Professional Documents
Culture Documents
Discretion: legal power to make decisions with little specific direction from higher authorities.
Victim: may or may not elect to report a crime; victims are witnesses for the state.
Prosecutor: lawyer who is a government employee and represents the interests of the state (and in an indirect way, the victim); ha
discretion to pursue charges & what charges to pursue; based on factors such as:
1. accused’s criminal record
2. severity of the crime
3. role the victim played in the crime
4. impact of prosecution on the accused and the victim
5. need for deterrence
6. likelihood of conviction
1. Physical Line Up-Line up-5-6 ppl put in a room where witness views them through a window, police officer is in the room w
witness and multiple witnesses are given separate chances to identify to ensure there is no prejudice. When a person is in a line up
may be asked to turn, move, talk or other identifying features. If he police put together the lineup, they must use similar people. Wh
is a huge issue, you waive your client's presence so the witness can't see him in an orange jumpsuit.
1. Show Up- One person is exhibited to the witness. These are typically done immediately after a crime occurs and a suspect
located. Another type is done in an exigent situation. These are "frowned upon" and are viewed as subjective.
1. Photo Array- The most prevalent practice. The reason is that there is no right to counsel in the photo array. The witness is
shown 6 photos and asked if they see the assailant. Metro uses the "six pack", feds use a series of sequential photos, one at a time
Theory says that in a six pack, witnesses will assume that the guilty party IS in the picture and will pick the one that's closest instea
good analysis of the pics.
Expungable probation: person pleads guilty but judgment is held in advance until end of successful probationary term – then recor
expunged.
Citation: notification that you are to appear in court as in minor traffic violations
1. Complaint – formal charge of criminal activity; must provide proof of probable cause for an arrest warrant to be issued.
2. Custody – suspect is arrested, taken into custody.
3. Initial Appearance – non-adversary hearing; formally notified of charge, advised of basic rights; appointment of attorney (if
defendant is indigent); issue of bail addressed (if defendant is still in custody); date set for preliminary hearing.
4. Preliminary Hearing – adversary proceeding presided over by a judge (without a jury) and conducted by the defense attorn
the prosecutor. Must be within 10 days if defendant does not make bail. Purpose is to determine whether there is probable cause
believe that:
a. A crime was committed and
b. The accused committed it.
i. Probable cause decision cannot be made on hearsay EXCEPT:
1. written report of expert witnesses
2. documentary proof of ownership
ii. Probable cause standard is VERY LOW.
5. Grand Jury: 12 plus foreman; need 12 voting unanimous for true bill (indictment); secret to public & defendants; if no true b
found – case can be dismissed or Prosecutor can retry.
a. Serves as a check on prosecutorial abuse by screening cases that do not have enough merit to justify continuing
proceeding in criminal justice system.
b. Investigates possible violations of criminal law.
c. Oversee some public facilities or activities.
d. Has legal authority to issue subpoenas; grant witnesses immunity.
6. Arraignment:
7. Pre-trial conference:
8. Trial:
The Complaint
Tenn. R. Crim. P. , Rule 3: The affidavit of complaint is a written statement alleging that a person has committed an offense and all
the essential facts constituting the offense charges. The affidavit of complaint shall be made upon oath before a magistrate or a neu
and detached court clerk who is capable of the probable cause determination required by Rule 4.
Complaint: the complainant signs a formal charge of criminal activity under oath. The complaint describes the basic facts of the cri
what offense is being charged and possibly the relevant section of the criminal code. If the complaint provides adequate proof that
is probable cause to believe that a crime was committed and that the defendant committed it, the magistrate may issue an arrest
warrant. The complaint may also “toll” the statute of limitations. In misdemeanor cases, the complaint serves as the formal charge
there may be no indictment to replace it. For felonies, the complaint will be the first formal charge but may be later replaced by the
jury indictment or the prosecutor’s information.
Begins or initiates the formal criminal process by charging the accused with a crime
• Serves as the written basis for an arrest warrant; described as the “principle function” of the complaint
• Notifies the accused of the allegations
• Facilitates the Initial Appearance
• Stops or tolls the running of the statute of limitations
• In misdemeanors, the complaint/warrant may be the only pleadings filed and are the only formal charging documents, unle
goes to a grand jury
• In felonies, the complaint is the first formal charge, but may be replaced by OR charges may be initiated by:
1. Grand jury indictment,
2. Grand jury presentment, or
2. Prosecutor’s information
Tenn. R. Crim. P., Rule 4: an arrest warrant shall by issued by a magistrate or clerk if it appears from the affidavit of
complaint that there is probable cause to believe that an offense has been committed and that the defendant has
committed it. More than one warrant or criminal summons may issue on the same complaint. The probable cause finding
can be based on hearsay if there is a substantial basis for believing the hearsay is credible and for believing that there is a
factual basis for the information furnished. The arrest warrant must be signed by the magistrate or clerk and shall contain
the name of the defendant or enough information by which he can be identified with reasonable certainty. The arresting
officer does not have to have the warrant in his possession at the time of the arrest but must show it to the defendant as
soon as possible.
McNabb-Mallory Rule: statements made by suspects during a period of unnecessary delay in bringing them before a
magistrate are inadmissible at trial. This rule is not binding upon the states and most states have rejected it in favor of a
totality test to determine the admissibility of a confession under the circumstances.
Gerstein proceeding – a defendant who was arrested w/o a warrant may face a Gerstein proceeding, which tests the
validity of his detention; usually combined with either the initial appearance or the preliminary examination. 4th
amendment requires that a neutral and detached judicial officer must determine probable cause before a person can be
subjected to an extended restraint of liberty after a warrantless arrest. Determination must occur within 48 hours of
arrest.
After 48 hours the burden is on government to explain why there was a delay.
