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U2) Bail and Preventive Detention

29 important questions on U2) Bail and Preventive Detention

When is a selective prosecution claimant entitled to discovery?

A selective prosecution claimant is entitled to discovery from the prosecution only AFTER he makes a credible showing of discriminatory effect (that similar situated individuals of a different group were not prosecute).

Rick Wo (US 1886)

First case in which SCOTUS ruled that a law that is race-neutral on its face, but administered in a prejudicial manner, violates equal protection.

FRCP 7(a) - Indictment by grand jury

Requires an indictment for all felony offenses, unless waivers

FRCP 7(b) - Waiver

A felony may be prosecuted by information if the defendant--in open court and after being advised of the nature of the charges an his rights--waives prosecution by indictment

FRCP 6(a) - Make Up of Grand Jury

The federal grand jury must be composed of between 16 and 32 legally qualified persons

FRCP 6(d) - Who May be Present at GJ

The prosecutor, witnesses, stenographer, interpreter (When needed) may be present. Only the jury may be present during deliberations. Only one witness can be present at a time.

FRCP 6(e) - Disclosure of GJ proceedings

Most persons, except for witnesses, are prohibited from disclosing matters occurring before the GJ. The central exception is for disclosure to a government L for use in the performance of his duty to enforce the federal criminal law.

FRCP6(f) - GJ Vote on Indictement

An indictment may be found only on the concurrence of 12 or more of the grand jurors.

Costello (US 1956) (Black): Evidence before a federal grand jury

If an indictment is returned by a legally constituted and unbiased grand jury, valid on its face, that's enough to call for trial of the charge on the merits. . . There are no constistiopnal limits on the types of evidence that may be introduced in grand jury investigations

Judges cannot look behind the veil of the grand jury to determine whether the jury was properly instructed, whether it made a determination that the prosecutor established the elements of the crime, etc.

RESULT: prosecutors are allowed to offer evidence to grand juries THAT COULD NTO BE OFFERED AT TRIAL (such as hearsay).

Calandra (US 1974) - May Illegally Seized Evidence be presented to the GJ

Yes.. HLD: The Exclusionary Rule does not apply to grand jury proceedings. Thus, the prosecutor can present unconstitutionally/illegally seized evidence before the grand jury.

US v Williams (SCOTUS 1992) (Scalia) - Can courts require a prosecutor to submit exculpatory evidence to GJ?

No. Courts cannot require prosecutors to submit exculpatory evidence to the GJ. There is no positive duty, which must be prescribed elsewhere, requiring prosecutors to do so. This wold over step the supervisory role of the courts and transform the GJ from an accusatory into adjudicatory body.

There must be a positive duty in some rule that has been drafted and approved by SCOTUS and Congress to ensure the integrity of the grand jury's function.

FRCPs on Preliminary Hearing?

5, 5.1

Preliminary Hearing - FRCP 5, 5.1

A defendant is entitled to a preliminary examination to determine whether probable cause exists to believe that an offense has been committed and that the D committed it. The D may waive the preliminary hearing.

Effect of Preliminary Hearing on Grand Jury Indictment?

A grand jury is not precluded from issuing an indictment by a magistrate judge's prior finding of insufficient probable cause. See FRCP 5.1(b).

FRCP 7(c)(1): Required contents of indictment

Must state essential facts, be signed by the government, and cite the law D is said to have violated. Error in citation is not grounds to dismiss indictment

FRCP 7(f): Bill of Particulars

D can ask for a Bill of Particulars, if approved, P has to provide some more details on the alleged offense. Granting the request for a bill of particulars is discretionary and D has no absolute right to compel disclosure.

FRCP 7(e) - Informations

Informations can be amended at any time.

Russell (US 1962) - Required Contents of Indictment

(1) Must contain the elements of the offense intended to be charged and give notice to D

(2) must allow D to know enough that he could make a 2X jeopardy claim.

ID case: Cannot pend an indictment (cannot broaden the possible bases for conviction)

Stirone (US 1960)

ID Case: CAN NARROW an indictment (indictment overly broad - ok)

US v Miller (US 1985)

"Unnecessary portions of the indictment may be ignored to sustain a conviction so long as the proof upon which the conviction was based corresponds to an offense that was clearly set out in the indictment." Meaning: you can be indicted for 2 things and only convicted of 1 so long as what you're convicted of was set out in the indictment

Case ID - Requirements for Indictment of "Attempt" Crimes

Resendiz-Ponce (SCOTUS 2007)

FRCP 8(a) - Joinder of Offenses

Charges against a single D can be joined if the offenses (whether felony or misdemeanor) are [1] of the same or similar character, or [2] are based on the same act or transaction or two or more acts or transactions connected together/constituting parts of a common plan or scheme

FRCP 8(b) - Joinder of Defendants

Defendants can be joined if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. All defendants need not be charged in each count.

FRCP 14. Relief from Prejudicial Joinder: Severance

If the joinder prejudices the defendant or the government, then the court can (a) order separate trials, (b) sever the D's trials, or (c) provide any other relief that justice requires.

14(b). Before ruling on D's motion to sever, the court may order an in camera inspection of any D's statement that the government intends to use as evidence (to see if there' prejudice). This is intended to flesh out Bruton problems to make sure there aren't references to other defendants in a confession by one.

3 Problems with Joinder of Defendants [FRCP 8(b)]

Exculpatory Testimony from a Co-D.
Disparity in evidence
Antagonistic Defenses:

Problem 1: Exculpatory Testimony from a Co-Defendant

A defendant may object to joinder on the ground that a co-defendant is an exculpatory witness who not testify at his own trial. See Neal (5th Cir 1994) for D's BoP

Problem 2: Gross Disparity in the Evidence

A gross Disparity in the evidence against various defendants can be the basis for severance. See Farmer (7th Cir) for D's BoP

Problem 3 - Antagonistic Defenses:

Mutually Antagonistic Defenses are not per se prejudicial.

The question on the page originate from the summary of the following study material:

U2-3) Bail and Preventive Detention; The Charging Decision

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