Time Table in Federal Criminal Cases Flashcards
(110 cards)
1
Q
Motion for Judgment of Acquittal
1) What may the court do when a motion for judgment of acquittal is made?
2) If a ruling on the motion is reserved, what evidence may be considered when ruling on the motion?
3) After discharge of the jury, when may a motion be made or renewed?
A
1) After evidence on either side is closed.
Court may:
- reserve decision on motion,
- proceed with trial
- where the motion is made before the close of all the evidence
* submit the case to the jury and decide the motion either before verdict is returned or after jury returns verdict of guilty or is discharged without verdict.
2) Motion must be decided on basis of evidence at the time ruling was reserved.
3) Motion may be made or renewed within 14 days after discharge of jury
2
Q
Alibi - Notice by Defense
1) When must the defendant serve notice of alibi?
A
Defendant to serve within 14 days of written request from government, or at some other time the court sets. Crim. R. 12.1(a).
Exceptions for good cause. Crim. R. 12.1(d). (for good cause, the court may grant an exception to any requirement of Rule 12.1(a)-(c).)
3
Q
Alibi - Disclosure by Government
1) When must the government disclose witnesses relied upon to establish the defendant’s presence?
2) What is the latest the government may disclose?
A
Within 14 days after defendant serves notice of alibi, unless the court directs otherwise,
- government to disclose witnesses government intends to rely upon to establish defendant’s presence at scene of offense and rebuttal witnesses to the alibi defense.
- disclosure must be made no later than 14 days before trial. Crim. R. 12.1(b).
Exceptions for good cause. Crim.R. 12.1(d).
4
Q
Alibi - Continuing Duty to Disclose
What is the government and the defendant’s continuing duty to disclose of additional witnesses?
A
Either party to disclose promptly if party learns before or during trial of additional witness who should have been disclosed under Crim.R. 12.1(a) or (b). Crim.R. 12.1(c).
Exceptions for good cause. Crim R. 12.1(d).
5
Q
Allocution
What must the court do prior to imposing sentence?
A
Before imposing sentence, court must provide defendant’s counsel an opportunity to speak on defendant’s behalf, and must address defendant personally in order to permit defendant to speak or present information to mitigate sentence. Crim.R. 32(i)(4)(A).
6
Q
Appeal - Notification of Right
When must the court notify the defendant of his/her right to appeal?
A
After imposing sentence in any case of right to appeal the sentence. Crim.R. 32(j)(1)(B).
After imposing sentence in case which has gone to trial on a plea of not guilty. Crim.R. 32(j)(1)(A).
7
Q
To whom and when must a defendant appeal from a Magistrate Judge’s Order or Judgment?
A
Interlocutory appeal or appeal from conviction or sentence to district judge within 14 days after entry of order, or judgement. Crim.R. 58(g)(2).
8
Q
Appeal - by Defendant
1) When must a Defendant Appeal?
2) If a timely motion is made, when may an appeal from a judgment of conviction be made?
3) What is the longest time may be extended on a showing of excusable neglect or good cause?
A
Within 14 days after the later of the entry either of (1) the judgment or order appealed from, or (2) of the filing of a notice of appeal by the Government.
If a timely motion is made…
- for judgment of acquittal under Rule 29,
- for arrest of judgment under Rule 34,
- For a new trial under Rule 33 on any ground other than newly discovered evidence (or for a new trial based on the ground of newly discovered evidence of the motion is made no later than 14 days after entry of judgment)
…appeal from a judgment of conviction must be taken within 14 days after entry of the order disposing of the last such motion outstanding, or within 14 days after the entry of the judgment of conviction, whichever is later.
Time may be extended for not more than 30 additional days on a showing of excusable neglect or good cause. App.R. 4(b)(1), (3) and (4).
9
Q
Appeal - by Government
A
Within 30 days after the later of
(1) the entry of judgment or
(2) order appealed from or
(3) the filing of a notice of appeal by any defendant.
Time may be enlarged for not more than 30 additional days on a showing of excusable neglect or good cause. App.R. 4(b)(1) and (4).
10
Q
Appeal by Inmate Confined in Institution
What is the procedure for appeal by an inmate confined in an institution?
When may the government file its notice of appeal?
A
When deposited in the institution’s internal mail system on or before the last day for filing.
Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C.A. 1746) setting forth the date of deposit and stating that first-class postage had been prepaid.
30-day period for the government to file its notice of appeal runs from
- entry of judgment or
- order appealed from or
- from the district court’s docketing of the defendant’s notice of appeal
11
Q
Appeal - Representation Statement
When/how must an attorney file a Representation Statement after filing a notice of appeal?
A
Within 14 days after filing a notice of appeal,
- unless another time is designated by the court of appeals,
- attorney who filed notice of appeal must file, with the clerk of the court of appeals,
- a statement naming each party represented on appeal by that attorney. App.R. 12(b).
12
Q
Appeals - Record (appellant)
A
Within 14 days after:
- filing notice of appeal or
- entry of order disposing of last timely remaining motion (of a type specified in App.R. 4(a)(4)(A),
- whichever is later:
- Appellant to place written order for transcript and file copy or order with clerk;
- if none to be ordered, file a certificate to that effect;
- unless entire transcript to be included, file a statement of issues and serve appellee a copy of order or certificate and of statement. App.R. 10(b).
13
Q
Appeals - Record (appellee)
A
Within 14 days after service of appellant’s order or certificate and statement, appellee to file and serve on appellant a designation of additional parts of transcript to be included.
Unless within 14 days after designation appellant has ordered such parts and so notified appellee, appellee may within the following 14 days either order the parts or move in district court for order requiring appellant to do so. App.R. 10(b).
14
Q
Appeals - Record (costs)
A
At time of ordering, party to make satisfactory arrangements with reporter for payment of cost of transcript. App.R. 10(b)(4).
15
Q
Appeals - Record (reporter)
A
If transcript cannot be completed within 30 days of receipt of order, reporter shall request extension of time from circuit clerk. App.R. 11(b).
16
Q
1) What are the clerks duties in Setting Appeal for Argument?
2) How may postponement of argument or allowance of addition time be requested?
A
- Clerk must advise the parties
- Request for postponement of argument or for allowance of additional time must be made by motion filed reasonably in advance of the date fixed for hearing. App.R. 34(b).
17
Q
When must an Appearance before a Magistrate Judge be made?
A
- Without necessary delay
- after an arrest
- within the U.S. and
- also outside the U.S. unless a statute provides otherwise. Crim.R. 5(a)(1).
18
Q
When must the defendant move for an Arrest of Judgment?
A
Defendant must move within 14 days after verdict of finding of guilty, or after plea of guilty nolo contendere. Crim.R. 34
19
Q
What are the General Requirements for an Initial Appearance of arrested persons?
A
- To be taken
- without unnecessary delay
- before a magistrate judge,
- after an arrest within the U.S. and
- also after an arrest outside the U.S. unless a statute provides otherwise. Crim.R. 5(a)(1).
20
Q
What are the exceptions to the initial appearance requirements for arrested persons?
A
- Arrests upon charges of interstate flight or
- failing to appear in another district, or
- for violations of probation supervised release,
- appearances without unnecessary delay,
- see Crim.R. 5(a)(2), 32.1, 40.
If arrest is in the district where the offense was allegedly committed and a magistrate judge is not reasonably available, intitial appearance may be before a state or local judicial officer. Crim.R. 5(c)(1)(B).
If arrested without a warrant, complaint must be promptly filed Crim.R. 5(b).
21
Q
When is a Bill of Particulars required?
A
On motion of D and only when charges in indictment are so general that they do not advise the D of the specific acts of which he is accused.
22
Q
When may Gov’t amend Bill of Particulars?
A
At any time subject to such conditions as justice requires. Crim.R. 7(f).
23
Q
When to file Motion for Bill of Particulars?
A
Before arraignment or within 14 days after arraignment or at such later time as court may permit. Crim.R. 7(f).
24
Q
When may a Clerical Error be corrected?
A
Corrected at any time after court gives such notice it considers appropriate. Crim.R. 36.
25
What are the Clerk's Office Hours?
Open during business hours on all days except
- Saturdays,
- Sundays,
- legal holidays and
- on days on which conditions have made office of the clerk inaccessible. Crim.R. 56; App.R. 45(a).
