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Flashcards in Criminal - Procedure Deck (99):
1

Where is venue proper?

Venue (jurisdiction) lies in the parish where the offense was comitted. If any act constitutes fofense/elements of offense occur in ore than one place in/out of parish or state, offense is deemed committed in ANY parish where act or element occurred.

2

How is improper venue raised?

Improper venue is raised by a pre-trial motion to quash. If not raised, WAVIED. Burden on the prosecution is PREPONDERANCE of the evidence.

3

Who can move for a change of venue?

EITHER state or defendant may move for change of venue based on proof that because of prejudice or undue burden, a FAIR AND IMPARTIAL trial cannot be obtained.

4

What fact does the court consider on a motion to change venue?

1. Nature of pretrial publicity/partic degree to which it circulated; 2. Connection of govt officials with release of publicity; 3. Severity/notoriety of the offense; 4. Area from which the jury is drawn; 5. Any factor likely to affect the candor/veracity of prospective jurors on voir dire. Note: "Trial run" voir dire is PERMISSIBLE; may reveal community sentiment.

5

What is the original jurisdiction of the district courts? Parish and city courts?

1. Jurisdiction over state felonies; 2. Misdemeanors. Parish/city courts: Jurisdiction over offenses/misdemeanors and parochial/municipal ordianances within their respective territiroies. Mayor's courts--ordinance violations; Justices of the Peace--littering.

6

What is the appellate jurisdiction ot the LA Sumpreme Court? Courts of Appeals? District Court?

1. SCT: Appeals from district court DIRECTLY to La Supt Ct where the death penality is imposed; or, a statute or ordinance has been declared unconstitutiona; 2. COA--appeals from district courts in all other cases triable to a jury are to appropriate COA; 3. District court--appeals from parish/city/mayor's court are to district court.

7

What is the trial court's jurisdiction on appeal?

Trial court LOSES jurisdiction upon entering an order of appeal; except: to CORRECT an illegal sntence; or to impose a sentence under the habitual criminal staute. In all other circs, use writ process.

8

What is arrest?

Arrest is the taking of one person into custody by another; there must be an ACTUAL STOP or an IMMINENT ACTUAL STOP. 1. Actual stop--need either the application of phys force or submission to an officer's show of authority. Running away is NOT an arrest; 2. Imminent actual stop--police come on individual with such force that any attempt to flee will be futile. Look at proximity; surrounded; drawn weapons; whether suspect is on foot/vehicle; number of police officers.

9

Who may issue an arrest warrant?

An arrest warrant may be issued by ANY magistrate, which included not only judges with jurisdiction over criminal cases but also justices of the peace.

10

What cosntitutes probable cause?

D's admission of crime/implication of another person is probably cause to arrest the other person. Reputation of other person/need for prompt action--all factors in determining whether unverified information supplies probable cause.

11

When may a warrant be issued?

1. A warrant may ONLY issue when a person executes an AFFIDAVIT that she believes that another person has committed a crime; AND 2. The magistrate has PC to believe that the designated person has committed a crime.

12

When does a MJ have probable cause to believe that the designated person committed a crime?

1. Similar standard to search/sexizure that leads to a reasonable belief that person arrested committed a crime; 2. MJ is NOT restricted to the affidavit in making the probable cause determination.

13

Who may execute the warrant?

1. Warrant may be executed by ANY police officer that 2. Has authority within TERRITORIAL JURISDICTION where arrest to be made; and 3. Police office officer in close pursuit of an arrestee may enter another parish and make the arrest.

14

When may a PRIVATE person make an arrest?

In LA, a private person may make an arrest ONLY when the arrested person has committed a felony. Note: shopkeeper's privilage; a merchant/employee may detain a person whom she has reas cause to believe has comitted a theft; such detention may NOT exceed 60 min unless reassons supporting the detention, but NO authority to conduct a search. Triggering electronic device creates PC.

15

Can a law enforcement officer arrest a person without a warrant?

