FL Criminal Procedure Flashcards
(109 cards)
1
Q
T/F: You always have the right to representation by an attorney in a criminal proceeding.
A
True: You always have the right to representation by an attorney in a criminal proceeding.
2
Q
If the defendant is __________ (i.e., extremely poor), the state is required to provide __________ _________(a public defender). This includes ___________.
A
If the defendant is INDIGENT (i.e., extremely poor), the state is required to provide FREE COUNSEL (a public defender). This includes MISDEMEANORS.
3
Q
In what 3 situations is the state not required to provide counsel?
A
The state does not need to provide counsel if:
- The defendant is not indigent,
- The violation is not punishable by incarceration, OR
- The violation is:
a) A misdemeanor or ordinance violation, AND
b) The judge certifies in writing, at least 15 days before trial, that the defendant will not be incarcerated if convicted.
4
Q
A defendant may waive the right to counsel, if the waiver is made how?
A
A defendant may waive the right to counsel, if the waiver is made:
- Knowingly
- Intelligently, and
- Voluntarily
5
Q
When defendant wants to waive the right to counsel, what must the court inquire into?
A
The defendant must understand the right she is giving up, and the court must inquire as to her mental condition, age, experience, etc.
6
Q
Can a severely mentally ill defendant waive the right to counsel?
A
A defendant who is severely mentally ill probably cannot waive the right to counsel.
7
Q
Name the 4 ways a defendant can be compelled to appear in court
A
- Arrest warrant
- summons
- Notice to appear
- Capias
8
Q
Who can issue an arrest warrant and for what crimes?
A
Arrest warrant: Any state or county judge may issue an arrest warrant for a felony or misdemeanor.
9
Q
Who can issue a summons and for what crimes?
A
Summons: The clerk of the court can issue a summons instead of an arrest warrant, for misdemeanors only.
10
Q
Who can issue a notice to appear and for what crimes?
A
Notice to appear: A police officer can issue a notice to appear instead of arresting the defendant, for misdemeanors and ordinance violations.
11
Q
Who can issue a capias and when?
A
Capias: A judge can issue a capias (bench warrant) if a defendant fails to appear in court as required.
Judges can also issue a capias when formal charges are filed by information or indictment, and the defendant is at large (not in custody or on bail).
12
Q
What is the time limit to bring a defendant before a judge for a first appearance?
A
Every arrested person must be taken before a judicial officer within 24 hours.
13
Q
In what formats can a first appearance be held?
A
The appearance can be in person or by electronic device.
14
Q
Who must be given notice of the first appearance hearing and who must attend?
A
The public defender and state attorney must be given notice of the hearing and they must attend (unless the defendant has private counsel).
15
Q
T/F: An official record of the first appearance proceedings must be made.
A
True: An official record of the proceedings must be made.
16
Q
What is the purpose of the first appearance?
A
Purpose of this event: To inform defendant of the charges and advise her of her rights.
17
Q
At the first appearance, the judicial officer must advise the defendant of the ______________________ against her and provide a _________ of the charges.
A
At the first appearance, the judicial officer must advise the defendant of the CHARGES against her and provide a COPY of the charges.
18
Q
At the first appearance, the judge must also advise the defendant of what 3 rights?
A
The judge must also advise her of her right:
- To remain silent, and that anything said may be used against her;
- To counsel of choice, or appointment of counsel if indigent AND;
- To communicate with counsel, her family, or her friends, and that the means will be provided for her to do so.
19
Q
After the first appearance, the judge may release the defendant on their own ____________ (“ROR”).
A
After the first appearance, the judge may release the defendant on their own RECOGNIZANCE (“ROR”).
20
Q
All defendants are presumptively eligible for ROR, unless?
A
All defendants are presumptively eligible for ROR, unless:
(1) The defendant is charged with a capital offense (punishable “life” or death), or a life offense (punishable by life in prison) AND the proof of guilt is evident or presumption of guilt is great OR
(2) No conditions of release can assure defendant’s appearance, community safety, or judicial integrity.
21
Q
Notwithstanding the rules regarding the right to pretrial release, the court may also retain custody of the defendant in what 7 situations?