Remedy for delay – suppression of evidence; any evidence obtained during delay could be thrown out. (Arguably from
time of arrest)
5. Conditions of release
Procedures
1. Felony-misdemeanor distinctions
2. Timing – without unreasonable delay
Initial appearance: (if no bail previously set) brief hearing in which the accused is notified of the charges and advised of his basic
constitutional rights. If the accused is still in custody, bail will be considered. An attorney may be appointed if the accused is indigen
date will be set for the preliminary hearing. At the initial appearance, the prosecutor may only address the issue of release condition
There may be no defense counsel present. if the defendant was arrested without an arrest warrant, the judge may have to determin
whether there is probable cause to detain the defendant. If probable cause exists, the judge will have to issue an arrest warrant in
to hold the defendant in custody.
If warrant is defective and you move to have it dismissed because it is defective; then the person could swear out another
warrant -- your defendant would have to pay two bonds.
Tenn. R. Crim. P. , Rule when arrested, the accused shall be brought without unnecessary delay before the nearest appropriate
magistrate. The magistrate may act as the judge in small offenses. IF the offense is a misdemeanor but not a “small offense” the
magistrate shall ask how the defendant pleads. If the defendant pleads guilty, the magistrate shall set a preliminary examination wi
10 days if the defendant remains in custody and within 30 days if the defendant is released. If the defendant pleads guilty and waiv
right to be prosecuted only by an indictment or presentment and to be tried by a jury, the magistrate shall hear the case and fix the
sentence upon a guilty plea. The defendant can then only appeal the sentence.
If the defendant pleads not guilty, the case is set for preliminary examination with 10 or 30 days, as above, unless the
preliminary examination is waived in which the magistrate can bind the defendant over to the grand jury.
For felonies, the defendant does not have to plead before the magistrate. The magistrate shall inform the defendant of his
rights. The defendant may waive the preliminary examination and be bound over to the grand jury.
Rule 5 – magistrate can accept a guilty plea for small offense for which there is $50 fine and imprisonment is not possible. No coun
as no chance of going to jail. Misdemeanor that is more than small offense; DA must agree; magistrate can take guilty plea and
sentences the defendant. Sentence could be appealed.
Bail Reform Act of 1984 – mandates that federal defendants be released on personal recognizance or upon execution of an unsecu
appearance bond in an amount specified by the court unless it is determined that either form of pretrial release will not reasonably
assure appearance of the defendant at trial or will endanger the safety of the community.
1. Full cash bond – full amount of bond in cash or credit card
a. If defendant appears – all deposited money is returned
b. If defendant fails to appear – forfeiture of full cash bond
2. Deposit bond – percentage (usually 10%) of full bond
a. If defendant appears – deposit is returned – although court can retain a small amount for administrative costs
b. If defendant fails to appear – court orders the remaining amount to be paid by defendant
3. Surety bond – bail bondsman signs a promissory note to the court for the full bail amount and then charges the defendant a
percentage of the full amount as a fee
a. If defendant appears – no refund of fee
b. If defendant fails to appear – bond company is ordered to pay full amount to court; however, court usually gives
company time to locate and return defendant.
c. Davidson County – 10% plus $38 fee; two people must sign (guarantee) the bond for them.
4. Unsecured bond – defendant promises to pay the bond amount if he fails to appear in court
5. Release on recognizance – defendant gives personal promise to appear
6. Citation release – traffic violation
7. Conditional release – subject to conditions such as restrictions on travel, periodic reporting to law enforcement agencies,
undergoing medical treatment or schooling, etc.
8. Property bond – may require the property have a market value of at least one and one/halve times the amount of bail. Bon
$50,000 – property bond has to be $75,000 (equity).
9. Pre-trial release - if eligible (same as release on recognizance); slight monitoring – administrative fee.
10. $75,000 bond or more – and you are paying it in cash (even if it is the 10%) – you have to have a source hearing; where yo
come to court and present evidence of where money is coming from.
a. Tax returns, savings account statements
Bail hearing;
1. whether the accused should be released pending trial; and
2. if release is deemed appropriate, the terms and conditions, which may include the specific dollar amount of bail.
Rules of evidence do not apply; both sides may present witnesses & documentary proof.
Under 8th amendment – “fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assurin
presence of the defendant”.
Misdemeanors - $1,000
Felony involving property crime - $10,000
Felony against a person - $50,000
Homicide - $100,000
Bond: 8th amendment – excessive bail shall not be required but does not guarantee bail.
In TN everyone is entitled to bond unless they are going to be tried for death penalty.
TN Constitution Article 1, Section 15
That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the
presumption great. And the privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of
rebellion or invasion, the General Assembly shall declare the public safety requires it.
Not every 1st degree murder is a capital offense. If state is considering death penalty, no bond.
Bond is set at initial appearance.
Bond is reviewed by general sessions judge normally at preliminary hearing.
Bond can be reviewed after you are bound over; criminal court judge
Bond can be reviewed by Court of Criminal Appeals – if you challenge it. (not very often)
US v Jessup:
1. Whether the drug offender/flight presumption represents a reasonable congressional response to a problem of
legitimate legislative concern. Holding: Congress has done research to determine the significant risk of flight inherent to
drug offenders. We conclude that the government’s interest in the presumption is a strong and legitimate one.
2. Whether the drug offender/flight presumption increases the risk of an erroneous deprivation of liberty. Holding: The
presumption does not significantly increase the risk of an erroneous deprivation of liberty. The presumption applies only
where there is probable cause to believe that a person is guilty of a serious crime.
The basic purpose of the Bail Reform Act of 1984 is to detain those who present serious risk of flight or danger but not to
detain those who simply cannot afford a bail bond.
1. Rebuttable presumption shifts to defendant burden of production – not burden of persuasion.
a. Burden of production – defendant would only have to introduce a certain amount of evidence contrary to
the presumed fact.
b. Burden of persuasion – defendant would have to prove he would not flee.
US v Miller:
Whether the district court erred in denying defendants’ motion for bail.
The Federal Bail Reform Act of 1984 states that a person who has been found guilty and sentenced to a term of
imprisonment and who has filed an appeal should be detained, UNLESS the judge finds:
1) that the defendant is not likely to flee or pose a danger to the safety of any person or the community if released
AND
2) that the appeal is not for the purpose of delay, AND
3) that the appeal raises a substantial question of law or fact, AND
4) that if the substantial question is determined favorably to defendant on appeal, that decision is likely to result in
reversal or an order for a new trial of all counts on which imprisonment has been imposed.
