PRETRIAL PROCEDURES AND ADJUDICATION IN CRIMINAL LAW
Most of these are not heavily tested compared to the other topics, but the Confront. Cl. and some other parts of the trial
process will likely show up
PRETRIAL PROCEDURES
PRELIM. HEARING FOR PROB. CAUSE TO DETAIN
Sep. hearing from prelim. hearing to det. prob. cause to
prosec. Det.’s lib. at stake, must have prob. cause to
det. person before trial. O/wise, signif. constraints on
arrestee’s lib., a non-adversarial prelim. hearing is held
to det. if prob. cause exists to detain.
● No remedy if hearing denied;
● If detention was subsequently found to be not
PRETRIAL DETENTION (OR BAIL)
Most states allow for bail, unless there is a cap. off. (such
as murder). Bail gen. is set no higher than nec. to ensure
that D apps. @ trial. Arb. bail denials viol. due
process; dets. must have opp. to prove bail eligib.
GRAND JURIES
Usually eastern states and fed. gov’t, procedure to indict.
● Conduct in secret & D has no rt. to not. of indict.
or to confront Ws
Grand jury may base indictment on evid. o/wise inadmiss
at trial; evid. can’t be quashed; grand jury W has no rt. to
counsel or to quash subp. on 4th Am. grounds; indict.
rev’d if racial minority excl. from grand jury
DISCLOSURE OBLIGATIONS
Prosec.’s failure, wilful or inadvertent, prior to eve of trial,
to disclose to D evid. would violate the Due Process
Clause and can overturn a conviction, if:
● Evid. is favorable to D; and
○ Evidence impeaches or is exculpatory;
● Prejudice has resulted,
○ Meaning there is a reas. prob. that
o/come would be diff. if info was
disclosed (outcome determinative)
If D wishes to plead insanity or alibi, must notify prosec.
Must provide list of alibi W’s; prosec. should give list of
Ws to rebut alibi def.
TRIAL
1
ADJUDICATION AND POST-ADJUDICATION
GUILTY PLEA
Guilty plea must be voluntary & intelligent; judge or
lawyer must address D in open ct & on rec.; tell abt (1)
ntr. of charge; (2) max. poss. pen. & any mand.
minimum; and (3) rt. to not plead guilty-but waives rt to
trial if pleas guilty. Remedy: if stands. not met; plea
w/drawn; start over w/ plea again.
● Pleas set aside if (1) plea was invol.; (2) lack of
jdx; (3) IAC; or (4) failure to keep plea barg.
● Guilty plea convict. can be used to convict in
other proceeds. where rel. (such as for sent.
enhance.); does not admit leg. of incrim.
evidence OR waive 4th Am. claims in subseq.
civ. suit
PLEA BARGAINING
Enforced against prosec. & D, not judge - who need not
accept plea. Guilty plea not invol. if entered in response
to a threat from the prosecution to charge a more serious
crime.
PROCEDURAL RIGHTS TO SENTENCING
Deft. has rt. to counsel during sentencing (may use
hearsay & unconfronted W repts), no rt to confront
unless magn. sent. based on stat. that reqs. new fact
finding (need more opp. for confront. if cons. death sent.)
● If greater punish. imposed on D who is
reconvicted after succ. appeal than the one first
imposed, judge must set reas. in rec. for severe
sentence; prevents not. that D was pen.’d for
appealing 1st sentence;
SUBSTANTIVE RIGHTS TO SENTENCING
-8th Am. protects against cruel & unusual punishment -
punish. grossly disproport. to off’s seriousness.
● OK for crim. spec. activity rel’d to certain status
(DUI), but status crimes viol. C&U.
● Life w/o parole for minors commit’d non-
homicide crime viol. C&U - homicide minor D
can’t have mand. life w/o parole.
-Death penalty: only if judge or jury has reas. discret., full
info concerning defs & guidance in making decis. Must
consid. mitig. evid.
