ConCrimPro2

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UB69T00
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16370
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ConCrimPro2
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2010-04-28 01:09:08
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Constitutional Criminal Procedure 2
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  1. Requirement for initial appearance
    no constitutional requirement when the arrest is made pursuant to an arrest warrant-probable cause determined prior to arrest by judicial officer
  2. Constitutional requirement for intial appearance following warrantless arrest
    4th amendment requires D be taken before a judicial officer to determine if arrest supported by probable cause
  3. MD initial appearance requirement for all arrests
    MD initial appearance is more than whether arrest constitutional and is required folowing all arrests
  4. Constitutional timing requirement for initial appearance
    w/o warrant 4th amendment requires prompt presentment before judicial officer (48 hrs presumptively prompt)
  5. MD timing requirement for initial appearance
    District Court-without unnecessary delay and in no event later than 24 hours after arrest, Circuit Court-without unnecessary delay and in no event later than next court session
  6. Failure to comply with prompt presentment requirement for initial appearance (Federal)
    Confession may not be suppressed, as involuntary, only because of delay, if the confession is obtained within 6 hours of arrest, or longer if because of the magistrate's location-after that based on voluntariness factor
  7. Failure to comply with prompt presentment requirement for initial appearance (MD)
    voluntariness factor-was delay deliberate and unnecessary-especially when for interrogation, then must be given "heavy weight" when determining voluntariness-unless made K and I waiver or right to prompt presentment.
  8. Steps when right to prompt presentment violated
    • motion to suppress-court determines voluntariness and admissability based on preonderance
    • if unsuccessful-only considered by jury if jury finds, beyond a reasonable doubt, that the statement was voluntay under totality of the circumstances
  9. Right to counsel at initial appearance
    not one-nonadversarial proceeding and no right to counsel has attached, not trial like confrontation
  10. Actions by District Court Commissioner during initial appearance
    • determine probable cause
    • advise of charges-including penalties, gives charging doc
    • advise of right to counsel
    • advise of right to prelim hearing
    • pretrial release determination-8th prohibits excessive bail
  11. Timeline on requesting preliminary hearing
    Must request within 10 days after initial appearance or it is waived. Set within 30 days after the request, unless rescheduled for good cause shown.
  12. Who can get a preliminary hearing?
    nonindicted D arrested for a felony not in jurisdiction of the district court who requests within 10 days after initial appearance. Does not get if State indicts.
  13. Conduct of the preliminary hearing?
    right to counsel attaches, ensures D receives charging document, state presents evidence to establish probable cause, D may cross-examine to get statements to impeach with later, D does NOT present their case. If State wins, can formally charge.
  14. Consequences or Preliminary Hearing
    • Probable cause-state may file new or amended charging document within 30 days (or later for good cause shown)
    • If fails to charge timely, dismiss for lack of prosecution-State may recharge later.
    • No probable cause-dismissed, state may recharge later b/c double jeopardy does not attache at prelim. later charging suject to SofL.
  15. 10th amendment
    powers not delegated to the federal government ar reserved to the states
  16. 14th amendment
    states have broad police powers to enact laws that control conduct in that state
  17. Double jeopardy when involving two governments/sovereigns
    both can prosecute since only protects against being twice placed in jeopardy by same soveriegn
  18. to have personal jurisdiction over defendant
    sufficient connection between the government/soveriegn and D's conduct
  19. Territorial Jurisdiction-burdens?
    • Rebuttably presummed, D must generate the issue.