Yes. A law enforcement officer MAY arrest a person WITHOUT a warrant where the offier has PC to believe that the person has committed a crime. Court looks at the knowledge of ALL police officers, not only the arresting officer. HOWEVER, if the police want to enter a person's RESIDENCE to arrest her, they must have an arrest or search warrant.

16

Can an officer use reasonable force to effecuate the arrest?

In making a lawful arrest, an officer may use REAS FORCE to make the arrest and overcome resistance. An officer who has announced her authority and purpose may BREAK OPEN ANY DOOR if refused/obstructed but NO announcement is required where it would be unnecessary/dangerous/allow escape/destruction of evidence.

17

Does Louisiana law permit stop and frisk for temporary questioning?

By statute, a law enforcement officer may: 1. Stop a person in a public place; 2. Whom she reasonably suspects is committing/has committed/is about to commit a crime; and 3. May demand his name, address, an explanation of her actions; 4. If an officer reasonably suspects she is in danger, may frisk outer clothing of person stopped; 5. Officer may seize weapon found.

18

What is the standard for temporary detention for questioning?

PROBABLE CASUE TO SUSPECT. 1. Particularized/objective basis for suspecting person stopped of criminal activity; 2. Reas cause to suspect--articuable facts that create reas suspeicion; 3. NOT a mere hunch or guess; 4. Facts would make OBJECTIVE officer suspicious; officer's subjective intentions are irrelevant.

19

Can a police officer make an arrest for a state traffic violation that is a misdemeanor?

1. Yes, in Louisiana, a police officer may make an arrest for a misdemeanor committed in her presence; may arrest drivers of vehicles that commit traffic violations in their presence. Generally, police officer should issue a summons and release the driver if the dirver promises to appear at the hearing. Note: in LA, police cannot search car or driver bc of a violation of the seatbelt law.

20

What information must be provided ot person who is booked?

Person who is booked must be told of: 1. Charge; 2. Right to communicate with and procure counsel; and 3. Right to a preliminary examination when chraged with a felony. Note: there ay not be any legal consequences when not informed of these items.

21

What is a defendant's right to counsel?

In a criminal case, Defendant has a constitutional right to counsel under the Sixth and Fourteenth Aemndments to the U.S. Constituion LA Constitution. NOTE: IN LAW, if a SENTENCE OF IMPRIONMENT could be imposed, the right to counsel attaches. Assigned counsel in CAPITAL cases must have been admitted to the bar for at least five years.

22

How can a defendant waive right to counsel?

1. MINUTES of the ocurt must show EITHER that D was rep by counsel or that D was informed by the court of her right to counsel and she waived that right. Court will NOT presume waiver from a silent record.

23

When does the right to counsel attach?

LA Constitution provides that the ACCUSED has a RIGHT TO COUNSEL at EACH stage of the proceedings. Right attaches NO LATER than FIRST COURT APPEARING or judicial hearing, even though defendant has not yet been indicted.

24

Within what time frame must a person in custody be brought before judge for appointment of counsel?

Person in custody must be brought before judge within 72 HOURS for appointment of counsel. If bail has not been set, it should be set at this time. Requirement may be satisifed telephonically; appointment of counsel after 72 hour deadline cures defect.

25

What constitute STAGES of proceeding for the purpose of the right to counsel attaching?

1. Preliminary examination; 2. Arraignment; 3. Trial; 4. Sentencing; 5. Appeal; 6. Custodial interrogation; line-up or questioning after proceedings have commenced; 7. Examination of D by sanity comission.

26

Does a witness have a right to counsel during a grand jury?

1. WITNESS--no right to have cousnel present in grand jury room; 2. TARGET WITNESS of a grand jury investigation--right to have counsel present, but counsel is prohibited from objecting/addressing/arguing before grand jury; evidence obtained from a witness who subseqently becomes a target may not be USED against him, although a witness may waive this right.

27

What is the corpus delicti rule?

Louisiana follows the common law rule on corpus delicti--there must be proof independent of the confession to establish existence of crime.

28

When may a defendant file motion to suppress evidence?