A
Notwithstanding those rules, the court may also retain custody of the defendant if:
- The defendant has previously violated conditions of release;
- The defendant has threatened, intimidated, or injured a victim, potential witness, juror or judicial officer;
- The defendant is charged with trafficking in controlled substances;
- The defendant poses a threat of harm to the community;
- The defendant is charged with DUI manslaughter;
- The defendant was on probation, or other release pending completion of sentence; OR
- The defendant has violated a condition of pretrial release.
22
Q
If the defendant remains in custody, the court must determine whether probable cause exists within _______ hours. This process is ___________.
A
If the defendant remains in custody, the court must determine whether probable cause exists within 48 hours. This process is NONADVERSARIAL.
23
Q
The nonadversarial probable cause determination is unnecessary when?
A
If the defendant was arrested pursuant to an arrest warrant, the court has already determined that probable cause exists, and no hearing is necessary.
If the court established probable cause at the first appearance, this hearing is also unnecessary
24
Q
How many extensions may the state obtain for the nonadversarial probable cause determination and for what reason?
A
The state may obtain two 24 hour extensions for good cause.
25
What is the purpose of the nonadversarial probable cause determination?
Purpose of this event: To determine if we can keep the defendant in jail pending trial.
26
If defendant is on pretrial release, but has significant _____________ on his liberty, he may request a probable cause determination within _______ days.
The court must then make a determination within ___ days, or ___________.
If defendant is on pretrial release, but has significant RESTRAINTS on his liberty, he may request a probable cause determination within 21 days.
The court must then make a determination within 7 days, or REMOVE THE RESTRAINTS.
27
If the court determines that there is no probable cause, the defendant will be ________. However, this does not bar ___________ or ______________. The only thing determined at this stage is whether the state has probable cause to _____________ the defendant’s liberty (in or out of custody).
If the court determines that there is no probable cause, the defendant will be RELEASED. However, this does not bar PROSECUTION or RE-ARREST. The only thing determined at this stage is whether the state has probable cause to RESTRICT the defendant’s liberty (in or out of custody).
28
Even if a defendant is released because of no probable cause, if _______ __________ is obtained, the state can re-arrest.
Even without new evidence, ___________ can continue. The state just can’t keep the defendant in _______________ pending trial.
Even if a defendant is released because of no probable cause, if NEW EVIDENCE is obtained, the state can re-arrest.
Even without new evidence, PROSECUTION can continue. The state just can’t keep the defendant in CUSTODY pending trial.
29
If a ___________ defendant has not been charged with a crime within _____ days, she has the right to an adversarial preliminary hearing.
If a FELONY defendant has not been charged with a crime within 21 days, she has the right to an adversarial preliminary hearing.
30
What is the purpose of an adversarial preliminary hearing? Who may be summoned at this hearing?
The purpose of this hearing is to determine whether there is probable cause to support felony charges and continued detention. Witnesses may be summoned and examined.
31
T/F: The court will allow the state to keep a defendant in custody indefinitely without formal charges.
False: The court will NOT allow the state to keep a defendant in custody indefinitely without formal charges.
32
If the defendant is in custody, the state has ______ days from _____________ to charge her with a crime.
If the defendant is in custody, the state has 30 days from ARREST to charge her with a crime.
33
If the state hasn’t filed charges on the 30th day, the court must release the defendant by the _______ day. The court must __________ the state of this deadline.
If the state shows good cause for the delay, this period can be extended up to _________ days.
By the 40th day, the state must _______ _________ the defendant with a crime. Otherwise the defendant will be released – ____ extensions.
If the state hasn’t filed charges on the 30th day, the court must release the defendant by the 33rd day. The court must NOTIFY the state of this deadline.
If the state shows good cause for the delay, this period can be extended up to 40 days.
By the 40th day, the state must FORMALLY CHARGE the defendant with a crime. Otherwise the defendant will be released – NO extensions.
34
Name the 2 ways a defendant can be formally charged with a crime
By indictment and by information
35
Who is an indictment returned by? What is it allowed for? What is it required for?
