PRETRIAL PROCEDURES

Question 1

PRELIMINARY HEARING TO DETERMINE
PROBABLE CAUSE TO DETAIN

Answer 1

• D ’s liberty can be restricted only for PC.
• If PC has been determined (ex. arrest was pursuant to warrant), no prelim hearing to determine PC needed.
• If PC has not been determined & there are significant constraints on arrestee’s liberty (ex. jail/bail, but not release on bond), prelim hearing to determine PC must be held w/in reasonable time (ex. 48 hours).
• Hearing is informal, nonadversarial proceeding.
• No real remedy for denial of hearing, but evidence discovered as result of unlawful detention can be excluded under exclusionary rule.

Question 2

PRETRIAL DETENTION—BAIL

Answer 2

• Most state constitutions create right to be released on bail unless charge is a capital one.
• Bail can be set no higher than is necessary to assure D’s appearance at trial.
• Refusal to grant bail/setting of excessive bail may be appealed immediately;
• Arrestees can be held w/o bail if they pose a danger/would fail to appear at trial.

Question 3

Tip

Answer 3

Since SC has never held 8th am provision for bail applies to states, 8th am is not a very strong argument against state’s denial of bail. If, however, state provides for bail (& most states do), arbitrary denials of bail will violate due process—detainees must be given opportunity to prove eligibility.

Question 4

Defendant Incompetent to Stand Trial

Answer 4

• Standards for commitment & release of Ds incompetent to stand trial must be essentially
  identical w/ those for commitment of persons not charged w/ a crime; otherwise there is a denial of equal protection.

Question 5

Use of Grand Jury

Answer 5

• 5th am right to indictment by grand jury has not been incorporated into 14th am, but some state constitutions require grand jury indictment.
• Most states east of Mississippi & federal system use grand jury in charging process.

Question 6

Grand Jury Proceedings: Secrecy and Defendant’s Lack of Access

Answer 6

• Grand jury proceedings are conducted in secret.
• D has no right to notice that grand jury is considering
  an indictment against them, to be present & confront
  witnesses at proceeding, or to introduce evidence b/f grand jury.

Question 7

GJP: No Right to Counsel or to Miranda Warnings

Answer 7

• A witness subpoenaed to testify b/f grand jury does not have right to receive Miranda warnings, nor to warning that they are a “potential D” when called to testify b/f grand jury.
• Witnesses have no right to have attorney present.

Question 8

GJP: No Right to Have Evidence Excluded

Answer 8

• A grand jury may base indictment on evidence that would be inadmissible at trial, & indicted D may not
  have indictment quashed on ground that it is based on illegally obtained evidence.

Question 9

GJP: No Right to Challenge Subpoena

Answer 9

• There is no right to challenge a subpoena on 4th am grounds that grand jury lacked “PC”—or any reason at all—to call a witness for questioning.

Question 10

GJP:Exclusion of Minorities

Answer 10

• Conviction resulting from indictment issued by grand jury from which members of a minority group have been excluded will be reversed w/o regard to harmlessness of error.

Question 11

Tip

Answer 11

• For purposes MBE , keep in mind these major differences between grand jury proceedings & criminal trials:
• “D” (grand jury witness) has no right to have counsel present during grand jury testimony.
• Grand jury may consider evidence that would be excluded at criminal trial (ex. illegally obtained evidence/hearsay).
• “D” (grand jury witness) must appear if called, although they can refuse to answer specific questions on grounds they may incriminate them.

Question 12

Tip

Answer 12

For purposes of MBE, exclusion of minorities is about the only defect sufficient to quash a grand jury indictment.

Question 13

SPEEDY TRIAL: Standards

Answer 13

• Determination on if D’s 6th am right to a speedy trial has been violated is made by TOC
• Factors: length of delay, reason for delay, whether D asserted their right, & prejudice to D.
• Remedy: dismissal w/ prejudice.

Question 14

When Right to Speedy Trial Attaches

Answer 14

• Right does not attach until D has been arrested/ charged.
• If D is charged & incarcerated in another jurisdiction, reasonable efforts must be made to obtain presence of D
• It is a violation for prosecution to indefinitely suspend charges.
• D does not need to know of charges for right to attach

Question 15

Tip

Answer 15

When a speedy trial issue is raised in a question, first check timing—has D been arrested/charged? If not, no right to a speedy trial.

Question 16

PROSECUTORIAL DUTY TO DISCLOSE
EXCULPATORY INFORMATION AND
NOTICE OF DEFENSES: Prosecutor’s Duty to Disclose Exculpatory Evidence

Answer 16

• Gov has duty to disclose material, exculpatory
  evidence to D.
• Failure to disclose such evidence—whether willful/ unintentional—violates DP & is grounds for reversing conviction if D can prove that:
  (1) evidence is favorable to D b/c it impeaches/ is exculpatory; and
  (2) prejudice has resulted (there is reasonable
  probability that result of case would have been
  different if undisclosed evidence had been presented at trial).

Question 17

Notice of Alibi and Intent to Present Insanity
Defense

Answer 17

• If D is going to use an alibi/insanity defense, they must notify prosecution.
• If alibi is to be used, D must give prosecution a list of witnesses.
• Prosecution must give D a list of witnesses it will use to rebut defense.
• Prosecutor may not comment at trial on D’s failure to produce a witness named as supporting alibi/on failure to present alibi itself

Question 18

COMPETENCY TO STAND TRIAL: Competency and Insanity Distinguished

Answer 18

• Insanity is defense to criminal charge based on D’s mental condition at time they committed charged crime.
• D acquitted by reason of insanity may not be retried & convicted, but may be hospitalized under some circumstances.
• Incompetency to stand trial is not defense to charge,
  but a bar to trial.
• Based on D’s mental condition at time of trial.
• If D later regains competency, they can then be tried & convicted.

Question 19

Due Process Standard

Answer 19

• D is incompetent to stand trial if they either
  (1) lack rational & factual understanding of charges & proceedings, or
  (2) lack sufficient present ability to consult w/ their lawyer w/ reasonable degree of understanding.
• State may place on D burden of proving
  incompetency by preponderance of evidence, but
  requiring D to show incompetency by “clear & convincing” evidence is unconstitutional.

Question 20

Detention of Defendant

Answer 20

• D who has successfully asserted insanity defense may be confined to a mental hospital for a term longer than max period of incarceration for offense.
• D cannot be indefinitely committed after regaining sanity merely b/c D is unable to prove themself not dangerous to others.