1. Defendant may file a pretrial motion to suppress evidence unconstitutionally obtained or inadmissible on other grounds. 2. EXPANSION OF STANDING--IN LA, ANY person adversely affected by a search and seizure has standing to raise its illegality in the appropriate court. Howeve,r evidence illegally obtained from X usd together with other evidence to support a warrant to search Y is not suppressible.

29

What are the time limits to file a motion to suppress?

1. Motion must be filed within 15 DAYS after arraignment, unless facs are unknown or defendant is otherwise excused.

30

What is the state's burden of proof on a suppression motion?

1. State has burden of proving admissibility of confession beyond a reasonable doubt; 2. In cases of warrantless searches, state has burden of showing probable cause and search warrant exception; 3. Defendant has BURDEN in all other cases. Note: if facts are dispute, the court holds a suppression hearing. D may testify without being cross-examined on other matters.

31

What happens if D fails to file a motion to suppress?

1. Failure to file motion is a waiver. 2. Any adverse ruling is binding at trial. 3. State must lay a foundation for the confession at trial. Denial of opportunity to show confession unworthy of belief is a deprivate of due process.

32

Who may conduct and who has a right to a preliminary examination?

1. Magistrates (judges with criminal jurisdiction/Justices of the Peace) have authority to conduct preliminary examinations; 2. A defendant arested on a felong charge has a right to a prelimianr examination UNLESS/UNTILL she has been indicted by a grand jury.

33

What is the purpose and form of a preliminary examination?

1. Both state and defendant may call witnesses who are subject to cross-exam. D may NOT subpoena a child-victim as a witness without permission of the court. 2. Purpose of the perlim exam BEFORE indictment is to determine PC, purpose of prelim exam AFTER indictment is perpeutation of testimony and fixing bail. A finding of no PC at prelim exam results in release from custody but is no impediment to prosecution.

34

When must a probable cause determination be made for a warrantless arrest?

When the state combines the probable cause determination with other pretrial proceedings it must provide the PC determination not later than 48 hours after arrest for those arrested without a warrant. NOTE: In LA, police officer must promptly complete affidavit of PC and submit it to the magistrate; person in custody is entitled to a determination of PC after arrest; Determination is made by mag, and there is no adversary proceeding; MJ's determination does nto affect D;s right to a PE; if PC determination is not made, arrestee is relased on own recognizance.

35

What is bail?

Bail is defined as the security given by a person to secure his appearance before the proper court when required. 1. In noncapital cases, defendants have a general right to bail; can be denied for certain crimes of gun violence/drug offenses; or if court finds by CLEAR AND CONVINCING evidence that person would be a danger to other person or community; 2. In CAPITAL cases, bail is neither required NOR prohibited.

36

Is bail allowed after conviction?

Bail shall be allowed, but only if offense punishable or sentence imposed is less than five years and not if court finds dangerounsness. 1. In FELONY cases, bail is set individually; 2. In MISDEMEANOR cases or in NONCAPITAL FELONIES, except for Orleans parish, bail schedules are permissible. Note: bail may be increased/decreased after original setting. MJ's bail decisions may be challenged by application for supervisory writs--excessive bail is prohibited.

37

What are the methods for instituting procecutions?

1. INDICTMENT: Offenses punishable by death or life imprisonment may ONLY be commenced by indictment (murder/rape/kidnap); 2. INDICTMENT or INFORMATION--other prosecutions in district court may be commenced by indictment OR information; 3. Ordinance violations/oother prosecutions may be commenced by affidavit or information; 4. Family/juvenile prosecutions may be commenced by indictment/information/affidavit.

38

What is an indictment?

1. Written accusation of crime made by grand jury; 2. Requires concurrence of NINE grand jurors; 3. Must be endorsed "true bill"; 4. Must be signed by foreperson. Note: failure of grand jury to indict does NOT preclude subsequent filing of indictment, information, or affidavit.

39

What is an information/affidavit?

1. Information--written accusation of crime made by DA or city prosecutor; 2. Affidavit--written accusation of crime made under oath and signed by affiant. Note: prosecutions in district courts may be initiated by indictment or information.

40

What are the qualifications for grand/petit jurors?