Indictment:
Returned by: grand jury
Allowed for: Any crime
Required for: Capital crimes
36
Who is an information filed by? What is it allowed for? What is it required for?
Information:
Filed by: state attorney
Allowed for: Any non-capital crime
Required for: none. All crimes that can be charged by information can also be charged by indictment (but not vice versa).
Note: Misdemeanors and ordinance violations can also be prosecuted by affidavit, docket entry, or notice to appear.
37
The charging document must be sufficiently clear to enable the defendant to what?
The charging document must be sufficiently clear to enable the defendant to understand the charges.
38
What must the charging document contain?
It must contain the following:
1. Nature: A plain, concise, definite written statements of the facts constituting the offense.
2. Caption: No formal caption is required (e.g., State v. Johnson).
3. Authority: A statement that prosecution is brought by the state of Florida, whether the charge is brought by grand jury or the state attorney, and the date of filing.
4. Allegation of Facts: Citation of Law Involved: Each count must allege the essential facts and recite the law violated.
5. Information About the Accused: Name, race, gender, and birthdate, when known. Fictitious names or descriptions are acceptable.
6. Time and Place: Statement of time and place, as definitely as possible.
7. Intent to Defraud: If the defendant is charged with fraud.
8. No Incorporation by Reference Not Permitted: Each charging instrument must stand on its own. The instrument cannot incorporate other instruments or documents by reference.
9. Indictment: Endorsement and Signature: The signature of the foreman of grand jury and endorsement by the state of attorney.
10. Information: Signature and Oath: The state attorney must sign under oath, stating good faith. If the information charges a felony, the state attorney must certify that he has received testimony under oath from at least one material witness.
39
Defects in the indictment or information are not grounds to dismiss a charge, UNLESS what?
Defects in the indictment or information are not grounds to dismiss a charge, UNLESS:
1. The count is so vague, indistinct, and indefinite as to mislead the defendant and embarrass him in the preparation of his defense, OR
2. It is so vague that it exposes him to a risk of prosecution for the same offense after acquittal.
40
The defendant makes his response to the charges at __________.
The defendant makes his response to the charges at ARRAIGNMENT.
41
What 3 response options are there for entry of plea?
Guilty
Not guilty
Nolo Contendere (no contest)
42
What happens if the defendant stands mute at arraignment?
The court automatically enters a not guilty plea.
43
The defendant must be _________ in court to enter a plea of guilty or no contest. The defendant may enter a plea of not guilty in ________, through his attorney (or make a not guilty plea in person).
The defendant must be PRESENT in court to enter a plea of guilty or no contest. The defendant may enter a plea of not guilty in WRITING, through his attorney (or make a not guilty plea in person).
44
Not guilty plea: Raises ________ defenses
Not guilty plea: Raises FACUTAL defenses
45
Pretrial Motion to dismiss: Raises _______ defenses:
Pretrial Motion to dismiss: Raises LEGAL defenses:
46
A pretrial motion to dismiss must be filed when?
A motion to dismiss must be filed at arraignment, or before.
47
What defense motions may be filed at any time?
These defense motions may be filed at any time:
1. Defendant had been pardoned for the offense charged;
2. Defendant previously had been placed in jeopardy for the same offense
3. Defendant had been granted immunity; OR
4. That no facts are in dispute, and the facts do not constitute a prima facie case of guilt.
48
The grounds to disqualify a judge are the ____________ in civil or criminal cases.
The grounds to disqualify a judge are the SAME in civil or criminal cases.
49
Name the four grounds to disqualify a judge?
Either side may file a motion to disqualify the judge on grounds that:
1. The judge is prejudiced for or against a party;
2. The judge is related to the defendant within the third degree;
3. The judge is related within the third degree to any lawyer in the case or to any judge who participated as a lower court judge in a decision to be reviewed by the judge; or
4. The judge is a material witness in the case.
50
The second judge is harder to disqualify. The second judge must _______________ that she is prejudiced.
The second judge is harder to disqualify. The second judge must ADMIT that she is prejudiced.
51
Defendants often enter into “plea agreements” where they agree to admit _________ in exchange for a __________. The ______ may impose conditions upon the plea.
