Pretrial Actions Chapters Seven Eight Nine All Images

Pretrial Actions Chapters Seven Eight & Nine All Images © Microsoft Corporation

Role of the Prosecutor n Prior to Arrest –Assist with obtaining warrants –Provide legal advise on how investigation is conducted

Role of the Prosecutor n After Arrest - Review police reports to determine: – Evidence available to establish each element of crime – Violations of Fourth or Fifth Amendment – Credibility of potential witnesses – Likelihood witnesses will be available for court appearances

Role of the Prosecutor n Other factors considered – Attitude of public toward this type of case – Severity of offense versus other cases pending – Likelihood of winning the case – Decide how many charges to file

Decision to Charge n Prosecutor Must Consider Many Factors When Deciding What Charges to File n Such as:

Question 1 The prosecutor job is to review the police reports by asking what question(s)? A) Is there enough evidence? B) Are the witnesses credible? Are they available? C) Does it violate search and seizure amendment? D) Does it violate freedom of speech amendment? E) A and B only F) A, B, and C

Decision to Charge n Evidence to establish each element of the crime n Are there violations of suspect's rights that will make some of the evidence inadmissible? n Are the victim and eye witnesses credible? n What evidence will be excluded because of the Hearsay Rule? other problems with evidence?

Decision to Charge n Jurisdiction of court –Geographical –Subject matter n Venue n Statute of limitations

Question 2 Criminal charges may be filed whenever there is _____ evidence that the suspect committed a crime. A) Habeus Corpus B) Mens Rea C) Prima Facie D) Nolo Contendre E) Thesis Notheis Answerus

Decision to Charge n Does Double Jeopardy bar filing any of the charges? n What degree of the crime should be charged? n If more than one person committed the crime, should the suspects be charged jointly or separately?

Decision to Charge n Will filling additional charges facilitate plea bargaining? n Should a longer sentence be sought because of the defendant's prior convictions?

The Criminal Complaint Formal Requirements n Identify court: – Name of State – Name of Court n Identify parties: – Prosecution listed as "State v Smith” – Names of all defendants given along with relevant aliases

The Criminal Complaint Formal Requirements n List crimes charged – Crimes listed in separate "Counts" » Local rules govern whether the most serious crime is charged or whether a separate count is filed for each possible degree of the crime

The Criminal Complaint Formal Requirements n Each count must give facts to indicate: – Geographical jurisdiction of court – Statute of limitations has not run – What crime is charged – If multiple defendants are charged in the complaint, the name of the defendant charged in each count must be indicated

People of the State of Georgia Plantiff, vs. Ron Mexico Defendent. The above is an example of a: A) Criminal Complaint B) Statute of Limitations C) Arraignment Process D) Informal Charge Question 3

Arraignment is normally the first court appearance after the charges are filed

Arraignment Procedures at the arraignment: n Defendant has the right to be present in person n Defendant will be given a copy of the complaint n Judge will advise defendant of right to counsel

Arraignment Procedures at the arraignment: n Screening for public defender n Continuance may be granted if defendant needs time to hire an attorney

Interview with Client Establish Rapport – show interest n Agree on Fee – most upfront! n Advise all rights, warn not to talk n Trust is priority n Treat respectfully – walk in their shoes n – Explain attorney-client privilege Attempt to accommodate needs n Explain role of attorney and CJS overall n

Question 4 Arraignment process is usually the ______ court appearance when charges are filed. A) Last B) Worst C) Best D) First

Question 5 Which is NOT a plea that can be entered during the arraignment process? A) Guilty B) Not Guilty C) Innocent D) Nolo Contendere E) No plea F) C and E

Interview with Client n Explain timeline n Get extensive bio – in book n Warn of snitches n Counsel clients emotional needs n Amsterdam Card – rights

Getting Story Straight n Start by letting them tell whole story n Try to use clients perspective n Get details and clear up timeline n TAKE NOTES! n Reiterate the Attorney-Client Privilege n Avoid Cross-Exam. - unless blatant lies

Question 6 After arraignment, the Miranda rights do not apply because the suspect is no longer in custody. A) True B) False

Post-Arraignment Actions n Get client’s story n Establish decision-making authority n Arrange Translator – non family, no ties to government

Probable Cause Hearing Purpose n Probable cause hearing is conducted to determine whethere is probable cause to hold the suspect in custody pending trial n Hearing must be held within 48 hours of arrest except in an emergency such as a natural disaster which closes the courts.

Probable Cause Hearing Purpose n Sworn testimony is presented (witnesses, affidavits or police reports signed under oath) to establish probable cause to detain defendant.

Probable Cause Hearing Purpose n If judge determines that there is probable cause the defendant may be held in custody pending trial. n The defendant must be released if the judge does not find probable cause has been established.

