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42 Cards in this Set
- Front
- Back
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Pre-trial custody and release issues |
1. Notice to appear 2. First appearance 3. Probable cause determinations 4. Adversary preliminary hearings |
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Jurisdiction of trial courts |
Misdemeanors joined with felonies, felonies, writs, juvenile cases |
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County Court |
1. Misdemeanors 2. Municipal and County ordinance violations 3. First appearances |
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An accused has a right to counsel |
At all critical stages of litigation |
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Critical stages |
Accused of felony, misdemeanors or ordinances punishable by incarceration, juvenile cases, first direct appeal |
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Waiver of counsel requires |
A knowing, intelligent, and voluntary waiver. Person must understand circumstances and what they are giving up |
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Notice to appear |
A sign Promise by the accused to return to court; only for misdemeanors |
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A notice to appear will not be issued by the arresting officer if |
Accused refuses to sign the notice, accused constitutes an unreasonable risk of bodily harm to herself or others, the accused has no ties with the jurisdiction, officer suspect that accused may be wanted, or it appears that the accused has violated I noticed, summons or release condition in the past |
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The first appearance is |
An appearance by the accused before a neutral judicial officer within 24 hours of arrest. |
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What occurs at first appearance |
Council, advice, release and/or bail and/or PC determination |
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Non adversarial probable cause determination |
1. Defendant in custody 2. Entitled within 48 Hours of arrest 3. Magistrate 4. State gets two 24-hour good cause extensions |
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Adversary preliminary hearing |
1. A felony defendant who 2. Is generally detained + 3. Has not had formal charges filed against him by the prosecution within 21 days of arrest |
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An adversary hearing is a n evidentiary hearing with |
Witnesses, examination and cross-examination, and Council |
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Is probable cause is found at an adversary preliminary hearing |
The defendant will remain in custody but the state must release the defendant by the 33rd day. Exception the state may see an additional 7 days to hold the defendant after the initial 33 day period for good cause |
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Requirements for pretrial detention |
1. Accused is charged with a dangerous crime 22 enumerated 2. Defendant may be detained upon the motion of the state and an evidentiary hearing or state has burden of proof |
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What must the state show to detain a defendant pretrial |
1. Accused poses a threat of harm to the community 2. Is charged with a drug trafficking offense and is likely to flee 3. Poses a harm to the judicial process 4. Has a bad track record and likely to flee |
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Indictment |
Returned by a grand jury |
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Information |
A paper filed by the assistant State Attorney |
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Charging instruments |
an indictment or an information. Provides notice to the defendant of the crimes charged |
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Attacking the indictment or information |
1. Defective because it is so vague that it will hinder Defense 2. Motion for statement of particulars Place date and time of incident 3. Advanced copy of indictment or information request within 24 hours of pleading |
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Joinder of offenses |
If the fences are based on the same transaction or series of transactions the offenses may be joined as different counts of the same indictment or information |
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Joinder of defendants is permitted if |
1. Each defendant is charged and each count 2. Each defendant is charged with conspiracy and substantive crimes 3. Or the offenses are all part of a common scheme or plan |
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Severance of offenses |
If improperly joined defense has a right to suffer, if properly join there may be a right to Severance |
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Pretrial motions must |
State grounds for the motion and be in writing |
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Pretrial motion timeline |
First day motion receive doesn't count, last day to respond a Saturday, Sunday or legal holiday: receiver gets next business day, fewer than seven days to respond: weekends and holidays don't count |
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Prosecution must have Discovery Within |
15 days of the demand |
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Arraignment |
A court proceeding in which the defendant pleads to the charges. Can be waived and a written plea filed instead |
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Required findings by the court for a plea |
1. A factual basis for the plea must exist and 2. The plea must be voluntary |
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Traverse |
Defendants facts are false or incomplete in his motion to dismiss |
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Demurrer |
Defendants facts are true in his motion to dismiss but there is still prima facie evidence to move forward in the case |
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All persons in custody for the alleged Commission of a crime are entitled to pretrial release: |
Unreasonable conditions unless 1. Charged with a capital offense or defense punishable by life in prison and 2. The proof of guilt is evident or the presumption of guilt is great |
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Every person in custody or who suffer a significant restraint on their liberties are entitled to |
A non adversary probable cause determination within 48 hours if defendant is in custody; if out on pretrial release, bail or own recognizance, within 21 days after arrest pursuant to an arrest warrant |
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The state must try a case charging either felonies or misdemeanors & felonies arising from the same incident |
1. in good faith 2. within 175 days of filing the information |
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A non-capital cases a motion for a new trial may be made Within |
10 days after the rendition of the verdict for the finding of the Court. The court has no jurisdiction to hear such a motion after 10 days |
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Judgment of acquittal |
1. The state failed to present facts sufficient to prove a defendant's guilt 2. Cannot be appealed 3. Releases the defendant 3. Double Jeopardy attaches 4. May be made at the end of the state's evidence or after the jury returned a verdict of guilty if the defendant renews the motion |
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Where can a deposition take place |
Notice of deposition is enough to compel attendance. A deposition is usually taken in the county of the defendants residence or business if it differs from the venue of the action, however, the parties may designate any place that is mutually satisfactory |
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Summary Judgment |
Made before trial, attacks the pleadings |
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Directed verdict |
Made at the close of opposing parties evidence; can be renewed by the defense at the close of their evidence |
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A motion for a new trial |
Must be made no later than 28 days after the judgement has been entered |
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Judgment as a matter of law |
Must be made before the case is submitted to the jury |
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Renewed judgment as a matter of law |
Must have been made first at trial and must be renewed no later than 28 days after judgement has been entered |
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In federal court the clerk may enter a default judgement if |
On request of the planet supported by affidavit as to the amount due the clerk and 1. The planet claim against the defaulted offended it's worth I'm certain 2. The default was entered because the defendant failed to appear 3. The defaulted defendant is not an infant or incompetent person 4. The damages amount requested is not greater than the amount requested in the complaint |