    • If generated, state must persuade fact finder beyond a reasonable doubt, there is territorial jurisdiction
  20. District Court jurisdiction in MD
    • limited jurisdiction
    • misdeamenors with penalty of 3 years or $2500
    • motor vehicle laws and State Boat Act
  21. Circuit Court jurisdiction in MD
    • general jurisdiction hearing jury and nonjury vases
    • exclusive when D exercises constitutional or statutory rightto jury trial-constitution 6th amend when incarceration >6 months, MD potential incarceration (>90 days)
  22. Juvenile Status/Jurisdiction under common law
    • <7 lacks criminal capacity
    • <14 lacked criminal capacity for rape and presumable other offenses
    • >14 criminal capacity
  23. MD Juvenile status jurisdiction 2 step process
    • <18 on date of incident, determine whether CC as juvenile or CC as a criminal court
    • 1. legal-juvenile or criminal-look to statute, charging doc, birth certificate (>16<18 criminal court with crime agaist persons, handguns, and traffic offenses) (>14<18 criminal court for punishable by death or life
    • 2. factual-remain where started or go to other by looking at offenses and offender
  24. Reverse waiver
    • sending from criminal court to juvenile court (ages 14 to 17)
    • may not be transferred if previous transfer and adjuducated delinquent, or previously convicted as an adult, or 16 and charged with 1st degree murder
  25. factors in determining whetehr waive or transfer with juvenile court jurisdiction
    • gae
    • mental and physical condition
    • ameniability to juvenile treatment
    • nature of offense and participation
    • public safety
  26. Disposition hearing if adjudicated delinquent determines
    whether juvenile needs guidance, rehabilitation, or treatment
  27. termination of juvenile jurisdiction/custody
    may not exceed 3 years or extend beyond age 21
  28. venue determined by
    • Situs or locus of the actus reus
    • Murder/manslaughter-where death blow inflicted
    • Chesapeake Bay-county where arrested or brought
    • Near county boundaries-where arrested
    • Rape/sexual offenses-any county where transportation is offered, solicited, begun, continued, or ended (broadest)
  29. When is a grand jury indictment required?
    • Federal felony charges b/c 5th amendment
    • Some states
    • MD-permissable
  30. Composition of Grand Jury
    5-23 citizens from rolls of voters, drivers, and taxpayers, plus telephone directories
  31. Subpoena power of Grand Jury
    • compel testimony
    • production of documents
    • physical evidence
  32. Subpoena enforcement through
    • use and derivative use immunity (someone refuses to testify by asserting the 5th)
    • contempt-can last until end of grand jury term
  33. Standard for grand jury to indict
    probable cause - MD and federal law
  34. Constitutional rights of witnesses before the grand jury
    • 4th-GJ subpoena is not a seizure and is limityed by particularity and reasonable timeframe
    • 5th-subpoenaed withness may not refuse but can assert the 5th, suspect has not 5th right to testify and no right to Miranda warnings
    • 6th-no right to counsel, takes place prior to adversarial proceedings
    • 6th-no right to confrontation including non right to be present when other witnesses testify, no right to cross-examine witnesses, and no right to discovery of evidence presented
  35. When may a suspect/D get information presented to a grand jury? (exceptions to generally no right)
    • prosecution must provide all exculpatory/favorable testimony and physical evidence whether requested or not
    • must provide GJ testimony of each prosecutorial witness who testified before GJ for impeachment by prior inconsistent statements
  36. Challenging a Grand Jury Indictment
    Any D has standing to challenge the composition of the grand jury and systematic exclusion of a distinctive group is NEVER harmless error
  37. Types of charging documents
    • indictment-issued by grand jury
    • criminal information-filed by state's attorney
    • statement of charges-D/C filed by police officer
    • citation-D/C issued by a law officer or fire marshall
    • juvenile petition- alleges juvenile commmitted delinquent act
  38. Required contents of the charging document
    • offense charged
    • defendant- name, description
    • essential facts that support elements and criminal agency of D
    • time and place with reasonable particularity
    • incorporation-one count may incorporate other counts
    • legal authority
    • right to counsel
  39. Criminal transaction
    one episode so closely linked in time, place, circumstances that must be looked at as a whole. each seperate transaction requires a separate count or charge
  40. When can multiple criminal transactions be charged together?
    • When charged as separate counts in one charging doc if the offenses charged are of similar character or are of a common scheme.
    • MGA makes multiple one transaction by statute-theft from multiple victims at multiple times or reckless endangerment of more than one person
  41. When in doubt the courts...
    interpret the law favorably to the D under the rule of lenity
  42. Test for determining units of offense/criminality
    • look to the gravaman of the offense-what evil was to be prevented
    • crimes against persons such as robbery-each victim gets a unit
    • theft is one for all property taken in one transaction
    • use of a handgun-each use determines units
    • possession of handgun-one possession
  43. When is a charging document multiplicitous?
    • defective as multiplicitious when the same conduct is charged in more than one count
    • precludes charging the same offense multiple times in separate counts
  44. What is duplicity? Why?
    • joinder of 2 or more offenses in one count (this is prohibited)
    • notice and fairness and there can only be one verdict on one count
  45. When can a charging document be amended?
    • Prior to jeopardy attaching:
    • in nonjury trial-prior to evidence being taken
    • jury trial-prior to jury being sworn in
    • After jeopardy attaches:
    • W/o consent-only when does not change the character or basic description of the offense-such as owner of stolen goods, date of offense, statutory reference
    • With consent-adding new offense, identity of property taken, identity of CDS, increasing max penalty
