procure the attendance of the witness, and must show that the witness is not absent by the instruction or consent of the defendant.

Question 59

Sentencing must be:

Answer 59

pronounced in open court. If the information is available at the sentencing, the court must state the amount of credit the defendant will receive for jail time already served.

Question 60

In a capital case, if the sentencing judge was not the trial judge, he must:

Answer 60

Conduct a new sentencing proceeding before a jury prior to pronouncing the sentence.

Question 61

In a non-capital case, if the sentencing judge was not the trial judge, he must:

Answer 61

become acquainted with the case, what transpired at trial, and the facts of any plea discussions before pronouncing the sentence.