Flashcards in Federal Rules of Criminal Procedure - 11 forward Deck (309)
Can D enter plea reserving right to appeal?
Yes. with Gov't consent.
What does a D need to prove to be released on bail while on appeal?
Clear & Convincing Evidence
1. D not likely to flee or pose threat;
2. Appeal raises substantial question of law or fact likely to result in reversal
Practice Note: get Gov't to concur
Is it error for a judge to fail to address D personally during plea?
1. Failure - de novo;
2. Factual - "clearly erroneous"
Is failure of CRT to advise D of min. mand. harmful?
What if judge fails to give D perjury admonishment under Rule 11?
What if judge fails to give warn of waiver of collateral attack means even if guidelines change?
Failure is plain error.
What if CRT fails to inquire as to voluntariness?
Can you modify sentence later if a plea agreement?
Yes. IF based on guidelines. So, good D lawyer, always puts on record that sentence based on guidelines, not just plea agreement
Can D withdraw plea?
Yes. 5th Cir. Factors:
1. D asserts innocence;
2. Gov't prejudiced;
3. Amount of delay in D's withdrawal;
4. Withdrawal substantially inconvenience court;
5. Full assistance of counsel;
6. Original plea voluntary and knowing
>6th Amend. right to counsel on hearing to withdraw plea
When must Rule 12 motions be filed?
What are Rule 12 motions?
1. Defect in instituting prosecution;
2. Defect in indictment (duplicity, multiplicity);
3. Motion to Suppress;
What are the notice of evidence provisions of Rule 12?
Gov't may give notice of evidence intended to use, so MTS can be held;
D may request evidence that would be available under Rule 16 so D can file MTS
Does the court have to decide pretrial motions?
Yes, unless "good cause" and court must state essential findings
D waives if not filed.
Does pretrial motion time impact Speedy Trial?
The time is not included in speedy trial calculations.
Do you need to raise venue pretrial?
No, because not an element.
What is not waived if not presented pre-trial?
1. Double Jeopardy;
5. Failure to state offense
When must D file notice of alibi?
Within 14 days after Gov't request
What must D alibi notice contain?
Witnesses (names, addresses, number)
When must Gov't file alibi witness information?
14 days after receiving D's notice:
Name, address, number of witnesses
Not victim, unless CRT says so
When does the alibi filing notice requirement expire?
Parties must update throughout trial.
What if CRT excludes alibi based on notice failure?
1. Object to exclusion on Constitutional grounds 6th mend.
2. Suggest lesser sanction;
3.Make record of prejudice
What if D has insanity defense?
D must file notice with clerk
CRT shall grant order to examine D on Gov't motion
What if D has mental condition defense?
D must notify Gov't of expert testimony
CRT may order exam of D if Gov't motion
What if mental condition notice in Capital case PUNISHMENT?
CRT must seal ordered exam until D says actually using expert in Captial (after guilt)
D must disclose expert reports and exam reports
What if exam ordered, but mental condition doesn't become an issue?
D's statements in exam are not admissible
What if D withdraws notice?
Cannot use report
What if D fails to make mental condition an issue?
Not cognizable on collateral attack
Should you use same Dr. for competency and insanity?
NO. D's statements made for insanity that's not used may come in for competency or at trial if mental health an issue.
What is the burden for an insanity defense?
CLEAR & CONVINCING Evidence
Despite 1895 case Davis
18 USC § 17 - Insanity defense