Term
| Types of Pre-Arrest Investigations |
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Definition
Reactive Investigations
Proactive Investigations |
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Term
| Reactive Investigations are |
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Definition
| are Incident Driven or Complaint-responsisive investigations |
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Term
| Objectives of pre-arrest investigations |
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Definition
(1) Determination of whether a crime has been committed
(2) Determination of who committed the crime
(3) Collecting evidence to support prior determinations
(4) Locating the presence of the person who committed the crime |
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Term
| Activities to support pre-arrest objectives |
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Definition
(1) Interviewing victims
(2) Interviewing non-victim witnesses
(3) Interviewing non-witnesses who may have relevant information
(4) Interviewing persons who may have committed the crime
(5) Investigation of the crime scene and collecting physical evidence
(6) Research of available records for possible evidence and links to evidence
(7) Using informants to develop possible evidence |
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Term
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Definition
a. Investigations aimed at uncovering or revealing on-going crimes
b. Prosecutorial Investigations
c. Grand Jury Investigations |
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Term
| How to get an arrest warrant |
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Definition
The complain or affidavit must establish probable cause to believe an offense has been committed and that the defendant committed it, then the judge must issue an arrest warrant to an officer authorized to execute it
FRCP 4 |
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Term
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Definition
At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it.
FRCP 4 |
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Term
| Can a judge issue multiple warrants or summons on the same complaint? |
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Definition
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Term
| What to do if a defendant fails to appear in response to a summons. |
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Definition
Upon request of an attorney for the government a judge must issue a warrant
FRCP 4 |
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Term
| What does a warrant require? |
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Definition
1. A defendant's name/description
2. Offense charged in the complaint
3. Command that the defendant be arrested and brought before a magistrate judge or if none is reasonably available a state or local judicial officer
4. Signed by a judge. |
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Term
| What electronic devices can a judge use to communicate with when reviewing a complaint or deciding whether to issue a warrant or summons? |
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Definition
A telephone or other reliable electronic means.
FRCP 4.1 |
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Term
| Time limitations on a warrant? |
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Definition
| None, other than limitations apart from statutes of limitations. |
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Term
| What does a warrant authorize? |
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Definition
| Entry into the defendant's residence to effect his or her arrest. |
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Term
| When can an officer executing an arrest warrant enter a dwelling? |
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Definition
| If he has a reasonable belief, falling short of probable cause to believe that the suspect lives there and is present at the time. |
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Term
| When can a police officer enter the home of a third party to arrest the subject of the arrest warrant? |
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Definition
| When they have a search warrant, entry may also be justified by exigent circumstances. |
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Term
| Under what circumstances can a person be arrested without a warrant in Georgia? hint: crime punishable by death |
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Definition
Upon reasonbale information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath, setting forth the ground for the arrest
Ga. Code. Ann Section 17-13-34 |
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Term
| When can a person be arrested without a warrant in Georgia? hint: Officr's presence |
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Definition
| If the offense is committed in such officer's presence or within such officer's immediate knowledge; if the offender is endeavoring to escape; if the offense has probable cause to believe than an act of family violence has been committed; if the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult,who is unable to protect himself or herself from physical or mental abuse because of impariment, or for other cause if there is likely to be a fialure of justice for want of a judicia officer to issue a arrest |
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Term
| Under what circumstances can a person be arrested without a warrant in Georgia? hint: crime punishable by death |
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Definition
Upon reasonbale information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath, setting forth the ground for the arrest
Ga. Code. Ann Section 17-13-34 |
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Term
| When can a person be arrested without a warrant in Georgia? hint: Officr's presence |
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Definition
| If the offense is committed in such officer's presence or within such officer's immediate knowledge; if the offender is endeavoring to escape; if the offense has probable cause to believe than an act of family violence has been committed; if the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult,who is unable to protect himself or herself from physical or mental abuse because of impariment, or for other cause if there is likely to be a fialure of justice for want of a judicia officer to issue a arrest |
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Term
| A warrantless arrest is constitutionally valid if |
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Definition
| At the moment the arrest is made, the facts and circumstances within the knowledge of the aresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. |
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Term
| Probable cause to arrest cane be based upon |
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Definition
the collective knowledge of multiple police officers when there is some degree of communication between them.
Davis v. State |
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Term
| When can a private person may arrest an offender? |
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Definition
| If the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion. |
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Term
| When will an arrest by a private person be illegal. |
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Definition
| If even after seeing the arrest for a misdemeanor occur within his precence the arrest must occur immediately after perpetration of the offense, if the observer fails to make arrest immediately after commission off offense the power to arrest is extinguished and the arrest is illegal |
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Term
| A person commits false imprisonment when |
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Definition
in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.
Smith v State. |
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Term
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Definition
Clerical requirements of an arrest
1. Name of person arrested
2. Name of officer making the arrest
3. TIme place circumstances, and reason for the arrest
4. May include recording mehtods of identification.
5. May be temporarily detained in a jail or lockup until bail can be arranged. |
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Term
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Definition
Misdemeanor
or
Felony (with potential Death Penalty) |
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Term
| 4th Amendment prerequisite to extend restraint of liberty following arrest without a warrant. |
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Definition
4th amendment requires a judicial determination of probable cause
Gerstein v. Pugh |
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Term
| When may a witness testify at a judicial review of an Arrest without warrant and charges? |
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Definition
If the defendant wishes to testify and announces in open court before the court of inquiry his intention to do so, he may testify in his own behalf.
Bethel v. Flemming
Ga. Code Ann Secition 17-7-28 |
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Term
| Georgia First Appearance Hearing Rule |
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Definition
Duty is to determine whether there is sufficient reason to suspect guilt and to require him to appear and answer to the court competent to try him. Where probable cause exists it is the dut of the court to commit him.
Ga Code ANn Section 17-7-23 |
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Term
| Is a defendant entitled to a preliminary hearing once an indictment has been returned by a grand jur? |
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Definition
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Term
| What occurs at arraignment? |
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Definition
| It occurs on a fixed date, of which the defendant and his lawyer of record are notified. It will be served by a sherriff of the county/deputy. The court will receive the plea of the accused. In cases where a there is a plea of not guilty, the court sets a trial time. |
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Term
| When can pretrial motions be made? |
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Definition
10 days after the date of arraignment, unless the time for filing is extended by the court.
Ga Code Ann 17-7-110 |
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Term
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Definition
| A guilty plea from a defendant who claims innocence, may be accepted if D has intelligently concluded that it is within his best interest and the court has sought to resolve the conflict between the plea and claim of innocence. |
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Term
| How can one waive their right to a jury |
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Definition
Must personally, knowingly, voluntarily, and intelligently choose to waive. The burden belongs to the state to prove the waiver was made.
Ealey v. State |
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Term
| Size of a jury in a criminal trial. |
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Definition
| 12 persons, but the General Assembly may prescribe any number, not less than 6 to constitute a trial jury. |
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Term
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Definition
Financial Sanctions
-Restitution
-Monetary penalties and fines
Some form o frelease to the community
-probation
-Unsupervised release
-House arest
Imprisonment
Death Penalty |
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Term
| Sources of Criminal Procedure |
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Definition
The Constitution of the United States of America
The Bill of Rights |
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Term
| The Relationship between Criminal Procedure and Criminal Justice |
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Definition
Not guilty verdict indicates the prosecution failed to meet its burden of proof.
Scalia |
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Term
| What does the 6th Amendment provide |
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Definition
-Right to speedy and public trial by an impartial jury of the State and district where inthe crime was committed. To be informed of the nature and cause of the accusation, to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.
