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From Flashcardlet > EXAM 5 FED CT PROCEDURES 08-12-14 > Flashcards

EXAM 5 FED CT PROCEDURES 08-12-14 Flashcards

0
Q

1 B

Federal DISTRICTS Court Judge = Felony trials

A

US has Districts cannot cross state lines, 94 districts, each state have at least one judicial district court, some states have more than one, boundaries area estab in a serious of statutes in UC Code = must obtain warrants in district the crime was committed
-SW in district the crime is located

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1
Q

EPO 1

ID the structure and functions of the Fed ct system, and the duties of US Fed District court and Magistrate court Judges

A

-Supreme Court
establish by constitution(appointed by congress) 9 justice, 99 percent are appeals , final authority on interpretation of fed law and constitution /no automatic right of appeal, pick and choose cases they want to hear, writ of certiorari (to make certain), lose then only hope life = Habeas (Prisoner) appeal or presidential pardon

  • Circuit CT-Not trial, no evidence presented, briefs and oral arguments (AUSA) work , error in law or procedure only (appellate jurisdiction only, 13 federal circuit ct in the US , 11 fed appellate, collection of districts, 1 district of columbia ct of appeals, 1 fed ct of appeals in Washington DC) get 3 judge panel , can request full panel review, Majority decides
  • District-criminal trial= evidence, verdict, sentence if guilty, guilty plea and sentence majority of cases (all felony cases, can try class A misdemeanors, prefers not to, civil trials, conduct other proceedings divided into 94 judicial districts, each state and 3 territories

-Magistrate every district has 1 or more magistrates judges are appointed by District Ct judges, LEO go here for SW, testify Pre-trial hearings, and detention hearings
Class A misd if defendant consent,

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2
Q

1C

US Magistrate Court test question

A

at least one in each district,
Issues necessary docu like arrest and search warrants,
Conduct many ct proceedings even in felony cases,
-Class A misd if the defendant consents, If no consent, District Court
-Any petty offense Class B and C misd, Infractions
-No felony trial jurisdiction
-can conduct proceeding in felony cases but not the trial itself

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3
Q 
(1 D) 
1 Felonies based on sentence potential, not time received
2 Class A Misd
3 Class B Misd 
4 Class C Misd 
5 Infraction
A

1 Punishable by more than 1 yr or (death poss in Capital felony)
2-one yr or less, more than 6 month
3- 6 months or less, more than 30 days in jail
4- 30 days or less, more than 5 days
5- Petty offenses 5 days or less, no prison

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4
Q

1 E

Appointment of judges

A

All justices of the Supreme Ct and Judges of Circuit and District Ct =appointed for life, sub to impeachment, Nominated by President -Executive, confirmed by senate-Legislative, preside in Federal courts Judicial, An example of our checks and balances
-Magistrate Judges
Appointed by district Ct judges, term of years ( arrest or Search warrants or pre-trial hearings

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6
Q

2 B
Indictment = no preliminary hearing

Information (plea and misd) = no preliminary hearing

A

By grand jury
GJ charges, establish elements of the offense, charged counts, PC for the criminal charges determine by the GJ, used to obtain arrest warrant, or summons

  • By AUSA in felony and Misd cases. The AUSA charges,
  • establish elements of the offenses charged (Counts just like an Indictment),
  • used in plea agreements-Right to Indictment must be waived in felony cases, No waiver in capital cases
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7
Q

2C

Arrest Warrant

A

by Magistrate judge, but can be done by others, Commands the arrest of the def and to bring defendant BF the CourT

  • Obtained with = criminal complaint, indictment, or information
  • Upon arrest, show warrant and advised of offense-or show warrant ASAP
  • In court, warrant is returned to judge
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8
Q

2 D

Summons

A

-order by the judge, served on defendant,
ordering defendant to appear in court, obtained with criminal complaint, indictment or information
-If defendant doesn’t show Bench Warrant Issued
-Officer served summonses -and make a return

