Crim Pro 2 Flashcards

What are the 3 stages (clocks):

Clock 1 (Arraignment), Clock 2 (Arraignment to indictment or filing of information), Clock 3 (Speedy Trial)

What is Clock 1? What is the time requirement?

Arrest to Arraignment

Time standard is "without unreasonable delay" usually interpreted as 48hours, absent extreme circumstances like natural disaster, etc.

What is Clock 2?

Arraignment to Indictment or Filing of Information by prosecutor

When it comes to felonies, they must be what?

felonies must be indicted by Grand jury in most jurisdictions

What is filing of an information by a prosecutor

Information is permissible only for misdemeanors in most jurisdictions)

What is amount of time for Clock 2?

30 days defendant is locked up

90 days if was released with or without conditions

The clock is often rolled over for 30 days and 30 days against and on for several months or so if the parties are trying to work out a resolution

What is an Information?

looks like an indictment but is just the statement of the prosecutors, laying out charges. it's issued by prosecutor rather than GJ and looks like indictment except signed by prosecutor instead of grand jury foreperson.

Information's are used only for?

misdemeanors, or when a deal has been reached prior to indictment & the defendant is going to plead guilty. (When the former occurs, he waives the grand jury and agrees to plead to an information

What is Clock 3

Once indictment returned or unsealed (if it was sealed) or once information filed, it is assigned to a trial judge and parties have a "status conference" before the judge to set schedule for discovery, motions, hearings like hearing on motion to suppress, and a far-off trial date

from date of indictment or filing of information until trial starts = speedy trial clock

when does the speedy trial clock not run?

Parties agree to exclude time between status conference while they're trying to work out case, so speedy trial clock doesn't run when "time excluded" as long as parties agree not to let Speedy Trial Clock run. It doesn't run.

What is the First 48

After arrest (or surrender) have 48 hours (sometimes quicker if weekend) to bring before a magistrate, often called "present or arraignment" or "first appearance.

What is the time standard for clock 1 AKA the first 48?

without unnecessary delay, but this usually interpreted as 48 hours unless something unusual happens

At assembly/Arraingment, what happens?

Arrestees are brought up before the judge AND they are:

1) informed of charges

2) appointed counsel &

3) the judge determines if bond will be set and if so sets bail

Note: The public defender or prosecutor who grabs a case that morning may or may not stick with the case the rest of the time through the process

What happens to the arrestee after arraignment?

Person is either released report back date (90days see clock 2), OR

Put back in jail and they'll be brought back in 30 days.

What are the 2 possible scenarios that Trigger Room Arraignment?

(1): Crime happens with no notice (murder happens out of blue, police catch a drug deal going down) and place someone under arrest on the fly

(2): Police or agents investigating something for a long time and finally ready to bring charges. The suspect mayor may not know she's under investigation. Prosecutors either go to grand jury and indict the case from the start (which jumps it ahead in the process) and the grand jury issues an arrest warrant, OR

they don't involve the grand jury yet and just type up a complaint in advance and then when it's convenient go out and arrest the guy.

What's an example of Scenario #2 for triggering arraignment

straight to indictment" happens more often with Feds, tends to be bigger crimes, white collar, etc.

when you hear on news "Mayor Joe Smith was arrested today after an indictment was unsealed" that's a case where the prosecutors jumped ahead and just started the process with a grand jury indictment

Explain scenario #1 for triggering arraignment

Crime happens with no notice (murder happens out of blue, police catch a drug deal going down) and place someone under arrest on the fly.

in the time after arrest and before arraignment, cops or prosecutor have to type up a "complaint," a written sworn statement of the basic facts establishing probable cause. Informants aren't named, but referred to as CI1 and CI2, etc. At arraignment, defense attorney can challenge probable cause in the document, and if this happens, a probable cause hearing is set (Preliminary hearing

. If defense attorney asks for a PH hearing, prosecutor usually just quickly goes to grand jury and indicts the case, which is a different way of establishing probable cause and obviates need for PC hearing. So defense attorneys usually don't want to force this issue and rush an indictment. Some jurisdictions have PH as part of their routine process.

