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Board Cert 2024 > Federal Procedure > Flashcards

Federal Procedure Flashcards

1
Q

What are the three types of courts in federal court?

A

District—trial
Circuit—appeals
Supreme Court

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2
Q

What are the types of judges in federal court?

A

District court judge—article 3
Magistrate

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3
Q

Info on district judges

A

Nominated by president, confirmed by senate
Appointed for life
can’t have pay cut

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4
Q

Info on magistrates
Jurisdiction, how are they appointed, term limit?

A

Only jurisdiction by statute and delegated by district judges
Appointed by majority of district judges
Term of 8 years

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5
Q

Levels of crime in federal court

A

Felony—more than a year imprisonment
Misdemeanor—less than a year
Petty offenses—class b or c misdemeanor or infraction
Class B—less than 6 months
Class C—less than 30 days
Infraction—less than 5 days

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6
Q

How are crimes charged in federal court

A

Criminal complaint, indictment, Information

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7
Q

Where do the rights for an indictment come from?

A

5th Amendment and Rule 7–punishable by death or imprisonment of more than 1 year should be indicted by grand jury

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8
Q

How many members on a grand jury

A

16-23 members

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9
Q

How many grand jurors for a quorum

A

16

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10
Q

Qualifications for grand jury

A

US Citizen
18 Y/O
Reside in judicial district
No pending felony charges
Never convicted of felony unless rights restored

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11
Q

Secrecy of a grand jury

A

All proceedings recorded but AG keeps it
No disclosure by juror, interpreter, court reporter, AG
Punishment is contempt
Witnesses not bound by secrecy

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12
Q

What standard must a grand jury find to indict?

A

Probable cause that crime was committed and D is the person who did it

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13
Q

How many grand jurors must concur in the return?

A

12

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14
Q

How is the indictment returned?

A

In open court
To a magistrate

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15
Q

Explain forfeiture

A

Must be in indictment or information
Doesn’t need to be specific as to what or how much

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16
Q

Timing of return of an indictment

A

30 days if arrested on complaint from date of arrest or service of the summons

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17
Q

Any exceptions to timing of return of indictment?

A

No grand jury in session during 30 day period then additional 30 days may be granted
Can be waived

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18
Q

When can an Information be used in federal court

A

Misdemeanors or petty offenses—less than a year of imprisonment
Felonies if waiving indictment

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19
Q

How can a defendant waive an indictment?

A

In open court after being advised of charges and rights

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20
Q

Explain. Transfer plea and sentencing

A

Can switch to where a defendant lives if done in writing and wishes to plead guilty

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21
Q

Who must agree for transfer plea?

A

Defendant plus prosecutors in both districts

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22
Q

Which crimes have no statute of limitations in federal court

A

Capital offenses
Crimes against children
Terrorism crimes involving death or serious injury
Fugitives from justice

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23
Q

What is the statute of limitations for most federal crimes

A

5 years

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24
Q

Statute of limitations on crimes against financial institutions

A

10 years

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25
Q

Statute of limitations on theft of art work

A

20 years

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26
Q

Statute of limitations on nationality, citizenship and passports

A

10 years

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27
Q

Statute of limitations on arson

A

10 years

28
Q

Statute of limitations on tax fraud

A

6 years

29
Q

How long for initial appearance in federal court

A

“Without unnecessary delay

30
Q

What must someone charged with a felony be advised of at his initial appearance (IA)

A

Charges
Right to counsel
Right to bond hearing
Right to preliminary hearing
Right to remain silent
Right to consular notification if not US citizen

31
Q

Where does initial appearance take place

A

Where the offense was allegedly committed if arrested there
If arrest in other place, there unless in adjacent district and can occur promptly there

32
Q

What must defendant charged with a misdemeanor be advised of at initial appearance?

A

Charges
Right to counsel
Right to remain silent
Right to trial before judge or jury (unless waived or if petty offense)
Right to preliminary hearing
Right to consular if not US citizen

33
Q

What is a preliminary hearing in federal court

A

probable cause hearing

34
Q

When must a preliminary hearing happen

A

14 days of arrest if in custody
21 days if out of custody

35
Q

Who presides over preliminary hearings

A

Magistrate

36
Q

What can and cannot be done at a preliminary hearing

A

Cross examine witnesses, introduce evidence
Can’t object on 4th amendment grounds

37
Q

What happens if magistrate finds no PC at prelim hearing?