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9
Q

2E

Violation Notice Citation

A

Mag Court Class B and C misdemeanor,
AUSA handle cases and try to resolve,
can have a trial by Mag judge

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10
Q

3B

Defendant arrested Now what

A

SIA,
Agency booking procedures-Personal history, photos, fingerprints etc
Transport to federally approved facility
If warrantless arrest, prepare criminal complaint
pretrial services interview
take defendant to initial appearance
1 take the defendant to magistrate judge
2 for an initial appearance
3 without unnecessary delay-reasonable amount of time to process accused, Circumstances, 48 hours or less the norm caution (Corley v US)

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11
Q

3 C

Initial Appearance

A

some state judge official can conduct the initial appearance,
-do not use unless fed judge is unavailable-and you discuss with AUSA in advance
USING NON FED JUDGE
1right to silence, 2 informed to charges, 3 inform right to attorney, 4 set bail , 5 set date for preliminary hearing with atty present, complete arraignment almost always guilty

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12
Q

3 D

Arraignment

A

Purpose
Inform def of charges
-indictment is read alound unless waived,
Obain plea from defendant.
-Occurs until formal charges are filed from the indictment

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13
Q

3 E

Detain or release pending Trial 18 USC 3142

A

Pretrial Services Interview and Recommendation
-AUSA recommendations
release, release with conditions, request detention
Judge Options
1 Release on person recognizance = I promise to appear or and unsecured bond = 5K to 1 million I promise to show up for CT
2 Released on a condition or combination of conditions
3 Tempoary detention to permit revocation of condition release, deportation or exclusion (Not more than 10 days)
4 Detention

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14
Q

3 F

TEMPOARY DENTION NOT MORE THAN 10 DAYS

A

1 Such person is and was at the time of offense was committed, on
I-release pending trial for a felony under Fed. St. or Loc Law
ii- release pending impostition or execution of sentencee, appeal of sentence or conviction or completion of sentence, for any offense under FSL
-
-

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15
Q

DETENTION HEARING
3 G
-Immediately upon the person 1st appearance bf the judicial officer except for good cause
-up to 5 day continuance upon motion of the defendant
-up to 3 days continuance upon motion of the GOV not favored by MJ;s
-In either case, defendant is temporarily detained

A

-FOR THE JUDICIAL OFFICER TO DETERMINE IF THE SUBJECT IS
1 A risk of flight or

2 a danger to any other person and the community
-Rebuttable Detention Hearing Factors

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16
Q

3 H
Detention Hearing Magistrate judge, if appeal next up judge higher judge
-Immediately applealable by either party
-Sub ordered temp detained pending outcome of appeal
-try Class A misd id defendant consent if not district ct Judge
- try B and C misd and infractions

A

-Magistrate Judge

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17
Q

3I

BOND REVOCATION 18 USC 3148

A

Upon motion of the gov

  • AUSA
  • pre trial service officer
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18
Q

3J

-FAILURE TO APPEAR (BAIL JUMPING)

A

-If D fails to appear after release
-Bench warrant
Separate charge-bail jumping
Sentence for bail jumping is consecutive =added on

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19
Q

EPO 2

Id the methods of causing a defendant to appear bf the US Magistrate judge

A 
Criminal Complaint =LEO charge, 
state the charge, 
states facts est PC, 
sworn and signed bf Magistrate Judge, 
used to get arrest warrant
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20
Q

-Removal Hearing
Out of District arrest and Inital Appearance
-WO Warrant-need warrant from crime district

-Removal hearing process
-Once identified as the person named in the warrant,
to transfer (remove) the defendant to the District where crime occurred if arrested without a warrant in hand, LEO must get warrant from where crime occured

A
  • Identity Hearing
  • Part of removal process
  • Is the person arrrested ?
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21
Q

EPO 3
ID the proper procedures to follow immediately after arrest and the purpose of and procedure at the initial appearance and detention hearing