Defendants often enter into “plea agreements” where they agree to admit GUILT in exchange for a REDUCED SENTENCE. The STATE may impose conditions upon the plea.
52
Conditions imposed upon plea agreements are only enforceable if they are made ________ of the plea and entered into the record in ____________.
Conditions imposed upon plea agreements are only enforceable if they are made PART of the plea and entered into the record in OPEN COURT.
53
When may a defendant file a demand for speedy trial?
A defendant may file a demand for “speedy trial” at any time after formal charges are filed.
54
What does a demand for a speedy trial signify?
The demand signifies that the defendant is available and will be prepared for trial within 5 days.
55
How many days does the state have after the demand is filed to bring the defendant to trial? What happens if the state fails to do so?
The state then has 50 days after the demand to bring the defendant to trial. If the state fails to bring a trial, the case can be dismissed, with jeopardy attached.
56
When does trial begin?
When the jury venire is sworn for jury selection. Not when the actual jury is sworn for trial!
57
Can you withdraw a demand for speedy trial?
Once the demand is entered, it is locked in. A speedy trial demand can only be withdrawn for good cause OR with consent of the prosecution.
58
When should the trial begin for misdemeanors with & without a demand?
Misdemeanors:
No demand for speedy trial: 90 days from arrest
Demand for speedy trial: 50 days from demand
59
When should the trial begin for felonies with & without a demand?
Felony:
No demand for speedy trial: 175 days from arrest
Demand for speedy trial: 50 days from demand
60
When should the trial begin for any retrial with & without a demand?
Any retrial:
No demand: 90 days from order for a new trial/mistrail
Demand for speedy trial: 50 days from demand
61
If the state fails to meet the deadline (50, 90, or 175 days), the defendant can file a ______________________ of __________ of speedy trial time.
The court then must hold a hearing on the motion within _____ days, to hear any excuses from the state.
If the state cannot show good cause for the delay, the defendant must be tried within ______ days.
If the defendant is not tried within 10 days, __________ attaches, the charges are ___________ , and the case is forever barred.
If the state fails to meet the deadline (50, 90, or 175 days), the defendant can file a NOTICE of EXPIRATION of speedy trial time.
The court then must hold a hearing on the motion within 5 days, to hear any excuses from the state.
If the state cannot show good cause for the delay, the defendant must be tried within 10 days.
If the defendant is not tried within 10 days, JEOPARDY attaches, the charges are DISMISSED, and the case is forever barred.
62
When the deadline to bring defendant to trial expires, the state has a maximum of ______ days to bring the defendant to trial.
The Florida Supreme Court has held that violation of the 5 day or 10 day deadlines are “harmless” as long as the defendant is brought to trial within _____ days.
When the deadline expires, the state has a maximum of 15 days to bring the defendant to trial.
5 days for the hearing on the motion PLUS 10 days to commence trial.
The Florida Supreme Court has held that violation of the 5 day or 10 day deadlines are “harmless” as long as the defendant is brought to trial within 15 days. (State v. Salzero)
63
A case will not be barred upon expiration of the speedy trial time in what 4 circumstances?
A case will not be barred upon expiration of the speedy trial time if:
1. A valid extension has been granted and has not expired,
2. The failure to hold the trial is due to the defendant, a co-defendant, or their counsel,
3. The defendant or his counsel was unavailable for a proceeding where their presence was required by the rules, or
4. The demand for a speedy trial was invalid.
64
If there were exceptional circumstances that were not forseeable, the court may waive or extend the time for speedy trial before expiration in what 6 circumstances?
If there were exceptional circumstances that were not forseeable, the court may waive or extend the time for speedy trial before expiration:
1. Unexpected unavailability of a necessary witness,
2. Unusual complexity of the case that makes timely preparation unreasonable,
3. Evidence currently unavailable that will become available,
4. Unexpected developments necessitating delay,
5. Accommodation of a co-defendant, or
6. Where defendant has caused major delay or disruption.
65
Even without exceptional circumstances, the deadline for speedy trial can be extended if the prosecution ____________________ or by order of the chief justice of the Florida supreme court. General congestion of the court calendar is ___ an excuse for delay.