When is Bail set?

at Arraignment, BUT can be revisited any time on motion of defense attorney or prosecutor

Attorney's typically focus on 4 things for Bail:

1. Serious of charge AND how much time facing

2. Risk or non-risk of flight (past experience showing up or not showing up for charges, connections to community)

3. Danger to Community (micro (specific concerns) or macro (he's a bad, violent dude in general), and

4. interruption of defendant's life is not released, impact on others, ability to prepare for trial, etc.

Special note on what Attorney's typically focus on 4 things bail:

the ultimate "loosey goosey" legal application, because technically all aspects of a person's life can be relevant to these 4 factors, so precedent doesn't play as much relevance as each person and case is different.

Do the rules of evidence apply to bail?

Nope! Hearsay allowed, basically attorneys are testifying and telling the story

Even though initial bail is set at Room A, can it be changed later?

Yes!

defense lawyer can ask for it to be revisted at any stage in the process

Can also appeal to the court of appeals before trial

These are quick, immediate appeals and don't happen often. In Ohio, the procedure is filing a writ to the court of appeals rather than an "appeal," but this is just semantics. Same thing in reality.

What is the rule from the Stack case?

standard for 8th Amendment ban on "excessive bail" set forth presumption of bail that is "not excessive," meaning it is only enough to assure appearance of defendant.

When does the right to counsel "attach"?

by first appearance but only means one has to be provided "in a reasonable time" from first appearance

.Note: If this is unsatisfyingly unclear, you're not wrong. I suppose because bail can be revisited at any time, this rule has passed muster

What is the rule from Salerno:

speculative "danger to community" if defendant were to be released on bail CAN be considered by judge setting bail, despite presumption of innocence and 8th Amendment. 8th Amendment ban on excessive bail only relevant in cases where bail is set (8th doesn't say bail HAS to be given

this case constitutionalizes the practice of detention—no bail given if no conditions of bail can assure appearance or protect the public.

What is Prosecutorial Discretion?

In America, prosecutors have unfettered discretion in charging or not to charge, how to charge, how to divide counts. Virtually no rules.

discretion comes in many forms, some "legit" and public; some legit and private; and some private, "rogue" and perhaps contrary to rules.

Discretion spans from decisions in individual cases, to announcing broad decisions ("My Office will no longer prosecute prostitution or drug possession."), to individual cops or prosecutors taking matters into their own hands and making decisions that might contradict objectives of their bosses.

Discretion is inherent and would be hard if not impossible to control (if we tried).

Do bar standards or ethical rules impact prosecutorial discretion?

No, have little influence, unless a prosecutor personally believes she should follow them.

Courts rarely (never) suspend or punish prosecutors over charging decisions, because they have complete discretion

Also, the ethical rules are subjective and have a mens rea component

Why is it hard to prove a prosecutor violated a ethical rule in prosecutorial discretion?

the ethical rules are subjective and have a mens rea component

If the prosecutor "subjectively believed" something, like there was enough evidence to bring charges--even if that belief was unreasonable--there is no violation of the rule. Even if you believe charges were not supported, almost impossible to prove that the prosecutor thought the same.

What are 2 theoretical limits on discretion (none in practice)

1. Selective Prosecution/equal protection

2. Vindictive Prosecution

What is Selective Prosecution/Equal Protection

SCOTUS says, in order to win on SP, have to show that others (of a different race) committed same crimes and were not prosecuted.

Why is Selective Prosecution/Equal Protection Hard to Prove?

this is impossible because defendants do not have access to this information. Cannot get discovery of police files unless defendant has "some evidence" of the elements. But this is also nearly impossible

cannot get this information through public record laws either

in the mass incarceration era from which Armstrong originates, racism saturated the system that resulted in the arrests of the Armstrong defendants. Yet the court fashions a narrow standard that fails to focus on the obvious racism visible from the mile-high vantage point and creates an impossible legal standard in the process.

Explain Vindictive Prosecution?

might in theory be raised when prosecutor increases punishment on a defendant because he exercised a constitutional right, like he insisted on a trial rather than pleading guilty and thus made prosecutor's job harder or appealed and got retrial ordered.

