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Criminal Law > Pretrial & Trial Procedures > Flashcards

Pretrial & Trial Procedures Flashcards

1
Q

Romano-canon (continental or civil) Law

A
  • monarchical and magisterial
  • the judge is the factfinder
  • codified laws
  • “irrational proofs” were replaced on the continent by the Romano-canon inquisition process
  • decision making calculus based on full proofs, half proofs, and presumptions were required and then conviction was automatic: the judge was essentially an accountant
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2
Q

Medieval Juries

A
  • 5th - 14th Centuries
  • England was a land of small hamlets and villages
  • age of ignorance and superstition
  • community group functioning as witnesses, investigators, & decision-makers all at once
  • determination of character & decision to banish
  • irrational proofs, trials by ordeal to 12th Century
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3
Q

Renaissance Jurries

A
  • 14th - 17th Centuries
  • juries were no longer communal
  • jurors were picked for status/ not proximity
  • juries were no longer self-informing, they had become passive viewers of fact, but could talk to witnessess out-of-court
  • witnesses came to be commonly employed
  • judges called witnesses
  • determination of juilt
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4
Q

Enlightenment Juries

A
  • Jurors limited to facts presented in court, but could consider personal knowledge
  • judges dominated proceedings
  • judges examined witnessess
  • accused represented themselves
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5
Q

Industrial Revolution

A
  • mid 18th - mid 19th century
  • lawyers dominated proceedings judges reduced to umpires
  • lawyers examined witnesses
  • laws of evidence developed trials became adversarial matches
  • developed the techniques of cross-examination
  • established their right to argue points of law
  • lawyers completely transformed the English legal system into adversial system as we know it today
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6
Q

Pretrial Procedures

5 steps

A
  1. pleadings
  2. discovery
  3. negotiations/plea bargaining
  4. pretrial congerences & hearings
  5. pretrial motions
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7
Q

Pretrial Procedures

Pleadings

A
  • the 1st step
  • criminal
    • prosecutors file charges (indictment, information)
  • civil
    • plaintiff files petition (complaint) that states a cause of action then Defendant files counterclains
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8
Q

Pretrial Procedures

Discovery

A
  • the general term encompassing the processes and activities that parties employ in civil and criminal proceedings to gather info and factual data from each other prior to trial
  • used to reveal the facts of the case, to assist in formulating the issues to be litigated, and to preserve evidence of witnesses who may not be available at trial
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9
Q

What is Formal Discovery?

A
  • developed during the 20th century to replace legal maneuvering, theater, surprise and ambush with fairness and substantive deliberation
  • much of the evidence and the main points will be disclosed to permit the other side to adequately prepare for trial
    • does not mean that the opposing sides will disclose everything
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10
Q

What is Modern Discovery?

A
  • liberal
    • it favors broad inclusion rather than exclusion of evidence proffered for admission into court
  • this practice resulted in more fair and equitable resolution of legal disputes
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11
Q

What are 3 types of discoverys can be seen in Civil Discovery?

A
  • automatic discovery - w/o being requested
    • witness list
    • all relevant documents, data, & tangible information
    • any and all damages claimed
  • non-automatic discovery - upon request
    • interrogatories - 30 days to respond
    • admissions - 30 days to respond
    • requests for production - 30 days to respond
    • depositions - sworn testimony w/o the jury
  • nondiscoverable material
    • attorney-client privilege
    • work product privilege
    • proprietary process & patents privileges
    • medical risk management
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12
Q

What is

Fed Rules of Civil Procedure Rule 26?

A
  • expert withnesses must provide a written report
  • the report must contain
    • a complete statement of all opinions the witness will express and the basis and reasons for them
    • the facts or data considered by the witness in forming them
    • any exhibits that will be used to summarize or support them
    • the witness’s qualifications, including a list of all publications authored in the previous 10 yrs
    • a list of all other cases in which, during the previous 4 yrs, the witness testified as an expert at trial or by deposition
    • a statement of the compensation to be paid for the study and testimony in the case
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13
Q

Criminal Discovery

what is it and its goals?

A
  • goal is the protection of a defendant’s constitutional right to a fair trial
  • more restricted and asymmetric
    • 5th amendment right againts self-incrimination is the primary protection for discovery against the defendant
    • other protections include the right to confront witnesses
  • the prosecution may be ignorant of the defense’s case while the defense should be fully informed of the prosecution’s evidence
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14
Q

In 2017, Supplemental Guidance to the Ogden Memo on criminal discovery was issued to federal prosecutors regarding discovery involving forensic evidence and forensic experts.