Even without exceptional circumstances, the deadline for speedy trial can be extended if the prosecution CONSENTS or by order of the chief justice of the Florida supreme court. General congestion of the court calendar is NOT an excuse for delay.
66
Insanity is an ___________defense to a crime:
1. At the time of the ______________________, the defendant did not know what he was doing or its consequences, or
2. The defendant knew what he was doing and the consequences, but did not know it was ______________.
Insanity is an AFFIRMATIVE defense to a crime:
1. At the time of the INCIDENT, the defendant did not know what he was doing or its consequences, or
2. The defendant knew what he was doing and the consequences, but did not know it was WRONG.
67
The defendant has the burden of proving his insanity by _________________ evidence.
The defendant has the burden of proving his insanity by CLEAR AND CONVINCING evidence.
68
If the defense intends to rely on the insanity defense, notice must be filed within _______ days of arraignment (if possible).
If the defense intends to rely on the insanity defense, notice must be filed within 15 days of arraignment (if possible).
69
If the defendant is acquitted by reason of insanity, the court may do what?
If the defendant is acquitted by reason of insanity, the court may order hospitalization, treatment, or complete discharge.
70
Incompetency means that the defendant does not understand what?
Incompetency means that the defendant does not understand the nature of the trial proceedings.
71
An incompetent person can be tried, but he cannot be ____________
An incompetent person can be tried, but he cannot be PUNISHED
72
To be competent to stand for trial, a defendant must be able to ______________________ with his lawyer and understand the proceedings against him
To be competent to stand for trial, a defendant must be able to CONSULT with his lawyer and understand the proceedings against him
73
What can the court order for an incompetent defendant and for how long? What if the court determines the defendant cannot be made competent?
The court may order examinations, and involuntary treatments for Up to 5 years for felonies, or 1 year for misdemeanors
If the court determines that the defendant cannot be made competent and that he cannot be involuntarily committed, the charges must be dropped without prejudice.
74
What does an alibi allege?
An alibi alleges that the defendant could not have been responsible, because she was somewhere else at the time
75
If the defendant raises an alibi as a defense, the prosecutor can demand ______________________.
If the defendant raises an alibi as a defense, the prosecutor can demand NOTICE.
76
If the prosecutor demands notice for an alibi defense, what must a defendant do? what must be included in the response?
The defendant must answer with details about the alibi, at least 10 days prior to trial (or at another time directed by the court).
The answer must state:
1. Where the defendant was at the time of the crime, and
2. The names and addresses of any witnesses he may offer to prove the alibi.
77
After a defendant answers about his alibi defense, the state then has ____ days in which to notify the defense of its rebuttal witnesses and their addresses.
After a defendant answers about his alibi defense, the state then has 5 days in which to notify the defense of its rebuttal witnesses and their addresses.
78
If the state did not have proper notice of an alibi witness, the court can ______________________ the witness from testifying.
If the state did not have proper notice of an alibi witness, the court can PREVENT the witness from testifying.
79
T/F: The duties in regard to an alibi defense duties are continuing duties until the time of trial.
True: These duties are continuing duties until the time of trial.
80
Defendants are ________ permitted to be present at depositions, unless the parties stipulate or for good cause
Defendants are NOT permitted to be present at depositions, unless the parties stipulate or for good cause
81
T/F: Upon stipulation and consent of the witness, statements may be taken by a recorded telephone conversation instead of deposition, and in such cases, the witness need not be under oath.
TRUE: Upon stipulation and consent of the witness, statements may be taken by a recorded telephone conversation instead of deposition, and in such cases, the witness need not be under oath.
82
Depositions may be used for ______________________ at trial.
Depositions may be used for IMPEACHMENT at trial.
83
Number of jurors at trial
Capital cases: ______ jurors.
All other criminal cases: ______ jurors.
Number of jurors at trial
Capital cases: 12 jurors.
All other criminal cases: 6 jurors.
84
What is a challenge for cause? How many do you get?
Cause: Each side has the right to disqualify any potential juror for cause.
Examples: legal or factual incompetence, relationship to the case, prejudice, etc.
Both sides have unlimited challenges for cause.