Explain How to Prove Vindictive Prosecution (Blackledge)

says when prosecutor increases charges after defendant successful appeals and gets a restart at trial level, presumptively vindictive (prosecutor can overcome by showing new evidence was discovered in the meantime, circumstances changed, etc.).

also makes clear that this presumption does not apply to any prosecutorial actions PRE-trial. Thus, threatening 'If you don't plead guilty by March 1st, I'm going to go add a bunch of new counts and hammer you" does not establish a VP claim.

What is Judicial Screening: The Preliminary Hearing?

In most jurisdictions, PHs are not required

If a preliminary hearing happens, it is a short hearing before a "duty magistrate" like the Room A judge where the prosecutor has to put on enough evidence to prove probable cause.

What is enough evidence for the prosecutor at the preliminary hearing before the magistrate to establish probable cause?

this can be just one witness, not the state's entire case. This one witness is usually the investigating officer who testifies by including hearsay of what the witnesses said

The judge decides if PC exists based on hearing live evidence

What can the Defense do during the Preliminary Hearing (PH) to prove PC?

The defense can cross-examine the state's witnesses

What is the special note concerning Judges establishing Probable Cause?

Recall, the judge has previously, at the first appearance, confirmed that the written complaint establishes probable case, but this is a more formal process where at least one actual witness is called. So if a PH happens, it is the 2nd time that PC is confirmed.

If a PH does NOT happen, it is because a grand jury is performing the same role instead and confirming that PC exists by issuing an indictment.

Law about 6th Amendment and Preliminary PC Hearing (Stranger case)

6th Amendment says right to counsel attaches at any "critical stage" in the process. Held that PH is a critical stage.

Grand Juries are what?

sitting juries that must decide if PC exists. They are more commonly used than PHs.

If a Grand Jury finds PC?

it issues an indictment

Who types up the indictment based on the charges being sought

The Prosecutor

After the Grand Jury hears the evidence and takes a vote

The foreperson signs the indictment

When does the Grand Jury have to indict someone?

Usually must happen within 30 or 90 days of the Preliminary hearing UNLESS both parties agree to "roll over the clock" for another 30 or 90 days.

When an Indictment is issued

it moves the case from Pretrial stage 2 to Pretrial stage 3

After indictment the case gets?

wheeled to a sitting judge who has the case the rest of the time through trial, conviction and sentencing

Large Jurisdiction have 30-day grand juries which

These sit for 30 days and often hear 5-8 cases a day, 30-60 minutes each, and issue many indictments each day

Long Term grand juries are those which

might meet 4 times a month for 18-24 months. These GJs hear complicated, long-term cases like political corruption or mafia, etc.

Grand Jurys have 2 functions

1. Sword

2. Shield

What is the Shield function of the Grand Jury?

protects the public from a crazy prosecutor or dictator-type who gets into office and tries to take down political enemies on bogus evidence. The fact that it hasn't happened yet doesn't mean the GJ is a waste of money. It's a good protection if democracy starts to break down

Also, even tho GJs get accused of being a rubber stamp for the prosecutor, their presence forces prosecutors to "get their ducks in a row" and only bring cases on solid evidence. If we didn't have GJs, we would have probably had crazy cases in our history of prosecutors trying to prosecute their ex's etc. on bad, fabricated evidence. This doesn't happen really because the GJ stands in the way and prosecutors know they can't get away with it.

What is the Sword Function of the Grand Jury

It is what gives the prosecutor subpoena power to get documents (subpoena phone records, bank record, etc.) and to force witnesses to come and testify.

It basically gives the prosecutor discovery in a way the defense does not have. When you read in the news that "the GJ is investigating," it is really the prosecutor who is making these decisions what to investigate, what to subpoena, etc.

Prosecutors also use GJ to put witnesses who they think might "flip" on them later under oath and get the favorable story in a transcript for later use when they no longer tell the story the prosecutor wants.

Prosecutors sometimes use GJs to "crack" a witness they think is lying. Putting them under oath and telling them you'll be charged with perjury if you lie convinced some witnesses to tell the prosecutor what they want to hear.

The grand jury is a like a discovery machine for the prosecutor, and the defense has no equivalent way of forcing people to talk or turn over documents before trial.

