Pretrial Procedures Flashcards
What is a grand jury indictment?
An indictment is a written accusation of charges against the D issued by a grand jury after it reviews the prosecution’s evidence.
Grand juries are conducted in secret, and the accused has no right to be present.
The grand jury has the power to subpoena evidence or testimony it wishes to consider as part of its investigation.
The accused may not be present, confront witnesses, or introduce evidence in a federal grand jury proceeding.
A grand jury witness has no right to counsel.
Grand jury witnesses are sworn and thus subject to penalty of perjury.
If the grand jury pool was chosen in a racially discriminatory manner, reversal is the proper course.
What is an information?
An information is a written accusation of charges filed in the name of the state by a prosecutor based on information submitted by police or private citizens.
Usually, a preliminary hearing on PC prior to filing an information is afforded in most states.
What is booking?
Booking generally occurs when a D first arrives at the police station or jail. The D is often photographed, fingerprinted, informed of the criminal charges, and allowed to make a phone call.
What is bail hearing?
The D is entitled to an individualized hearing to determine whether bail should be granted or denied.
The purpose of bail is to assure the presence of the D at trial.
There is no right to bail.
Where it is afforded, bail cannot be excessive.
What is preliminary hearing?
It is an adversarial procedure used to determine PC to prosecute.
Presentation of evidence is allowed by both sides, and the D may assert any of his defenses.
This hearing may be waived.
What is arraignment?
The D is given formal notice of the charges against him and advised by the court of his rights. The D has a right to counsel here.
The D is called upon to answer the indictment, elect a trial by judge or jury, and enter his plea.
If the D pleads not guilty, or remains silent, a preliminary motion and trial dates are set.
By pleading no contest, a D can forgo a trial without admitting guilt.
If the D pleads guilty and thus waives a jury trial, the judge then determines if the plea was voluntary and intelligently made. To be voluntary and intelligent, the plea msut be taken on the record and the judge must personally be certain that the D understands:
- the nature of the charge against him;
- the maximum possible sentence and any mandatory minimums;
- the fact that he has a right not to plead guilty; and
- that by pleading guilty, the right to a jury trial is waived.
The D must be advised of his right to counsel. The entry of a guilty plea requires the assistance of counsel, unless the D has voluntarily waived this right.
What are motions?
A D may raise motions to dismiss, motions to suppress evidence, or motions to compel discovery.
Motions to suppress is the remedy for violations of the 4th, 5th, 6th amendments. Motions for discovery can be filed to compel discovery.
Motions to exclude are also available to prevent their use by the prosecution.
What is plea bargaining?
There is no absolute right to a plea.
A D has a right to enforce his plea bargain once the court accepts the plea.
What are the collateral attacks on guilty pleas?
A D does not have a right to collaterally attack a guilty plea for prior constitutional violations.
However, a D who pleads guilty s allowed to file a collateral attack:
- when the prosecutor fails to keep his promise;
- when the court lacks jurisdiction; or
- when ineffective assistance of counsel occurs; or
- the attack deals with the very right to be haled into court.