US v Salerno:
At the arraignment, the Government moved to have Salerno and Cafaro detained pursuant to the Bail Reform Act of 1984 section
3142(e) on the ground that no condition of release would assure the safety of the community of any person. There was a hearing a
the Government provided evidence that they were the “boss” and “captain” of the Genovese family, a crime family. The Court finds
the detention imposed by the Bail Reform Act is regulatory, not punishment. Preventing danger to the community is a legitimate
regulatory goal. In addition, the Act limits the circumstances under which the detention may be sought to the most serious crimes a
the detainees must be housed in a facility separate, to the extent practicable, from persons awaiting or serving sentences or being
in custody pending appeal. The Court concludes that the detention is regulatory and does not constitute punishment before trial in
violation of the Due Process Clause. The Government’s interest in community safety can, in appropriate circumstances, outweigh
individual’s liberty interest
Preliminary Hearing
Adversary proceeding before the judge. The purpose is to determine whether there is probable cause to believe that a crime was
committed and that the accused committed it. In some jurisdictions, a less restrictive set of evidence principles are applicable rathe
than the formal rules of evidence. Since the preliminary hearing is in a court with no record, the prosecutor can get the matter boun
over to the Grand Jury for a probable cause determination even if the judge dismisses for lack of probable cause.
4th amendment – probable cause determination; basis for requirement of probable cause hearing. Finding of probable
cause may be based on hearsay; must be factual basis for information furnished.
Must be within 10 days if defendant is in jail; supposed to be within 30 days if defendant is out on bond – NEVER HAPPENS; defen
waives this.
The preliminary hearing (examination) is a right given the defendant (Tenn. R. Crim. P. Rule 5, 5.1). The formal, traditional function
the preliminary hearing is to ensure the State has at least sufficient proof to demonstrate that “probable cause” exists to believe tha
crime has been committed and that the accused committed the crime. There is no degree of evidence necessary to establish proba
cause at a preliminary hearing but probable cause for an arrest exists where the officers had facts and circumstances within their
knowledge and of which they had reasonably trustworthy information, which was sufficient to warrant a prudent man in believing tha
arrestee had committed an offense.
If the State meets its probable cause burden of proof, the case will be bound over to the grand jury. If not, the case will be
dismissed but can still be pursued through the grand jury. If the charges were dismissed at the preliminary hearing but reinstated by
indictment, the defendant may not have the right to another preliminary hearing.
The preliminary hearing is a “critical stage” of the proceedings, meaning that there is a right to counsel. A practical purpose
the preliminary hearing is to make three determinations.
1) Whether the State has proven an offense has probably been committed
2) Whether there is reasonable ground to believe that the defendant is probably guilty of its commission
3) Whether the bail bond should be modified or changed prior to trial.
The rules of evidence do apply, but defense counsel may not wish to use all technical objections available in order to make better u
the discovery available at this stage of the proceedings. If counsel objects to evidence, they should keep in mind that Tenn. R. Crim
5.1 requires probable cause to be based upon evidence which may not be inadmissible hearsay except (1) documentary proof of
ownership and (2) written reports of expert witnesses. The court’s ruling does not bar the State from submitting suppressed eviden
the grand jury when it seeks an indictment for the same offense. The ruling of the general sessions court is not binding upon the cri
or circuit court if the grand jury returns an indictment or presentment against the accused. The criminal or circuit court must decide
admissibility of the evidence anew.
The preliminary hearing is required to be recorded (taped). If defense counsel calls witnesses, the State will have the opportunity to
cross examine the witness and have recorded testimony for use at trial. Failure to tape or preserve the tape will cause the prelim to
heard again.
Rules of evidence do apply to a prelim; Rule 615 allows either party to exclude potential witnesses from a hearing until it is there tu
testify. IF you ask for the rule, it applies to ALL witnesses.
Mental health:
A defendant must be competent to go through the proceedings or sanity/insanity at the time of the crime.
Finding probable cause is not permitted based on hearsay: EXCEPTIONS:
• Documentary proof of ownership
• Written report of an expert
Alibi defense – at least 10 days prior to trial, must give written notice to the State where defendant was and the list of witnesses tha
be called for his defense.
You can put the defendant on the stand to answer some questions such as where he lives, works, etc. – this is for the bond part of
hearing.
Judge sets case for preliminary hearing; judge must inform defendant of:
• Charges and contents in the affidavit of complaint
• Right to counsel
• Right to appointed counsel if indigent
• Right to remain silent
• Any statement given voluntarily could be used against defendant.
• General circumstances under which they can obtain bond
• Right to a preliminary hearing.
Coleman v Alabama: whether Petitioners were unconstitutionally denied assistance of counsel, since they were not provided coun
at the preliminary hearing prior to their indictment, which was a “critical stage” of the prosecution. The inability of the indigent accus
on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is a
“critical stage”.
People v Ayala: whether evidence was sufficient to establish probable cause (in this case, dismissal for lack of probable
cause). Prosecution claims that b/c ownership of car was transferred w/o title, it may be inferred that Ayala must have
known the vehicle was stolen. Although Colorado requires seller of car to transfer title…failure to deliver a title does not
prevent acquisition of ownership rights. “There must be evidence sufficient to induce a person of ordinary prudence and
caution conscientiously to entertain a reasonable belief that the D committed the crime charged.”
Joinder: process of joining two people or crimes together into one indictment at trial.
• May be efficient but does not necessarily ensure a fair trial.
• Defendant may be prejudiced:
may be become embarrassed or confounded in presenting separate defenses;
jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the
defendant from which is found his guilt of the other crime/crimes charged;
jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it
would not so find.
• Generally increase the chance of a conviction.
Rule 8 – details when offenses and offenders may be joined in an indictment or information.
Rule 13 – indicates that crimes or defendants may be tried together IF under Rule 8, they could have been indicted
together.