Grand Jury determines if PC exists based on

Solely the prosecutor's evidence

What do we mean by the Grand Jury hearing is one sided?

. No defense presence or evidence. Prosecutor does not have to present evidence favorable to defense

Do the rules of evidence apply to the Grand Jury?

Nope!

The investigating officer can just come in and summarize the case and what the witnesses would say. Can indict a case in 10 minutes in some instances based on officer testifying with hearsay.

What branch of Government does the Grand Jury rest in?

None of them!

Own independent authority, mentioned in bill or rights but not assigned to branch.

Has the right to a grand jury been incorporated through the 14th amendment to the states?

No! but states provided it anyway through their state constitutions

Is there a right to counsel for Witnesses in Grand Jury?

Nope!

if someone is subpoenaed to testify in front of the Grand Jury, they are allowed to do what?

They are allowed to take the 5th

Does the exclusionary rule apply to the Grand Jury?

Nope! evidence taken in violation of constitution is admissible (bad search, coerced confession=doesn't matter).

If a Witnesses is subpoenaed to the Grand Jury and asserts their 5th amendment right and refuse to answer what can the prosecutor do?

if prosecutor thinks it's not legit, can move with the judge assigned to that grand jury duty to have the court hold witness in contempt. Judge will likely appoint witness a lawyer if he doesn't have one, and judge and lawyer will discuss the issue and hammer out a resolution

What is the Standard for determining whether a Witness's 5th amendment claim is legit and not contempt?

it is "perfectly clear" that the witness is mistaken, and the answers or explanations as to why she cannot answer "cannot possibly" have a tendency to directly incriminate or provide a link in the chain that could lead to incriminating evidence. This means witness usually wins unless it's clearly and facially bogus.

If the Witness's 5th amendment claim in front of GJ is legit, what then can prosecution do?

At this point, prosecutor can forgo the testimony, move on, or offer some sort of immunity which takes away the claim that an answer might lead to prosecution.

What is Transactional Immunity?

Person gets immunity for entire incident with its broadest definition

Ex: If we're talking about a string of bank robberies in the summer of 2022 under investigation, witness gets immunity from prosecution for the whole shebang and all crimes associated with it. This is rarely given.

If it's given, it's a written contract that lays it all out. Including exactly what it covers with precision, which incidents, which possible crimes, etc. Proffer, plea and immunity deals are the situations where criminal lawyers engage in contract law.

What is Use Immunity? (AKA use & derivative use immunity)

Person can still be prosecuted for the crimes, but prosecutors can't use their grand jury testimony or the "fruits" of that testimony.

Ex: 1) Say in his testimony the witness confesses to participating in the crime and discloses where the knife is hidden. If the police then find the knife after this testimony and use the knife against the witness in a later prosecution, defense lawyer will move to suppress the knife claiming it was "derived" from the witness' grand jury testimony. This shifts burden to prosecutor to show they got the knife through an "independent source," like another witness later told them about it. If they can do so, then they can use the knife. Sometimes it's not always clear whether they truly got it from an independent source.

What is Act of Production Immunity

SCOTUS has recognized that forcing a person to turn over documents or an object qualifies as "compulsion," and the act of producing it can be testimonial if that act conveys the witnesses' thought process.

Whether or not a subpoena reveals thought hinges on how it is worded. A subpoena that says "Produce the gun used in the murder" is more likely to be deemed testimonial than one that says "Produce all guns in your house." In any event, if a witness (usually through an attorney) moves with the duty judge to quash a production subpoena (subpoena duces tecum), a dispute will ensue as to whether the act of responding to the subpoena is testimonial.

The text of the 5th says: "No person, in any criminal case, shall be compelled to be a witness against himself." Thus, because witnesses give testimony, the 5th bans "compelled testimony." The "testimony" aspect comes from the word "witness." What does this mean?

This means what the state wants from the witness must be "testimonial" before the protection of the 5th is triggered. When the subpoena requests witness to bring documents or objects to the grand jury, at first glance it looks like there is neither compulsion nor testimony. but SCOTUS has recognized that forcing a person to turn over documents or an object qualifies as "compulsion," and the act of producing it can be testimonial if that act conveys the witnesses' thought process

If the court deems the act of responding to the subpoena to turn over objects or documents as testimonial, then

then the prosecutor can only enforce the subpoena if they give the witness "act of production" immunity

What does it mean when someone is given Acts of Production immunity?