6th amendment |
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Term
| Article I, Section I, Paragraph XII of the Constitution of the state of Georgia |
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Definition
| No person shall be deprived of the right to prosecute or defend either in person or by an attorney, that person's own cause in any of the courts of this state." |
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Term
| Article I, Section I, Paragraph XIV of the Constitution of the State of Georgia |
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Definition
| Every person charged with an offesne against the laws of this state shall have the privilege and benefit of counsel..." |
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Term
| Criminal Justice Act, 18 USCA Section 3006A |
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Definition
| Establishes a plan for furnishing representation for any person financially unable to obtain adequate representation, including counsel, investigation, expert and otherservices necessary for adequate representation. |
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Term
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Definition
Right of Counsel guaranteed by United States Constitution in a death penalty case.
2. Failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the 14th amendment.
3. It is the duty of the court to assign counsel whether request or not as a necessary requiste for due process of law, where the defendant can not get it himself. |
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Term
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Definition
| 1. Duty of a federal court in a criminal trial to protect right of accused to counsel, and to deterime whether he has intelligently and competently waived the right to counsel, it should be a matter of record. |
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Term
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Definition
| In criminal trials a state cannot discriminate on account of poverty, religion, race, or color. Poverty cannot be used as an excuse to deprive a defendant of a fair trial. |
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Term
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Definition
| Anyone too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. |
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Term
| Right of the to counsel for appeal |
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Definition
Must be upheld otherwise it will draw an unconstitutional line between rich and poor.
Douglas v. California |
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Term
| 14th amendment and Juvenile delinquency |
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Definition
Requires right to council where the juvenile may lose his or her freedom.
In Re Gault |
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Term
| Was a statute that only provide for counsel in cases which the punishment was for more than six months in prison found constitutional? |
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Definition
No, right to counsel applies in all criminal cases in which a person might imprisoned for any offense and whether it was imposed or not.
Arsinger v. Hamlin
Alabama v. Shelton |
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Term
| What does due process require of direct appeals but not discretionary appeals? |
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Definition
That the state provide counsel.
Ross v. Moffitt |
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Term
| Is post-conviction relief (ie habeas corpus petition) part of the criminal trial process. |
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Definition
It is not and such action is considered to be a Civil nature. (No free Lawyer).
Murray v. Giarratano |
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Term
| A court is a tripartite entity consisting of what?a |
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Definition
| The Judge (and jury), Counsel for the prosecution, counsel for the accused |
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Term
| Basic duty of defense counsel |
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Definition
| To serve as the accused's counselor and advocate with courage and devotion and to render effective quality representation. |
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Term
| What should defense do when introduced to the client? |
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Definition
| Seek to establish a relationship of trust and confidence and disccuss objectives of representation and whether defense counsel will continue to represent the accused if there is an appeal. Defense counsel should explain the necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel should explain the extent to which counsel's obligation of confidentiality makes privelged the accused's disclosure |
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Term
| Decisions which are to be made by the accused after full consultation with counsel include... |
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Definition
1. What pleas to enter
2. Whether to accept a plea agreement
3. Whether to waive jury trial
4. Whether to testify in his or her own behalf and
5. Whether to appeal |
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Term
| Strategic and tactical decisions should be made by who and when? |
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Definition
| By the defense counsel after consultation with the client where feasible and appropriate. |
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Term
| What should the defenses strategic and tactical decisions include? |
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Definition
What witnesses to call,
Whether and how to conduct cross-examination
What jurors to accept or strike,
What trial motions should be made,
what evidence should be introduced. |
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Term
| What should be done if defense counsel and the client disagree on signficant matters of tactics or strategy? |
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Definition
| Record should be made of circumstances, counsel's advice and reasons, and the conclusion reached, in a maanner that protects confidentiality of the relationship. |
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Term
| How did the Court of the Star Chamber effect common law |
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Definition
| "no person charged with a criminal offence can have counsel forced upon him against his will." |
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Term
| Can the State compel a defendant to accept a lawyer? |
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Definition
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Term
| Can a defendant who elects to represent himself complain that his lack of counsel is a denial of effective assistance of counsel. |
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Definition
Absolutely not.
Faretta v. California |
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Term
| Must defense counsel assigned to prosecute an appeal raise every issue requested by the defendant? |
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Definition
No, this includes non-frivolous issues. Counsel as a matter of professional judgement can decide not to present those points.
Jones v. Barnes |
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Term
| When can a judge appoint standby counsel and what are his duties? |
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Definition
| When the defendant does no have counsel, even over his objection. He will relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obsacles. |
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Term
| In Georgia, does the defendant have the right to act as co-counsel? |
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Definition
| No, but trial courts have the discretion to allow such hybrid representation. |
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Term
| What must the record reflect when the Defendant seeks to proceed pro se? |
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Definition
| That he has been warned of the dangers of proceeding without counsel. |
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Term
| When is a competency determination necessary? |
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Definition
| When a court has a reason to doubt the defendant's competence. |
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Term
| What is the standard for determining a Valid Waiver of right to counsel? |
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Definition
Trial court should advise the defendant of
the nature of the charges against him
any stuatory lesser included offenses
the range of possible punishments for the charges
possible defenses
mitigation circumstances, and
any other facts necessary for a broad understanding of the matter |
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Term
| The principle that there is a presumption of innocence in favor of the accused is... |
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Definition
| UNDOUBTED LAW, AXIMOATIC AND ELEMENTARY, and the foundation of the administration of our criminal law. |
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Term
| Eighth Amendment to the constitution |
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Definition
| Excessive bailShall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted |
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Term
| Article I, Section I, Pargraph XVII of the COnstitution of the State of Georgia |
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Definition
| Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison |
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Term
| Upon appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order pending that, pending trial the person be: |
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Definition
1. Released on personal recognizance, or upon execution of an unsecured appearance bond
2. released on a condition or combination of conditions
3. Temporarily detained to permit revocation of conditional release, deportion or
4. detained (under subsection e) |
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Term
| What can you do if it will be impracticable to secure the presence of a witness material in a criminal proceeding by subpoena? |
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Definition
| A judicial officer may order the arrest of the perso. Unless tstimony can be adequately secured by deposition, if further detention is not necessary to prevent failure of jusice. Release may be detained for a reasonable period of time until the deposition can be taken. |
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Term
| What purpose is there for holding bail when a person has the presumption of innocence |
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Definition
| It allows for unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. |
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Term
| What standards for the fixing of bail are there for an individual. |
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Definition
| they are based upon standards relevant to the purpose of assuring the presence of that defendant. |
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Term
| Consideration for release should be subject to what condition |
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Definition
| Those that will reasonably assure the appearance of the person as required and the safety of any other person and the community |
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Term
| When are courts required to detain arrestee's prior to trial? |
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Definition
| When they are charged with certain serious felonies if the government demonstrates by clear and convincing evidence, after an adversary hearing of any other person and the community |
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Term
| What factors are determine whether a judicial officer can grant bail |
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Definition
1. The nature and seriousness of the charges
2. The substantially of the government's evidence against the arrestee
3. The arrestee's background and characteristics and
4. The nature and seriousness of the danger posed by the suspect's release |
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Term
| The court may set bail secured by: |
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Definition
Cash
Property
Recognizance
Professional (bail bondsman) |
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Term
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Definition
| An amount higher than an amount reasonably calculated to insure the presence of the defendant. |
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Term
| A court shall be authorized to release a person on bail if the court finds that the person |
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Definition
Poses no signficiant risk of fleeing from the jurisdiction of the court or failing to appear in court when required
2. Poses no significant threat or danger to any person, to the community or to any property in the community
3. Poses no signficant risk of committing any felony pending trial; and
4. Poses no signficant risk of intimidating witnesses or otherwise obstructing the administration of justice. |
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Term
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Definition
| Administrator of justice, advocate and an officer of the court; exercise sound discretion in the performance of his functions. To seek justice not merely convict |
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Term
| Limitations on prosecutorial decision to prosecute |
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Definition
| so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. This broad discretion is subject to constitutional restraints |
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Term
| Can a prosecutor looking to the potential penalties when deciding whether to charge between two statutes with identical elements. |
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Definition
| THe prosecutor may be influenced by the penalties avilable upon convict, but this does not give rise to a violatin of Equal protection or DUe Process clause. |
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Term
Georgia Code
District attorney is authorized to prefer accusations in all noncapital felony cases in which... |
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Definition
| defendants have been bound over to the superior court, are confined in jail or released on bond pending a commitment hearing, or are in jail having waived a commitment hearing, provided that defendants going to trial under such accusations waive in writing indictment by a grand jury. |
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Term
Georgia Code
The statute that authorizes the district attorney to proceed to trial upon accusation for certain enumerated felonies without obtaining a waiver of indictment is constitutional, and applies to violations of the following: |
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Definition
i. theft offenses:
ii. forgery and fraudulent practices
iii. escape and other offenses related to confinement
iv. possession of a firearm by a convicted felon or first offender probationer
habitual violator provisions of the motor vehicle and traffic laws |
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Term
| Fifth Amendment to the Constitution of the United States - Purpose of the Grand Jury |
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Definition
| “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . .” |
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Term
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Definition
| statutory origin, and determination of the question of the jurisdiction or power of such a jury after expiration of the term of court for which it was organized depends largely upon the applicable statute and the circumstances present. |
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Term
| The grand jury's duties include |
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Definition
| whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. |
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Term
| What happens when a Grand Jury returns a no bill |
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Definition
(a) Following the return of a no bill, unless further action is taken by the State, the accused walks the streets a completely free person and is entitled to all the privileges of freedom.