  46. Statute of limitations for misdeamenors when not punishable by confinement in DOC?
    1 year
  47. Statute of limitations for misdeamenor theft and misconduct in office?
    2 year
  48. Statute of limitations for welfare fraud and medicaid fraud?
    3 year
  49. Calculating the staute of limitations
    • Most-starts upon completion of the last element necessary top constitute the offense
    • For continuing course of conduct-upon completion of last act, when viewed by itself, constitutes the offense
  50. What are ex post facto laws?
    • substantive criminal legislation that is more onerous that the previous law and applied retroactively to D's who did not have fair warning of the legislation
    • when just procedural then allowed
  51. What happens during initial appearance in circuit court?
    • if w/o counsel informed of right to counsel and consequences of appearing without
    • notification of charges and penalties
    • defendant enters plea
    • establishes trial date
  52. When must mandatory pretrial motions be filed?
    30 days after 1st appearance
  53. What are the types of mandatory pretrial motions?
    • Dismissal because of defective prosecution (double jeopardy, jurisdiction, venue, statute of limitations)
    • Dismissal because of defective charging document
    • Suppresion of illegally seized physical evidence and/or illegally obtained identifications
    • Suppression of illegally obtained statements
    • Severance or joinder of offenders and/or offenses
  54. What are the sources for the right to counsel?
    • 5th-privilege against compelled self incrimination entitles defendant to counsel during custodial interogations
    • 6th-critical stages where judicial adversarial proceedings or trial like confrontation where has nto attached (pre lim where determining whether D mustb stand trial not determining probable cause)
  55. When right to counsel after sentencing?
    • indigent defendant right to counsel for 1st appeal of right not discretionary appeals through due process clause (includes trial transcript)
    • violation of probation proceeding-case by case if has constitutional challenge or complex case
  56. MD right to counsel
    • initial appearance in CC
    • post sentencing review of sentence
    • state post conviction proceeding
    • preliminary hearing before DC
  57. Waiver of right to counsel (3 methods)
    • express waiver-done through inquiry on the record that waiver is knowing and voluntary
    • waiver through inaction (if previously informed of right)
    • termination of attorney client
  58. Exceptions to double jeopardy
    • element of the offense does not develop until after 1st trial-even with due diligence would not of known
    • D gets severance of greater and lesser offenses
  59. manifest necessity for a mistrial and D can be retried when...
    • jury deadlocks and cannot reach a unanimous verdict
    • court committed reversible error
    • there is an exigency or emergency with lawyer or judge
  60. Blockburger required evidence test
    determine whether two offenses arising from one criminal transaction are separate offenses or the same offense (focuses on the elements of the offenses)
  61. Merger doctrine
    For a given criminal transaction, determine whether multiple charges are separate offenses or the same offense. If same offense, sentence for lesser included offense merges into sentence for the greater offense, unless legislature says otherwise.
  62. Special Merger Issues
    • greater offense merges into specific offense
    • lesser included offense with greater offense not the greater sentence
    • no merger when actual evidence is the same but required evidence is different
  63. Types of Brady Material
    • exculpatory evidence tending toward not guilty
    • mitigation evidence tending toward lesser guilt or lesser sentence
    • impeachment evidence such as actual or implied agreement for favorable treatment in return for testimony
    • knowing perjured testimony
  64. Sources of Brady material
    • material known to prosecutor on that case and others in that office
    • material known to police personnel working on that case
  65. Brady requires...
    automatic and mandatory disclosure of helpful material, even if not requested
  66. Prosecutor's duty regarding Brady material
    duty to learn of it and to disclose
  67. When the police possess Brady material and do not disclose the standard is...
    • Bad faith or reckless indifference.
    • If they accidently or negligently lose or destroy Brady material - it is not a Brady violation.
  68. Brady violations (other than known perjury) are material if...
    • when examining all the evidence, there is a reasonable probability that, had the evidence or information been disclosed, the result would have been different.
    • If there is a reasonable probability of a different outcome, the error cannot be harmless.
  69. Brady violations involving known perjured testimony
    if state uses testimony that it knew or should have known was perjured, testimony is material if there is any reasonable likelihood the false testimony could have affected the jury.