A

When the defendant first appears before the judge in a criminal case
-Arrest W/O Warrant =PC- Arrest,
-Prepare complaint
-Arrest Warrant
obtained with complaint, indictment or information
-Summons
obtained with complainant, indictment

22
Q

6 B
In every case the foreign national must be told of the right to have his consular officials notified and be allowed reasonable access to those officials
-Consular representative generally visits and provides advice and arranges legal representation
-The status of the arrestee as to whether or not they are legally or illegally in the country when the arrest occurred does not affect the notification requirements of the VCCR

A

-Arrest of Foreign National

31
Q

PRELIM HEARING PROCEDURE
-Magistrate judge, (usually) presides no jury
-AUSA, defendant, defense counsel present
-Like a mini trial only hearsay allowed
evidence offered
witnesses testify -And are subject to cross exam
Defense may call witnesses and offer evidence
-Testimony under oath and recorded and can be used later to impeach witness

A

–Judge finds PC-case continues to indictment
-No PC judge dismissed case
Gov can still investigate or later try for indictment (or file information if a misdemeanor)

32
Q

8 After the Indictment

A

-Purpose of GJ to investigate criminal charges

34
Q

Sealed Indictments

A
  • Ordinary when indictment returned its in open court and becomes public
  • can ask to close court room and seal indictment until defendants arrested
  • Sealed indictment useful to
  • avoid tipping off tother defendants
  • keep evidence from being destroyed
35
Q

ARRAIGNMENT
Inform defendant of charges-Indictment read aloud unless waived
-obtain plea from defendant
-Charges at initial arrest may be different than the Indictment
-At arraignment, final charges- could supersede the indictment
-Arraignment could immediately follow initial appearance
Defendant attorney is present-may not be defendant actual attorney

A

-

36
Q 
AVOIDING PRELIMINARY HEARING 
PRELIMINARY HEARING
-CONSUME RESOURCES
Expose our witness to cross
-May compromise sensitive information (ex. ID Main Target, CS or T III)
A

OK to try to avoid Preliminary Hearing by

  • Getting indictment bf arrest
  • Dismissing charge bf the prliminary hearing
37
Q 
-Grand Jury Selection process
Pool from voter list
-Random drawing 
-Qualified jurors empanelled by district court judge 
23 maximum, 16 minimum
-Usually served for 18 months
-May be extended
-Usually meets in special room
-Days they set will vary
A 
Grand Jury Process 
-AUSA present evidence to GJ
-Proceeding are secret 
-Present during GJ session 
AuSA 
One witness at a time Wont hear others testify 
Grand Jurors 
Stenographer 
Interpreter if needed 
-Not present 
Target unless invited and target consents 
defense counsel may be outside GJ room
38
Q

Witness can destroy evidence bf time of GJ appearance

  • forthwith subpoenas still allow some time for compliance
  • SW
A

-

40
Q

-You need GJ matters to conduct your investigation
but there is a procedure on how to get reveal it
-6e list
You may disclose GJ matters to those on the 6e list
-Cant you tell your
friends your were a GJ witness
Spouse what you said bf the GJ
Partner about documents the GJ subpoena
boss about your testimony

A

-Information obtained independent of the GJ
Document obtained by both a warrant and subpoena
-mixed information-Reports and documents compiled from GJ and non GJ matters (ex source and ap)
Report may include infro from GJ matters
But, may not reveal source
or disclose that GJ matters

42
Q

Not a trial
No defense counsel or cross
Hearsay acceptable
May be a single agent presentation
-Burden or proof is PC
so all the evidence may not be presented
GJ witness who testify at trial can be impeached with their GJ testimony
-And defense will be given copy of gJ testimony of trial witnesses

A

12 or more Grand jurors vote yes for True bill indictment
-Defendant become indicted-burden of proof is PC
-Less than 12 vote for true bill
Result in a No bill
May try again to indict -acquire more evidence for PC