(a) Following the return of a no bill, unless further action is taken by the State, the accused walks the streets a completely free person and is entitled to all the privileges of freedom.
(b) Two decisions by a grand jury to "no bill" an indictment on the same charge or allegation generally constitutes a bar to further prosecution of a person for the same offense under the same or another name. |
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Term
| If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless: |
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Definition
the defendant waives the hearing;
the defendant is indicted;
the government files an information under Rule 7(b) charging the defendant with a felony;
the government files an information charging the defendant with a misdemeanor; or
the defendant is charged with a misdemeanor and consents to trial before a magistrate judge. |
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Term
| Rule 7(b) charging the defendant with a felony |
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Definition
| An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant's rights—waives prosecution by indictment. |
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Term
| At the commitment hearing by the court of inquiry, the judicial officer shall perform the following duties: |
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Definition
1. Explain the probable cause purpose of the hearing;
2. Repeat to the accused the rights explained at the first appearance;
3. Determine whether the accused waives the commitment hearing;
4. If the accused waives the hearing, the court shall immediately bind the entire case over to the court having jurisdiction of the most serious offense charged;
5. If the accused does not waive the hearing, the court shall immediately proceed to conduct the commitment hearing unless, for good cause shown, the hearing is continued to a later scheduled date;
6. The judicial officer shall bind the entire case over to the court having jurisdiction of the most serious offense for which probable cause has been shown by sufficient evidence and dismiss any charge for which
probable cause has not been shown;
8. On each case which is bound over, a memorandum of the commitment shall be entered on the warrant by the judicial officer. The warrant, bail bond, and all other papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the prosecuting attorney. |
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Term
| The Fifth Amendment to the Constitution of the United States Due Process Clause |
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Definition
| 1. “[N]o person shall be held to answer for a capital, or otherwise infamous crime. . . without due process of law” |
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Term
| The Fourteenth Amendment to the Constitution of the United States Due Process Clause |
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Definition
| “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” |
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Term
| “Due Process” has been defined in two different ways. |
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Definition
(1) Substantive Due Process is generally defined as those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion.
(2) Procedural Due Process rights are generally defined as special rights that dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so. |
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Term
| Is the Fith Amendment guarntee of prosection by indictment a fundmental right? |
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Definition
| prosecution by indictment is not a fundamental right and is therefore not applicable to the States through the Fourteenth Amendment’s Due Process Clause. |
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Term
| A Preliminary Hearing or Commitment Hearing Defined |
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Definition
| A commitment is the act of sending the accused to prison, or the warrant, order, or process by which a court or magistrate directs a ministerial officer to take the accused to prison or to detain him or her there. |
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Term
| Is a preliminary hearing a required step in a State prosecution? |
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Definition
A preliminary hearing is not a required step in a State prosecution in a criminal case (See Hurtado v. U.S.) and a prosecutor may seek an indictment directly from the grand jury without a preliminary hearing.
Coleman v. Alabama, 399 U.S. 1 (1970) |
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Term
| Is a preliminary hearing a critical stage? (Georgia) |
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Definition
| A preliminary hearing is a “critical stage” in the proceedings thus entitling the defendant to the presence of counsel. |
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Term
| Is a preliminary hearing a critical stage (Georgia) |
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Definition
A preliminary hearing is a “critical stage” in the proceedings thus entitling the defendant to the presence of counsel.
Gresham v. Edwards, 281 Ga. 881 (2007) |
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Term
| Is there a right to confront a witness at a preliminary hearing? |
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Definition
there is no constitutional right to confront witnesses; hearsay evidence is probative evidence; hearsay evidence is admissible and the magistrate judge does not have the discretion to exclude evidence simply because it is hearsay; the magistrate judge does not have the discretion to require evidence in addition to hearsay evidence as a condition precedent to bind over, if such evidence by itself establishes probable cause; and the probable cause standard for bind over at a preliminary hearing is the same as the probable cause standard for the issuance of an arrest warrant.
Bethel v. Fleming, 310 Ga. 717 (2011) |
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Term
| The standard for the sufficiency of evidence at a preliminary hearing |
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Definition
the probable cause standard necessary to commit a person for trial or grand jury determination at a preliminary hearing is the same as the probable cause standard for the issuance of an arrest warrant.
State v. Clark, 20 P.3d 300 (2001) |
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Term
| Purpose of the Grand Jury |
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Definition
primary security to the innocent against hasty, malicious and oppressive persecution, and it serves the invaluable function of standing between accuser and accused to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.
Wood v. Georgia, 370 U.S. 375 (1962) |
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Term
| The Grand Jury and the Indictment |
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Definition
“[a]n indictment is not a pleading of the United States, but the charge of a grand jury, and a grand jury is neither an officer nor an agent of the United States, but a part of the court. The United States neither selects nor controls it, nor has anything to do with it, but to present to it its evidence. True, the district attorney draws up the indictment, but at the grand jury's instructions, and the jury present it. Whatever be the degradation of that ancient institution in practice, it still remains in law more than the dummy of the prosecution.”
Falter v. United States, 23 F.2d 420 (1928) |
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Term
| Prosecutor's obligation to the grand jury |
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Definition
not to engage in techniques, either knowingly or inadvertently, to curry favor with the grand jurors and lead them to abrogate their role as unbiased factfinders.
United States v. Breslin, 916 F. Supp. 438 (E.D.Pa.1996) |
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Term
| Requirements of an Indictment |
|
Definition
“shall be a plain, concise and definite written statement of the essential facts constituting the offense charged
Federal Rules of Criminal Procedure, Rule Number 7 |
|
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Term
| Is the Grand Jury a requirement of both the federal government and the States? |
|
Definition
| This provision applies only in federal courts and is not applicable to the States, either as an element of due process or as a direct command of the Fourteenth Amendment. |
|
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Term
| The Fifth Amendment and the Federal Grand Jury SYstem |
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Definition
| “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;. .” |
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Term
| Composition of a Grand Jury |
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Definition
| Federal grand juries are composed of between 16 and 23 individuals. |
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Term
| Example of standing to raise equal protection and due process objections due to composition of Grand Jury List |
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Definition
A white criminal defendant has the requisite standing to raise equal protection and due process objections to discrimination against black persons in the selection of grand jurors.