1. 18 years old; 2. Read/write/speak English; 3. Not be under interdiction/incapable of mental and physical infirmity; 4. Not be under indictment for felony/convicted of felony for wich not pardoned; 5. Must be U.S./LA citizen who resided in parish for one year.

41

How does the grand jury proceed?

1. Need 12 PLUS 2 alternate grand jurors; 2. It is REVERSIBLE error to allow the alternate to deliberate with other jurors; 3. NINE jurors needed for quorum and to indict; 4. Proceedings are SECRET.

42

When are grand jurors permitted to divulge testimony or deliberations?

1. A witness may discuss her testimony with defense counsel/DA; 2. Transcript not admissible at trial, but waiver may be allowed.

43

What are the requirements of the indictment or information?

1. Notify defendant of charge; 2. Enable defendant to enter a plea to the charge; 3. Define the parameters of relevancy of evidence at trial; and 4. Protect defendant against double jeopardy.

44

Are there any special rules if the offense is committed with a firearm?

When a firearm or explosive device is used during 2nd degree murder, et.c, defendant shall be stenced to a term of TWO years impriosnment in addition--and Defendant must be given NOTICE of this sentencing enhancement in indictment as PREREQUISITIE to invoking this section. Note: there is also an imposition of a mandatory sentence when a firearm is used under LA law--that provision DOES not need to be made in indictment, but DA must notify in D in writing that he intends to ask trial judge to make that finding.

45

When may a defendant move for a bill of particulars?

When an indictment fails to contain sufficient facts, defendant may file a PRETRIAL motion asking that the missing information be supplied in a Bill of Particulars; the information sought must be of who/what/when variety; prosecutor bound by answers in bill of particulars.

46

What kind of errors require amendment of the indictment?

1. Mere technical errors do not invalidate indictment; indictment may be amended at any time to correct technical errors. 2. Erros of SUBSTANCE (essential allegation) may be amended prior to trial. If error discovered AFTER trial commences, court shall order a mistrial. If defendant fails to raise the error issue at/before trial, or if court rules against d's claim or defective indictment, D's subsequen conviction will not be set aside absent a showing of actual prejudice.

47

What happens when there is variance beween the allegations in indicment/bill of particulars and the evidence?

1. Prosecutor files motion to amend indicment to conform with the evidence; 2. If D is prejudiced in his/her defense, he/she should move for an be granted recess.

48

Can offenses be joined in the same indictment?

1. State may join TWO OR MORE OFENSES in the same indictment in a separate count for each offense IF: 1. They are of same/similar character; 2. Arise out of same acts/transactions and 3. They are triable by the SAME MODE OF TRIAL, e.g., nature of judge/number of jurors. 12 person jury--ten for vverdict.

49

Can offenders be joined in the same indictment?

1. TWO OR MORE defendants may be charged in the same indictment if they are alleged to have participated in the same act/transaction or the SAME SERIES of acts or transactions.

50

What is misjoinder?

When offenese/offenders are charged in one indictment not under permissible rules, there is a misjoinder--D must file a MOTION TO QUASH. E.g., a different verdict vote is required for capital versus non-capital cases. Note: misjoinder does not constitute prejudice per se mandating AUTOMATICE reverasl; instead, harmless error analysis should be used.

51

When may severance of offsnes be ordered?

Where joinder of offenses is prejudicial, court may grant SEVERANCE or order separate trials. D files a motion to sever. E.g., D cannot testify on one offsense without incriminating herself on other charge; confusion of jury where jury may not be able to restrict evidence or instructions to the appropriate charge. Note: severance is permissible if offenses are simple and distinct and jury is properly instructed.

52

When may severance of defendants be warranted?

1. Should be granted when justice so requires--defendants with antagonistic defenses/or one defendant will testify for the other. 2. Confession by one defendant inculpating ONLY himself--no severance is required.

53

When can you file pretrial attacks on the indictment?

1. Pretrial motions to quash the indictment shall be made or filed within 15 DAYS after ARRAIGNMENT unless law provides otherwise or court at arraignment fixes a longer time based on a showing of necessity.