A

Magistrate must dismiss and discharge BUT gov’t can later refile

38
Q

What are the options for release in federal court

A
  1. Personal recognizance or unsecured bond
  2. Conditions
  3. Temporarily detained for conditional release violation or deportation
  4. Detained
39
Q

What is the presumption for release/detention?

A

Usually ROR unless it will not assure appearance or danger

40
Q

What happens at a bond hearing in federal court

A

Right to have counsel
Can testify, present witnesses and evidence
No admissibility rules apply

41
Q

When does a bond hearing occur

A

At initial appearance—or gov’t can ask for 3 days and Def can ask for 5 (not including weekends/holidays)
Defendant is detained for this

42
Q

What offenses have a presumption of detention?

A

Crime of violence, max is life or death, controlled substance with penalty of more than 10 years, crimes involving children

43
Q

What grounds specific to the offender can be used for pretrial detention?

A

Serious flight risk, serious risk that they will obstruct justice or threaten intimidate witness or juror

44
Q

What factors must be considered for release decisions?

A

Circumstances of offense
Weight of evidence against person
History of person
If on probation or supervision

45
Q

What’s the standard for moving for detention based on danger to the community

A

Clear and convincing that he is dangerous

46
Q

What is the standard for moving for detention based on flight risk

A

preponderance of the evidence that no conditions will ensure presence

47
Q

What constitutional rights to discovery exist?

A

ONLY Brady and Giglio

48
Q

What discovery must the government produce if requested per rule 16?

A

Any relevant statement by the defendant (oral or written) if they knew or should know it exists

Prior record

Inspect and copy any books, documents, data, photos, etc IF material to defense, gov’t intends to use it, or belonged to the defendant

Results of physical/mental exam or any scientific test

Expert witness info

49
Q

What’s not subject to disclosure

A

Grand jury transcripts

Reports, memo other internal gov’t documents, statements by witnesses

50
Q

When must a discovery conference occur?

A

14 days after arraignment

51
Q

What is Jencks Material

A

Statement by witness shall NOT be disclosed until after direct examination

52
Q

When can depositions be ordered?

A

To preserve evidence for trial in exceptional circumstances in the interest of justice

53
Q

When does a lack of jurisdiction motion have to be filed?

A

Anytime

54
Q

When must an alibi defense be disclosed

A

Within 14 days of gov’t request

55
Q

What must be disclosed for an insanity defense

A

Expert and report disclosure

56
Q

What’s required to waive a jury trial

A

Defendant must waive in writing, government consents, court approves

57
Q

Can a jury have less than 12 members?

A

Consent or 11 can return verdict without stipulation if good cause to excuse a juror

58
Q

How many peremptory challenges?

A

Capital: 20
Felony: Gov’t 6; def 10
Misdemeanor: 3
Can allow more for multiple co-defs

59
Q

How long to move for or renew JOA after verdict?

A

14 days

60
Q

When must motion for new trial be filed?

A

14 days after verdict
If appeal pending, after remand only
Newly discovered evidence: 3 years

61
Q

What must the court advise the defendant of before accepting plea?

A

-Right to plead not guilty
-right to lawyer at all stages
-Right to jury trial
-Right to confront and cross witnesses
-Waiver of these rights
-Nature of each charge
-Max penalties
-Mandatory minimums
-Forfeiture if applicable
-Courts ability for restitution
-Courts obligation for special assessment
-Courts obligations to calculate guidelines
-If agreed waiving right to appeal
-Deportation
-In perjury charge, can use any statement

62
Q

When can a plea be withdrawn and why?

A

Before accepting the plea for any reason
After but if before sentence, if court rejects it or fair and just reason for requesting it

63
Q

How to calculate time in federal cases?

A

Exclude day of event, count every day unless ends on weekend or holiday then next business day

64
Q

What is the federal rule of speedy trial?

A

70 days from filing date or IA (whichever is later)
Doesn’t include delays for things like competency or pretrial motions or joinder etc

65
Q

What’s the quickest time for a trial

A

No less than 30 days from first appearance with counsel

66
Q

At what point does the judge remind the prosecutor of Brady obligations?

A

First court date with defense attorney and prosecutor

Board Cert 2024 (8 decks)

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