Campbell v. Louisiana, 523 U.S. 392 (1998) |
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Term
| When can an excluded juror assert his own right not to be discriminated against grand jury service. |
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Definition
1. Regardless of skin color, an accused suffers a significant “injury in fact” when the grand jury's composition is tainted by racial discrimination. The integrity of the body's decisions depends on the integrity of the process used to select the grand jurors. If that process is infected with racial discrimination, doubt is cast over the fairness of all subsequent decisions.
2. A “close relationship” by the claimant to the excluded jurors exists because they share a common interest in eradicating discrimination from the grand jury selection process
3. Because of the economic burdens of litigation and the small financial reward available, a grand juror who is excluded because of race has little incentive to sue to vindicate his own rights therefore a third party may raise those issues on the behalf of an excluded class member. |
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Term
| Can discrimination of a grand jury foreman threaten an interest protected by due process clause. |
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Definition
| Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution, but, instead, was originally instituted by statute for the convenience of the court. |
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Term
| To show that an equal protection violation has occured in the context of grand jury foreman selection: |
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Definition
defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs
Rose v. Mitchell, 443 U.S. 545 (1979) |
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Term
| State grand jury requirements |
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Definition
no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions.
having once resorted to a grand jury procedure, to furnish an unbiased grand jury.
Beck v. Washington, 369 U.S. 541 (1962) |
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Term
| As a general rule, a grand jury challenge must be madeprior to the return of the indictment or it is deemed waived. What is the exception? |
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Definition
1. The exception to the rule is where the defendant can show that he had neither actual nor constructive notice of the alleged illegality prior to that time.
2. A defendant has constructive knowledge of a defective grand jury where the appointment of the challenged grand juror is a matter of public record.
3. A defendant waives his or her right to challenge an array by entering a plea of guilty. |
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Term
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Definition
| must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. |
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Term
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Definition
| no sentence of imprisonment will be imposed. |
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Term
| When can a trial for a misdemeanor proceed |
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Definition
| on an indictment, information, or complaint. |
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Term
| When may the trial of a petty offense proceed |
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Definition
| on a citation or violation notice. |
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Term
| When will an indictment be sufficient to withstand a "general demurrer" |
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Definition
| If an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, |
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Term
| What must the accused do when he takes exception to the form of an indictment |
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Definition
he must do so by demurrer or by motion to quash made in writing before pleading to the merits.
See, Frady v. State, 212 Ga. 84 (1955) |
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Term
| Is it necessary to use the exact words charged in an indictment? |
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Definition
Where defendant was charged with having said “God damn all white people ought to be killed,” and “Damn you and your wife and children too,” permitting proof that on the occasion referred to in indictment defendant said “You are a God damned lie,” was not error
Peters v. State, 55 Ga. App. 870 (1937) |
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Term
| The pleadings in a criminal proceeding |
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Definition
| are the indictment, the information, and the pleas of not guilty, guilty, and nolo contendere |
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Term
| The Charging Instruments Should Be Tested by the Following Basic Functions |
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Definition
Protecting the Defendant’s Rights Against Double Jeopardy
Providing Notice to the Defendant of the Charges
1. Sixth Amendment Right to be “informed of the nature and cause of the accusation.”
Providing a Basis for Judicial Review of the Charges
Providing a Jurisdictional Basis for the Charges
Protecting the Guarantee of Grand Jury Review of Accusations |
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Term
| May a crime be proven by an alternate method when then indictment charges a specific method? |
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Definition
No it is in error. . If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.
Blige v. State, 208 Ga.App. 851 (1993) |
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Term
| Can the indictment set forth the offense in the words of the statute |
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Definition
| it is not sufficient to set forth the offense in the words of the statute unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, and the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent. |
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Term
| Criteria to measure suffieciency of indictment |
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Definition
| first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. |
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Term
| The fatal variance rule for Indictments |
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Definition
| whether there is a fatal variance between the indictment and the evidence presented at trial, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. |
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Term
| Article III, Section 2 of the Constitution of the United States |
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Definition
| “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.” |
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Term
| Sixth Amendment to the Constitution of the United States (in part) On Venue |
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Definition
| “…In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,. . .” |
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Term
| Constitutional requirement of venue |
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Definition
the State must prove, beyond a reasonable doubt, every element of the crime charged, including venue. Failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, results in insufficiency of the evidence, and warrants reversal on appeal.
State v. Dixon, 286 Ga. 706 (2010) |
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Term
| Where a crime was begun in one district but completed in another where can it be prosecuted? |
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Definition
| may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed |
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Term
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Definition
| The term vicinage means the county in which the parties reside, while in the early days of the common law, when juries were actually witnesses who decided questions of fact upon the basis of their previous knowledge, the word meant "the neighborhood" where the cause of action had arisen or the crime had been committed. |
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Term
| When may a trial court return a jury from the county of venue to the original county for trial |
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Definition
| Only with consent of the parties. |
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Term
| To prevail on claim that venue was improper due to prejudicial pretrial publicity, defendant must |
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Definition
present sufficient evidence to show that setting of trial was inherently prejudicial due to pretrial publicity or that any juror displayed actual prejudice against him.
“where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, ‘[jury] prejudice is presumed and there is no further duty to establish bias.’ ” |
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Term
| When may defendants be joined in a single indictment? |
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Definition
| The court may order that separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information. |
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Term
| When may a defendant seek a separate trial? |
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Definition
| Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires. |
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Term
| Is evidence of similar crimes or transactions overly prejudicial? |
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Definition
| Not where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct. |
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Term
| A defendant seeking severance must show that he will be prejudiced by joint trial, what factors should be considered? |
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Definition
1. Whether a joint trial will create confusion as to the law and evidence applicable to each defendant;
2. Whether there is a danger that evidence admissible against one defendant will be improperly considered against the other, regardless of the court's instructions; and
3. Whether the defendants are asserting antagonistic defenses.
(a) An assertion of antagonistic defense alone is not a basis for severance absent a showing of harm. |
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Term
| How can the right to confrontation be violated when Co-Defendants are tried Jointly? |
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Definition
1. Co-defendants are tried jointly;
2. One co-defendant's confession is used to implicate the other co-defendant in the crime; and
3. The co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement. |
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Term
| Fifth Amendment clause on Double Jeopardy |
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Definition
| (in part) nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; |
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Term
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Definition
| If each offense contains an element not contained in the other it is not the same crime and not prohibited from prosecution by the Double Jeopardy Clause of the Fifth Amendment. |
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Term
| 14th Amendment and Double Jeopardy |
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Definition
| Fifth amendment guarntee against double jeopardy is enforcable against the states through 14th amendment |
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Term
| Sixth Amendment and Speedy Trial |
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Definition
| “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . .” |
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Term
| 14th Amendment and Speedy Trial |
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Definition
| …nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. |
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Term
| Four factors which courts should assess in determing whether a particular defendant has been deprived of his right to a spieedy trial. |