44
Q

not included on the witness List under Rule 16

A

-Witness List
-Statement of witnesses
if witness called at trial, Jencks Act applies
-Internal government documents
MOI, communications

46
Q

Giglio

A

Defense entitle to impeach gov trial witness
-we must give impeachment info to defense ie.
Affects credibility or truthfulness
paid info, immunity, plea bargains
Past or pending criminal charges
Specific instance of lying
results of inv. for a lack of candor
credible allegations reflecting on truthfulness
AUSA may request in camera inspection by judge bf release to defense

48
Q

Conclusion

A
  • Continuing duty to disclose
  • Dont hide any evidence from the AUSA
  • perserve all electronic communications
  • Dont get offended when the AUSA questions your history
  • Let the AUSA decide the discoveryability
49
Q

Brady Doctrine

A 
-Gov must give defense any expulpatory favorable information.
as to verdict or sentence
Defense doesn't have to ask for it
Reasonable time bf trial
-Best Examples
evidence someone else did the crime 
self-defense or entrapment 
-info to lesson defendant info
50
Q

EPO 13 pg 282

ID the responsibility of

A 
Judge sentence defendant  
Jury participation in capital cases.
-US Probation in District 
Conducts Pre sentence Inv (PSI) 
Writes Pre sentence Report (PSR)
-PSR history, victim info, other factors.
-Judge uses PSR in deciding sentence 
-PSR by PO
52
Q

THE Jencks Act 18 usc 3500 Rule 26.2 FR crim P

A

-Prior statement of gov trial witnesses
-Jencks Act statement includes
written made, signed, or adopted by the witness
recorded steno, tape, digital
substantially verbatim transcript
grand jury transcript
-Officers note as Jencks Act statement
-Rule 26.2 extends jencks Act to other, non trial proceeding

53
Q 
Types
1 Ad testicandum witness to testify 
2 Duces tecum -bring documents or objects and testify about them 
-You will serve subpoenas 
upon the witness 
-Witness can ask judge to be excused from compliance from a subpoena 
-Quashing a subpoena 
i.e.  to testify against one spouse
A

-

54
Q

Requirements for Subpoena

A

-Testimony or evidence must be relevant ???

56
Q

EPO 4
ID the procedures when the defendant is arrested in a district other than where the crime occurred, and the purpose of a removal and identity hearing

A

-if arrested in District of the crime
-Initial Appearance must be held in that district
OUT of Crime District Arrested
-Depends on location and timing
-Initial appearance held in LEO option
-District of arrest
-Adjacent district if closer than in District of arrest
-crime district if arrested is in an adjacent district and can have inital appearance on same day as arrest

57
Q

Limitations

A 
Only for crimes in District where GJ sits
-for criminal and not civil matters 
-cannot compel privileged information 
compel and interview 
  But can subpoena a reluctant witness
59
Q

EPO 5
ID the proper procedure to follown when A criminal incident involves a diplomat or Congressperson and the proper procedure after the arrest of a juvenile

A

Diplomats-Full diplomatic immunity-no arrest or prosecution
Detain to verify ID and status, Call Dept of State (DS Command Center
-Do not arrest/ Safety Issue-use common sense- But still, do not arrest or SIA (Frisk)
-MEMBER OF CONGRESS-Privilege against Arrest (can still be prosecuted), while Congress inSession, to and from office, Do incident report, complaint, and contact boss, can give citations, subpoenas, summons, or can arrest for felony or breach of the peace.
-Arrest of Juveniles-17 and younger, upon arrest, immediately: advise of rights, notify parents of child and charges, Juvenile can waive and give statement without parents, Notify US Attorney, Need judge permission to release info to media, Take to USMJ for initial appearance Forthwith

60
Q

EPO 6
ID the proper procedure to follow in notifying a foreign national consular representative when a criminal incident involves the arrest of a foreign national