26
Initial Appearance
| Commitment to Another District
Person arrested
(1) in a district other than that in which the offense is alleged to have been committed, or
(2) for a violation of probation or supervised release in a district other than the district having jurisdiction, or
(3) on a warrant (issued for failure to appear pursuant to subpoena or terms of release) in a district other than that in which the warrant was issued,
is to be taken without unnecessary delay before the nearest available magistrate judge. Crim.R. 5; Crim.R. 5(b).
27
Initial Appearance
| Complaint
When a person arrested without a warrant is brought before a magistrate judge, a complaint must be promptly filed. Crim.R. 5(b).
28
Computation of Time - In Days
1) Do you include or exclude the day of the event that begins the period of time?
2) What days are included in computing time?
3) What happens if the last day of the period falls on a Saturday, Sunday, or a day in which conditions make the clerk's office inaccessible?
- Exclude day of the event that begins the period of time.
- Count every day including Saturdays, Sundays, legal holidays and the last day of the period.
- If the last day of the period is a Saturday, Sunday, legal holiday, or a day in which conditions make the clerk's office inaccessible, the period runs until the end of the next day which is not Satuday, Sunday, legal holiday, or in which the clerk's office is inaccessible. Crim.R. 45(1); App.R. 26(a).
29
Computation of Time - In Hours
1) When does the computation of time begin?
2) What days are included?
3) What happens if the last hour of the period falls on a Saturday, Sunday, or a day in which conditions make the clerk's office inaccessible?
- From the occurrence of the event that begins the period of time, count every hour including intermediate Saturdays, Sundays, and legal holidays.
- If the last hour of the period falls on a Saturday, Sunday, legal holiday, or a day in which conditions make the clerk's office inaccessible, the period runs until the next day (which is not a Saturday, Sunday, legal holiday, or in which the clerk's office is inaccessible. Crim.R. 45(a); App.R. 26(a).
30
Computation of Time - Last Day
| In computing time, how is the "last day" determined?
Last day of a time period ends
- at midnight in the court's time zone for electronic filing, or
- when the clerk's office is scheduled to close for other forms of filing. Crim.R. 45(a).
31
Computation of Time - Next Day
| In computing time, how is the "next day" determined?
Next day is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. Crim.R. 45(a).
32
Computation of Time - Non-personal Service of Papers
Substituted service - adds three days to a period computed from the time of said service. Crim.R. 45(c).
When a party is required or permitted to act within a prescribed period after service of a notice or a paper upon that party,
- three calendar days are added to the prescribed period
* unless the paper is delivered on that date of service stated in the proof of service. Crim.R. 45(c); App.R. 26(c).
Paper served electronically is not treated as delivered on the day of service stated in the proof of service. App.R. 26(c).
33
Corporate Disclosure - Generally
What must a nongovernmental corporate parties file upon defendant's initial appearance?
Nongovernmental corporate parties must file, upon defendant's initial appearance, statement identifying a parent corporation or any corporation owning 10% or more of its stock or stating that there is no such corporation. Crim.R. 12.4(a)(1), (b)(1).
34
Corporate Disclosure - Organizational Victim
What must the government file upon defendant's initial appearance?
Government must file, upon defendant's initial appearance,
- statement identifying the victim and, if the victim is a corporation,
- statement identifying a parent corporation or any corporation owning 10% or more of victim corporation's stock or
- stating that there is no such corporation, to the extent information can be obtained through due diligence. CrimR. 12.4(a)(2), (b)(2).
35
Counsel - Joint Representation
| What are the courts responsibilities to the defendants when presented with joint representation?
Court must...
- promptly inquire about the propriety of joint representation and
- shall personally advise each defendant of right to effective assistance of counsel,
- including separate representation. Crim. R. 44(c)(2).
36
When are the district courts open?
When is the clerk's office open?
District courts are always open. Crim.R. 56(a).
Clerk's office is always open except on Saturdays, Sundays, legal holidays, or when conditions make it inaccessible. Crim.R. 45(a).
37
Custody - Release During Trial
| What happens to a person during trial who was released from custody before trial?
Person released before trial continues on release during trial unless court determines otherwise. Crim.R. 46(b).
38
Custody - Witness
| When may a detained witness be discharged?
Witness who has been detained pursuant to 18 U.S.C.A. 3144 and whose deposition is taken pursuant to Crim.R. 15(a) may be discharged by court after witness has signed deposition transcript under oath. Crim.R. 15(a)(2).
