Intro and Bail
This screening process establishes the charges a defendant will face in a felony trial at a standard of probable cause. Hint: Only the government participates.
What is the Grand Jury?
True or False, prosecutors have both the responsibility and the discretion to file criminal charges.
True
True or False, Some discovery rules are statutory.
True. Federal Rule of Criminal Procedure 16 is an example. States have statutory rules that cover the evidence the government is must disclose, reciprocal discovery obligations of the defendant and the disclosure of witness statements
True or false, Because of the 6th Amendment's Confrontation Clause, a defendant has an absolute right to be present in the courtroom.
False, a defendant has the right to be present in the courtroom but he may waive this right by unruly conduct. Voluntary absence from trial is effective waiver of the right of confrontation. See also FEDERAL RULE OF CRIMINAL PROCEDURE 43(a) and 43(c).
"The Court shall impose a sentence of 12 months, but may impose a sentence of up to 5 years in prison" is an example of this type of sentence.
What is a mandatory minimum sentence?
At this hearing, a defendant is told what they are being formally charged with, assigned counsel if one was not previously provided and asked to enter a plea, either guilty or not guilty
What is ARRAIGNMENT?
True or False, a person can only be charged by state prosecutors or federal prosecutors, but not both.
False
This statutory discovery rule requires the disclosure of witness statements by the prosecution (and the defense) after the witness testifies on direct examination if it relates to the subject matter of their testimony. For this rule a statement is:
(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
(2) a substantially verbatim, contemporaneously recorded recital of the witness's oral statement that is contained in any recording or any transcription of a recording; or
(3) the witness's statement to a grand jury, however taken or recorded, or a transcription of such a statement.
What is the Jencks Act/Federal Rule of Criminal Procedure 26.2.
A criminal defendant is entitled to a jury trial if the crime carries a penalty of
What is 6 months or more?
There are at least four purposes of punishment: (1) retribution; (2) incapacitation; (3) rehabilitation and
What is deterrence?
Retribution: punishment for the defendant’s actions (as vengeance for the criminal act)
Deterrence: to deter the defendant and others from committing future offense
Incapacitation: protect society from the defendant (by keeping them in jail)
Rehabilitation: goal of changing the defendant’s behavior to prevent recidivism
Fundamental rights ensured by many of the first 10 amendments to the US Constitution, have been made applicable to the states under the 14th Amendment's Due Process Clause. This is known also by another name.
What is INCORPORATION?
If a prosecution uses an impermissible motive to prosecute, such as prosecuting a defendant because of their race or exercise of their First Amendment rights, the prosecution can dismissed. This is called
A guilty plea is a waiver of what fundamental right?
What is the 6th amendment right to jury trial.
(1) continuing the trial; (2) intensive voir dire; (3) cautionary jury instructions; (4)polygraphing jurors to make sure they know nothing about the case (5) sequestering the jury; (6) change of venue
All of these are remedies for prejudicial pretrial publicity except which one
(4) polygraphing the jurors. The Sixth Amendment does not guarantee a defendant the right to be tried by a jury that has heard nothing about the case. The focus is on whether the defendant is prejudiced by pretrial publicity. (remember Enron)
This type of sentencing eliminates the role of a parole board and sentences a defendant to a particular period of incarceration.
What is determinate sentencing?
•Indeterminate Sentencing:
court HAS broad discretion in sentencing, but the actual determination of the amount of time a defendant will be incarcerated is left to a parole supervising authority
•Determinate Sentencing:
eliminates the role of a parole board and sentences a particular period of incarceration
The Bail Reform Act of 1984 made this an express factor for denying bail
What is a danger to the community?
True or False, in a elective prosecution, the defendant has a high standard (equal protection analysis) to make a showing. There must be both a discriminatory effect and that it was motivated by a discriminatory purpose.
True
A defendant has a constitutional right to discovery. This case, the beginning of a series of seminal cases, held that it was a violation of due process for the prosecution to suppress exculpatory evidence that was favorable to an accused and was material either to guilt or punishment.
What is Brady v. Maryland?
