Pretrial Procedures

Question 1

What is required to charge a defendant with a crime?

Answer 1

There must be probable cause to prosecute and detain a defendant

Question 2

What are the three ways to determine probable cause?

Answer 2

• Grand Juries
  An arrest warrant has been issued by a magistrate
  Gerstein Hearing

Question 3

What do grand juries do?

Answer 3

• Issue Indictments - determine whether there is probable cause to prosecute.
• Proceedings are secret

Question 4

Fifth Amendment right to a grand jury in federal courts

Answer 4

Anyone charged with a federal felony is entitled to a grand jury pursuant to the 5th Amendment of the U.S

Question 5

Right to a Grand Jury in Michigan

Answer 5

• Michigan does not recognize grand juries.
• The right to a grand jury indictment clause is not considered binding on the states

Question 6

Can a grand jury base their indictment on evidence that is not admissible at trial?

Answer 6

Yes

Question 7

Is a witness entitled to a lawyer in the grand jury room?

Answer 7

No. At most they can have a lawyer outside the door to consult with from time to time

Question 8

Define: Gerstein hearing/Probable Cause Hearing

Answer 8

• Determines whether probably cause existed to arrest the D is necessary unless an indictment was issued by a grand jury or if an arrest warrant was issued by a magistrate
• Must be held within 48 hours of arrest

Question 9

Define: Initial Appearance

Answer 9

• When the D attends a hearing there the magistrate will advise the D of their constitutional rights, appoint counsel, set bail, and inform the D of the charges set forth in the complaint.
• This appearance occurs after a Gerstein hearing and may be combined with it.

Question 10

Bail

Answer 10

• Set to help ensure that a defendant shows up to trial
• Cannot be unduly high
• Judge must consider defendant’s individual circumstances when fixing bail (amount of evidence, ability to pay, character, ties to community)
• Decisions regarding bail are immediately appealable

Question 11

A judge may not accept a plea until they are satisfied that:

Answer 11

• the D is competent to enter into the plea and to do so voluntarily
• the D understands the nature of the charges, and
• the D understands the consequences of the plea

Question 12

When may a Defendant withdraw a guilty plea before sentencing?

Answer 12

For Any reason at all

Question 13

When may a Defendant withdraw a guilty plea after sentencing?

Answer 13

• If the D can show a fair and just reason such as:
• the plea was involuntary
• the D did not have effective assistance of counsel
• the wrong court heard the plea so there is a jurisdictional problem, or
• the prosecutor did not act as promised

Question 14

Mandatory Discovery Disclosures by Defendant

Answer 14

Notify the prosecution of any alibi defense as well as the names and addresses of any alibi witnesses and any refuting witnesses

Question 15

Mandatory Discovery Disclosures from Prosecution

Answer 15

Disclose all material evidence that is favorable to the defendant or where there is a reasonable probability it is favorable to the Defendant

Question 16

How to prove ineffective counsel

Answer 16

Defendant has burden of showing:

their lawyer’s performance was deficient and fell below an “objective standard of reasonableness”, and

there is a reasonably probability that but for the ineffective counsel, the result would have been different

Question 17

What is prosecutorial misconduct?

Answer 17

If the prosecutor makes extremely prejudicial comments without any facts to support the allegations, then the Due Process Clause may be violated

Question 18

Requirement of Judges

Answer 18

The judge must be fair so the defendant is properly afforded due process under the 14th Amendment

Question 19

Right to a Trial by Jury

Answer 19

If a defendant is charged with a crime punishable by more than 6 months in prison, they have a right to a trial by jury

Question 20

Do jury verdicts have to be unanimous?

Answer 20

Yes, as of 2020, the 6th Amendment right to an impartial jury guarantees that verdicts must be unanimous in both state and federal criminal cases

Question 21

Challenging a Juror

Answer 21

Either side may exclude jurors for cause (biased, unfair)

and

Each side may exclude 3 jurors for no reason though not due to race, ethnicity, or gender

Question 22

How to establish a prima facie showing of juror selection discrimination based on race

Answer 22

The opponent of the challenge must show:

• the D is a member of a cognizable racial group
• preemptory challenged are being exercised to exclude members of a certain racial group, and
• the circumstances raise an inferred that the exclusion was based on race

Then the peremptory challenge maker must come forward with a race-neutral explanation

Court must decide if burden was met - if was based on race the challenge must be vacated

Question 23

Role of the Jury

Answer 23

The jury decides whether every element of the crime is proved beyond a reasonable doubt

Question 24

Jury Cross-Sectional Requirement

Answer 24

• The jury pool must represent a cross-section of the community
• It does not matter if the jury itself is diverse - but the pool must be diverse

Question 25

What ensures the right to a speedy trial?

