Procedure And Evidence Flashcards

Front 1

Magistrating the Accused

Back 1

Must present before a mag w/o “unreasonable delay” (w/in 48 hours)

Front 2

Duties of Magistrate

Back 2

1) tell D the charges
2) tell him his rights to counsel and an examining trial
3) Warn D that in regard to police questioning
4) Set bail

Front 3

4) Set bail

Back 3

Release on bail req’d if no PC determined by magistrate
felonies: after 48 hours of arrest w/o warrant
misdemeanors: 24 hours of arrest w/o warrant
Magistrate can delay release for not more that 72 hours

Front 4

Denying Bail

Back 4

Prosecutor must file motion for denial of bail in District court (w/in 7 days of appr)
Possible in 2 cases
Capital murder prosecution
Certain non-capital cases

Front 5

Prosecutor must file motion for denial of bail in District court (w/in 7 days of appr)
Possible in 2 cases
Capital murder prosecution, if at a hearing the prosecution shows:

Back 5

1) the D is charged w/ capital murder
2) likelihood that D will be convicted; and
3) likelihood that death penalty will be imposed

Front 6

Certain non-capital cases if at a hearing the prosecution show

Back 6

1) D is charged w/ a non capital felony
2) substantial evid of D’s guilty of the crime
3) one of the following:
i) 2 prior felony convictions
ii) present offense committed while out on bail on felony
iii) both: a) 1 prior felony conviction; and b) present offense involved use of a deadly weapon
4) present offense was a violent or sexual offense committed while on felony probation or parole

Front 7

Reducing Bail

Back 7

D can file an application for a writ of habeas corpus in the District Court
At hearing, D must show that:
1) bail was “excessive” (Factors (LASSO))
2) he cannot meet bail set; and
3) an amount that he can meet
If district court does not order bail reduced, can appeal to Ct Apps

Front 8

At hearing, D must show that:
1) bail was “excessive”
Factors:

Back 8

Likelihood of D appearing
Ability of D to make bail
Seriousness of the crime charged
Future Safety of the victim and community
Required bail is not to be an instrument of Oppression

Front 9

Waiver of Indictment

Back 9

D can waive indictment if:
1) D is represented by counsel
2) waiver is written or made in open court; and
3) waiver is voluntary

Front 10

Grand Jury—Appearance by D
(as suspect witness)
Voluntary--Before questioning, D must be warned:

Back 10

1) the crimes of which he is suspected
2) the county in which it was committed
3) the time it occurred
→ must be recorded

Front 11

Grand Jury—Appearance by D
(as suspect witness)
Subpoenaed (Involuntary)--Must give following warnings:

Back 11

1) testimony will be under oath
2) a false answer to a material questions subjects D to perjury
3) he can refuse to answer self-incriminating questions
4) he has a right to have counsel appointed if unable to afford
5) has right to have lawyer present outside the room (NOT in the grand jury chamber)
Note: lawyer can address the grand jury if (1) the grand jury permits this, and (2) prosecutor consents
6) his testimony can be used against him

Front 12

Statute of Limitations
No periods of limitation for:

Back 12

1) murder and manslaughter
2) offenses involving leaving the scene of an accident
3) sexual assault (where DNA testing indicates perp cannot be IDed)
4) sexual assault, continuous sexual abuse, or indecency w/ a child

Front 13

General SOL

Back 13

Misdemeanors: 2 years
Felonies: 3 years
Theft, burglary, robbery, kidnapping: 5 years

Front 14

Tolling—SOL is tolled:

Back 14

1) if D leaves the states, or
2) if a charging instrument charging the same offense is presented against the accused (and later dismissed), tolled during time which the first instrument was pending