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Definition
The length of delay,
The reason(s) for the delay,
Whether the defendant asserted his right to a speedy trial, and
The prejudice of the delay to the defendant. |
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Term
| Information Subject to Disclosure. |
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Definition
1. Defendant's Oral Statement.
2. Defendant's Written or Recorded Statement.
3. Defendant's Prior Record.
4. Documents and Objects.
5. Reports of Examinations and Tests.
6. Expert Witnesses. |
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Term
| What must happen when the government does not comply with an order to produce? |
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Definition
| “The criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial.” |
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Term
| The suppression by the prosecution of evidence favorable to an accused upon request violates due process when? |
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Definition
where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
Brady |
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Term
| What is a Affirmative Defense? |
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Definition
| is one in which the defendant admits the act but seeks to justify, excuse, or mitigate it; the defendant must admit the crime before he can raise the defense. |
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Term
| What Affirmative defenses are codified in Georgia |
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Definition
Justification
Self-defense or defense of others
Immunity based on rendering assistance to law enforcement officers
Defense of habitation and defense of property other than habitation
entrapment
Coercion
Accident
Abandonment
Insanity |
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Term
| Standard of voluntariness for a guilty plea... |
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Definition
| [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are, by their nature, improper as having no proper relationship to the prosecutor's business (e.g., bribes). |
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Term
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Definition
Not guilty
Not guilty by reason of insanity
Nolo Contendere
Guilty |
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Term
| What must the court consider before accepting a plea of guilty or nolo contendre |
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Definition
the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
(a) the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
(b) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(c) the right to a jury trial;
(d) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;(e) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(f) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
(g) the nature of each charge to which the defendant is pleading;
(h) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
(i) any mandatory minimum penalty;
(j) any applicable forfeiture;
(k) the court's authority to order restitution;
(l) the court's obligation to impose a special assessment; |
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Term
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Definition
Sentencing Reccomendations in Exchange for a plea of guilty (Fact bargaining)
Plea of guilty to a lesser included charge (Charge bargaining) |
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Term
A plea of guilty
(Boykin v. ALabama) |
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Definition
| "A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need be advanced. . . . It supplies both evidence and verdict, ending controversy." |
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Term
| How can the state meet its burden of demonstrating that a guilty plea was made validly |
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Definition
| by demonstrating that the plea was intelligently and voluntarily entered by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. |
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Term
| What rights does the defendant have if the court intends to reject a negotiated plea agreement? |
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Definition
| They must inform the defendant that he has the right to withdraw his guilty plea |
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Term
| Why are conditonal please allowed in Georgia? |
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Definition
| conditional guilty pleas encourage a ‘sporting’ view of criminal law that we refuse to allow in other situations. Appellants are not usually allowed to gamble on favorable results by refusing to challenge perceived erroneous rulings by the trial court with the expectation that they can achieve a more favorable result on appeal.” |
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Term
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Definition
| Guilty plea which represented voluntary and intelligent choice among alternatives available to defendant, especially where he was represented by competent counsel, was not compelled within meaning of Fifth Amendment merely because plea was entered to avoid possibility of death penalty. |
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Term
| The Common Law Basis for the Right of a Trial by Jury |
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Definition
| "Those who emigrated to this country from England brought with them this great privilege 'as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power |
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Term
| 6th Amendment basis for Trial by Jury |
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Definition
| “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . .” |
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Term
| The defendant is entitled to a jury trial unless |
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Definition
a. the defendant waives a jury trial in writing;
b. the government consents; and
c. the court approves. |
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Term
| A jury consists of 12 persons unless... |
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Definition
at any time before the verdict, the parties may, with the court's approval, stipulate in writing that:
a.
The jury may consist of fewer than 12 persons; or a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror. In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. |
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Term
| Origin of the 12 Man Jury... |
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Definition
“The fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics."
Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man, rather than a 12-man, jury. |
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Term
| Does a criminally charged person who has the right to trial by juror have the right to trial without a jury |
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Definition
| A criminally charged person who has the right to a trial by juror does not have a constitutional right to be tried by a judge without a jury.sanction of the court must be had, in addition to the express and intelligent consent of the defendant.” |
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Term
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Definition
| “the jury does possess a de facto power of nullification, i.e., a power to acquit the defendant regardless of the strength of the evidence against him ... it nonetheless is true that if the evidence proves the defendant guilty beyond a reasonable doubt it is the jury's duty to convict. |
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Term
| (Georgia) The state or the accused may make any of the following objections to the juror: |
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Definition
That the juror is not a citizen, resident in the county;
That the juror is under 18 years of age;
That the juror is incompetent to serve because of mental illness or mental retardation, or that the juror is intoxicated;
That the juror is so near of kin to the prosecutor, the accused, or the victim as to disqualify the juror by law from serving on the jury;
That the juror has been convicted of a felony in a federal court or any court of a state of the United States and the juror's civil rights have not been restored; or
That the juror is unable to communicate in the English language. |
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Term
| (Georgia) Questions that shall be asked at voir dire |
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Definition
“Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?” If the juror answers in the negative, the following question shall be propounded to him;
“Have you any prejudice or bias resting on your mind either for or against the accused?” the following question shall be propounded to him;
“Is your mind perfectly impartial between the state and the accused?” If the juror answers this question in the affirmative, he shall be adjudged and held to be a competent juror in all cases where the authorized penalty for the offense does not involve the life of the accused; but when it does involve the life of the accused, the following question shall also be put to him;
1. “Are you conscientiously opposed to capital punishment?” If the juror answers this question in the negative, he shall be held to be a competent juror. |
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Term
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Definition
The opponent of a peremptory challenge must make a prima facie showing of racial discrimination;
The proponent of the strike must then provide a race-neutral explanation for the strike; and
The court must decide whether the opponent of the strike has proven discriminatory intent.
1. The prohibition against using peremptory challenges to exclude jurors based on race applies to criminal defendants as well as to the state. |
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Term
| Juror CHallenge based on Gender |
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Definition
The opponent of the strike must make a prima facie showing that the proponent of the strike has exercised its peremptory challenges on the basis of gender;
The burden then shifts to the proponent of the strike to articulate a gender-neutral explanation for striking the jurors in question; and
The trial court must then determine whether opponent of the strike has carried his or her burden of proving purposeful discrimination. |
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Term
| First Amendment and Freedom of the Press |
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Definition
| Congress shall make no law. . . abridging the freedom of speech, or of the press;. . .” |
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Term
| First and Fourteenth amendment on Freedom of the press |
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Definition
| . The right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. |
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Term
| standards govern the consideration and disposition of a motion in a criminal case for change of venue or continuance based on a claim of threatened interference with the right to a fair trial: |
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Definition
2. A motion for change of venue or continuance should be granted whenever there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. A showing of actual prejudice should not be required.
3. If a motion for change of venue or continuance is made prior to the impaneling of the jury, the court may defer ruling until the completion of voir dire. The fact that a jury satisfying prevailing standards of acceptability has been selected should not be controlling if the record shows that the criterion for the granting of relief set forth in paragraph (b) has been met.
4. It should not be a ground for denial of a change of venue that one such change has already been granted. The claim that the venue should have been changed or a continuance granted should not be considered to have been waived by the waiver of the right to trial by jury or by the failure to exercise all available peremptory challenges. |
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Term
| In determining the location to which venue should be changed, the appropriate authority should consider the following factors: |
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Definition
(a). The nature and extent of pretrial publicity, if any, in the proposed venue;
(b). The relative burdens on the respective courts in changing to the proposed venue;
(c). The relative hardships imposed on the parties, witnesses, and other interested persons with regard to the proposed venue;
(d). The racial, ethnic, religious and other relevant demographic characteristics of the proposed venue, insofar as they may affect the likelihood of a fair trial by an impartial jury;
(e). Any other factor which may be required by the interests of justice. |
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Term
| What to do when a juror may be biased due to the news... |
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Definition
1. It is sufficient to qualify a juror if that juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
2. "The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. . . . If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed."