If given, it means the witness has to turn it over, but the state cannot disclose how or from whom they got it. They'll have to establish its connection to the case, authenticity and probative value through other means. In this way, the "act of producing it" does not incriminate the witness.

What does Act of Production Immunity Apply to?

documents or objects subpoenaed to produce these to a grand jury

Why isn't whether something is testimonial or not be evaluated under the 4th amendment?

-> be then we would analyze subpoena duces tucem under the 4th amendment: stated off thinking in that way but quickly abandoned and switched to the 5th (boyd case) agreement against it not staying that way, the policies of the 4th are about privacy and people coming into your housem a subpoena is a way to get documents without coming to your house and is not invoking the underlying values of the 4th . Attorneys started comparing to the 5th, you are making my client incriminate themselse, most of the time documents/objects were pre-existing and doesn't seem to implicate the privilege of incrimination but other times it is tesitmoial and saying this is the murder weapon, if you want my client to turn them over you must given him immunity.

After we have completed the first 2 clocks, and now at clock 3 what now may begin

Pre-Trial Motion Practice: The case has been indicted and assigned to a sitting judge, who will handle the case from here on out (until jail in the "bail to jail" story). Speedy trial clock, the 3rd clock, is now running

Parties schedule a first status conference with the judge very quickly to stop the clock and get their ducks in a row with a schedule. From that point on, they usually agree to stop the Speedy Trial Clock between each meeting with the judge as they inch toward trial.

What happens at the first status conference?

At this first meeting, the judge usually sets a schedule for discovery, pretrial motions, any evidentiary hearings that might be needed, and then a trial date. After the defense gets discovery, the defense has a deadline by which to file pretrial motions like motions to suppress under Crim Pro 1 for search and seizure, confession law violations, etc. (evidentiary motions like "please admit this statement under the hearsay exception" come much closer to trial).

Blackletter law on Pre-Trial motion practice: If defendant needs to testify in one of these early pretrial hearings to assert a constitutional right, that testimony can't be used against him later, but CAN

be used to impeach if he testifies and contradicts what he said at suppression hearing

Motion to Change Venue

Type of Pre-trial motion like MTS. very rare

2 situations where this is triggered

What is the Situation 1 to trigger Motion to Change Venue

Need to change districts due to pretrial publicity. Very rarely granted. I would venture to guess maybe 1 or 2 a year in entire country? Maybe none. Unlikely to ever face this in practice. This had more teeth 75 years ago when something could be big story locally but 4 counties over no one has heard of it. Now, with internet, harder to make argument that move will change anything.

What is the Situation 2 to trigger motion to change venue?

1. Prosecutor brought charges in wrong county where no party of crime happened. This is also rare, never heard of it actually happening.

Does Discovery come before Pretrial motions, when does it happen?

Yes, it comes Before Pretrial motions, discovery is typically the first thing once your assigned to judge.

Will Rule 16 Discovery be tested on the bar or Godsey's exam?

No, Why? Bottom line, every prosecutor or PDs office will have clear procedures derived from their local rules and it will be one of the first things you get primed on if you work in this field. It's not rocket science, but like reading the instructions on the back of a cake box.

What is the Brady Doctrine?

In addition to anything covered or excluded by Rule 16, the due process clause requires the state to turn over all material evidence or information favorable to the defendant if there is a "reasonable probability" that it would raise reasonable doubt if heard by the jury

If you're going to be a prosecutor, just turn everything over and make it a personable responsibility that you get all the files from the police, grill them on if they found anything favorable to the defense, and turn it all over. You're the lawyer, you're the one trained on Brady, this is YOUR job.

When are Brady Doctrine issues litigated?

After trial! Prosecutors and Police offers should be giving things over that might qualify for brady before trial!