39
Custody - Reports
| What are the responsibilities of the government attorney when holding witnesses in excess of 10 days?
Attorney for government must report biweekly to court listing witnesses held in excess of 10 days; shall state why each witness should not be released with or without a deposition being taken. Crim.R. 46(h)(2).
40
Defenses and Objections - Raising of Motion
When does the court set the deadline for making pretrial motions or requests?
What defenses and objections must be raised before trial?
Deadline for making pretrial motions or requests may be set by court at time of arraignment or as soon thereafter as practicable Crim.R. 12(c).
Defenses and objections which may be, and those which must be, raised before trial, see Crim.R. 12(b)(3).
(A) a motion alleging a defect in instituting the prosecution;
(B) a motion alleging a defect in the indictment or information--but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense;
(C) a motion to suppress evidence
(D) a Rule 14 motion to sever charges or defendants; and
(E) a Rule 16 motion for discovery
41
Defenses and Objections - Ruling on Motion
| When must the court decide on pretrial motions?
Court must decide all pretrial motions before trial unless court finds good cause to defer a ruling. Crim.R. 12(d).
42
Defenses and Objections - Insanity
When must a defendant notify and file their intent to assert insanity defense?
When may the court allow for late filing?
Defendant intending to assert insanity defense must notify attorney for government and file copy with clerk within time provided for filing of pretrial motions or at later time court sets.
Court may for good cause allow late filing, grant additional time, or make other appropriate orders. Crim.R. 12.2(a).
43
Defenses and Objections - Mental Condition
When must a defendant notify and file their intent to introduce expert evidence relating to any medical condition?
When may the court allow for late filing?
Defendant intending to introduce expert evidence relating to any mental condition must notify attorney for government and file copy with clerk within time provided for filing of pretrial motions or at any other time the court sets.
Court may for good cause allow late filing, grant additional tie, or make other appropriate orders. Crim.R. 12.2(b).
44
Defenses and Objections - Public Authority
1) When must defendant notify and file their intent to assert public-authority defense?
2) When must the government respond to notice?
3) When may the government attorney request information of witnesses relied on to establish defense?
- When must defendant serve statement?
- When must government attorney serve statement of their witnesses?
4) When must additional witness information be disclosed?
5) When may the court allow a party additional time to comply?
Notice of defense--Defendant intending to assert public-authority defense must notify attorney for the government and file a copy with clerk within time provided for filing of pretrial motions or at any other time the court sets. Crim.R. 12.3(a)(1).
Response to notice--Government attorney must serve response within 14 days after receiving notice, but no later than 21 days before trial. Crim.R. 12.3(a)(3).
Witness disclosure--Government attorney, no later than 21 days before trial, may request statement of names, etc. of witnesses relied upon to establish defense.
- Within 14 days after receiving statement, defendant must serve statement.
- Within 14 days after receiving statement, government attorney must serve statement of witnesses upon which the government intends to rely. Crim.R. 12.3(a)(4).
Additional witness information must be disclosed promptly after disclosing party learns of the witness. Crim.R. 12.3(b).
Court may, for good cause allow a party additional time to comply with rule. Crim.R. 12.3(a)(5).
45
When may the court change the date of deposition?
The court for good cause may change the date of deposition. Crim.R. 15(b)(1).
46
Taking of Depositions
| When/How/Why are the taking of depositions performed?
By order of court due to exceptional circumstances and in interest of justice. Crim.R. 15(a)(1).
47
When should the Motion for Discovery or Inspection be raised?
Motion for discovery under Crim.R. 16 must be raised prior to trial. Crim.R. 12(b)(3).
48
Discovery or Inspection
| When may the defendant request Notice by Government of Intention to Use Evidence?
At arraignment or as soon thereafter as practicable, defendant may request notice of government's intention to use (in evidence-in-chief at trial) any evidence defendant may be entitled to discover under Crim.R. 16. Crim.R. 12(b)(4).
49
Discovery or Inspection
| When shall Statements or Reports by Government Witnesses be subject of subpoena, discovery, or inspection?
Shall not be subject of subpoena, discovery, or inspection until witness has testified on direct examination in the trial of the case. 18 U.S.C.A. 3500(a).
50
Discovery or Inspection -
| When is the Continuing Duty to Disclose of additional evidence or material previously requested or ordered?