3. "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." |
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Term
| 2 Standards for analyizing whether pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant petitioner's motion for a change of venue to deprive the defendant of rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments. |
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Definition
(a). The "actual prejudice" standard and,
(b). The "presumed prejudice" standard.
i. The presumed prejudice principle is rarely applicable and is reserved for an extreme situation.
ii. Where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, jury prejudice is presumed and there is no further duty to establish bias.' |
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Term
| A gag order to prohbit discussion with public communications media is constitutional because |
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Definition
1. Comments from the lawyers and parties might well taint the jury pool, either in the present case or one of the two related cases, is the least restrictive corrective measure available to ensure a fair trial, and is sufficiently narrowly drawn.
2. The district court applied the correct legal principles in entering such an order and its factual conclusions are adequately supported by the record. |
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Term
| Requirements for conducting an arraignment |
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Definition
ensuring that the defendant has a copy of the indictment or information;
reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and then
asking the defendant to plead to the indictment or information. |
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Term
| A defendant need not be present for the arraignment if: |
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Definition
the defendant has been charged by indictment or misdemeanor information;
the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the indictment or information and that the plea is not guilty; and
the court accepts the waiver. |
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Term
| Defendants must be present at |
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Definition
the initial appearance, the initial arraignment, and the plea;
every trial stage, including jury impanelment and the return of the verdict;
and
sentencing. |
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Term
| When can a defendant lose his right to be present at trial? |
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Definition
| if he continues his disruptive behavior, he nevertheless insists on conducting himself in manner so disorderly, disruptive, and disrespectful of court that his trial cannot be carried on with him in the courtroom. |
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Term
| There are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant. |
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Definition
Bind and gag him, thereby keeping him present;
Cite him for contempt;
Take him out of the courtroom until he promises to conduct himself properly. |
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Term
| Common Law Rule on criminally charged individuals testifying at trial. |
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Definition
| The Supreme Court noted that The State of Georgia is the only State -- indeed, apparently the only jurisdiction in the common law world -- to retain the common law rule that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial. |
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Term
| If defendant objects to a prosecutor placing prejudicial matters before the jury, the trial court is required to do what |
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Definition
| Give curative instructinon even absent a request from the defendant. |
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Term
| How do the 14th and 6th amendents grant the right to take witness stand and testify in his behalf? |
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Definition
| Defendant in criminal case has right to take witness stand and testify in his or her own behalf under due process clause of Fourteenth Amendment, which guarantees that no one shall be deprived of liberty without due process of law, compulsory process clause of Sixth Amendment, which grants defendant right to call witnesses in his favor, and Fifth Amendment's privilege against self-incrimination. |
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Term
| Circumstances when a mistrial should be declared |
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Definition
1. it is physically impossible to proceed with the trial; or
2. prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant; or
3. the jury is unable to agree upon a verdict; or
4. false statements of a juror on voir dire prevent a fair trial. |
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Term
| Examples of when a declaration of a mistrial has barred re-prosecution. |
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Definition
(a) Where the jury was discharged through the trial judge's is construction of the law;
(b) Where the trial judge has made a mistake in concluding that the jury was illegally impanelled, or biased;
(c) Where the defendant has been discharged when the trial judge erred in his estimate of the prejudicial quality of the remarks made by counsel for the accused.
(d) Where the jurors were found to be drinking beer which had been brought in by the bailiff. |
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Term
| What is the classical test for lifting the double jeopardy bar When trial is terminated over objection of defendant, |
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Definition
The manifest necessity standard,
Intent of the prosecutor is the standard in determining whether double jeopardy clause bars retrial when a defendant successfully moves for a mistrial and prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify mistrial on defendant's motion, does not bar retrial absent intent on part of the prosecutor to subvert the protection afforded by the double jeopardy clause. |
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Term
| May a judgement of acquittal be appealed |
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Definition
| whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. |
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Term
| Federal Rules regarding juries |
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Definition
(a) If the defendant is entitled to a jury trial, the trial must be by jury unless: the defendant waives a jury trial in writing; the government consents; and the court approves.
(b) A jury consists of 12 persons unless this rule provides otherwise.
(c) At any time before the verdict, the parties may, with the court's approval, stipulate in writing that: the jury may consist of fewer than 12 persons; or a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.
(1) After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror. |
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Term
| When a party requests in writing that the court instruct the jury on the law, how must the court respond? |
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Definition
(1) The court must inform the parties before closing arguments how it intends to rule on the requested instructions.
(2) The court may instruct the jury before or after the arguments are completed, or at both times.
(3) A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury's hearing and, on request, out of the jury's presence. |
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Term
| Returning the jury verdict and polling the jury |
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Definition
(a) The jury must return its verdict to a judge in open court. The verdict must be unanimous.
(b) After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.
(c) If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree. |
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Term
| What must a Court do before ordering a mistrial |
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Definition
| the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. |
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Term
| What right does a defendant have under Double Jeopardy clause once a jury has been impaneled and sworn |
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Definition
| Once a jury has been impaneled and sworn, a defendant has a constitutional right under the Double Jeopardy Clause to be tried by that jury |
|
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Term
| When nis a trial improperly terminated |
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Definition
| if there was no manifest necessity for declaring a mistrial.” And manifest necessity requires “urgent circumstances. |
|
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Term
| When are there urgent circumstances? |
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Definition
| d the decision must take into consideration all the surrounding circumstances. It should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes. |
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Term
| Is it improper to declare a mistrial when there is a deadlocked jury |
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Definition
| A hopelessly deadlocked jury constitutes manifest necessity for declaring a mistrial, so that retrial does not constitute double jeopardy. |
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Term
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Definition
Basically: You have to come to a decision
"Members of the Jury: I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so. This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you. Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced. If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt. Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so. You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty. You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary. I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you. |
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Term
| Analyizing Cruel and Unusual punishment |
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Definition
| wo aspects of punishment: the method and the amount. As to the method of punishment, the Eighth Amendment clearly bars punishments that were considered cruel at the time of its adoption, such as burning at the stake, crucifixion, or breaking on the wheel. |
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Term
| Constitutional Limits on Punishment |
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Definition
8th Amendment
(1) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. |
|
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Term
| Is an appeal an absolute right? |
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Definition
| An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review. |
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Term
| De Novo standard of review |
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Definition
| When appellate courts apply the de novo standard of review, they hear the case all over again, as if it had not previously been tried. Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. |
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Term
| Clear Error Standard of Review |
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Definition
This is also called the “clearly erroneous” standard and it means that the trial judge’s decision will not be reversed unless the judge has made a decision that has its basis in a plainly erroneous understanding of the facts.
A trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous. |
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Term
| Abuse of Discretion Standard of Review |
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Definition
| Where a determination by the trial court involves an exercise of discretion, the standard of review is “abuse of discretion,” which is at least slightly less deferential than the “any evidence” test. |
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Term
| 6th Amendment and Effective Assistance of council |
|
Definition
| “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” |
|
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Term
| Test for ineffective assitance of council |
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Definition
whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
First, the defendant must first be shown that counsel’s performance fell below that performance required by professional standards.
Secondly, the defendant must next show that the performance, even though it was below what is professionally required, must have been so prejudicial as to create the uncertainty about the reliability of the outcome of the case. |
|
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Term
| ABA standards of professional conduct |
|
Definition
Counsel must provide assistance to the accused
Counsel must be loyal to the client
Counsel must avoid conflicts of interest with the client’s interests.