Elements to Prove Brady Doctrine Violation

1. Favorable to Defense

2. Suppressed by the State

3. Materiality

What do we mean by Element: Favorable to Defense (Brady Doctrine)

1. suggests innocence or that someone else did it, or undermines state's theory of case

2. evidence that has nothing to do with innocence but impeaches the state's witnesses, Giglio, Bagley

3. evidence that undermines the quality and/or motives of the police investigation (Kyles v. Whitley)

4. evidence that reasonably appears might have led to important avenues of investigation or caused reasonable defense attorney to call an expert witness that could have changed the landscape

What do we mean by: suggests innocence or that someone else did it, or undermines state's theory of case

(shows their theory of case is wrong).

What do we mean by: evidence that has nothing to do with innocence but impeaches the state's witnesses, Giglio, Bagley

(like hiding that they got benefits to testify, or hiding that they had changed their story many times, etc),

What do we mean by evidence that undermines the quality and/or motives of the police investigation

EX: When police had developed a very specific progile of the attacker/perpetraitor and they had all these suspects but then a detective went rogue and ignored everything the supervisors told them to do. Defense argues that the detective had some other motive, ignored rules etc. This does not go to Guilt or innoce but it does undermine the investigation however if all you have is C then it I only going to work if coupled with other brady violations or if the case was very weak in the first place then a C violation may be enough.

What do we mean by: evidence that reasonably appears might have led to important avenues of investigation or caused reasonable defense attorney to call an expert witness that could have changed the landscape

Ex: prosiection put forth an expert and they held back a lot of information that undermine what the expect was saying and that was shady and had defense know this information they would have called their own expert

What does Element #2 Suppressed by the State (For Brady Doctrine) mean?

often requires affidavit of defense attorney saying she wasn't given the favorable info

a court can also make inferences from fact it wasn't used by defense attorney. Say the suppressed evidence was information that state's witness committed perjury last year in another case. If defense attorney didn't grill the witness about that at trial, a strong presumption arises that defense attorney didn't know about it, wasn't disclosed, because any sane attorney would use that info to her benefit

This prong presents a double whammy for the state, because if state comes back and claims "we told this to defense counsel" and defense counsel didn't use it to her benefit, then it is often a different claim—Ineffective assistance of counsel

What does Element #3 Materiality (For Brady Doctrine) mean?

the suppressed evidence raises a "reasonable probability" that the outcome would have been different, meaning, he would have been acquitted.

This, by definition, requires an examination of how strong the evidence was a trial. If very strong evidence of guilt, the suppressed evidence would have to be very powerful. If evidence at trial was on the weaker side, then maybe something that is not a bombshell could have been enough to tip it.

Does it matter, if Defense attorney requested the information under Brady?

No! it does not matter if defense attorney requested such information. Continues up through trial and possibly beyond. Even if discovery has "ended" under Rule 16, if prosecutors/police find something the day before or during trial they have to turn it over immediately. Ethical rules in some states now require it to be disclosed even if they find it years after conviction

For Materiality, what is included?

the suppressed evidence raises a "reasonable probability" that the outcome would have been different, meaning, he would have been acquitted.

includes impeachment material, stuff undermining credibility of the state's witnesses that was held back

. This includes info that is impeaching just to this case (Cain—witness previously said didn't get a view of perp wouldn't be able to identify anyone, then picks out defendant), or impeachment unrelated to case that is more character evidence (got caught in all sorts of lies with police, changed story, or tried to bribe police officer when first approached—things that show the person isn't very honest generally).

includes material that impeaches the quality or motives of the police investigation, like ignoring equally good suspects; or going against protocol and violating internal rules in the investigation; or committing to a theory of case and then going in completely opposite direction once the tip comes in connecting defendant to case. Kyles v. Whitley. It is often harder for a defendant to show materiality with this type of Brady material.

-includes information that, if disclosed, might have led to fruitful paths of investigation for the defense, even if evidence not fully developed yet

What is an example of information that, if disclosed, might have led to fruitful paths of investigation for the defense, even if evidence not fully developed yet (Materiality - Brady Doctrine)

ex. Police get a tip from someone saying they saw a car that matched description of getaway car driving away from scene of crime, and got the license plate. Police run plate and when they see it's not their suspect, they don't take any further steps. Later, after trial, if defendant gets this info say through public records request and runs those plates, and finds it is someone who committed the same type of crime in the same area, that convicted is going to get tossed on Brady. Lesson to prosecutors---turn everything over and take control of cops on your case, get their file, and make sure everything is turned over.

