Criminal Law
When writing the exam put, this decision comes from the Supreme Court of Widener, 2005 En Banc.
Steps to a criminal case
Crime
Arrest – starts the criminal case
Complaint filed against an individual – initial charging document
Appearance (advise of rights) – arraignment – in front of a magistrate; person does not have a lawyer yet
Remanded to Custody – placed back in jail to find identity and if there are any warrants
Bail hearing – File a bail motion to get the defendant out of jail setting forth the reasons why they should be released (granted/denied)
Preliminary Hearing for the individual
Held before a magistrate on record
This hearing is held within 10 days if the individual is incarcerated in jail.
If the individual is not incarcerated then the hearing is held within 20 days.
Purpose of this hearing is to see if there is enough probable cause (evidence) to go to trial. Prosecutor must show probable cause that the person committed this offense. Not difficult. Hearsay admissible
Hearsay is admissible at this point
Defense attorney at this point usually does not put any witnesses on the stand because that would put the prosecutor an edge at trial.
If you win as the defense attorney then your client is released, however, your client can be rearrested for grand jury indictment.
Double Jeopardy is not attached until after trial. The individual can be arrested again because this was just a preliminary hearing.
8 Grand jury-individual presented before the grand jury – federal system—states are not required to have grand juries. It is big, made up of 23 members.
a. How this works: gov. needs probable cause first, of the 23 people the gov. needs 12 to indict, it is secret, the d-fense attorney is not allowed inside the jury, prosecutor controls the proceeding, only federal gov. allowed to be there, exculpatory evidence is not required to be released by prosecutor. Not hard to indict an individual. Not difficult to get an indictment. Voir Dire is not present in the grand jury.
b. Indicting grand jury (federal System) citizens make that decision (indictment is a piece of paper). Had name of parties and counts. Must be an indictment because the Fifth Amendment says. Does not apply to state system.
c. Another function of the grand jury is when they are doing an investigation. US Attorneys Office begins this—the main power comes from the power of the subpoena-issued by prosecutor. They can subpoena anyone to testify-no reason needed. Main one—Privilege the can enforce is the 5th amendment. The person who was subpoena is allowed to take the 5th amendment.
d. 3 alternatives to the 5th
1. 1. let it go.
2. 2. It may not be over because the gov. can now try to Plea Bargain. Then the prosecutor has to know the testimony before they plea. THEY TESTIFY IN EXCHNAGE FOR A PLEAS BARGAIN
3. 3. possibility is immunity—(only the prosecutor can grant this)the purpose of this is so you will not incriminate yourself but if we can prove you will not incriminate your self then you now longer have the 5th amendment right instead you have immunity. Only the prosecutor can give immunity. If person given immunity then they must testify. Promise to use what one says against himself. The person then loses his 5th amendment right. The prosecutor can give use immunity instead of transaction immunity. (Plea Bargain and Full Immunity usually has to be approved by
evidence
11. Motion
a. Suppress evidenced etc
12. Pre-Trial Conference
a. Decide the plea (if no plea then go to trial)
13. Trial
14. Conviction then go to judgment
a. Once you get a verdict you have post trial motions. Motion for a new trial, set aside the verdict etc. The court reviews the verdict with these motions and then it goes to judgment.
15. Judgment
a. Appeal time runs from this judgment date.
b. At this time the person is also sentenced
c. On sentencing day the court defines what the person is guilty is of.
1. Sentence can run one of two ways.
a. Consecutively
1. The terms of the counts run back to back.
b. Concurrently
1. The terms of the sentence run together
16. Appeal
17. Post conviction
a Habius corpes—-some constitutional issues can still be raised, then
you get a hearing. Could be an error of statute or law.
Jeopardy attaches at the beginning of trial (5th Amendment of the Constitution)
– Person can not be retried for the same crime
– Starts when the jury is sworn in or the first witness is called in a non jury trial
– If the Magistrate says there is no probable cause… Marshall’s can still re arrest your client because jeopardy has not attached yet