Rule 14 – gives trial court discretion to grant a severance if joinder would cause prejudice.
Joinder of Offenses
Is possible if EITHER of the following is satisfied:
1. Rule 8(a) permits joinder if the crimes are of the same or similar character. OR
2. Joinder of offenses is possible if the crimes either were based on the same act/transaction or were based on
more than one act/transaction that were connected together or constituted parts of a common scheme or
plan.
US v Terry: joinder of drug charges with firearms charge. Violation of Rule 8 requires reversal only if the misjoinder
results in actual prejudice because it had substantial and injurious effect or influence in determining the jury’s verdict.
Joinder of Defendants
1. Is permissible only if they participated in the same act or transaction, or series of acts or transactions
constituting the crime(s).
2. Must be some connection between the offenders.
US v Satterfield: joinder of co-defendants on robbery charges. Five bank robberies were charged in indictment;
Satterfield was involved in only 2 of them. Whether or not multiple offenses joined in an indictment constitutes a series of
acts or transactions within meaning of rule relating to joinder of charges against multiple defendants turns on the degree
to which the acts or transactions are related; relation is most often established by showing that substantially the same
facts must be adduced to prove each of the joined offenses. Mere showing that events occurred at or about the same
time or that the acts violated the same statutes is not sufficient to show that the acts constitute a series of transaction
within meaning of rule permitting joinder of multiple defendants.
Sources of prejudice possible that may justify the granting of a severance under Rule 14 as to JOINDER OF
OFFENDERS:
1. where one defendant makes an inculpatory statement inadmissible against his co-defendant;
2. where the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will
unjustifiably infer that this conflict alone demonstrates that both are guilty; and
3. where only one defendant testifies and urges the jury to draw an adverse inference from his co-defendant’s
silence.
Severance might be appropriate because of a Bruton problem. (confrontation clause of the 6th amendment). A person
requesting severance has the burden of proof.
Bruton Error: type of error arising in a joint trial by admission of a confession of a co-defendant implicating the defendant
where the co-defendant did not testify and the defendant maintained his innocence. Bruton problem: no opportunity to
cross examine.
Motion for severance must be made before trial unless basis for motion is not known until after trial starts. The defendant
has a right to severance unless the offenses are a part of a common scheme or plan and the evidence of one would be
admissible at the trial of the others. The court shall grant a severance of offenses if:
1) If motion is made before trial and it is deemed appropriate to promote a fair determination of the defendant’s
guilt or innocence of each offense.
2) If during trial it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of
each offense.
3) If the State is granted a continuance and the defendant demands a speedy trial.
If one defendant moves for a severance because of an out-of-court statement of a codefendant makes reference to the
defendant but is not admissible against the defendant, and the State intends to offer the statement in evidence at trial, the
court shall require the D.A. to elect one of the following courses: (Bruton problem):
1) A joint trial at which the statement is not admitted into evidence or if admitted the statement would not
constitute error or
2) A joint trial at which the statement is admitted into evidence after all references to the moving have been
deleted and the confession will not prejudice the moving defendant or
3) Severance of the moving defendant.
Motions
Types of motions:
• Motions seeking dismissal
• Motions affecting evidence
• Motions affecting pretrial proceedings
• Motions affecting trial structure
• Motions involving defendant’s activities
• Motions to assist in gathering evidence
• Motions incorporating other motions
Motion in Limine: things you want the judge to rule on before trial. The danger of a motion in limine is that once you have
made a motion in limine that acts as an objection (motion to suppress) and the judge has ruled to admit it, you don’t have
to object again during the trial. However, if the judge’s ruling isn’t clear, you must object again.
Motion for New Trial: (must be made within 30 days of sentencing). If the motion for new trial is not filed timely, the appeal
will be waived. The defendant can waive the right to an appeal in writing. An appeal can be timely filed and then amended
later. The motion for new trial must include all grounds, which you feel should be overturned. After the motion for new trial
is denied, you can file a Notice of Appeal. The defendant can get an appeal bond unless convicted of a violent crime. In
the federal system, the notice of Appeal must be made within 10 days.
Supporting Documents.
• Affidavit – sworn statement. NO CROSS EXAMINATION. Provides facts or opinions helpful or necessary in resulting
the motion. An affidavit may be made by a party or anyone else, including an expert or even a atty. The only limit is
that the affiant (person whose statement is in the affidavit) must be competent to testify as a witness. Affidavit is
signed by the person providing the information and usually is also signed by a notary.
• Supporting memoranda and briefs.
• Proposed order. Draft of a court order that implements the motion. The trial judge may sign the draft order if the
motion is granted. Many courts prefer that the draft order be signed by all lawyers in the case.
Rule 12.1 notice of alibi: written notice when using defense of alibi must say where you were, who witnesses are, and how
DA can reach those witnesses. DA has to provide written notice of rebuttal witnesses. If either of these is not submitted,
then can’t use alibi. Withdrawn notice of alibi cannot be used in any civil or criminal proceeding.
Rule 12.2 notice of intent to use mental disease or defect defense-if you’re going to offer expert testimony, then need to
file written notice. DA then has opportunity to submit D to their own expert. What D says to their expert is not admissible
except for impeachment.
12.3 notice of intent to seek an enhanced sentence. DA has to file 10 days before trial. If they don’t more than 10 days
before, D can ask for continuance.
Ruling by court; counsel submitting a motion must ensure that a decision is made if counsel wants to preserve the
issue for appellate review. Try to get judge to indicate why motion was granted or denied.
Burden of proof; movant typically has burden of establishing the merits of the motion.
Perron v Perron Whether assistance of counsel was in actuality so defective as to warrant reversal. Attorney for
defendant filed a motion in limine but court did not rule on it. Court held that although the defense counsel should
have demanded a ruling on the motion, the failure to do so was of little significance since the court would have denied
it anyway.
Continuing crimes = ongoing until something happens to end them, e.g. conspiracy, which may involve many
conspirators performing acts helpful to the conspiracy in many juris. Venue can be in any district or county where act
occurred that was part of the crime.