● Death pen. NOT ok if based on invalidated prior
convict., rape & fel. murder if no intent to kill;
● C&U if D is intell. disabled; insane at exec., a
minor;
● C&U to use lethal inject. if condemned can
prove there is serious risk of inflicting
unnecess. pain or alt. proced. is feas., viable
& reduces subst. risk of severe pain
Right to a Speedy Trial
Look at tot. of circums. to determ. if D’s 6th Am. rt to speedy trial was violated: length of delay; if D asserted rt &
prejud. to D. Prosec. indef. suspend charges viols. 5th Am. rt. Rt. attaches when D has been arrested or charged.
Remedy: dismissal w/ prejudice.
Right to a Fair Trial
-Right to a public trial;
● Excess. pretrial publicity may req. change of
venue or retrial;
● Even if def. and prosec. agree to close the trial
(6th and 14th Ams. guarantee rt. to a public trial),
the press and public have a 1st Am. right to
attend the trial itself.
-Right to an unbiased judge:
● Due process viol. if judge has act. malice against
D or fin. int. for trial to result in a guilty verdict;
● Serious crimes - judge should be trained in law
-Due process also violated if:
● Trial ran in such way that jury unlikely gave evid.
reas. consideration;
● State forces D to stand in prison clothes or
visibly shackled;
● Jury exposed to influence fav. to prosec.
Right to Counsel
-Viol. of 6th Am. Rt. to Counsel during trial results in
auto. reversal of conviction;
-D can waive rt, if judge finds waiver was knowing &
intell. and based on emot. & psych. state, D is compet.
to proceed pro se (no rt. to self rep. on appeal)
-Effective Assistance of Counsel
● Gen. presume counsel provided effect. assist.;
● For IAC, must show:
○ Deficient perform. by counsel; and
○ But for defic., result of proceed. would
have been difft.
○ For plea bargain - must show that
outcome of plea process would be difft.
w/ compet. advice;
○ IAC also if counsel fails to inform abt
deportation risk
-Conflicts of Interests:
● Ct. fails to refuse to appoint sep. counsel, and
atty advises trial ct. of result. C/I, auto. reversal;
● No rt to jt. rep. w/ co-Ds if govt can show pot. C/I
-If will plead insanity, state must provide psych for prep
of the def.;
-No rt. to consult with atty while testifying & be sep.’d
from atty during short breaks
Right to Jury Trial
-Const. right for serious crimes (> 6 mos. of prison);
-Must have > 6 jurors; 6 person juries must be unanim.,
anything less than 8-4 verdict not OK to convict.
-Jurors should come from rep. cross-section of gen.
community
● Cannot use peremptory challenges to excl. jurors
based on gender or race
-Jurors must be impartial
● D can voir dire abt. race if race will come up at
trial or for interracial capital crime;
● Can’t excl. juror who expresses doubt about
death pen., death sent. where such juror excl.
must be overturned; but, juror who likes death
pen. must be excl. for cause
-If subst. law allows for sent. longer than stat. max. if can
show addtl facts, proof of facts must be submitted to jury
and proved b/y reas. doubt (same for fines)
Right to Confront Witness (Highly Tested)
-D in crim. trial has rt. to confront adv. Ws (need not be
face to face)
-Co-D’s Confession
● Confront. cl. prohibits using a confession by one
Co-D against other if implicates him, except:
○ All portions to other Ds must be elim’d;
○ Confessing D takes stand and subjs.
himself to cross-X; or
○ Confession of non-testifying D being
used to rebut D’s claim that confession
was obtained coercively
-Prior Testimonial Statement of Unavail W:
Can’t use prior testimonial evid. unless decl. is unavail &
D had prior opp. to cross-X decl. when statement was
being made
● Testimonial - statements from prelim. hearing,
grand jury hearing, other trial, or police interrog.;
● Not testimonial - statements made for an
ongoing emergency: 911 call; maybe for
statements not made to law enforcement;
● Confront cl. can be forfeited by wrongdoing -
where W’s unavail. was due to D keeping him
out from testifying