Criminal Procedure (De Specific)

Front 1

Are hearsay statements made by a co-conspirator admissible against another co-conspirator?

Back 1

Yes - even if rights of speaking co-conspirator are violated

Front 2

What are the death sentence rules?

Back 2

1. jury must find beyond a reasonable doubt at least one aggravating circumstance
2. jury must find mitigators by preponderance of the evidence
3. jury weights aggravating facts against mitigators
4. judge then reviews jury determination and can do against jury

Front 3

What are the key phrases to know?

Back 3

1. reasonable articulable suspicion – to justify stop
2. probable cause – to justify arrest
3. beyond a reasonable doubt – for conviction
4. without unreasonable delay - time between arrest and to court
5. 3507 statements – prior recorded statements
6. Brady – exculpatory information
- must provide to D at time received
7. Jenicks act statements – prior statements of a witness
- must provide
8. amenability hearing – juvenile to adult court

Front 4

What are the other phrases to know?

Back 4

9. reverse amenability – adult court to juvenile court
10. Flowers hearing – disclosure of information
11. Robinson plea – nolo contender
12. chain of custody – D has to contest or is waived
13. victim’s rights – victim has right to be present whenever D present’ right to know if D will plead
14. Rule 404(B) – Getz – character of accused
15. custodial interrogation – Miranda
16. two hour detention
17. reasonable expectation of privacy – standing to object

Front 5

What is required for a Terry stop?

Back 5

Reasonable articulable suspicion for stop

Reasonable ground to believe will be in danger if person possesses a weapon

Reasonable – totality of the circumstances

Front 6

What else does DE allow?

Back 6

A 2 hour detention

Front 7

How is probable cause established in a warrant?

Back 7

Four corners of the affidavit

Front 8

When is a nighttime search allowed in DE?

Back 8

1. must state specific facts to establish it is necessary to prevent the escape or removal of the person or object
2. judicial officer must give express authority for nighttime search in warrant

10:00 p.m. – 6:00 a.m.

Front 9

What is required for an arrest in DE (if no exception)?

Back 9

1. complaint
2. arrest warrant

need probable cause

Front 10

What is required after an arrest?

Back 10

Must take D to nearest available magistrate without unreasonable delay

Front 11

What is the order of hearings in DE?

Back 11

1. initial appearance
2. preliminary hearing (does not happen if indictment or information filed first)
3. grand jury indictment or AG information
4. arraignment – plead

Front 12

What should you know about preliminary hearings?

Back 12

1. hearsay allowed
2. entitled to cross examine witnesses and introduce evidence
3. cannot suppress evidence
4. no general rules of evidence
5. can be waived
6. generally 1st time have counsel

Front 13

Who is allowed in a grand jury hearing?

Back 13

Prosecutor, witness, interpreter and court reporter

Front 14

What is the difference between an indictment and information?

Back 14

Indictment – felonies and misdemeanors
- charging docs by grand jury

Information – motor vehicle violations and other various offenses
- charging docs by AG

Front 15

When can offenses be joined in an indictment?

Back 15

1. same or similar character
2. based upon same transaction; or
3. common scheme or plan

Co-Defendant can be charged in same indictment

Front 16

Which motions must be raised pre-trial?

Back 16

1. defenses and objections based on defects in the institution of the prosecution
2. defenses and objections based on defects in the indictment or information
3. motions to suppress evidence
4. motions to compel discovery
5. motions to sever charges of defendants
6. notice of insanity defense to AG
7. notice of defense based upon public authority

Front 17

What must be given to D during discovery?

Back 17

1. written or recorded statements made by D or a co-D within possession, custody or control of the state, the existence is known, or by the exercise of due diligence may become known to AG
2. written record containing the substance of oral statements made by a D before or after arrest in response to police questioning
3. prior criminal record of the D
4. books, papers, documents, photographs, tangible objects in possession of state and which are material to defense OR intended to be introduced by state
5. reports of scientific test in possession of state and material to defense or intended to be introduced by the state
6. expert witnesses

Front 18

What must be given to state during discovery?

Back 18

1. books, papers, documents, photographs, and tangible objects the D intends to introduce
2. reports of scientific test the D intends to introduce or that relate to testimony of defense witness
3. expert witness

Front 19

What is considered when attempting to withdraw a plea after sentencing?

Back 19

1. was there a procedural defect in taking the plea
2. did the D knowingly and voluntarily consent to the plea
3. does D have a basis for asserting legal innocence
4. did the D have adequate legal counsel throughout the proceedings
5. will the granting of a motion prejudice the state and unduly inconvenience the court

Front 20

What is required for juries?

Back 20

12 unless parties stipulate to less before verdict

bench trial when D waives right to jury trial

Front 21

How can jurors be challenged during voir dire?

Back 21

1. for cause
2. preemptory challenges

Front 22

When is there a right to appeal by the state?

Back 22

1. any order granting D:
- new trial, judgment of acquittal after verdict, modification of verdict, arrest of judgment, post conviction relief, new punishment hearing in a capital murder case where the court had imposed the death sentence
2. any order declaring a statute unconstitutional
3. any sentence unauthorized or contrary to law
4. any order dismissing an indictment or information based upon the invalidity or construction of a statute
5. any order entered before trial suppressing or excluding substantial and material evidence
6. any ruling on a question of law or procedure adverse to the state in any case in which the D was convicted and also appeals

Front 23

When will an informant be disclosed (Flowers hearing)?

Back 23

1. mere establishes probable cause for search – disclosure not required
2. informer witnesses criminal act OR participates, but is not party to illegal transaction – determined in hearing; materially aid defense
3. actual party to illegal transaction – must disclose

Front 24

What is an Allen charge?

Back 24

If a jury is deadlocked, the judge can give a supplemental instruction to encourage a verdict
- no coercion
- say do not surrender honest beliefs

Front 25

What is a write of mandamus?

Back 25

Issued by DESC when petitioner shows that have a clear right to the performance of a duty by a trial court and no other adequate remedy is available; and trial court has arbitrarily failed or refused to perform its duty

Front 26

What is a writ of prohibition?

Back 26

Prevent a lower court from exceeding the limits of its jurisdiction or a judge from proceeding where the he/she is disqualified by personal interest, bias or prejudice

Front 27

What is a writ of habeas corpus?

Back 27

Sufficient showing that D is being held contrary to the sentencing orders of the court