Counsel must consult with the client and keep the client informed
Counsel must advocate on behalf of the client’s cause
Counsel must bring to bear such skill and knowledge as will render the trial a truly adversarial testing process |
|
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Term
| In accepting payment of fees by one person for the defense of another, defense counsel should be careful to determine that he or she will not be confronted with a conflict of loyalty since defense counsel's entire loyalty is due the accused. Defense counsel should not accept such compensation unless: |
|
Definition
a. The accused consents after disclosure;
b. There is no interference with defense counsel's independence of professional judgment or with the client-lawyer relationship; and
c. Information relating to the representation of the accused is protected from disclosure as required by defense counsel's ethical obligation of confidentiality.
Defense counsel should not permit a person who recommends, employs, or pays defense counsel to render legal services for another to direct or regulate counsel's professional judgment in rendering such legal services. |
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Term
| Buis v. State, 309 Ga. App. 644 (2011) |
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Definition
| trial counsel’s failure to ask for certain evidence did not constitute ineffective assistance of counsel |
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Term
| Faretta v. California, 422 U.S. 806 (1975) |
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Definition
| state cannot force an attorney upon someone when they knowingly and intelligently waive the right to counsel |
|
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Term
| McKaskle v. Wiggins, 465 U.S. 168 (1984) |
|
Definition
| appointment of stand-by counsel over the objection of the defendant does not violate right to self-representation |
|
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Term
| Jones v. Barnes, 463 U.S. 745 (1983) |
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Definition
| defense counsel assigned to appeal does not violate defendant’s constitutional rights by refusing to bring up every non-frivolous point on appeal |
|
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Term
| Reviere v. State, 231 Ga. App 329 (1998) |
|
Definition
| a defendant cannot complain of a lack of counsel when he chose not to have counsel |
|
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Term
| Weldon v. State, 247 Ga. App. 17 (2000) |
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Definition
| Georgia constitution no longer provides a criminal defednat the right to act as co-counsel, trial courts have discretion to allow hybrid representation; if a defendant proceeds or se, then a record should be made of the defendant being made aware of the right to counsel and the danger of proceeding without counsel |
|
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Term
| Walker v. State, 288 Ga. 174 (2010) |
|
Definition
| competency hearing is only necessary when the court has reason to believe the defendant is incompetent; where defendant alleged he was incompetent to waive counsel |
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Term
| Lamar v. State, 278 Ga. 150 (2004) |
|
Definition
| a defendant who has chosen to proceed per se waives the right to counsel; the test is whether they make a knowing and intelligent waiver, not that they are capable of representing themselves thus it was error not to let Mr. Lamar represent himself |
|
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Term
| For a knowing and intelligent waiver the Court must advise the defendant of: |
|
Definition
1. Nature of charges against him
2. statutory lesser included offenses
3. of possible punishments
4. defenses
5. circumstances
6. other facts necessary for a broad understanding of the matter |
|
|
Term
| Winston v. State, 270 Ga. App. 664 (2004) |
|
Definition
| on appeal the state bears the burden of demonstrating a valid waiver of counsel |
|
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Term
| Iowa v. Tovar, 541 U.S. 77 (2004) |
|
Definition
| self representation is at the defendant’s own risk; 6th Amendment right to counsel does not require trial court to give a thorough admonishment regarding the usefulness of an attorney |
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Term
| Ga. Code. Ann. § 17-6-1: When court is authorized to make bail |
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Definition
1. Poses no significant flight risk
2. no significant threat to person or property in the community
3. no significant risk of committing another felony pending trial
4. no significant risk of intimidating witnesses or otherwise obstructing justice |
|
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Term
| Coffin v. United States, 156 U.S. 432 (1895) |
|
Definition
| presumption of innocence lies in favor of the accused but has no bearing on the determination of rights of a pretrial detainee |
|
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Term
| Bell v. Wolfish, 441 U.S. 520 (1979) |
|
Definition
| jailhouse practices during pretrial detention did not deny due process |
|
|
Term
| Rocco v. State, 267 Ga. App 900 (2004) |
|
Definition
| since a person out on bond remains in constructive custody of the law, condition of bond are appropriate where reasonable under the facts and circumstances of the case |
|
|
Term
| Gerstein v. Pugh, 420 U.S. 103 (1975) |
|
Definition
| presumption of innocence has no bearing on rights of pretrial detainee; pretrial probable cause hearing is not a constitutional guarantee |
|
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Term
| U.S. v. Montalvo-Murillo, 495 U.S. 711 (1990) |
|
Definition
| government cannot be punished by requiring automatic release of pretrial defendants for failure to comply with statutory provisions of providing a timely hearing |
|
|
Term
| Stack v. Boyle, 342 U.S. 1 (1951) |
|
Definition
| $50k bond was excessive given the maximum sentence was 5 years in prison and $10k in fines where crime was violation of the Smith Act |
|
|
Term
| U.S. v. Salerno, 481 U.S. 739 (1987) |
|
Definition
| sufficiently compelling government interests can justify pretrial detention of individuals; pretrial detention is not considered punishment (detainees were part of organized crime) |
|
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Term
| Mullinax v. State, 271 Ga. 112 (1999) |
|
Definition
| failure to comply with statutory interlocutory appeal procedures required dismissal of direct appeal; pre-trial bail of $250k was not excessive under the circumstances of a murder charge |
|
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Term
| Myers v. St. Lawrence, 289 Ga. 240 (2011) |
|
Definition
| petitioner was not entitled to bail as a matter of right, court found he was a flight risk and risk to the public with a lengthy list of felonies |
|
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Term
| Jones v. Grimes, 219 Ga. 585 (1964) |
|
Definition
| amount of bail to be assessed is the discretion of the judge and in the absence of clear abuse of discretion, the action will not be controlled; the question of excessive bail is determined by the facts and circumstances of the case |
|
|
Term
| Constantino v. Warren, 285 Ga. 851 (2009) |
|
Definition
| court can grant bail only if it finds non-existence of the four factors by statute Ga. Code Ann. 17-6-1 |
|
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Term
|
Definition
a person refused bail is entitled to have the charge heard by grand jury within 90 days
Bail:
1. Cash
2. Property
3. Recognizance
4. Professional |
|
|
Term
| Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375 (1973): |
|
Definition
| [A] citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. In American jurisprudence a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another. |
|
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Term
| United States V. Armstrong 517 US 456 |
|
Definition
| In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. This broad discretion is subject to constitutional restraints, and cannot be based upon invidious criteria such as race or religion. |
|
|
Term
| State v. Perry, 261 Ga.App. 886 (2003): |
|
Definition
| The purpose of criminal law is to serve the public functions of deterrence, rehabilitation and retribution; it is the state, not the victim that has an interest in criminal prosecutions. In the district attorney's role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about [whom] to prosecute, what charges to bring, and which sentence to seek. |
|
|
Term
| United States v. Batchelder, 442 U.S. 114 (1979) |
|
Definition
| There is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. |
|
|
Term
| Johnson v. State, 258 Ga. 506(1988 |
|
Definition
| There is no general legal prohibition against the State using contradictory theories against different defendants before different juries in separate criminal trials. However, a prosecutor is prohibited from knowingly instituting a criminal charge unsupported by probable cause, |
|
|
Term
| Robbins v. Lanier 198 Ga.App. 592 (1991) |
|
Definition
| A district attorney is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction.’ The determining factor ... appears to be whether the act or omission is ‘“intimately associated with the judicial phase of the criminal process.” A prosecutor's decision to file formal criminal charges against an individual is an act intimately associated with the judicial phase of the criminal process. |
|
|
Term
| U.S. v. Armstrong 517 U.S. 456 |
|
Definition
| - so long as prosecutor has probable cause to believe that accused committed offense defined by statute, decision whether to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. |
|
|
Term
| Hurtado v. California, 110 U.S. 516 (1884) |
|
Definition
| - The federal constitution does not require the state to adopt Grand Juries. |
|
|
Term
| Sims v. State, 148 Ga. App. 733 (1979) |
|
Definition
| - A preliminary hearing is not a required step in felony prosecution in GA if the jury indicts prior to the preliminary hearing. |
|
|
Term
| Coleman v. Alabama, 399 U.S. 1 (1970) |
|
Definition
| - A preliminary hearing is not a required step in a state prosecution, prosecutor may seek an indictment from grand jury without preliminary hearing. |
|
|
Term
| Gerstein v. Pugh, 420 U.S. 103 (1975) |
|
Definition
| - judicial hearing is not a prerequisite to prosecution by information |
|
|
Term
| Hunt v. Hopper, 232 Ga. 53 (1974) |
|
Definition
| - The purpose of a commitment hearing is to show probable cause |
|
|
Term
| Gresham v. Edwards, 281 Ga. 881 |
|
Definition
A preliminary hearing is a "critical stage" entitling def. to presence of counsel
-The right to confrontation is a trial right, preliminary hearing isn't really about truth finding |
|
|
Term
| State v. Clark, 20 P.3d 300 (2001) |
|
Definition
| - The standard for evidence at a preliminary hearing is probable cause |
|
|
Term
| Bethel v. Fleming, 310 Ga. App 717 (2011) |
|
Definition
- No constitutional right to confront witnesses at preliminary hearing
- Hearsay is admissible and can establish probable cause. |
|
|
Term
| Wood v. Georgia, 370 U.S. 375 (1962) |
|
Definition
| - Grand jury is regarded as a security of the innocent against hasty prosecution |
|
|
Term
| Costello v. United States, 350 U.S. 359 (1956) |
|
Definition
| - Indictments are not open to challenge on ground that they aren't supported by adequate evidence. |
|
|
Term
| Falter v. United States, 23 F.2d 420 (1928) |
|
Definition
| - Indictment is the charge of a grand jury, not a pleading for the DA |
|
|
Term
| U.S. v. Breslin, 916 F. Supp. 438 (1996) |
|
Definition
- It is inappropriate for the prosecutor to provide snacks to a grand jury
- Grand jury is not an adjunct of the prosecutor, it's responsibility is to determine if probable cause exists.