Prosecutor’s should routinely provide the defense with:

A
  • Forensic expert’s laboratory report
  • summary of intended expert testimony
  • the laboratory’s or expert’s case file
  • the expert’s qualifications
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15
Q

What is

Fed Rules of Criminal Procedure Rule 16?

A

Expert Witnesses

  • the government must give to the defendant a written summary of any testimony that the government intends to use
    • at the defendant’s request
  • the summary porvoded under this subparagraph must describe the witness’s opinions, the bases and reasons for those poinions, and the witness’s qualifications
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16
Q

What is

Brady Material?

A
  • any exculpatory or potentially exculpatory material must be turned over to the defense

Brady v Maryland, 1963

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17
Q

What is

Giglio Material?

A
  • any material tending to impeach the character or testimony of a prosecution witness must be turned over to the defense

Giglio vs US, 1972

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18
Q

Pretrial Conferences

A
  • generally occur after the discovery phase when both sides have a good understanding of their case and they involve both parties and the judge
  • aimed at disposing of the cases whether by settlement in civil cases or plea bargaining or diversion in criminal cases
  • the negotiation can be made before hand BUT it needs judicial approval
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19
Q

What is

Pretrial Hearings?

A
  • generally held to work out some legal or evidentiary issue
  • Daubert Hearing example
    • evaluate the admissibility of certain expert testimony
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20
Q

What is

Pretiral Motions?

A
  • generally made in an attempt to avoid trial through a summary judgement or motion to dismiss, to narrow the scope of the issues to be tried, or are aimed at evidentiary positioning, such as through a motion to suppress or a request for a Bill of Particulars, in preparation for the trial
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21
Q

What are the

Trial Procedures?

7 parts

A
  1. Jury Selection
  2. Opening Statements
  3. Plaintiff’s/ Prosecution’s Case
  4. Defense
  5. Closing Arguments
  6. Jury Instructions
  7. Jury Deliberation & Verdict
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22
Q

Who are the players of the Courtroom?

A
  • parties (litigants)
  • judge
  • jury
  • courtroom clerk
  • court reporter
  • bailiff
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23
Q

Who are the parties (litigants)?

A

Plaintiff (civil)

  • brings the lawsuit against the defendant
  • their attorney represents the plaintiff as his legal counsel

Prosecutor (criminal)

  • prosecutes the defendant
  • Federal: U.S. Attorney (USA) or Assistant U.S. Attorney (AUSA)
  • State: District Attorney, States Attorney

Defendant (Civil & Criminal)

  • Public Defender or privately hired Criminal Defense Lawyer
  • defendants may represent themselves - this is called pro se
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24
Q

Who is the Judge?

A
  • presides over the proceedings, rules on issues of law, renders the verdict in bench trials, and usually sentences the defendant
  • referred to as “Your Honor” or as “The Court”
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25
Q

Who is the Jury?

A
  • weighs the evidence and renders the verdict and sometimes the punishment (i.e. death penalty)
  • the foreperson of the jury speaks for the entire jury
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26
Q

Who is the Courtroom Clerk?

A
  • helps with administrative duties and ensures an orderly proceeding
  • keeps the docket and is in charge of all documents and evidence
  • swears in anyone who must be placed under oath before testifying
  • takes case of the jurors as needed
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27
Q

Who is the Court Reporter?

A
  • a stenographer
  • responsible for generating an accurate record of everything that is said in the courtroom (transcripts; the “record”)
  • the resultant permanent record of the trial is the basis for any appeals
  • some courts use only an electronic recording that is transcribed in case of an appeal
28
Q

Who is the Bailiff?

A
  • the police officer who maintains order in the court
  • a U.S. Marshall serves this role in federal courts
29
Q

What is a Jurly Pool (the venire)?

A
  • a group of people who is selected randomly from a variety of lists of citizens, such as voter registration, motor vehicle licenses, tax documents, etc.
  • seleved in a process known as voir dire ( to speak the truth)
30
Q

Peremptory Chanllenges

Challenges for Cause

A
  • an important part of of jury selection
    • a limited number of each is given
  • challenges for cause makes attorneys have a reason to veto a potential juror
    • must be based on logical reasons why the potential juror is biased, prejudiced, or unqualified to serve in a particular case
  • peremptory challenges allows attorneys to veto a potential juror on a “hunch”
31
Q

Define Sequestered

Who is sequestered during trial? Why?