85
What is a peremptory challenge? For what basis can you not use these for?
Peremptory: Each side also has the right to disqualify a certain number of potential jurors, without giving a reason.
Example: “He looks like he wasn’t paying attention.”
Peremptory challenges cannot be used on the basis of race, sex, or any classification subject to strict scrutiny.
86
Limits on peremptory challenges
Capital cases: each side gets _____
All other felonies: each side gets _____
Misdemeanors: each side gets _____
Multiple defendants: What does each defendant get? what does the prosecution get?
Limits on peremptory challenges
Capital cases: each side gets 10
All other felonies: each side gets 6
Misdemeanors: each side gets 3
Multiple defendants: Each defendant gets the allocated number and the prosecution gets the sum total of peremptories granted to defendants. We must have the same number of strikes on each side of the "v."
87
The court may permit the selection of one or more ___________ jurors.
The court may permit the selection of one or more ALTERNATE jurors.
88
All alternate jurors are discharged _______________ the jury deliberates (unless they replace a juror who cannot continue).
All alternate jurors are discharged BEFORE the jury deliberates (unless they replace a juror who cannot continue).
89
In _______________ cases, alternate jurors are excused at the end of trial, with instructions to remain seated in the courtroom momentarily while the jury retires for deliberation.
After the jury is out of the courtroom, the alternates are given additional instructions that they may have to _______________ for an another hearing should the defendant be convicted of a capital offense. The alternates are then excused.
In CAPITAL cases, alternate jurors are excused at the end of trial, with instructions to remain seated in the courtroom momentarily while the jury retires for deliberation.
After the jury is out of the courtroom, the alternates are given additional instructions that they may have to RETURN for an another hearing should the defendant be convicted of a capital offense. The alternates are then excused.
90
Waiver of jury (Judge acts as factfinder): If the defendant wishes to waive the right to a jury, he must do so in _______________ and the state must _______________.
Waiver of jury (Judge acts as factfinder): If the defendant wishes to waive the right to a jury, he must do so in WRITING and the state must CONSENT.
91
Waiver of complete jury: In rare instances, the jury can deliberate with less than the full amount of jurors, if there is less than the required amount and no alternate.
The defendant can decide to proceed with the incomplete jury, if what?
Does the state need to consent?
What if the defendant refuses to proceed?
Waiver of complete jury: In rare instances, the jury can deliberate with less than the full amount of jurors, if there is less than the required amount and no alternate.
The defendant can decide to proceed with the incomplete jury, if the waiver is knowing, intelligent, voluntary and on the record.
The state does not need to consent to this and it does not need to be in writing.
If the defendant refuses to proceed or cannot make a waiver, the court will declare a mistrial.
92
What is Witness sequestration? What do we call this in court?
Witnesses are not allowed in the courtroom to hear the testimony of other witnesses. We are afraid it will contaminate their recollection.
We call this invoking “the rule”.
93
The witness may remain in the courtroom and hear other testimony of the witnesses in what 3 circumstances? Can the court still exclude in these circumstances?
The witness may remain in the courtroom and hear other testimony if the witness is:
1. The victim,
2. The victim’s next of kin, or
3. The parent, guardian, or lawful representative of a minor child victim.
If the state makes a motion and the court determines that their presence is prejudicial, the court can exclude the victim, parents, etc.
94
View by jury: The jury may be taken to a _________ to view a scene that is relevant to the crime.
Who must be present at the viewing?
View by jury: The jury may be taken to a LOCATION to view a scene that is relevant to the crime.
The judge and the defendant must be present at the viewing (unless the defendant is excused by the court).
The attorneys may be present, but are not required.
95
The trial judge must instruct the jury on the ___________ of the case. Instructions may be given ______ or _________ closing arguments.
The judge can also provide appropriate instructions _________the trial.
The trial judge must instruct the jury on the LAW of the case. Instructions may be given BEFORE or AFTER closing arguments.
The judge can also provide appropriate instructions DURING the trial.
96
The court must provide the jury a _______________ copy of the jury instructions to take to the jury room during deliberation.