Preliminary Hearing Purpose n Judge hears testimony in open court to determine if a prima facie case has been established for each felony charged n Preliminary hearing is usually held within two weeks after arraignment unless defense agrees to continuance

Preliminary Hearing What Prosecutor Does 1. Presents evidence to establish prima facie case for each element of every felony in the complaint 2. Calls witnesses and conducts direct examination 3. Cross examines witnesses called by defense

Grand Jury

Grand Jury n n n Fifth Amendment right to indictment by grand jury in cases involving capital offenses and infamous crimes – Only applies to criminal trials in federal courts Indictment is not required for cases involving only misdemeanors States are free to enact laws authorizing use of preliminary hearing instead of indictment

Grand Jury n n n Prosecutor who takes case to grand jury seeks an Indictment. Grand jury investigates case on its own and returns a Presentment. Grand juries may also hear a case at the direction of a judge.

Grand Jury n n Grand jurors usually serve a fixed term Grand jury is usually larger than trial jury; historically it had 23 members

Grand Jury n n Not all members are required to be present when every case is presented State law sets number of votes required to return indictment TRUE BILL - sufficient evidence to merit prosecution NO BILL - charges rejected and may be filed again

Question 7 A Grand Jury Proceeding is held in _______ and the Preliminary Hearing is held in ____. A) Board Room, Court Room B) Court Room, Judges Chambers C) Private, Public (Open) D) District Court, Jail

Question 8 Which is NOT accurate of a Grand Jury Proceeding. A) Cross Examination of witness B) Exclusionary Rule does not apply C) Defense allowed to present evidence D) Held in private - press not allowed E) A and C F) All of the above

Handout! Prelim v Grand Jury

Pre-Trial Release Bail n Not granted in capital cases n Traditionally granted if defendant is considered likely to appear in court as scheduled

Pre-Trial Release 1. 2. 3. 4. 5. 6. 7. Cash bail Non-cash bail Bail bond Personal bond Own Recognizance (OR) Release Electronic Monitoring House Arrest

Plea Bargaining n Benefits/Disadvantages of PB from intro notes (not simple test answers)

Question 9 Plea Bargain is: A) Another reason for filing numerous charges. B) Negotiations between prosecutor and defense lawyer C) A way to get some charges dropped. D) All of the above

Question 10 A(n) _____ is a formal charging document which is returned by a grand jury after investigation of a case. A) Arraignment B) Indictment C) Plea Bargain D) Verdict

Question 11 Tommy has been arrested for minor in possession of alcohol. It is Tommy's first alcohol offense and has no prior criminal record. What court tactic would serve best in this scenario? A) Indictment B) Diversion C) Plea Bargain D) Send him to the big house E) Put him on house arrest F) Deport him

Diversion n n Programs divert defendants from the criminal justice system Most diversion programs are designed for first offenders Diversion usually focuses on counseling programs Program are designed for specific types of offenders

Diversion n Attending counseling sessions is mandatory Completion of diversion program usually entitles defendant to dismissal of the charges and/or expunging arrest record Prosecutor may take case to trial if court rules defendant failed the diversion program

Challenges to Criminal Complaint, Indictment and Information by Defense Double Jeopardy n Needs official court records indicating defendant has prior conviction or acquittal on crime charged or greater/lesser included offense.

Question 12 The ____ amendment protects against double jeopardy. A) First B) Second C) Third D) Fourth E) Fifth F) Sixth

Lack of Subject Matter Jurisdiction n Must show state law indicating the court where the pleadings were filed does not have authority to handle this type of case.

Statute of Limitations Compare date complaint states crime occurred with date charges were filed to determine if statute of limitations for specific crimes expired before case was filed.

Lack of Speedy Trial Must show delay after indictment or filing charges was detrimental to defendant's case. Factors considered:

Lack of Speedy Trial n n length of delay defendant has asserted right to speedy trial no valid reason for delay defendant's case was prejudiced by delay

Question 13 A Speedy Trial refers to the period from: A) Indictment to Verdict B) Arrest to Verdict C) First day of Trial to Last day of Trial D) Arrest to First day of Trial E) Conception to Verdict

Failure to State a Cause of Action n Challenges wording of pleadings: claims no crime was committed even if defendant committed the acts alleged.

Exclusionary Rule and Fruit of the Poison Tree Doctrine n U. S. Supreme Court imposed Exclusionary Rule on the states in Mapp v. Ohio (1961) – evidence obtained in violation of the suspect’s constitutional rights is not admissible at trial to establish his/her guilt

Exceptions to the Exclusionary Rule “Good faith” exception: n “good faith” belief that they were acting pursuant to a valid warrant n “good faith” belief that they were enforcing a valid law but the law was later determined to be unconstitutional

Exceptions to the Exclusionary Rule “Good faith” exception: n “good faith” reliance on computer information that indicated there was a valid warrant outstanding for the arrest of the suspect although the warrant had actually been recalled prior to the arrest WARNING: the “good faith” exception is a very limited; it does NOT apply to every act an officer does in good faith