Outside any county, distr., or state. Article III, § 2 says that a federal crime committed in no state shall be tried at
such place or places as the Congress may be Law have directed.
Removal to Federal Court: On rare occasions, state criminal proceedings may be removed to federal court; because
of federalism concerns, such removals are rare and federal courts are hesitant to order them.
Travis v U.S. Whether an offense against the US which is begun in one district and completed in another, can be
inquired of and prosecuted in ay district in which such offense was begun or completed. Defendant executed false
affidavit documents in Colorado and filed them (by mailing them) in Washington DC. Court held that venue lay in DC:
when a place is explicitly designated where a paper must be filed, prosecution for failure to file lies only at that place.
U.S. v Williams Crime involving more than one jurisdiction and a criminal statue where venue is unclear.
Substantial contacts test:
1. site of defendants act
2. elements and nature of crime
3. locus of the effect of the criminal conduct
4. suitability of each district for accurate fact finding.
Discovery
Formal discovery: codified in jurisdiction’s statutes or rules involving written motions & responses.
Informal discovery: sharing of information without resorting to the formal processes; ie. Open file practice which
allows defense counsel access to all or most of the information available to the prosecutor
US v Bagley
Reasonable probability test: favorable evidence is material if there is a reasonable probability that had the evidence been
disclosed to the defense, the result of the proceeding would have been different. Must turn over all evidence - - even if it
is false (question for jury to decide).
Applies to appeals in cases where the defense made a specific request for materials.
Giglio v US – state failed to disclose impeachment evidence – a promise made to a key state witnesses that he would not
be prosecuted if he testified for the state.
Giglio motion – reveal the deal motion.
Jencks Rule (Rule 26.2 Motion for Production of Statements of Witnesses): Once a witness has testified on direct
examination, the other side has a right to move for their Jencks statements; the prior written statements that bear on the
subject matter of their testimony (parts can be edited that have no bearing on the matter).
Failure to produce Jencks statements; strike the testimony or (if it is the state) declare a mistrial.
A criminal defendant in a Federal Court is entitled to access to government documents for assistance in cross-
examination of witnesses in order to impeach for prior inconsistent statements. This rule does not apply in General
Sessions.
Some, but not all rules of criminal procedure do not apply to General Sessions.
All rules of evidence apply to General Sessions.
An appeal from General Sessions is de novo. A defendant can’t appeal a guilty plea but can appeal a sentence.
Williams v Florida
Privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and
disclose his alibi witnesses.
Rule 12.1 Notice of Alibi; upon written demand of the state, the defendant must supply a written notice of defendant’s
intention to offer a defense of alibi; this is triggered by the state; if the state does not begin the process, the
defendant may offer a full alibi defense with out providing any notice to the state.
Rule 16:
Upon written request of defendant, the government must disclose to the defendant and make available for inspection,
copying or photographing:
1. any relevant written or recorded statements made by the defendant or copies thereof, within the possession,
custody or control of government;
2. such copy of the defendant’s prior criminal record, if any, within the possession, custody or control of government;
3. books, papers, documents, photographs, tangible objects, buildings or places or copies or portions thereof, within
the possession, custody or control of government, and which are material to the preparation of the defendant’s
defense or are intended for use by the government and which are material to the preparation of the defendant’s
defense or are intended for use by the government as evidence in chief at the trial;
4. any results or reports of physical or mental examinations and of scientific tests or experiments, within the
possession, custody or control of government, and which are material to the preparation of the defendant’s
defense or are intended for use by the government and which are material to the preparation of the defendant’s
defense or are intended for use by the government as evidence in chief at the trial;
5. written summary of the testimony that the government intends to use under Rules 702, 703 or 705 of the Federal
Rules of Evidence during is case in chief at the trial (expert witnesses or issue of defendant’s mental health);
Not subject to disclosure: grand jury transcripts, work product; continuing duties to disclose:
If you find something out late in the matter, you must disclose
Failure to disclose – your evidence may be not allowed; you may be prevented from presenting your evidence.
The grand jury also functions to investigate possible violations of the criminal law (presentments) and to oversee some public facilit
activities.
The grand jury foreperson has a term of 2 years from the date of appointment. He administers the oaths to witnesses and must sign
indictments and presentments.
Duties of D.A.:
(1) the D.A. attends the grand jury proceedings for the purpose of giving legal advice when required by the grand jury
(2) the D.A. prepared the indictments
Although the grand jury proceedings are secret, grand jury testimony may be disclosed as required by the court to ascertain whethe
testimony is consistent with that given in court or disclose the testimony given before them by any witness charged with perjury.
Both grand juries can use subpoenas to require witnesses to testify or produce physical evidence and both can grant immunity to a
witness forcing the witness to disclose what would otherwise be withheld as incriminating evidence.
Subject: a person whose conduct is within the scope of the grand jury’s investigation
Target: a person as to whom the prosecutor or the grand jury has substantial evidence linking him to the commission of a crime, an
who, in the judgment of the prosecutor, is a putative defendant.
Arraignment: (defendant enters a plea) brief hearing before the judge and with counsel present. The defendant is informed of the
charges and be given a chance to plead. If the defendant pleads guilty, he may be sentenced at that time. If he pleads not guilty, a
will be set for trial. The defendant can also “stand mute.” The judge will take this as a not guilty plea and set the matter for trial.
Pretrial conference: Conference to clarify the issues and resolve procedural matters. The defendant doesn’t have to be present but
must be represented by counsel.
Trial:
Motions
Discovery
Voire Dire
Jury Selection
Objections to jurors for cause have to have factual and legal grounds for the challenge. To preserve the record, yo
have to use all of your peremptory challenges ( 3 in misdemeanors, 8 for felonies, 15 for federal)
Babson Challenge- removing an African American from the jury.
Jury Deliberations
Jury Verdict
If guilty, sentencing date set and sentencing report made.
Sentencing Hearing
Direct Appeal: there is an automatic right of appeal. On appeal, you can only argue questions of law. If you lose the appeal
can appeal to the next level but they can grant or deny.