Party who, prior to or during trial, discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection, shall promptly notify other party or attorney or the court. Crim.R. 16(c).
51
Dismissal
Which court may dismiss?
When does a dismissal occur due to unnecessary delay?
By court of indictment, information, or complaint if unnecessary delay occurs in presenting charge to grand jury, filing an information against defendant, or bringing defendant to trial. Crim.R. 48(b).
52
Evidence
| When must a motion to suppress evidence be raised?
Motion must be raised prior to trial. Crim.R. 12(b)(3).
53
Evidence
| When must the government provide notice of its intention to use evidence?
At arraignment or as soon thereafter as practicable, either at discretion of government respecting specified evidence or at request of defendant respecting intention to use (in evidence-in-chief at trial) any evidence defendant may (under Crim.R. 16) be entitled to discover. Crim.R.12(b)(4).
54
Evidence
When must a defendant notify the attorney for the government of their intention to introduce expert testimony of mental condition?
Defendant intending to introduce expert evidence relating to any mental condition must notify attorney for government and file copy with clerk within time provided for filing of pretrial motions or at any other time the court sets.
Court may for good cause allow late filing, grant additional time, or make other appropriate orders. Crim.R. 12.2(b).
55
Extending Time
| When is the last day of the period extended?
If the last day is a Saturday, Sunday, legal holiday, or day on which conditions have made office of clerk inaccessible, the time period continues to run until the end of the next day that is not a Saturday, Sunday, legal holiday, or the clerk's office is inaccessible. Crim.R. 45(a).
56
Extending Time
| When is the last hour of the time period extended?
If the last hour falls on a Saturday, Sunday, legal holiday, or day on which conditions have made office of clerk inaccessible, the period runs until the same time on the next day which is not a Saturday, Sunday, legal holiday, or in whcih the clerk's office is inaccessible. Crim.R. 45(a).
57
Extending Time Generally
| When may a court extend time?
When act must be done at or within a specified period,
-court on its own may extend the time, or
-for good cause may do so on party's motion made before the originally prescribed pr previously extended time expires, or
-after the time expires if the party failed to act because of excusable neglect.
Crim.R. 45(b)
58
Extending Time for Appeal
When may a court grant an extension of time for filing notice of appeal and for how long?
When might the court extend time for cases on appeal?
When is a court prohibited for extending time?
Extension of time for filing notice of appeal for period not to exceed 30 days from expiration of time otherwise prescribed by App.R. 4(b),
- upon a finding of excusable neglect or good cause, before or after time has expired. App.R. 4(b).
In cases on appeal, for good cause, court may extend time
- prescribed by rules of appellate procedure or
- by its order to perform any act to be done after expiration of such time.
Court may not, however, extend time for
- filing notice of appeal (but see provision in App.R. 4(b) for extension of time),
- petition for permission to appeal, or
- appeal or petition for review of an order of a U.S. administrative agency.
App.R. 4(b):
(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:
(i) the United States;
(ii) a United States agency;
(iii) a United States officer or employee sued in an official capacity; or
(iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf--including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.
59
Extending Time
| When might a court extend time in correcting a sentence?
No extension. Crim.R. 35, 45(b).
60
What type of notice is required when a party is intending to raise an issue concerning the law of a foreign country?
Reasonable written notice required of party intending to raise an issue concerning the law of a foreign country. Crim.R. 26.1.
61
Grand Jury
| When may Challenges be made to the Grand Jury?
A Challenge to the grand jury or based on an individual juror's lack of qualification may be made
- before the voir dire examination begins, or
- within 7 days after the grounds of challenge are discovered or
-could have been discovered,
whichever is earlier.
28 U.S.C.A. 1867(a), (b).
62
Grand Jury
| When may a court excuse a juror?
At any time for cause court may excuse a juror either temporarily or permanently. Crim.R. 6(h).
63
When must Grand Juries be summoned?
Grand juries must be summoned when the public interest requires. Crim.R. 6(a)(1).
64
How long is the tenure of the grand jury?
What is the longest period an extension may be granted?
Until discharged by court but more than 18 months only if court determines that an extension is in the public interest.
Extensions may be granted for no more than 6 months except as otherwise provided by statute.
65
What are the recognized federal holidays?