  70. Materiality factors with Brady material
    • specificity of defense request for disclosure
    • closeness of case and cumulative weight of evidence of guilt
    • centrality of witness to State's case
    • significance of inducement to testify
    • whether and extent of witness' credibility otherwise questioned
    • state's reliance on witness' credibility in closing argument
  71. Deciding materilaity of Brady material...
    if D makes particularized shwoing that the State has Brady material, the trial court may conduct hearing (may be in camera) to determine if there is Brady material.
  72. Deposition be used only used as substantive evidence when the witness is...
    • dead
    • cannot testify because of age or mental or physical illness
    • refuses to testify and not compellable because of privilege
    • fails to respond to subpoena
  73. State must disclose if requested by D...
    • D and Co-D statements
    • States witnesses including statements, names, and addresses
    • Searches, seizures, surveillance, and pretrial ID
    • Experts
    • Tangible evidence-inspect, copy, photograph it
    • D's property-inspect
  74. D's must disclose if requested by State...
    • Experts info
    • Tangible evidence
    • D's person-provide ID, fingerprints, try on clothes etc
    • D's bodily fluids or physical or mental exam by motion granted by court
  75. Matters not discoverable
    • mental impressions
    • trial strategy
    • personal beliefs
    • attorney work product
    • state's confidential informant (if not putting on stand)
  76. Examples of Brady material that impeaches
    • agreements between state and witnesses
    • materially inconsistent witness statements
    • witness medical or psychiatric condition, if known
    • negative polygraph results of witnesses
    • failure of witness to ID D or Co-D
  77. What is a motion in limine?
    motion that seeks a pretrial ruling on the admissability of evidence, which must be made in writing prior to trial
  78. When must mandatory pretrial motions in CC be filed?
    within 30 days after D's or counsel's 1st appearance, motions deemed waived if non-compliance unless good cause is shown
  79. Types of mandatory pretrial motions
    • defects in prosecution-i.e., double jeopardy
    • defects in charging doc
    • transfer from CC criminal court to CC juv court
    • illegal search and seizure
    • illegal identifications
    • illegal confessions
    • illegal interceptions of communications
    • improper joinder or severance
  80. Motion for proper joinder done to
    to join offenses or offenders based on judicial economy
  81. When can you charge 2 or more Ds in one charging document?
    when they participated together as principals or accessories
  82. When can offenses or offenders be joinded at trial?
    if they were charged in separate charging doc, may be joined for trial if they could have been joined in one charging doc
  83. What is prejudicial joinder and when can court sever?
    • on motion or sua sponte
    • if appears a party will be prejudiced or
    • if they have been improperly joined
  84. Why would a court sever offenses or offenders?
    • When evidence is not mutually admissable as to all offenses or offenders.
    • Prejudicial effect outweighs probative value and defeats goal of judicial economy.
  85. Misjoinder of offenses and or offenders is subject to what analysis?
    harmless error analysis
  86. Test for competency to stand trial
    • understand proceedings
    • assist counselwith reeasnoable degree of rational and actual understanding
  87. Who has the burden of persuassion to show D incoompetent to stand trial?
    D has burden to show by preponderance of the evidence through the DPC
  88. When D is found incompetent to stand trial-when can the charges be dismissed?
    • after 10 yrs in capital case
    • 5 years in cases subject to incarceration
    • must provide state and victim opportunity to be heard
  89. Burden of production with insanity
    sanity is rebuttably presumed, D has burden of production to generate the issue
  90. MD test for insanity
    D is NCR if at the time of the conduct, D b/c of mental disorder or mental retardation, lacks substantial capacity to appreciate the criminality of their conduct or conform that conduct to the requirements of the law
  91. Procedure for determining whether D NCR (3 steps)
    • step 1: burden of pleading
    • step 2: burden of production done by D, measured at time of offense
    • step 3: burden of persuassion on D
  92. When does the 6th amendment right to speedy trial attach?
    • when arrested or formally charged
    • if dismissal then unattaches
  93. Remedy for speedy trial violations....
    permanent dismissal of charges
  94. 4 factor balancing test under Barker v. Wingo (right ton speedy trial)
    • 1. length of delay-from arrest or charging doc to start of trial
    • 2. reason for delay
    • 3. demand/waiver-failure to demand is factor
    • 4. prejudice-key factor-must show actual prejudice
  95. What is the timeline in federal speedy trial act?
    cases must commence in 100 days after arrest or summons
  96. What is the remedy for federal trial not provided "speedily"?
    • trial court must dismiss the charges but decides whether with or without prejudice, based on seriousness of the offenses and relative fault leading to dismissal
    • presumptively remedy is dismissal without prejudice

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