The court must also provide the jury a WRITTEN copy of the jury instructions to take to the jury room during deliberation.
97
The judge may also permit the jurors to take what into the jury room?
The judge may also permit the jurors to take the following materials into the jury room:
A copy of the formal charging instrument(s);
Any materials in evidence (except depositions);
Juror notebooks; and
Verdict forms approved by the court.
98
What can the jury not hear when they retire to deliberate? What can they rehear?
Once the jury retires to deliberate, they cannot be called back to hear additional evidence.
However, jurors can request to rehear evidence that has already been given.
99
All jury verdicts must be what?
All jury verdicts must be unanimous.
100
The court cannot ___________________ or __________ the verdict, but may thank the jurors generally for their service.
The court cannot PRAISE or CRITICIZE the verdict, but may thank the jurors generally for their service.
101
If there are multiple defendants, what must the verdict indicate as to each? How can jurors decide for each defendant?
If there are multiple defendants, the verdict must indicate how it applies to each individual. Jurors may convict or acquit one defendant, while remaining hung as to any other.
102
What is Polling the jury? When must it take place?
```
Either side (or the judge) may ask the jurors to individually confirm that they agree with the verdict. If there is dissent, the jury is sent back for further deliberation.
Polling must take place before the verdict is recorded or the jury has been discharged.
```
103
Who can interview jurors? When must a party move to do this?
Either party may move to interview any number of jurors after the trial, if he has reason to believe the verdict may be subject to challenge.
The party must make the motion within 10 days after the verdict (unless extended for good cause).
104
What is a Presentencing investigative report (PSI)? When must the court obtain this report? When is it not required?
In some circumstances, the court is required to obtain a report about the defendant’s life circumstances, before imposing a jail sentence:
1. A defendant charged with their first felony; or
2. A defendant who committed a crime as a minor.
If the defendant fits either of those categories, and the judge has discretion to impose a jail sentence, we must have a PSI.
If jail will not be imposed (e.g., the sentence will be probation), then no PSI is required.
105
What is a Motion for judgment of acquittal? When must this motion be made?
Motion for judgment of acquittal is the equivalent of a civil motion for a directed verdict. The judge takes the case away from the jury, because no reasonable jury could return a verdict in favor of the prosecution.
During trial: This motion must be made at the close of the state's case.
Post-trial: The defense can also make the motion after a guilty verdict or mistrial. (w/in 10 days after verdict)
106
When must a court grant a new trial?
The trial court must grant a new trial if any of the following occur:
1. The jurors decided the case by lot (i.e., at random);
2. The verdict is contrary to law or weight of the evidence; or
3. Newly discovered evidence came to light that would probably change the outcome of the case, and the defendant, with reasonable diligence, could not have discovered and produced the evidence for trial.
107
The trial court must also grant a new trial under what 8 circumstances that are shown to have prejudiced “substantial rights” of the defendant?
The trial court must also grant a new trial if any of the following occurred, but only if it prejudiced “substantial rights” of the defendant:
1. The defendant was involuntary absent when his presence was required under the rules;
2. The jury received evidence out of court;
3. The jurors separated without permission;
4. A juror is guilty of misconduct;
5. The prosecutor is guilty of misconduct;
6. The judge ruled incorrectly on the law during the trial;
7. The judge gave the jury the wrong instructions; OR
8. The defendant did not receive a fair trial, for any reason beyond his control.
108
What is a Motion in arrest of judgment? When must it be filed?
A motion in arrest of judgment is like a very tardy motion to dismiss.
Essentially, this motion says that there was a fatal procedural defect in the trial, and the verdict cannot stand.
Timeliness: The Motion in Arrest of Judgment must be filed within 10 days after the verdict (same as the Motion for Judgment of Acquittal)
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On what grounds may a motion in arrest of judgment be granted?
The motion is granted only on one or more of the following grounds:
1. Formal charging instruments is so defective that it cannot support a conviction.
2. Court lacks jurisdiction.
3. Verdict is so uncertain that it does not appear the jurors convicted the defendant of an offense under the formal charging instrument; OR
4. Verdict clearly convicts the defendant of an offense not proper under the formal charging instrument on which he was tried.