Collateral Attack, Post Conviction Relief: (allege violation of a constitutional right, writ of habeas corpus)
Executive Clemency: an order by the jurisdiction’s highest executive officer that removes a conviction completely (pardon)
reduces the sentence (commutation).
Time Limitations
Arrested or Indicted; 6th amendment to a speedy and public trial starts when you are arrested or indicted:
• arrest warrant does not count unless it is served on defendant;
• indictment does count (even if you do not know you have been indicted)
Dismissal of charges is the only remedy to a violation of 5th amendment (due process) or 6th violation (speedy trial);
dismissed – gone forever
Court adopts a 4-pronged balancing test to determine if a defendant was deprived of his rights to a speedy trial.
1) length of delay (MOST IMPORTANT)
2) reason for the delay
a. negligence on part of government
b. government delays to obtain more evidence
c. valid reason; government is missing an important witness
3) defendant’s assertion of his right
a. if defendant does not assert his right, it weighs against him but failure to assert the right does not waive
the issue
4) prejudice to the defendant (SECOND MOST IMPORTANT)
a. witnesses die; memories fade; physical evidence is ruined, lost, etc.
b. defendant might be sitting in jail; stress; anxiety; lost of concurrent sentences;
Barker v Wingo
Defendant spent 10 months of this 5 year delay in jail; did not assert his right until like the 12th continuance. In this case,
the prejudice to the defendant was minimal and the defendant did not assert his right until it was to his advantage, so
despite the long delay (5 years) without much reason, the Supreme court held that Barker’s 6th Amendment rights were
not denied and the lower court ruling was affirmed.
Doggett v US
Doggett did not know about the indictment; took the state 8 ½ years to find him. The Court found that the 8 ½ year lag
between the indictment and arrest clearly suffices to trigger the speedy trial inquiry. For 6 years, the government’s
investigators made no serious effort to test their assumption that Doggett was living abroad, and if they had done so, they
could have found him quickly. This was findable negligence.
The Court states that consideration of prejudice is not limited to the specifically demonstrable and affirmative proof of particularized
prejudice is not essential to every speedy trial claim. Excessive delay presumptively compromises the reliability of a trial in ways that
neither party can prove or identify. The portion of the delay attributable to the government’s negligence far exceeds the threshold
needed to state a speedy trial claim. Holding based strictly on the lengthy delay; Defendant is entitled to relief.
Federal Speedy Trial Act of 19_4 (only applies on federal prosecutions); sets limits on long from indictment to trial; 70
days absent an agreement by defendant that it be extended;
Smith v Hooey
Defendant was in a federal prison; indicted in a Texas court on another charge; requested speedy trial; Texas court
ignored him for like 6 years; Constitutional guarantee of right to a speedy trial is an important safeguard to prevent undue
and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusations and to limit
possibilities that long delay will impair ability of an accused to defend himself. State of Texas had obligation to make a
diligent, good-faith effort to bring Smith to Texas for trial. Texas argued re cost of transportation etc; NO price tag on
constitutional rights.
US v Lovasco
Defendant arrested 18 months after indictment; lost 2 key witnesses in delay;
TN constitution provides greater protection for individuals than does the US constitution; include both when drafting a motion because
you could lose on the US const ground and win on the TN constitution grounds.
Right to an impartial judge – due process right of US 5th amendment; applicable to the state in the TN 14th amendment.
Right to confront witnesses against them; extends to all phases of trial and pre-trial hearings. Not an absolute right; can waive it.
Waiver must be knowing, and voluntarily and intelligent.
Rule 43 – defendant shall be present at arraignment and every stage of the trial unless the defendant moves to be excused and the
motion is granted.
1. If defendant shows up for the start of the trial and then voluntarily absents himself for the remainder of the trial. – clear
waiver of his right to be present.; trial goes on without you. If you don’t show up – there will not be a trial.
2. If you act up during a trial – you will be removed. The defendant must be represented by competent counsel, given a
reasonable opportunity to consult with counsel and offered to be returned if he promises to behave.
Prosecution has burden of proof; beyond a reasonable doubt; must prove all elements.
Affirmative defense of insanity; burden shifts to the defendant – by a preponderance of the evidence that the affirmative defense
exists. If defendant can prove it – the burden shifts back to the state to disprove it.
Defendants right to testify; no specific right; it is implicit in the 5th amendment due process, 6th amendment compulsory process – to
force witnesses to come to court on your behalf; 6th amendment right to self-representation;
5th amendment forbids comments by prosecution re inference on the defendant’s guilt or innocence if he does not testify.
If defendant chooses not to testify, he has to sign a waiver acknowledging that he knows he has the right to testify and after consulting
with counsel, chooses not to. It is defendant’s decision NOT THE LAWYER.
If defense asks for instruction – the judge must instruct the jury that they may not consider the defendant’s silence.
Defendant’s right to compulsory process - Rule 17 of criminal procedure (fundamental to having a fair trial) and access to evidence.
Defendant’s right to confront and cross-examine witnesses – 6th Amendment. Cross-examination is the single most valuable tool for
finding the truth.
Rule 611 of TN Rules of Evidence; cross-examination is relevant to any issue in the case including the witness’ credibility.
What is meant by confrontation? Physical presence of adverse witnesses; some testimony may be allowed from a person who is not
on the witness stand; i.e., dying declaration (witness is no longer available).
Crawford v Washington; right to confront witnesses against you; removed the excited utterance rule (Testimony in a startling event –
admissible evidence; makes a spontaneous declaration – excited utterance rule).
Rule 18: unless a statute or other rule applies, offenses prosecuted in county where committed. If more than one, then either. D and
court can change venues. Can file motion for change of venue and must have affidavit attached. P gets to decide venue first off,
anyway. As soon as reason is known, then make motion for change of venue (can be after jury selection started). :
Contemporaneous objection - Rule 51 of Tenn. R. Crim. P.- if you can’t specify the ground for the objection, it works as a waiver of
the objection.