-New Year's Day,
-Birthday of Martin Luther King Jr.,
-Washington's Birthday,
-Memorial Day,
-Independence Day,
-Labor Day,
-Columbus Day,
-Veterans' Day,
-Thanksgiving Day,
-Christmas Day,
-and any other day declared a holiday by the
President or Congress, and
-for periods measured after an event,
-any other holiday by the state in which is located either the district court that rendered the challenged judgment or order,
-or the circuit clerk's principal officer.
Crim.R. 45(a); App.R. 26(a).
66
Indictment - Defects
| When must defenses and objections based on defects be raised?
Defenses and objections based on defects (other than failure to invoke the court's jurisdiction or to state an offense, which the court may hear at any time while case is pending) must be raised prior to trial. Crim.R. 12(b).
67
Indictment - Failure to find
| When must the jurors' failure to find be reported to the magistrate judge?
If complaint or information is pending, failure for 12 jurors to vote to indict must be reported to magistrate judge promptly. Crim.R. 6(f).
68
Indictment - Sealing and secrecy
| When must an indictment be kept secret?
Magistrate judge to whom an indictment is returned may direct that indictment shall be kept secret until defendant is in custody or has been released pending trial; clerk thereupon to seal and no person to disclose except when necessary for issuance and execution of warrant or summons. Crim.R. 6(e)(4).
69
Information - Amendment
| When may an amendment be made?
At any time before verdict or finding unless an additional or different offense is charged or a substantial right is prejudiced. Crim.R. 7(e).
70
Information - Defects
| When may defenses and objections based on defects be raised
Defenses and objections based on defects (other than failure to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during pendency of proceedings) must be raised prior to trial. Crim.R. 12(b)(3).
71
Requests for Instructions
| When may requests for instructions be made?
At close of evidence or at any earlier time during trial as court reasonably sets. When request is made, requesting party must furnish a copy request to every other party. Crim.R.30(a).
72
When must the court rule on Requests for Instructions?
Court must inform parties before closing arguments how it intends to rule on requested instructions. Crim.R. 30(b).
73
When is the appropriate time for giving instructions to the jury?
Court may instruct jury before or after arguments are completed or at both times. Crim.R. 30(c).
74
When is the appropriate time to object to jury instructions?
What happens if you fail to object to jury instructions?
Before jury retires to deliberate.
Failure to object in accordance with rule precludes review, except as permitted under Crim.R. 52(b). Crim.R. 30(d).
Crim.R. 52(b):
Plain error. A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.
75
When may the defendant move for judgment of acquittal before submission to a jury?
After government closes its evidence or after the close of all the evidence, on defendant's motion. Crim.R. 29(a).
76
When may the Defendant move for judgment of acquittal after jury verdict or discharge?
Is the defendant required to move for judgment of acquittal before court submits case to the jury as a prerequisite?
Defendant may move for judgment of acquittal or renew such motion within 14 days after guilty verdict or after court discharges jury, whichever is later
Defendant is not required to move for judgment of acquittal before court submits case to jury as a prerequisite for making such motion after jury discharge. Crim.R. 29(c).
77
When may the court retain Alternate Jurors?
The court may retain alternate jurors after the jury retires to deliberate. Crim.R. 24(c)(3).
78
When must a Challenge of Jury Array be made?
```
Must be made
- before voir dire examination begins,
- or within 7 days after the grounds for the challenge are discovered or could have been discovered,
whichever is earlier.
28 U.S.C.A. 1867(a), (b).
```
79
When may the court permit a Jury of 11 to return a verdict?
After jury has retired to deliberate, court may permit jury of 11 persons to return verdict, if court finds good cause to excuse a juror. Crim.R. 23(b)(3).
80
When may a Poll of the Jury be taken?
After verdict is returned but before jury is discharged, at request of any party or on court's own motion. Crim.R. 31(d).
81
What are the service requirements for Mail?
Is an electronically served paper treated as delivered on the day of service?
What types of service add three days to the time of service?
When a party is may or must act within a specified time after service, three days are added after the prescribed period would otherwise expire unless the paper is delivered on the date of service stated in the proof of service.
A paper served electronically is not treated as delivered on the day of service stated in the proof of service. App.R. 26(c).
Service in manner provided Civ.R. 5(b)(2)(B) to (D) adds three days to the period which would otherwise expire under subd. (a). Crim.R. 45(c).