The Constitution never expressly states that defendants are presumed innocent or that the prosecution must prove each element of the crime by this standard;
However, both are inherent in the concept of Due Process
What is beyond a reasonable doubt?
Remember that this standard also applies to juvenile criminal proceedings.
True or False, life without parole sentences are permitted for juvenile offenders in non-homicide offenses.
False, life without parole for juveniles violates the 8th Amendment, as grossly disproportionate.
Mandatory life without release for juveniles, even in homicide offenses also violates the 8th Amendment. However, it is not unconstitutional to impose a life without release sentence on an juvenile who committed murder.
All of these are permissible categories of defendants who may be preventively detained except 1:
(1)enemy combatants (2) first time offenders (3)material witnesses (4) sexual predators (5)immigration detainees
True or false, a selective prosecution claim is a defense on the merits to the criminal charge itself.
False, it is an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.
Claims of ineffective assistance of counsel in plea bargains are governed by the two part test set forth in what case?
What is Strickland v. Washington?
In Davis v. Washington and its companion case, Hammon, the Court held that if a victim’s statement deals with an ongoing emergency, it is not “testimonial” and is not subject to the Confrontation Clause.
If designed to preserve a witness’s statement for trial, it is subject to Crawford’s restrictions. (i.e. statements at the scene of a crime that describe past events)
This "test" is called
What is the primary purpose test.
Testimonial:
”when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
"Does the time fit the Crime?" or proportionality is a question of whether the sentence violates what right/amendment
What is the 8th Amendment or Cruel and Unusual Clause?
•The Eight Amendment declares:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.
(1) the seriousness of the offense; (2) the punishment the defendant faces; (3)Defendant's prior criminal record; (4) Defendant's ties to the community; (5)Defendant's financial status; (6) any other information relevant to flight risk or danger to the community
What are the factors in deciding bail/pretrial release?
True or False, there is a presumption of vindictiveness when a prosecutor threatens to increase charges if a defendant does not accept a plea offer.
False. Such threats are accepted as part of the plea bargaining process, likewise there is no presumption of vindictiveness when additional charges are added after a defendant requests a jury trial.
Federal Rule of Criminal Procedure 12 requires a defendant to provide notice of this prior to trial
What are alibi defense and mental defenses?
Testimonial statements are subject to the Confrontation Clause and require that the defendant have an opportunity to
What is cross-examine the declarant?
[Crawford, Michigan v. Bryant, Davis v. Alaska, Hammon, Ohio v. Clark]
True or False, any facts that are going to expose a defendant to a sentence greater than the statutory maximum for which he was convicted by the trier of fact, must be proved beyond a reasonable doubt.
True. See Apprendi v. New Jersey
Also Blakely v. Washington, where the Court held that the Apprendi rule also applies to facts that authorize upward departures in sentences.
When a criminal procedure decision applies only in that case, to any cases pending at the time (in trial court or on appeal, but no pending on habeas corpus) and to future cases, it is NOT an example of this legal concept, like when the decision is substantive (then we may need to take look back)
What is retroactivity?
This case prohibits the admission of a non-testifying co-defendant's confession that implicates the defendant at a joint trial. As a result of the "problem" from this case, prosecutors can (1)agree to separate trials for the defendants; (2) try jointly but forgo use of the confession; or (3) redact the confession to remove all reference to the existence of the non-confessing defendant
What is Bruton v. United States, 391 U.S. 123 (1968).
True or False, the Brady right to exculpatory evidence depends on the good or bad faith of the prosecutor?
False.
Eddie Dean Griffin was charged with murder. At trial, he did not testify. However, in closing argument, the prosecutor argued that Griffin must be guilty because he did not take the witness stand to explain his innocence. This was a violation of what fundamental right?
What is the right/privilege against self incrimination?
The 5th amendment
According to Roper v. Simmons (2005), this punishment can not be applied to juveniles.
What is the death penalty?
In Riverside v. McLaughlin, the Supreme Court held that the magistrate’s review for probable cause should ordinarily be conducted within this much time after an arrest, also the subject of a few tv shows with the same name, one for which they try to find murder suspects.