Offer of Proof: Rule 103 (b) Tenn. R. Evid.- When you have evidence you want presented but the court says that it can’t be put on,
you make a Rule 103(b) offer of proof. This is proof on the record but out of the presence of the jury. The judge has to let you make
an offer of proof.
Pretrial Diversion: Diverts the defendant out of the criminal justice system rather than going to trial. Can be appealed to the Circuit
Court from the General Sessions Court.
Appeal Bonds: T.C.A. 40-26-102 et seq. and Rule 32(d) of Tenn. R. App. P.
Trial transcript: (attorney’s responsibility)- this has to be certified by the court reporter and approved by the judge.
Exhibits:
To be considered on appeal, exhibits must be received into evidence, marked and included in the record sent to the court of appeals.
Omnibus Hearing: hearing automatically scheduled a number of days before each criminal trial. The omnibus hearing tries to resolve
all outstanding motions and to deal with administrative matters that will speed up the criminal process.
Rule 37 & 38 of Tenn. R. Crim. P. deals with harmless error. You have to show that the error affected the outcome of the trial.
Preserving evidence to prosecute case. Witness gets on stand and takes oath to tell truth – that is evidence.
Jury Trial
1. Overview
2. Issues Tried by Jury
3. Right to a Jury Trial
Two possible sources: 6th amendment and statutes
a. Sixth Amendment
i. Petty Offenses
(a) Incarceration
--6 mo. jail sentence is short enough to be petty (Duncan v. Taylor)
--No offense is petty where imprisonment for more than 6 mos. is authorized…
-- some state constitutions extend the right to a jury trial explicitly to misdemeanors
(b) Other Sanctions
-- Blanton – “petty” determined by looking at how serious society regarded the offense –
leaves open the question of what amount of a fine is entitled to jury trial (though not
allowed at $1K in this case)
5. Jury Size
a. Waiver of Full Jury
-- accused can waive right to full jury and submit for a smaller jury, but he’s not entitled to know the identity of
sitting jurors who leave (US v. Yonnn)
**although jury of <5 would violate Ballew, if D waives 6, and one leaves
b. Alternate Jurors
- Every jurisdiction has mechanism for selecting jurors
- alternates hear everything jury hears, dismissed when trial jury retires to enter verdict
FEDERAL RULES OF CRIMINAL PROCEDURE Rule 24. Trial Jurors (c)
6. Selection of Jurors
Jury pool – produce petit jury (6-12 ppl) – Voir Dire
a. Eligibility for Jury Services
- Must be 18 yrs old, resident for at least 1 yr, can’t be related to parties (in most jurisdictions)
- right to be tried by a jury from the district or county where crime was committed – geographical area from
which jurors are selected
- according to fed. law, can’t exclude from jury service b/c of race, color, religion, sex, nat’l origin, or economic
status.
RULE 1. SCOPE
These rules govern the procedure in all criminal proceedings conducted in all courts of record in Tennessee. Additionally they gove
procedure in the General Sessions Courts of the state to the extent of:
(a) the institution of criminal proceedings pursuant to Rules 3, 3.5, and 4;
(b) the disposition of criminal charges pursuant to Rule 5;
(c) preliminary examinations pursuant to Rule 5.1;
(d) subpoena, pursuant to Rule 17;
(e) venue as outlined in Rule 18;
(f) search and seizure pursuant to Rule 41;
(g) assignment of counsel as provided in Rule 44;
(h) the use of electronic audio visual equipment to conduct initial appearances as provided by Rule 43.
(i) in any other situation where the context clearly indicates applicability.
To save time, the def may agree to a criminal info. The def would want to save time if already in jail.
When the grand jury has indicted or a CI is passed, the arraignment happens. Arraignment- judge
finds if def has counsel (indigence based on Fed poverty guidelines-less than $220/week
Counsel will get a copy of charging document, has right to have it read but usually won't.
Def would waive reading of indictment and trial if there is already a deal worked out, or if evidence
that came out in trial would exonerate them
Rule 12
When you are the trial after the arraignment the parties will get another court date. By that date,
discovery will have been done by the parties. And the parties will be required to file any pretrial
motions. Pretrial motions may included, that charging doc is defective, motion to suppress evidence,
or confessions, motion that rule 16 wasn't complied with and to compel discovery, motions for
mental eval, motions for joinder or severance of defs, if these motions are not filed then the issue is
deemed to be waived.
If def att believes art 1 sec 7 in seizure of evidence, and the def doesn't file a motion to suppress
then the evidence will be admitted and can never be suppressed again even on appeal.
Motions that require witnesses (motions that require evidentiary hearing) those have to be filed in a
timely manner and failure to do so will cause the issue to be waived.
12.3 DA notice of intent to seek punishment (extreme, or higher than as charged by). The def faces
range of sentencing by the level of felony and the def record. If the DA wants to get higher than the
level of crime by using def record, they must provide NOTICE OF INTENT TO SEEK ENHANCED
PUNISHMENT within ten days. If it is a death penalty, there must be thirty days notice. If the DA
waits and gives notice too late, the remedy is a continuance to allow def to check out reference DA is
citing.
1. Venue--venue is in constitution, jurisdiction is not.
21-change of venue-small town (high publicity cases) Only def can ask for a change of venue
Pick jurors---in a normal felony (not death penalty) the state has 8 preemptory challenges, and each
def has 8. For preemptory there doesn't have to be a specific reason. In a death penalty, the state
and each def have 15 challenges each. (Petit Jury)
"Voir Dire" Jury selection
For a normal felony, the judge will bring in about 35 ppl then begin asking them if they can be a
juror.
CH 5
Gideon v. Wainwright
(Gideon's Trumpet book)
Was indigent, asked for atty but didn't get one since they were only appointed for capital crime. Supreme
Court ruled that the 6th amend applies to the states through the 14th amend and he ad right to counsel.
Held that right to counsel was fundamental to a fair trial and that it is the interest of the accused and
society.
Per Se (across the board in every circumstance) was applied to all people charged in felonies in all states.