54

What is a motion to quash?

All DEFENSES raised before trial (except mental incapacity to proceed/not guilty/not guilty by reason of insanity) shall be made in writing, by motion to quash. The mostion MAY NOT be used for testing the sufficiency of the evidence in terms of quantum/legal significance. NO procedural device in LA for testing the sufficiency of the evidence.

55

What pleases may be made at arraingment?

After indictment is read to Defendant, four pleas at arraignment: guilty; not guilty; not guilty and not guilty by reason of insanity; 4. Nolo contendre (may only be made in the discretion of the court--equiv to conviction but not admissible in a civil case).

56

How does a defendant enter a plea?

1. In felonies, the defendant must PLEAD in person. 2. In misdemenaors, defendant may plead through counsel with the approval of the court; 3. May be entered via AV transmission. Note: If D REFUSES to plead, a plea of not guilty is entered.

57

What must the court address the defendant during the plea?

Court must advise D of the privilege against self-incrimination; right to trial/jury trial where applicable; and right to confront her accusers. Court must ALSO ascertain that D knows of rights/waives them; and understands the charge; consequences of the plea; sentence autorized by statute, and, under LA statute, enhanced penalty for subsequent conviction and that a guilty plea precludes trial. Court must inquire into plea bargain and make matter of record.

58

When can defendants plea guilty in capital cases?

Defendant CANNOT plead guilty in a capital case unless the DA removes the possibility of the death penalty. A court has discretion before sentence to permit withdrawal of a guilty plea. Cannot plead guilty to felong within 48 hours of arrest. When a plea has bben withdrawn, no reference may be made to it at trial.

59

What are the time limits for instituting procedures under LA law?

1. Captial, life imprisonment crimes and forcible rape: NO limit; 2. Felony punishable by imprionsment at hard labor--SIX years; 3. Felony not punishable by imprisonment at hard labor--FOUR years; 4. Sexual offenses against victim under 17--THIRTY years from when victim becomes 18; 5. Misdemenaor punishable by fine or imprionsment--TWO years from when time offense was committed; 6. Misdemeanor punishable only by fine--SIX MONTHS from when offense was committed.

60

What is the time limit for commencing trial under LA law?

1. Capital cases: THREE years from institution of prosecution; 2. Felony cases: TWO years from institution of prosecution; 3. Misdemeanor cases: ONE year from institution of prosectuion. Note: new trial after a mistrial must be held within ONE year unless longer time available under rules stated above.

61

What is the Louisiana Speedy Trial Act?

If no charge if filed within SIXTY days, defendant is entitled to be released from custody. Subsequent filing of indictment permits defendant to be re-arrested. 1. AFTER ARREST; time for indictment or information--D IN custody--sixty days for the felong; or 120 for felony punishable for life imprionsment/death; 45 days for misdemeanor. D NOT in custody--150 days for felony; 90 days for misdemeanor.

62

What should D do if they want a trial?

After filing a motion for a speedy trial and verifying affidavit, trial shall commence. 1. D IN CUSTODY--120 days in felony cases; 2. 30 days in misdemeanor cases. D NOT IN CUSTODY--180 days in felony cases; 60 days in misdemeanor cases.

63

When does D's lack of mental capacity prevent criminal prosecutions from proceeding?

A criminal prosecution MAY NOT PROCEED when as a result of mental disease or efect defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. 1. Defect is not restricted to mental conditions; may also include phys incapacitation. Need RATIONAL AND FACTUAL understanding of the proceedings against him.

64

When may mental incapacity be raised?

Incapacity to proceed may be raised at any time by defense, prosecution, or court. When raised, all proceedings halt until the issue is resolved. Court will order a mental examination; appoints sanity commission of two to three physiciana.; sanity comission report files report with court and parties; D has a right to exam by her own physiciana.

65

How is defendant's mental capacity determined?

