Pretrial Adjudication

Who decides when/what a D is charged with?

Prosecutor; judge cannot force P to charge something

Can a judge ever dismiss a prosecutor’s charging decision?

Only if the charging decision was based on selective prosecution (D must show that another similarly situated D of a different race was not charged to move forward on this claim)

If D goes to trial, P appeals, and D goes to trial again, can P increase charges as punishment?

No

If D rejects a plea offer, can P increase charges as punishment?

Yes

What does 8A right say about bail?

Bail cannot be excessive; NOT a right against all bail

What are the 2 main factors when determining pretrial release conditions and bail?

Flight risk and danger to community

What are relevant factors to consider when determining flight risk and danger to community regarding pretrial release/bail?

Nature of the charge, strength of govt’s evidence, D’s background and criminal history, risk to particular witness/victim, D’s communal ties, D’s employment

When is pretrial detention appropriate?

If the govt shows by clear and convincing evidence that no combination of release conditions would sufficiently address flight risk and danger to community

If govt argues flight risk, how does the court determine a bail amount?

Sets bail at an amount “reasonably likely to secure attendance at trial”

Why doesn’t incarceration before guilty finding violate DP/8A rights?

Because the interests of society outweigh the individual liberty interests of D

What do judges decide at preliminary hearings?

In cases where there is no indictment, the judge determines whether probable cause exists to hold D for trial

If there is an indictment, does that mean there is probable cause?

Yes. Indictments state what the probable cause was to arrest D (either by police affidavit OR grand jury finding, depending on seriousness of case)

If there is an indictment, can there be a preliminary hearing?

No

What constitutional amendment provides the right to grand jury? Is GJ required at the state level?

5A; Not required at state level, but some states still require it

Usually how many GJ jurors are there? How long do they sit?

23 jurors; up to 18 months

Who is in the courtroom during GJ proceedings?

Jurors, prosecutor, witness(es), and the court reporter; No judge, no defense attorney (D atty can sit in the hall though), no defendant unless testifying

Do GJ witnesses testify under oath?

Yes

What is the standard of proof for GJ? What do they do?

GJs determine if probable cause exists for a charge. If PC is found, GJ returns an indictment. Only a bare majority (51%) has to approve the charge.

During GJ, can P present evidence that would be inadmissible at trial?

Yes

During GJ, does P have to present exculpatory evidence?

No

Why is GJ secret? Who is bound to secrecy?

To protect witnesses, jurors, avoid D fleeing, etc.; Everyone bound to secrecy but witnesses

What are the two functions of GJ?

1. Investigatory: can issue subpoenas seeking testimony and subpoenas seeking documents (privilege rules of evidence apply)

2. Indictment: whether to charge/whether PC exists

When can D move to quash GJ subpeona?

When subpoena is unreasonable or oppressive; test is more favorable to government at this stage

Is 5A right against self-incrimination available to GJ witnesses?

Yes; applies to plainly incriminating statement and any statement that can establish a link in the chain to incrimination; usually doesn’t apply to trait evidence or documents created before subpoena was issued

If 5A doesn’t cover contents of documents in GJ subpoena, can act of production privilege apply?

Yes if the government did not already know about the existence, authenticity, and custody of the docs at issue. If the govt did, privilege probably doesn’t apply bc govt is not relying on subpoenaed person to reveal this info

What are the three types of immunity agreements P can offer so GJ witnesses don’t invoke 5A?

1. Transactional: Entire set of facts at issue is not off limits for P

2. Limited Use: P cannot use GJ testimony of witness against them

3. Letter: Customized terms

What are the three key questions in 5A right against self-incrimination analysis with GJ?

1. Was there compulsion?

2. Was there testimony or its equivalent?

3. Is there a tendency to incriminate?

What are the key differences between Preliminary Hearings and GJ?

Prelim is public; GJ is private

D can participate in prelim, not GJ

Rules of evidence apply to GJ, not prelim

Prelim is a critical stage for 6A analysis, not GJ

Prelim doesn’t eliminate the need to indict if GJ is required in a jurisdiction