Crim Pro: Pretrial/Trial/Pleas Flashcards Preview

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Flashcards in Crim Pro: Pretrial/Trial/Pleas Deck (19)
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1. Lineup - W asked to ID perp from group.
2. Show up - one on one confrontation between W and suspect.
3. Photo array - W asked to ID perp from series of photos.



1. 6th Amendment (formal charges, attorney present)?
2. Due Process (reliability)?
3. Suppression?
**Miranda does NOT apply, no interrogation.


6th Amendment-- Trigger

Formal Charges!
Rule: Suspect has right to counsel at live pretrial ID procedures (lineups and show ups, not photo arrays).


Due Process

Test: Reliability: ie. procedure arranged by police cannot be so unnecessarily suggestive that there is a substantial likelihood of misidentification
Ex. photo array of four white suspects and one black suspect, where W had described suspect as black.


Suppression: Rule/Factors

Rule: exclude W from identifying suspect in court UNLESS prosecution can show ID is product of crime scene observation rather than improper ID procedure.
Factors: 1. opportunity to view suspect at crime scene
2. specificity of W description to police
3. certainty of ID


Grand Juries

Function: issue indictment upon PC.
1. 5th A requires grand jury indictment for fed. felonies
2. Proceedings are closed to public
3. Prosecution presents evidence including Hearsay
4. No right to counsel for W, even likely targets.


Pretrial Detention: Standard

Standard: PC satisfied by
1. Arrest warrant,
2. grand jury indictment, or
3. preliminary hearing (after warrantless arrest)
a. must be held promptly within 48 hours may be ex parte


Pretrial Detention: Initial Appearance

required promptly after arrest (may be combined with preliminary hearing).
Magistrate informs of charges, advises of rights, appoints counsel if necessary, sets bail.
FED: 8A prohibits excessive bail


Trial Rights:

1. Brady Rule
2. Unbiased Judge
3. Confrontation
4. Jury Trial
5. Right to Counsel


Trial Rights: Brady Rule

Due Process requires prosecution to turn over all material exculpatory evidence.
* Notice of defenses must be given to the prosecution by D.


Trial Rights: Unbiased Judge

Due process guarantees judge with no
1. Actual bias (or malice towards D)
2. Financial interest
3. serious risk of actual bias.


Trial Rights: Confrontation

RULE: 6A right to confrontation excludes pretrial statements of adverse witnesses that are testimonial if witness is unavailable at trial and D had no prior opportunity to cross-examine.
Before Trial Trial
1. Testimonial statement by W 1. Witness unavailable
2. No Opp for D to C-E 2. Confrontation Clause
Excludes prior testimony.
**EXCEPTION: face to face confrontation would contravene important public policy (e.g.. traumatize child W in abuse case).


Trial Rights: Confrontation

If it testimonial if reasonably expected to be used at trial
1. Testimony from preliminary hearing, grand jury, former trial.
2. Lab report (offered for truth)
3. Investigative police interview
NOT testimonial: 911 call, police interview with primary purpose of responding to ongoing emergency (eg. shooting victim).


Trial Rights: Jury Trial

6A right to jury trial attaches if maximum possible sentence exceeds 6 months.
a. Jury Pool (venire) must represent fair cross-section of community
b. Actual jury need not
c. preemptory challenges cannot be used on account of race or gender.
Required for 6 person jury
not required for 12 person jury (9-3) okay.


Trial Rights: Right to Counsel

6A process right to counsel at trial if D is actually sentenced to prison.
*ineffective if: deficient performance under objective standard of reasonableness AND prejudice


statutory maximum 12 months; judge fines. Jury Trial? Right to Counsel?

Yes jury trial
No right to counsel (no sentence).


Statutory Maximum of 3 months, judge sentences one day. Jury Trial? Right to Counsel?

No to jury trial
Yes to Right to counsel.


Guilty Pleas: Plea-Taking Colloquy

To accept a guilty plea, judge must address the following on the record:
1. Nature of Charge
2 Maximum authorized sentence and any stat. minimum.
3. Right to plead not guilt and to trial
4. D waiving right to trial.


Guilty Pleas: Withdrawal of Guilty Pleas

1. Defective plea-taking colloquy,
2. Jurisdictional defect (wrong court);
3. Ineffective assistance of counsel or
4. Prosecutor fails to fulfill his side of plea bargain
ex. Prosec. recommends max instead of min sentence as agreed.
Note: Judge not bound by prosecutor's bargain.