CrimP 7 - Pretrial Proc's Flashcards
PRETRIAL PROCEDURES
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PRELIMINARY HEARING TO DETERMINE PROBABLE CAUSE TO DETAIN
A defendant’s liberty can be restricted only on a finding of probable cause.
If probable cause has already been determined (for example, the arrest was pursuant to a warrant or a grand jury indictment), no preliminary hearing to determine probable cause need be held.
If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail) but not release on recognizance), a preliminary hearing to determine probable cause must be held within a reasonable time (for example, 48 hours).
The hearing is an informal, nonadversarial proceeding. There
is no real remedy for a denial of the hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.
If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail,
but not release on recognizance), a preliminary hearing to determine probable cause must be held within ____
If probable cause has not already been determined and there are signif- icant constraints on an arrestee’s liberty (for example, jail or bail,
but not release on recognizance), a preliminary hearing to determine probable cause must be held within a reasonable time (48 hours).
PRETRIAL DETENTION—BAIL
Most state constitutions create a right to be released on bail unless the charge is a capital one.
Generally, bail can be set no higher than is necessary to assure the defendant’s appearance at trial.
Refusal to grant bail or the setting of excessive bail may be appealed immediately;
however, the Supreme Court has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial.
Since the Supreme Court has never held that the Eighth Amendment provision for bail applies to the states, the Eighth Amendment is not a very strong argument against
a state’s denial of bail.
If, however, a state provides for bail (and most states do), arbitrary denials of bail will violate due process—detainees must be given the opportunity to prove eligibility.
Standards for commitment and subsequent release of Defendant Incompetent to Stand Trial
Standards for commitment and subsequent release of defendants incompetent to stand trial must be essentially identical with those for commitment of persons not charged with a crime; otherwise there is a denial of equal protection.
GRAND JURy PROCEEDINGS
- Conducted in secret
- D has no right to notice
- No right to counsel
- No right to have evidence excluded.
- No right to challenge subpoena on 4A grounds.
- Conviction from indictment issued by grand jury from which minority group excluded will be reversed WITHOUT regard to harmelss error.
Use of Grand Jury
The Fifth Amendment right to indictment by grand jury has not been incorporated into the Fourteenth Amendment, but some state constitutions require grand jury indictment.
Most states east of the Mississippi and the federal system use the grand jury as a regular part of the charging process.
Western states generally charge by filing an information—a written accusation of the crime prepared and presented by the prosecutor.
Grand Jury Proceedings
a. Secrecy and Defendant’s Lack of Access
b. No Right to Counsel or to Miranda Warnings
c. No Right to Have Evidence Excluded
d. No Right to Challenge Subpoena
e. Exclusion of Minorities
a. Secrecy and Defendant’s Lack of Access
Grand jury proceedings are conducted in secret. The defendant has no right to notice that the grand jury is considering an indict- ment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.
b. No Right to Counsel or to Miranda Warnings
A witness subpoenaed to testify before the grand jury does not have the right to receive Miranda warnings, nor is a witness entitled to a warning that they are a “potential defendant” when called to testify before the grand jury. Witnesses have no right to have an attorney present.
c. No Right to Have Evidence Excluded
A grand jury may base its indictment on evidence that would be inadmissible at trial, and an indicted defendant may not have the indictment quashed on the ground that it is based on illegally obtained evidence.
d. No Right to Challenge Subpoena
There is no right to challenge a subpoena on the Fourth Amendment grounds that the grand jury lacked “probable cause”—or any reason at all—to call a witness for questioning.
e. Exclusion of Minorities
A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to harmlessness of error.
the only defect sufficient to quash a grand jury indictment:
exclusion of minorities is about the only defect sufficient to quash a grand jury indictment.
Major differences between grand jury proceedings and criminal trials:
• The “defendant” (grand jury witness) has no right to have coun- sel present during their grand jury testimony.
• The grand jury may consider evidence that would be excluded at the criminal trial (for example, illegally obtained evidence or hearsay).
• The “defendant” (grand jury witness) must appear if called, although they can refuse to answer specific questions on the grounds that they may incriminate them.
Speedy Trail:
Standards…
Remedy…
A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances.
Factors considered are the length of delay, reason for delay, whether defendant asserted their right, and prejudice to defendant.
The remedy for a violation of the right to a speedy trial is dismissal with prejudice.
Speedy Trail: When Right Attaches
The right to a speedy trial does not attach until the defendant has been arrested or charged.
If the defendant is charged and is incar- cerated in another jurisdiction, reasonable efforts must be used to obtain the presence of the defendant.
Also, it is a violation of the right to a speedy trial to permit the prosecution to indefinitely suspend charges.
Note: The defendant does not need to know of the charges for the speedy trial rights to attach.
Speedy trial factors
- Length of delay
- Reason for delyay
- Wehtehr D assertred right
- Prejudice to Defendant.
Right to speedy trial attaches whenn….
D has been arrested or charged.
When a speedy trial issue is raised in a question, first check the timing—has the defendant been arrested or charged?
When a speedy trial issue is raised in a question, first check the timing—has the defendant been arrested or charged? If not, there is no right to a speedy trial.