Alabama v. Shelton
There is a right to counsel to petty offenses that result in prison
30 day suspended sentence and 2 yrs unsup probation
Griffin v. Illinois
Indigent def are entitled to a free transcript to their trial for their first tier appellate review
Circuit/criminal--Court of Criminal Appeals (applicable for free transcript)--TN SCt
Douglas v. California
Says there is no free transcript in the secondary appeals to higher court
Bail-#1 valid reason for bail is so the def will show for trial.
In the fed system bail setting IS adversarial, in state it is not
-----------Fed is controlled by bail reform act of 1984---------
Someone may be given a no bond if no bond factors can be imposed to ensure def will show or if too
dangerous to the community-a regulation and not a punishment
Also a 70 day speedy trial right in fed court
In TN this can't be asserted until a 9 month delay
Only 1st degree def where a death penalty notice has been filed can be held without bond
There are some crimes where you have a writing period before you may get bond--domestic violence DUI,
PI
If bond is greater than 75k, you can't make it until you have a source hearing (Davidson County)
5th amendment part of due process--"nor be deprived of life, liberty or pursuit.without due process of
law"
TN Art 1 sec 8, and --it is broader than the fed 5th amend due process clause giving greater protection
It is for fairness in the process and in the outcomes.
This is where there is a duty to disclose. There is rule 16 of the TN rules of crim pro that is "discovery
and inspection" it is more specific than the due process clause
Rule 16
Does not apply in Gen Sessions since it is not a court of record. It applies in circuit/superior court.
Then the def may file a request for discovery. It is a strategy to force the reciprocal duty of discovery.
If there is evidence the def would like to blindside the DA with at trial, they won't file for discovery.
Usually the discovery motion is too important to not file.
Govt MUST give list of case in chief witnesses, but defense has to give none except alibi witnesses.
If govt doesn't give all, a motion to compel may be filled. Or to suppress related items.
Rule 26.2-"jencks rule"-requires either side to give after a witness' testimony and before cross
examination.must give any recorded or written statement from the witness-only before cross not in
discovery
In TN a lawyer can call someone and interview them over the phone and record without telling witness
it is recorded. Only one person in a call needs to be informed of the recording.caller or attorney
PA v. Richie…failure to provide file might have violated 6th amend right to compulsory process. Court
ordered that future issues should be turned over to court to review en camera (in private) and court
decides if there is exculpatory info and if so provide that part to the defense
State v. ferguson--def was slumped over wheel of care, cop smelled alcohol and asked def out of car.
Def failed and was arrested. Def was taped in sobriety test at jail but was taped over. Were his art 1
sec 8 rights infringed when the tape was destroyed.
1. there must be duty to preserve evidence if it is exculpatory,
If a person ends up being charged with a lesser crime in court, then the statute of the lesser crime
must be met also (meaning less time for the limitation)
Def would motion to set aside verdict and dismiss due to passing the statute of limitations
Due Process
Amendment 5 sec 10, 14
1. Actual prejudice
Then the speedy trial must be fulfilled. ===HOW LONG IS THE LIMIT
1. Length of delay
1. Prejudice to defendant
In federal law there is a 70 day threshold, but def always seeks continuance
TN does not have a speedy trial statute.
Assertion of the 6th amend right--weighs heavily in his favor, failure to do so weighs against him but
does not constitute waiver of the issue.
Duncan v. louisana
A six person jury must be unanimous. Six is the least the SCt approved so the minority isn't ganged up
on
All restitution must be actionable without consideration f race, religion or gender---due process clause
Tenn Felonies
A-E(a-15-60,
The worst crime in the state is above A, first degree murder. Three poss. punishments: death, life
B felonies: agg robbery, agg kidnapping
C-voluntary manslaughter, agg assault, agg burglary, theft over 60k
D-burg of business, forgery, theft over 1k, reckless hom
E-any forgery up to 1000, neg homicide
Agg burglary crimes do not merge
40-15-105-pretrial diversion
If no record, your atty should ask DA to screen for diversion that will never be used against him. The
da then decides is diversion is offered. If he is offered a contract is drafted for the terms for mental
health treatment, education, drug treatment etc. The court is then asked to approve it. It can count for
up to two years. If he completes his obligations, the record can be expunged.
40-35-313\
Person enters a guilty plea. With conditions…if completed case will be dismissed. If def doesn't meet
obligations, he has already pleaded guilty and will have a criminal conviction and judge will determine
punishment
Appeals
Tn rule of appellate procedure c
Automatic appeal.
Def may appeal jury verdict, sentence, court finding of probation violation, DA denial of pretrial
diversion, amt of bond, certified question of law
Rule 9
Interlocutory appeal where court agrees
10 interlocutory where trial court disagrees
11-APPEALING FROM 1ST APPEAL TO SUPREME
In most counties a retirement is available. It is a legal fiction not in the rule. It means a person is not found
guilty or innocent, but the case isn't going to be prosecuted for a period of time. At the end of that time, if
the def has met the pre agreed conditions, then the case will convert to a recognized dismissal and can be
expunged.
Before the court ay accept a guilty or nc plea, the curt addresses the def in open court and inform them of
the issues. "Plea Colloquy" the def must understand the nature of the charge, the max penalty and any
mandatory minimum penalty.
The def must be informed of his right to attorney again at a trial, knows he has the right to plead not guilty
and to persist in a previous not guilty plea, to cross examine any witnesses, freedom from compelled self
incrimination. The def is under oath during this talk. The court has to determine that the plea is voluntary
and assure that the plea is not the result of coercion.
The court has to know that there is a factual basis for the plea. After the colloquy, the DA will read a
statement of fact into the record
A guilty plea during a plea bargain can't be used if def withdraws the plea
These are usually a strategy decision. Either for efficiency or to prejudice jury
Rule8-joinder
8.a. is mandatory joinder rule
8.b. is permissive joinder--can the offenses be put together.
8.c. joinder of defendants--when they can be joined--if each is charged with accountability in each offense,
if each is charged with conspiracy, even if conspiracy isn't charged and all aren't charged in each acct, if
all charges are part of a combined scheme or plan or were so closely connected that it would be difficult to
separate them