Court will hold a contradictory hearing; report of comission admissible and comission members are subject to cross-examination. Burden of proof is on defendant to prove mental incapacity. If D is found incapable, D is committed; lenthgh of commitment SHALL NOT exceed the maximum length of possible sentence. If found capable, prosecution resumes. If D REGAINS capacity, court holds another contradictory hearing; D may have capacity solely by virtue of medication.

66

What happens with D pleads exculpatory insanity?

1. Similar procedures as raising mental incapacity. 2. Issue is tried to JURY. 3. Defendant has burden of proving insanity by PREPONDERANCE of the evidence; If not found guilty, D comitted to state/private mental institution in capital case; in other felony cases, court must hold commitment proceeding in whcih D has burden of showing that D may be released without dange to others/himself/herself. Auth of hospitalization when persion is not mentally ill violates due process.

67

When shall a judge be recused?

1. Is biased/prejudiced/personally interested in a case to the extent that she would be unable to conduct a fair trial; 2. Related closely to accused/victim/defense cousnel/DA; 3. Material witness; 4. Was involved in case as attorney/associated with an attorney involved in the case. A jusdge may recuse himself even if no motion has been filed.

68

When shall a district attorney be recused?

1. Has a personal stake in case; 2. Related to the defendant or victim; 3. Been employed or consulted in the case as attorney for defendant. Note: File a MOTION to DISQUALIFY.

69

When may a DA dismiss a prosecution?

A DA has discretion to dismiss a count of indictment/indictment; does not need consent of court. Dismissal is NOT a bar to subsequent proseuction EXCEPT when a dismisaal entered without defendant's consent after jeopardy attaches at trial.

70

What are the requirements for a motion for continuance?

Must be in writing; state grounds specifically for which it is sought; and filed at least SEVEN days vefore trial unless good cause shown.

71

What discovery is defendant entitled to? (Statements)

Upon motion by D, the court shall order the DA to: 1. Allow D to inspect/copy any written or recorded confession or statement including grand jury testimony of the D which is in possession/custody/control or knowledge of the DA; 2. Informat D as to EXISTENCE but not contents of an ORAL statemnet of D which DA intends to offer into evidence AND when/where/and to whom made; 3 To inform D on the substance of any oral statement which state intends to offer into evidence made by D to law enforcement officer.

72

What other categories of items is D entitled to?

1. D's criminal records; 2. Documents and tangible office favorable to D; intended by state for use in trial; were obtained to belong to defendant; 3. Reports of examinations and tests; 4. Evidence of other crimes; 5. Hearsay statements of co-conspirators; 6. COnfessiosn and inculpatory statements of co-defendants; 7. Initial Police report. NOTE: State MUST produce exculpatory evidence even though not intended for use at trial.

73

What discovery is D not entitled to?

1. Works product porduced by DA/State; 2. Statements made by witnesses/prospective witnesses to DA or agents of the state; 3. May not be able to get names/addresses of state witnesses.

74

What is the Brady rule?

As a matter of fundamental due process, the state must make exculpatory material avaialbe whether D asks for it specifically, generally, or not at all. 2. Failure of state to provide exculpatory material DOES NOT result in reversal UNLESS it was: 1. Material to guilty or penalty; 2. Non-cumulative; and 3. MOST IMPORTANTLY, it could have affected the verdict.

75

When must Defendant give notice that he intendes to use alibi or mental conditiona s defenses at trial?

1. Notice must be given at least ten days before trial; 2. In the case of alibi, D must within TEN DAYS notify DA of his intent to offer defense of alibi, and notice must contain time/place/names/addresses of witnesses. Within 10 days, DA must inform D of rebuttal witnesses. Failure to comply may result in exclusion of wintesses' testimony.

76

Can defendant waive her opening statement?

Yes. Note: Prosecutor cannot refer to defendant's confession in opening statement UNLESS statement previously ruled admissible in the case. Also, unless D has been granted discovery, state must notify D of intent to introduce confession or inculpatory statement PRIOR to making opening statement. Failure to do so renders such confession inadmissible.

77

Does the D has a right to impeach rebuttal witnesses?

Yes, right to confraont and cross-examine adverse witnesses, etc. means D must be permitted to offer evidence to impeach the credibility of the state's rebuttal witness. Note: Jurors must generally rely on their memoery; can take nots if DA and D agree in open court not in the presence of the jury.