Note regarding Compelled Defense Discovery!

Rule requiring defense to provide discovery regarding alibi defense 10 days before trial did not violate privilege against compelled self-incrimination.

Requiring defendants to also provide discovery regarding insanity defense or reports of all experts to be used has likewise passed muster.

Not sure how far this rule could be extended to items that are NOT incriminating, but right now most jurisdictions limit pretrial discovery requirements on defendants to very few things that, out of fairness, State should learn about in advance so defense doesn't have unfair advantage. The alternative to requiring pretrial discovery on these things is to stop the trial in the middle and let the State have many days to investigate, and that doesn't make sense.

What is a Youngblood Motin to Dismiss Based on Destruction or Failure to Preserve Evidence?

If the state loses or fails to disclose evidence that is material and meets the Brady standard, then it is a Brady claim and the loss or destruction of the evidence results in dismissal of charges

If evidence is lost or destroyed (or not properly preserved) by the State and it only MIGHT have been helpful to the defendant (like it was DNA and we don't know if it was helpful because he never got the chance to test it before it was lost), then it results in a dismissal under the due process clause ONLY if defendant can show bad faith on the part of the state

Standard for showing Bad Faith is the Preponderance of the evidence

Motion to Sever Counter or Defendants (Crim Pro Rule 8.14) How does it work if we have 1 Defendant?

Counts can be joined together if 1 of 4 applies:

1. From same transaction

2. Not from the same transaction but of the same character

3. Part of the same common scheme or plan

4. (Reldan) if 2 crimes that otherwise fail 1-3 above would be admissible in each trial under FRE 404(b), then they may be tried together. No point in holding 2 trials that look identical.

For a Motion to sever counts or Defendants, if we have 1 D, what do we mean by same transaction? Inorder for counts to be joined?

so if bank robbery where he also stole a car to use as the getaway car and then laundered the money he stole, all those crimes can be brought in one indictment as they all orbited around the bank robbery

For a Motion to sever counts or Defendants, if we have 1 D, what do we mean by same transaction but of the same character?

like a string of bank robberies or a string of drug deals

For a Motion to sever counts or Defendants, if we have 1 D, what do we mean by (3) part of the same common scheme of plan?

Regarding #3, a drug deal could not ordinarily be indicted with a count of child molestation. However, if the State had sufficient evidence that he did a drug deal in order to get funds to travel to engage in child molestation, then they could be indicted and tried together pursuant to 3.

For a Motion to sever counts or Defendants, if we have multiple defendants? : crimes in cases charges multiple defendants can only be in the same indictment/trial if satisfies

#1 above, same transaction or #2 if they did the series of crimes together.

IF defense lawyers attempt to sever the trials of 2 or more defendants alleging this rule has been violated, they must show prejudice under Rule 14. (more on rule 14 later)

Motions based on Alleged Violation of Speedy Trial Rights? Motions based on violation of speedy trial are rarely made in this country, but when they are, they are based on one of three things:

1. Constitutional Clauses in the 6th amendment

2. Local Speedy Trial Act rules

3. Due Process Right against delayed prosecutions

Motions based on alleged violation of Speedy Trial Rights but based on #1 (Constitutional Clauses in the 6th amendment?

1. lack of objection to delays by defendant does not automatically mean waiver of this right

2. if constitutional violation found, only remedy is dismissal of charge with prejudice

3. 4 factors are used to determine if violation has happened: length of delay, reason for delay, whether defendant objected or otherwise asserted the right and demanded speedy trial, and prejudice to the defendant (3 types)

For an alleged violation of speedy trial rights based on the Constitutional clauses in the 6th amendment. the 4th factor used to determine whether a violation has occurred, (prejudice to the defendant) has 3 types of prejudice what are they?

1. Anxiety and concern of the Defendant

2. Oppressive Pre-Trial Incarceration

3. To limit the possibility that the defense will be impaired