Exceptions to the Exclusionary Rule Inevitable Discovery: n Although unconstitutional means were used to find the evidence, it was inevitable that the evidence would have been discovered using legal means

Exceptions to the Exclusionary Rule Independent Source : n Evidence was found using totally untainted information from sources independent of the illegal search or confession

Exceptions to the Exclusionary Rule “Public Safety” exception : n Allows brief questioning of a suspect at the time of his/her arrest when officers believe there is an emergency threatening public safety

Question 14 ______ and ______ are the two most common reasons the Exclusionary Rule is used. A) Arrest without probable cause, Miranda not administered B) Invalid ID Card, Confessing to a crime C) Search, Seizure D) Illegal cavity search, False Imprisonment

Fruit of the Poison Tree Doctrine n n n Evidence derived from illegally obtained evidence is not admissible at trial Time and intervening circumstances may result in the taint of the initial illegal act being removed. Result: evidence derived from initial illegal activity may be admissible; original illegally obtained evidence remains inadmissible.

Challenges to Evidence by Defense Challenge to Validity of Warrant

Challenge to Validity of Warrant not based on probable cause Evidence Considered: Facts in affidavits and sworn testimony considered by judge at time warrant was issued. Facts known to the officers but not presented to the judge as sworn evidence may not be considered. Legal Issue: Do all the facts, taken together, establish probable cause?

Challenge to Validity of Warrant False information used to obtain warrant Evidence Considered: Whether officers knowingly included lies in the affidavit used to obtain a warrant. Reckless disregard for the truth is treated the same as knowingly including lies. Legal Issue: Do the facts that remain, after excluding items officers knew or should have known were untrue, establish probable cause?

Challenge to Validity of Warrant Search warrant executed in inappropriate manner Evidence Considered: Compare search that was authorized in the warrant and the search actually conducted. Also consider: had warrant expired? are there other grounds, such as Plain View Doctrine, for the officer's actions? Legal Issue: Did officers restrict search to places authorized in the warrant and items the warrant stated they could seize? Is the seizure justified on other legal grounds?

Challenges to Evidence by Defense Challenges to acts not done pursuant to a warrant

Challenges to acts not done pursuant to a warrant Searches: Evidence Considered: What the officers did and why the officers conduct the search. Legal Issue: Is there an exception to the Fourth Amendment which justifies the officer's actions? Prosecution bears burden of proof.

Challenges to acts not done pursuant to a warrant Arrest: Evidence Considered: All facts available to officer at time arrest was made. Legal Issue: Did the officer have probable cause to make the arrest? Was an arrest warrant required?

Challenges to acts not done pursuant to a warrant Confessions: Evidence Considered: All facts surrounding the interrogation. Legal Issues: Were Miranda warnings required? Were Miranda warnings given correctly? Did suspect waive Miranda rights?

Defendant's Right to Discovery n Brady material: Due Process mandates that the prosecution must disclose evidence that might be used to exonerate the defendant. n Prosecutor is assumed to know everything that the police have in their files

Defendant's Right to Discovery If defendant makes specific request n prosecution must check file for items requested and give defense the information if it is available

Defendant's Right to Discovery If defendant makes general request n prosecution must check file and give defense information that appears to show defendant's innocence

Defendant's Right to Discovery If defendant makes no request. n prosecution must give defense information that appears to show defendant's innocence

Defendant's Right to Discovery Local rules may give defense the right to pre-trial notice: n Witnesses prosecution plans to call n Statements prosecution witnesses have made to the police or prosecutor n Copies of statements that defendant made to the police

Prosecution's Right to Discovery Fifth Amendment privilege against self-incrimination bars prosecution from obtaining incriminating statements by defendant that defense has on file

Prosecution's Right to Discovery Local rules may give prosecution the right to pre-trial notice: n Defendant intends to claim alibi n Names of witnesses defense intends to call n Statements defense witnesses, except defendant, have made n Items of physical evidence defense plans to introduce and lab tests performed on the items

Question 15 The pretrial process of learning what evidence the other side has is called: A) Exclusion B) Seclusion C) Reclusion D) Discovery

Pre-Trial Conference between judge and all attorneys in case frequently held in judge's chambers usually held a few days before the trial is scheduled to begin

Pre-Trial Conference Topics considered: n Is there a plea bargain agreement? n How long is the trial expected to last? n Is any special equipment needed? n Is an interpreter needed? n Will there be a jury?

Pre-Trial Conference Topics considered: n How many prospective jurors are needed? n Will questionnaires be used to screen potential jurors? n Will the jury be sequestered?

Pre-Trial Conference Topics considered: n Will the jury be transported to crime scene for a view? n How many alternate jurors will be needed? n Do special accommodations need to be made for media coverage of the case?

Question 16 A preliminary examination of potential jurors, under oath, to determine their competence or suitability for a case is called: A) Conferencing B) Debating C) Delegating D) Selecting E) Voir Dire

Pretrial Actions Chapters Seven Eight & Nine