Civ.R. 5(b)(2)(B):
(2) Service in General. A paper is served under this rule by:....
(B) leaving it:
(i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(C) mailing it to the person's last known address--in which event service is complete upon mailing;
(D) leaving it with the court clerk if the person has no known address;
82
How must a defendant intending to introduce expert evidence relation to a Mental Condition notify government attorney and file?
Defendant intending to introduce expert evidence relating to any mental condition must notify attorney for government and file copy with clerk within time provided for filing of pretrial motions or at any other time the court sets.
Court may for good cause allow late filing, grant additional time, or make other appropriate orders. CrimR. 12.2(b).
83
What are the requirements for service of motions?
When must the responding party serve opposing affidavits?
Written motions (other than motions court may hear ex parte) with supporting affidavits, and any hearing notice: at least 7 days before hearing date, unless rule or court order sets a different period upon ex parte application. Crim.R. 47(c), (d).
Responding party must serve opposing affidavits at least one day before hearing, unless court permits later service. Crim.R. 47(d).
84
New Trial
| When must a Motion for a New Trial be filed?
Within 14 days after verdict or finding of guilt. Crim.R. 33(b)(2).
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New Trial
| When may a Motion for a New Trial on Newly Discovered Evidence be filed?
Only within three years after the verdict or finding of guilty.
If appeal is pending, court may not grant motion until appellate court remands case.
Crim.R. 33(b)(1).
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Plea of Guilty or Nolo Contendere - Agreement procedure
| What disclosure is required when the plea is offered?
Disclosure of plea agreement required when plea is offered. Crim.R. 11(c)(2).
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Plea of Guilty or Nolo Contendere - Appeal
| What notification of appeal must be given following sentence?
Notification following sentence of any right to appeal sentence. Crim.R. 32(j)(1)(B).
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Plea of Guilty or Nolo Contendere - Withdrawl
When may a defendant withdraw a plea of guilty or nolo contendere?
How final is a guilty or nolo contendere plea?
Crim.R. 11(d)
A defendant may withdraw a plea of guilty or nolo contendere:
- (1) Before court accepts plea, for any reason or no reason.
- (2) After court accepts plea, but before court imposes sentence if:
(A) the court rejects a plea agreement under Crim. R. 11(c)(5); or
(B) defendant can show a fair and just reason for requesting the withdrawal.
(e) Finality of a Guilty or Nolo Contendere Plea. After court imposes sentence, defendant may not withdraw; plea may be set aside only on direct appeal or collateral attack.
Crim.R. 11(d), (e).
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When must a preliminary hearing take place if a defendant is in custody?
Preliminary hearing within a reasonable time but not later than 14 days after initial appearance. Crim.R. 5.1(c).
See, also, 18 U.S.C.A. 3060.
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When must a preliminary hearing take place if the defendant is NOT in custody?
Preliminary hearing within a reasonable time but not later than 21 days after initial appearance. Crim.R. 5.1(c).
See, also, 18 U.S.C.A. 3060.
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When may an extension be granted for a preliminary hearing?
Is the defendant's consent required?
With consent of defendant and upon showing of good cause, one or more times, by judge or magistrate judge.
Without consent of defendant, by magistrate judge only upon showing that extraordinary circumstances exist and that justice requires the delay.
Crim.R. 5.1(d).
See, also, 18 U.S.C.A. 3060(c).
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When is a Presentence Investigation and Report made?
Before imposition of sentence unless 18 U.S.C.A. 3593(c) or another statute requires otherwise, or court finds that record information enables it to meaningfully exercise its sentencing authority under 18 U.S.C.A. 3553, and court explains finding on the record. Crim.R. 32(c)(1)(A).
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When must notice be giving of a Presentence Investigation and Report?
At least 35 days before sentencing hearing, unless the defendant waives this minimum period, probation officer must give report to defendant, defendant's counsel, and an attorney for the Government. Crim.R. 32(e)(2).
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When must objections be made to a Presentence Investigation and Report?
Within 14 days after the receiving report, parties must state in writing any objections and provide a copy of objections to opposing party and probation officer. Crim.R. 32(f).
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When must the Presentence Investigation and Report be submitted to the court?
At least 7 days before sentencing, probation officer must submit to court and parties the report and addendum containing unresolved objections, grounds for those objections, and officer's comments on objections. Crim.R. 32(g).