78

When can a mistrial be ordered?

Upon motion of the defendant, a mistrial SHALL be ordered when: 1. Comment made within hearing of jury by judge, etc. during trial or argument referring directly or indicrectly to: RACE, religion, national origin if the comment is not material or relevant AND might cause prejudice; ANOTHER crime committed by D which is NOT admissible; FAILURE of D to testify on his own behalf; REFUSAL of the judge to direct a verdict. Note: ADMONITION alone is insufficient unless D consents. Appellate court will review for harmless error.

79

May a judge comment on the facts in Louisiana?

No. This includes recapitulating evidence; repeating testimony; or giving an opinion of what has been proved except where such is necessary in ruling on a motion. Note: counsels' arguments must be confined to evidence; should not appeal to prejudice.

80

What are the other grounds for a mistrial?

1. When D consents; 2. Hung jury; 3. Legal defect which would make verdict reversible as a matter of law; 4. Lack of mental capacity of D to proceed; 5. Phys impossible to proceed; 6. False statements of a juror on voir dire prevent a fair trial. NOTE: Upon motion of D, a mistrial shall be ordered when prejudicial conduct makes it impossible for D to obtain a fair trial or when state/D jointly move for mistrial.

81

When may a D move for a directed verdict?

1. JURY: LA does not allow for a DV in jury trials; 2. NON-JURY: D may move for a judgment of acquittal after close of state's evidence.

82

What are the jury requirements for each type of case?

1. CAPITAL CASES: 12 person jury; unanimity required; 2. FELONY--punishable at hard labor: 12 person jury, 10 jurors must concur; 3. RELATIVE FELONY--may be punishable at har labor--6-person jury/unanimity required; 4. MISDEMEANOR, fine in excess of $1k or Imprisonment for more than six months--six-person jury, unanimity required.

83

What jury rules govern joined misdemeanors?

When misdemeanors are joined: 1. Potential cumulative penalty determines whether or not D is entitled to jury tial; 2. By statute, when misdemeanors are joined together in one charging indictment, the maximum penalty cannot exceed six months or $1k. This only applies where the state has joined the offenses (so, always tried by judge, never by jury).

84

When may defendant waive the right ot jury trial?

EXCEPT in capital cases, D may knowingly and intelligently waive a jury trial; D must be advised of right. Time limit for filing waiver is within 15 days of arraignment, same as other prelim motions. D can withdraw waiver unless it would interfer with admin of justice/delay proceedings.

85

When can parties challenge prospective jurors?

1. Challenge FOR CAUSE cannot be made after party accepts juror unless ground for challenge previously unknown; 2. Must be made before indictment read to jury; 3. PEREMPTORY challenge must be made before jury is sworn, and may be made any time prior thereto, even as to jurors previously "accepted." Challenges may also be made in side bar conference.

86

What are the reaons a party may make a challenge for cause?

1. Lacks qualification required by law; 2. Not impartial; 3. Relationship between juror/D/counsel; 4. Will not accept the law as given to him by the court--e.g., DP; 5. Juror served on grand jury/prior petit jury that previously heard the case. Fact that person served as juror in a SIMILAR case is NOT a basis for challenge for cause. Note: state had additional grounds for cause, e.g., will not convict on circ evidence. Note1: Defendant whose challenge for cause is denied must object at that time to court's ruling.

87

How many peremptory challenges does each side receive?

1. CAPITAL CASE/FELONIES: Twelve for EACH defendant; same number for state; 2. All other cases--six for EACH defendant, same for state.

88

At what stages in the presence of the D required?

1. In FELONY cases, D shall be present at all significant stages of the prosecution including: ARRIAGNMENT/PLEA/JURY PROCESS/TRIAL/SENTENCE. 2. If D is present for comemncement of the trial, trial may proceed in D's absence via waiver, if D cousnel is present or D's right to cousnel is waived. 3. D's presence is not necessary at prelim motions; motions during trial heard in absence of jury; post-conviction motions. 2. In MISDEMEANOR cases, it is permissible for proceeding to be conducted without D if represented by counsel.