What is 48 hours?
Federal Rule of Criminal Procedure 5(a)(1)(A) states: “A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.”
This right, guaranteed by the 6th amendment to federal defendants, is not incorporated to the States, and that is not a secret.
What is the right to a grand jury?
►controlled by Federal Rule of Criminal Procedure 6
►Under Rule 6(a), 23 citizens sit on a grand jury
►serve from 6 to 18 months
►Defendant and Defendant’s lawyer has no right to be present
►supposed to be secret
►violations of GJ rules do not necessarily mean an indictment will be dismissed
►If a grand jury refuses to issue an indictment, prosecutors can represent the same case to another grand jury
►Grand jury is directed in its operations by the prosecutor
►They suggest what cases the grand jury should investigate
►Prepare subpoenas for their signature
►Draft the indictments
►Advise the grand jurors on the law
Giglio expanded the constitutional right of discovery to include not just exculpatory evidence, but also this type of evidence
What is impeachment evidence?
True or False, Michigan v. Bryant expanded the primary purpose test for testimonial statements to include "all relevant circumstances"
True. The Court in Bryant explained that “all relevant circumstances” matter because “there may be other circumstances aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.
Therefore, ongoing emergencies are a factor, but not the only factor in the primary purpose test. Additional factors are: the informality of the situation and the interrogation; the statements and actions of all participants; circumstances in which an encounter occurs.
Under Bryant, to apply the primary purpose test, a court must view objectively all relevant circumstances to rule if the purpose of the conversation was to create an out-of-court substitution for trial testimony.This test, from Blockburger v. United States focuses on whether the offenses in question require proof of a different element. This is to determine if they are ____.
What is the same offense?
The focus must be on whether the offenses “require proof of a different element.” Thus, even if multiple offenses derive from the same criminal conduct, so long as the elements of each offense are different, they are considered different offenses.
This Federal Rule of Criminal Procedure (a) permits the joinder of offenses that “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” and (b) permits the joinder of defendants involved in the same act or transactions.
What is Federal Rule of Criminal Procedure 8?
True or False, the government is required to disclose Brady material before a defendant enters a guilty plea
False, there is no requirement that the government disclose Brady material before a guilty plea. (United States v Ruiz, 2002)
True or false, every criminal trial must have 12 jurors and they all must agree with the verdict.
False, in terms of the number of jurors. The Court has allowed less than 12 but must be at least 6. (See Ballew)
However, as for UNANIMITY, The Supreme Court, in Ramos v. Louisiana (2020) held that the Sixth Amendment right to jury trial, as incorporated against the States by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense
What is when the jury panel is sworn? (Illinois v. Somerville).
•In a bench (court) trial, jeopardy attaches once the first witness is sworn. Crist v. Bretz, 437 U.S. 28 (1978)
If there is a “serious risk” that a joint trial would compromise a specific trial right, or prevent the jury from individually assessing the guilt of each defendant, this remedy is available to the Court, Federal Rule of Criminal Procedure 14 co-signs
What is severance?
This Federal Rule of Criminal Procedure governs guilty pleas; it also prohibits the judge's involvement in plea bargaining process
What is Rule 11?
Criminal Procedure 11 codifies a procedure to satisfy these constitutional requirements.
Ordinarily plea agreements do no bind the court in the sentencing decision EXCEPT- see RULE 11(c)(1)(c) where defendant can plead guilty contingent upon court’s acceptance of a binding sentencing
The mere knowledge about a case is insufficient. Pretrial publicity must actually affect_______
What is the ability to be fair? See Irvin v. Dowd (1961)
An appellate court’s determination that the government did not present sufficient evidence – either to prove its case initially or to rebut a
defense-is the functional equivalent of this, barring a retrial of the matter.
What is an acquittal?
Once the defendant is convicted, retrial is also barred if the defendant wins an appeal based upon insufficiency of the evidence.
However, if the defendant wins an appeal based upon improper procedures at trial, the defendant may be retried.