A
  • isolated and hidden away
  • the jury is to prevent tampering through undue persuasion, bribes, or threats
    • generally in highly publicized trials
32
Q

Opening Statements

A
  • a statement that gives an overview from their perspective of the case that they intend to prove
    • not suppose to include arguments; only a preview of facts to be presented
    • very important in setting the tone for the entire trial
  • the prosecuting attorney or plaintiff’s attorney will be the 1st give statement followed by dependent counsel
33
Q

Case-in-Chief

Rebuttal

A
  • happends in Trial
  • case-in-chief
    • involve the presentation of evidence upon which the jury will render their verdict
      • consists of presenting one or more sworn witnesses on the stand, reveal documents and physical evidence it any
  • rebuttal
    • when the opposing side presents their case generally to impeach the evidence presented during the defendant’s case-in-chief
34
Q

What is a foundation in a Trial?

A
  • sufficient preliminary evidence of the authenticity and relevance for admission of material evidence in the form of exhibits or testimony of witnesses
  • must be established for each proffered witness
  • witnesses must be competent (mental ability) to stand trial
35
Q

Once a witness takes the stand in trial, they are subjected to what 4 things?

A
  1. direct examination__by the proponent of the witness
  2. cross-examination__by opposing counsel
  3. redirect__by the proponent of the witness
  4. re-cross__by opposing counsel
36
Q

Fill in the Blank

After presenting the case and challenge by opposing counsel, counsel will ____ _____ ____.

A

Rest Their Case

37
Q

True of False

Criminal defendants do not have to present their own case, but often do.

A

True

38
Q

Fill in the Blank

Before any ________ is introduced, a foundation must be laid

A

Evidence

39
Q

What two things that are mentioned that is a part of the foundation and must be presented to the court before the evidence?

A
  • witnesses
    • qualified as competent to give testimony
  • tangible things
    • authenticated, usually by live testimony
40
Q

Testimonial Evidence

A
  • the oral responses of an ordinary expert witness introduced into the record in a deposition or trial
41
Q

Documentary Evidence

A
  • written or electronic documents admitted into evidence
42
Q

Physical (Real) Evidence

A
  • physical objects that played an actual or direct role in the incident or transaction that gave rise to the civil or ciminal case
43
Q

Demonstrative Exhibit

A
  • any item or device used to aid the trier of fact in understanding the issues at trial
44
Q

Define Relevance in terms of evidence

A

FRE 401

  • states that evidence is relevant if:
    • it has any tendency to make a fact more or less probable than it would be without the evidence
    • the fact is of consequence in determining the action

FRE 402

  • states relevant evidence is admissible unless prohibited by law or the rules; irrelevant evidence is not admissible
45
Q

Define Materiality in terms of evidence

A
  • the significance of facts to the matter at hand; material facts bear on the decision of the case and immaterial facs do not
  • one of the 2 characteristics that make a given item of evidence relevant
    • probative value is the other
  • largely depends on the elements of the cause of action the plaintiff seeks to prove, or that the prosecutor must prove in a criminal case to secure a conviction
  • which issues must be factually proven are therefore a product of the underlying substantive law
46
Q

Define Competence in terms of evidence

A
  • the finding by the court that a witness is able to speak based upon the foundation laid by the counsel proffering the witness
  • voir dire refers to the process of examination of the background of a witness to assess their qualification or fitness to give testimony on a given subject
47
Q

Evidence

Define Admissibility

A
  • a matter of law to be determined by the judge
  • the legal determination that the proffered evidence should be allowed to be weighed by the jury
48
Q

Evidence

Define Weight

A
  • a matter of fact to be assessed by the jury or the judge as the trier of fact in a bench trial
  • the relative value of the evidence that has been admitted
49
Q

Evidence

Burden of Proof

A
  • the standard of sufficiency that a party seeking to prove a fact must satisfy to have that fact legally established
    • reasonable suspicion
    • prima facie evidence (on it’s face)
    • substantial evidence
    • probable cause
    • preponderance - for most civil trials, witnesses
    • clear and convincing
    • beyond a resonable doubt - for criminal trials
50
Q

Evidence

Ordinary (Lay) Witness

A
  • must have direct knowledge of facts in the case
  • they may provide factual statements of what they saw, heard, or smelled
  • ordinary witnesses may not give opinion testimony
51
Q