89

What are D's rights to present a defense?

D has the RIGHT to present a defense which includes: 1. Right to subpoena and call witnesses on her behalf; 2. Right to testify himself/herself. 3. Constitutional right to call witnesses is implemented by giving D a right to compulsory process; he right to subpoena witnesses at her own expense. 1. At state exepnse, D may subpoence 16 witnesses in felony case; six witnesses in misdemanor case.

90

What is the interaction between sentencing and the LA Sentencing Guidelines?

1. By statute, Louisiana has establishd guideliens to be used by judges in imposing sentences. Trial judge has COMPLETE discretion to rejcet/impose any setnece within the statutory range. 2. Guidelines are NOT mandatory, however, courts have been directed by the legislature to consider them when determining the appropriate sentencing to be imposed. Record must reflect consideration. NOTE: Sex offenders/child predators must register with the sheriff of the parish in which they reside.

91

When may a D make a motion for a new trial?

Motion for a new trial is predicated on the supposition that an injustice has been done to D. Motion must be filed BEFORE sentencing; sentence may not be imposed until at least three days have elapsed BEFORE conviction.

92

When will a court grant motion for a new trial?

1. Verdict is contrary to law/evidence; 2. Court's ruling on written motion/objection made during proceedings shows prejudicial error; 3. Newly discovered evidence that is material/prolly changed verdict becomes available; 4. Discovery of prej error not previously discoverable; 5. Ends of justice.

93

When may a defendant move for post-verdict judgment of acquittal?

1. Before sentencing. Sentence may not be imposed until at least three days have elapsed after conviction. 2. Trial court should grant, if, viewing the evidence most favorably to the state, it finds that evidence does not reasonably permit a finding of guilty. Note: Reviewing/app coourt can set aside a verdict if NO REAS JURY could have found guilt beyond a reas doubt.

94

When may a defendant move for a motion in arrest of judgment?

Defendant may move for arrest of judgment BEFORE sentencing. Sentence may NOT be imposed until at least THREE days have elapsed after conviction. (Post-trial motion to quash). Court shall grant when: 1. Indictment is substantially defective in that an essential avertment is ommitted; 2. Offense charged is not punishable under a valid statute; 3. COurt is without SMJ; Double jeoprary. Note: if judgment is arrested, NEW proceedings may be commenced if legally permissible under the circ.

95

When may a motion move to reconsider sentence?

D may file motion to reconsider sentence within 30 days of sentencing in felony cases. In misdemeanors, any time following commencement of sentence. Motion may be oral if at time of sentencing; otherwise must be in writing. Note: failure to file motion/include specific grounds including excessivenes BARS D or state on appeal from challenging sentence or raising ground not raised in motion. May appeal on ground raised in motion.

96

How long does D have to appeal?

Appellant has THIRTY days from rendition of judgment or ruling on motion to reconsider sentence in which to make an oral or written motion for an appeal. Only a final judgment or ruling is appealable. Note: in cases where there is not right to appeal, D may seek review by way or writ of review. This is a discretionary form of review. Standard of review--insufficient to support conviction, D must be discharged.

97

When does judgment become final on appeal?

After disposition of appeal, a party has 14 days to move for a rehearing. Judgment becomes final IF 14 days has elapsed and NO application for a REHEARING has been filed or when the application is denied.

98

When can persons obtain post-conviction relief?

Relief is available when ALL other forms of review are not available and ONLY applies to persons in custody. Intended as a substitute for habeas corpus. Note: Must be filed NOT more than two years after judgment of coniviction has become final, unless--facts not known to petitioner; based on retractive rule fo con law; person asserting claim under death penalty. State may raise procedural objections before responding to merits. Note: availability of this relief has reduced use of habeas corpus.

99

What are the limitations on compensation for wrongful imprisonment?

1. Factually innocent convicts--right to seek up to $150,00 from Innocence Compensation Fund (15k per year); can seek up to $40k for loss of life opportunities.