Answer 25

The 6th amendment Attaches when the D is arrested or charged

Question 26

What is the remedy for an unreasonably delayed trial?

Answer 26

Dismissal with prejudice

Question 27

What to consider when determining whether Defendant was denied the right to a speedy trial

Answer 27

* The length of the delay * the reason for the delay * when the defendant asserted their right * the prejudice to the defendant in the delay

Question 28

Requesting a New Trial for Newly Discovered Evidence

Answer 28

The Defendant must show: 1. the evidence itself is newly discovered 2. it is not merely cumulative 3. it would render a different result probable on retrial, and 4. the defendant could not with reasonable diligence have produced it at trial

Question 29

Appeal and Error - General Rule

Answer 29

If the Defendant is convicted and appeals, the defendant must demonstrate that an error was made at trial

Question 30

Standards of Review on Appeal

Answer 30

* Plain Error * Harmless Error Test * Test for Jury Decisions * Test for Judicial Decisions

Question 31

Appeal - Plain Error

Answer 31

* A plain error is appropriate for an error that affects the defendant's substantial rights. * This is appealable even if the parties did not object during trial

Question 32

Appeal - Harmless Error Test

Answer 32

if evidence is improperly admitted at trial and the defendant is found guilty, that verdict will stand so long as the **government** can prove **beyond a reasonable doubt** that the error was **harmless**

Question 33

Appeal - Test for Jury Decisions

Answer 33

a Defendant can appeal a jury's decision if it can show no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”

Question 34

Appeal - Test for Judicial Decisions

Answer 34

Discretionary decisions made by the judge will be evaluated under the “abuse of discretion” standard and will generally be upheld.

Question 35

Punishment Rule of Law

Answer 35

Punishment cannot be excessive or “grossly disproportionate” in comparison to the crime

Question 36

Life without Parole

Answer 36

A Juvenile who is convicted of a non-homicide offense may not be sentenced to life without parole

Question 37

Death Penalty

Answer 37

It is unconstitutional for a statute to mandate that the death penalty is automatically imposed in some cases, as a jury must be allowed to consider all mitigating evidence

Question 38

What defendants cannot be given the death penalty?

Answer 38

* Defendants with “mental retardation” * Defendants who are insane at the time of execution is to take place * Defendants who were minors when they committed the crime * Defendants who rape an adult woman or child if the victim did not die * Defendants who are convicted of a felony murder but “neither took life, attempted to take life, nor intended to take life”

Question 39

Double Jeopardy Rule

Answer 39

The 5th Amendment states that no person shall be subject to “the same offense to be twice put in jeopardy of life or limb”

Question 40

When Jeopardy Attaches

Answer 40

* **Jury Trial:** when the jury is impaneled and sworn * **Bench Trial**: when the first witness is sworn * **Plea Bargaining**: when the court accepts an unconditional guilty plea

Question 41

When does Double Jeopardy **not** apply?

Answer 41

When there are different sovereigns trying the case

Question 42

What are the same sovereign?

Answer 42

States and municipalities within

Question 43

What are **not** the same sovereigns?

Answer 43

* The state and federal government: thus, defendant can be tried in both state and federal court * Different states

Question 44

What does double Jeopardy prevent?

Answer 44

Reprosecution after **acquittal,** after **conviction,** and for the **same offense**

Question 45

Blockburger Test

Answer 45

* The government may sparely try and punish the defendant for two crimes if each contains an element that the other does not. * In that instance the two crimes are not considered to be the “same offense”

Question 46

How to figure out if two crimes are the same offense

Answer 46

* Break down the elements of each crime and then draw a circle around an element that is not in the other crime * There must be a circle in each offense for it to be a different offense * if there are two circles, they are different offenses _Examples:_ * A d **cannot** be tried for larceny and later tried for robbery * A D **can** be tried for rape and later tried for statutory rape arising out of the same incident

Question 47

Exceptions to the Double Jeopardy Rule that Permit Retrial

Answer 47

* **Deadlocked jury:** the jury cannot make a decision * **Appeal is successful**: there is a successful appeal unless reversal is based on the fact that the prosecution did not meet their burden of proof * **Manifest Necessity**: required mistrial - ex: jury hears evidence they shouldn't have * **Plea Agreement Breach**: defendant breaches the plea bargain