Evidence

Expert Witness

A
  • must have knowledge, skills, or experience beyond that of ordinary citizens that is relevant to the particular case
  • experts may give opinions
52
Q

Evidence

Define Motion

A
  • the way a lawyer asks the judge to make a decision
53
Q

Evidence

Define Objection

A
  • a motion by opposing counsel suggesting fault with the question being asked the witness
54
Q

Evidence

Define Overruled

A
  • the decision on the objection by the judge to disregard the objection and to continue
55
Q

Evidence

Define Sustained

A
  • the decision on the objection by the judge to accept the objection by the judge to accept the objection, striking the question and answer from the record, and telling the counsel to quit that line of questioning
56
Q

Closing Arguments

A
  • happens after attorneys from both sides presented their cases
  • this is their opportunity to summarize for the jury, and draw attention to the facts that support their side
  • it is not evidence
  • plaintiff or prosecutor goes first followed by the defendant
57
Q

Jury Instruction

A
  • a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant is guilty or not guilty
  • counsel for each side will have an opportunity for input prior to their delivery by the judge
  • judge may also describe key concepts, such as “guilt beyond a reasonable doubt,” and may define any crimes the jury may consider
  • the case will then go “to the jury”
58
Q

Jury Deliberation & Verdict

A
  • jury will deliberate to reach a verdict on the guilt or innocence of the defendant in criminal cases or the liability involved in a civil case
    • may last from hrs to weeks
    • verdict will be announced in open court by the jury foreperson, clerk, or the judge
  • federal courts and most states require that a jury in a criminal case be unanimous in their decision
    • if not, they are a “hung” jury and a “mistrial” is declared; the case will be dismissed or retried
  • if found not guilty, then defendent is acquitted, free to go, and can’t be tried again due to 5th amen protection from Double Jeopardy
  • if found guilty, then they are convicted
  • a civil verdict can be much more complicated
59
Q

Ramos v Lousiana

April 20, 2020

A
  • Evangelisto Ramos was accused of a serious crime and invoked his right to a jury trial
  • 10 jurors found the evidence against him persuasive BUT a pair of jurors believed that the state failed to prove Mr. Ramos’s guilt beyond reasonable doubt
    • voted to acquit
  • in 48 states and federal court, a single juror’s vote to acquit is enough to prevent a conviction
  • Louisiana and Oregon the exceptions
  • Mr. Ramos was convicted and sentenced to life in prison w/o the possibility of parole
  • the purposes for these two states policy is tied to racism at the turn of the 20th Century
  • the court held the 6th Amendment, as incorporated against the states, requires that a jury find a criminal defendant guilty by a unanimous verdict
60
Q

Sentencing

A
  • when convicted, the defendant is scheduled for a sentencing hearing approx. 90 days after the verdict
  • between conviction and sentencing, a presentence report will be prepared based upon an investigation into the criminal and life history of the convicted person and any extenuating circumstances which may mitigate the harshness of the sentence
61
Q

Sentencing

Define Bifurcated Trial

A
  • a judicial proceeding that is divided into two states
  • common division is to determine liability or guilt in the 1st stage, and to establish damages or punishment in the second stage
62
Q

What are some offenses against the judicial process?

5

A
  • failure to appear
  • making false statements
  • obstruction of justice
  • contempt of court
  • perjury
63
Q

Offense Against The Judicial Process

Failure to Appear

A
  • a defendant or respondent failing to appear at the stated time before a tribunal as directed in a summons
64
Q

Offense Against The Judicial Process

Making False Statements

A
  • knowling and willfully making false or fraudulent statements, or concealing information, in any matter within the jurisdiction of the federal government, even by merely denying guilt when asked by a federal agent (Brogan v US, 1998)
65
Q

Offense Against The Judicial Process

Obstruction of Justice

A
  • in fedral proceedings, it consists of obstructing prosecutors or other government officials
  • at common law, it is preventing the course of justice
  • also applies to overt coercion of court or government officials via the means of threats or actual physical harm, and also applying to deliberate sedition against a court official to undermine the appearance of legitimate authority
66
Q

Offense Against The Judicial Process

Contempt fo Court

A
  • the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice and dignity of the court
67
Q

Offense Against The Judicial Process

Perjury

A
  • the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding

Criminal Law (6 decks)

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