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Probation or Supervised Release--Hearings relating to revocation
When must the defendant make his/her initial appearance?
When must the magistrate judge conduct a Preliminary Hearing? Why?
When must a revocation hearing occur?
Initial appearance--Without delay before a magistrate judge who must inform the person of the alleged violation and certain rights. CrimR. 32.1(a).
Preliminary hearing--Magistrate judge must promptly conduct a hearing to determine probable cause to believe a violation has occurred. Crim.R. 32.1(b)(1).
Revocation hearing--Unless waived, within a reasonable time in the district having jurisdiction. Crim.R. 32.1(b)(2).
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Saturdays and Sundays
Included in all computation of time. Crim.R. 45(a); App.R. 26(a).
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Search Warrant --Issuance
| When must an officer execute a warrant?
Warrant must command officer to execute it within a specified time no longer than 14 days. Crim.R. 41(e)(2).
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Search Warrant--Execution and return
When must an officer return the search warrant?
What must accompany it?
To whom?
Officer executing the warrant must promptly return it, with a copy of inventory, to magistrate judge. Crim.R. 41(f)(1).
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Sentence--Changing time limits
| When may a court change time limits?
Court may for good cause change any time limits prescribed by Crim.R. 32.
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Sentence--Correction or reduction
When may a sentence be reduced/corrected, when a defendant provides assistance to the government?
When may reduction or correction be made over a year after sentencing?
When may a reduction or correction be made for clear error?
Assistance to government. Upon government motion made within one year of sentencing, if defendant after sentencing provided substantial assistance in investigating or prosecuting another person.
If motion made more than one year after sentencing, if assistance involved information not known to defendant or not useful to government until one year or more after imposition, or was promptly provided to government after its usefulness was reasonably apparent to defendant. Crim.R. 35(b).
Clear error. Within 14 days after sentencing, court may correct sentence resulting from arithmetical, technical, or other clear error. Crim.R. 35(a).
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When should Imposition of sentence occur?
Without unnecessary delay. Crim.R. 32(b)(1).
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When must a Motion for Vacation, Setting Aside, or Correction of a sentence be made?
One year period of limitation for commencing as provided in 28 U.S.C.A. 2255(f).
28 U.S.C.A. 2255(f):
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2255 (West)
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When must a motion to sever be raised?
A Crim.R. 14 motion to sever charges or defendants must be raised prior to trial. Crim.R. 12(b)(3).
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Subpoena
What may a court do upon subpoena for books, papers, documents or other objects?
Court may direct that books, papers, documents, or objects designated in subpoena be produced before court prior to trail or prior to time they are to be offered in evidence and may upon their production permit them to be inspected by parties or their attorneys. Crim.R. 17(c).
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When must a summons be returned?
On or before the return day. Crim.R. 4(c)(4)(B).
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What terms should the district court hold?
Terms of court have been abolished. 28 U.S.C.A. 138.
The district court shall not hold formal terms.
28 U.S.C.A. § 138 (West)
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When should a Motion for Transfer be brought?
At or before arraignment or at such other time as the court or the rules prescribe. Crim.R. 21(d).
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When must an arrest warrant be shown to the defendant?
Officer who does not have warrant in possession at time of arrest must show it to defendant as soon as possible upon request. Crim.R. 4(c)(3)(A).
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What are the rules for a petition for writ of certiorari?
See 28 U.S.C.A. Rules, Supreme Court Rule 13.
1. Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.
2. The Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time. See, e.g., 28 U.S.C. § 2101(c).
3. The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.
4. A cross-petition for a writ of certiorari is timely when it is filed with the Clerk as provided in paragraphs 1, 3, and 5 of this Rule, or in Rule 12.5. However, a conditional cross-petition (which except for Rule 12.5 would be untimely) will not be granted unless another party's timely petition for a writ of certiorari is granted.
5. For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. An application to extend the time to file shall set out the basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified. The application must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances. The application must clearly identify each party for whom an extension is being sought, as any extension that might be granted would apply solely to the party or parties named in the application. For the time and manner of presenting the application, see Rules 21, 22, 30, and 33.2. An application to extend the time to file a petition for a writ of certiorari is not favored.
U.S. Sup. Ct. R. 13