A

–Treaty among nations, Protects US citizens abroad, Protects foreign nationals visiting the US
-The VCCR provides for mandatory and discretionary notifications
-Som nations require a mandatory notice upon the arrest of their citizens
-Others allow the arrestee to elect whether or not to notify the consular officials
CONTACT THE DEP OF STATE FOR COUNTRY OF ORIGIN PROVISIONS

62
Q

EPO 7

ID the requirement for, and the procedures at, the preliminary hearing and arraignment

A

-Purpose- to Determine whether PC exist to continue the case
-who is entitled to a Prelim Hearing
Anyone charged with a felony or Class A misdemeanor
-Unless
1 Def waived Hearing
2 Indictment bf date of the Prelim Hearing , GJ determination of PC trumps need for a PH) 3 Gov dismissed charge, 4 Guilty Plea
Hearing Held
-withing 21 days of Initial appearance
-within 14 days if defendant detained in custody
HEARING HELD IN DISTRICT OF ARREST
-Defendant may elect to have the Prelim Hearing held in the disitrict where the prosecution is pending if out of district arrest on a complaint

66
Q

EPO 8

ID the function and purpose of the grand jury

A

Return indictments for infamous crimes (felonies), 5th amendment,

  • Inv crimes in districts where they sit
  • May not investigate civil matters
  • May not investigate crimes that only occurred in another district. Need a nexus to the district they sit (conspiracy case)
71
Q

EPO 9

ID the types and uses of grand jury subpoenas

A

-A GJ may get us stuff officers can’t
-can get consent to search but person says no
-witness interview but witness refuse
-SW but judge turns us down
Court order but may take too long
-We may be able to get this information thought a GJ subpoena

76
Q

EPO 10
ID the rules govering the secrecy of proceeding of the grand jury, the limited dissemination of grand jury information, and the LEO responsibilities regarding use of grand jury material

A 
-Matters occuring bf the Gj are secret 
  AKA GJ Matters 
-Specifically 
Names of witness including you 
Witness testimony 
-Items subpoenaed 
what occurred bf the GJ
-Non Gov witness may reveal they were a witness and what they said 
-Order of district ct through AUSA
-AUSA for criminal inv purposes 
Fed and State LEO TFOs, Another AUSA, Another GJ even in another District, Jencks Act or FRCr. P 26.2 , others disclosures like foreign intelligence info
77
Q

EPO 11

ID the documents required to formally accuse a defendant

A

-informed of charges against them, additional charges, modified charges
- Offenses for which defendant will stand trial are stated in the charging document
Minimum charging document
Capital, District Ct, Indictment only
Non capital felony, District ct, Indictment waived, then by information
Misdemeanor, District or Mag, Information complaint
Petty offense mag, citation vilation notice

78
Q

EPO 12
ID how the defense obtains info from the gov that can be used in trial and for other pruposes, ie. discovery under Rule 16, Fed Rules of Criminal Procedure, the Brady doctrine, Giglio V US, the Jencks Act, and Rule 26.2, Fed Rules of Criminal Procedure.

A

-Rule 16 Discovery
upon request, defense get
Oral statements made by def to a LEO that the Gov intends to use at trial
-Def written or recorded statements
Even if statement was to no LEO email to friend
Oral statement to known LEO recorded or MOI
Grand jury testimony
-Def prior criminal record
-Documents and objects gov will offer at trial
-Items seized obtained that belong to the defendant
-Lab reports and proposed testimony of experts

82
Q

EPO 15

Id the responsibilities of the FLO to liaison with the US probation Office in preparing a pre-sentencing report

A

-PSI Pre Sentencing report contain interviewing witness and reviewing documents, the US Probation officer will prepare a presentation report PSR the sentencing judge will use the report in determining an appropriate sentence, may contain specific sentence recommendation, the officer should assist the PO if he have info that ensure the report contains complete and accurate information

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