- The prosecutor has an obligation not to engage in techniques, either knowingly or inadvertently, to curry favor with grand jurors. |
|
|
Term
| Hurtado v. California, 110 U.S. 516 (1884) |
|
Definition
| - Grand jury not "essential for due process" |
|
|
Term
| State v. Dempsey, 290 Ga. 763 (2012) |
|
Definition
- If a grand juror is not qualified under the law to serve, his presence renders indictment void
- a grand jury has no right to find any bill or make any special presentment except upon the sworn under-oath testimony of a witness. |
|
|
Term
| Campbell v. Louisiana, 423 U.S. 392 (1998) |
|
Definition
- No black person had ever served as foreperson despite large concentration of blacks
- Cambell was white and challenged the discrimination
- Three part test for third party standing to challenge a juror
1. Injury in fact (jury is tainted by discrimination),
2. Relationship to Excluded jurors: jurors who share with him a common interest in eradicating discrimination from the grand jury selection process, and a vital interest in asserting their rights because his conviction may be overturned as a result
3. Interest in Outcome of Challenge: " given the economic burdens of litigation and the small financial reward available, the grand juror excludedd because of race has little incentive to sue to vindicate his own rights |
|
|
Term
| Hobby v. United States, 468 U.S. 339 (1984) |
|
Definition
- Discrimination in the selection of the foreperson is distinguished from selection of the grand jury.
- Discrimination in the selection of a jury foreperson does not threaten interests of a defendant protected by the due process clause |
|
|
Term
| Rose v. Mitchell, 433 U.S. 545 (1979) |
|
Definition
| - In order to show an equal protection vilation has occurred in the context of grand jury foreman selection, defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. |
|
|
Term
| Beck v. Washington, 369 U.S. 541 (1962) |
|
Definition
- SCOTUS consistently held that there was no constitutional bar to disposing of the grand jury in state prosecutions,
- However if the state uses a grand jury system, the 14th amendment requires an unbiased grand jury |
|
|
Term
| Weeks v. State, 268 Ga.App. 886 (2004) |
|
Definition
- As a general rule, grand jury challenges must be made prior to the return of the indictment or it is deemed waived.
- the exception is when the def. can show he had neither actual or constructive notice of the illegality. |
|
|
Term
| Williams v. Florida, 399 U.S. 78 (1970) |
|
Definition
| Pre-Trial discovery is not testimony in the sense of the Fifth Amendment, and a defendant must participate if he intends to use evidence that is to be discovered at trial. In short the Fifth Amendment does not entitle a defendant in a criminal trial to refuse to provide details of his alibi. |
|
|
Term
| Taylor v. Illinois, 484 U.S. 400 (1988). |
|
Definition
| When defense counsel asked to amend his answer to discovery to include two more witnesses, who had likely seen the “entire incident.” SC held that the refusal to allow an undisclosed witness to testify, after trial had began does not violate a defendant’s constitutional right to obtain favorable testimony. |
|
|
Term
| United States v. Bagley, 473 667 (1985) |
|
Definition
| The issue is whether failure to provide impeachment evidence to a defendant, when it has been requested through discovery is reversible error. The case was remanded because the court has a duty to determine whether the failure to disclose said evidence would affect the immediate outcome of the case. |
|
|
Term
| Jencks v. United States, 353 U.S. 657 (1957) |
|
Definition
| elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial.” |
|
|
Term
| Brady v. Maryland, 373 US 83 |
|
Definition
| A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile,’ to use the words of the Court of Appeals. |
|
|
Term
| Overton v. State, 295 Ga. App. 223 (2008) |
|
Definition
| Brady does not require the prosecution to open its files for general inspection by the defense or for pretrial discovery, and it does not entitle the defense to a fishing expedition in the State's files. |
|
|
Term
| Giglio v. United States, 405 US 150 |
|
Definition
| The heart of the matter is that one Assistant United States Attorney-the first one who dealt with [witness]-now states that he promised [that witness] that he would not be prosecuted if he cooperated with the Government. Whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government |
|
|
Term
| Wardius v. Oregon, 412 U.S. 470 (1973) |
|
Definition
| In absence of fair notice that defendant would have an opportunity to discover the State's rebuttal witnesses, defendant could not, consistently with due process, be required to reveal his alibi defense pursuant to state statute. |
|
|
Term
| State v. Lucious, 271 Ga. 361 (1999) |
|
Definition
| The election not to invoke the discovery provisions of the Act necessarily entitles a defendant to only that discovery specifically afforded by the Georgia and United States Constitutions, statutory exceptions to the Criminal procedure Act, and non-conflicting rules of court. |
|
|
Term
| Black v. State, 309 Ga App 880 (2011) |
|
Definition
| When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. The reports at issue should be included in the appelate record otherwise the court will not be able to make a finding. |
|
|
Term
| Bordenkircher v. Hayes 434 US 357 (1978 |
|
Definition
| The prosecutor has a legitimate interesting persuading a defendant to relinquish his or her right to plead not guilty and “threatening a stiffer sentence is permissible and part of any legitimate system which tolerates and encourages the negotiation of pleas.” |
|
|
Term
| Santobello v. New York, 404 Us 257 (1971) |
|
Definition
| Petitioner, Santobello, withdrew a not guilty plea to two felony counts and pleaded guilty to a lesser-included offense, after negotiations with a prosecutor. When he appeared for sentencing, several months later, a new prosecutor recommended the maximum sentence and he was sentenced as such. Justice Burger, for the court, wrote that plea bargaining is an important step in the criminal process and ought not be dismissed. |
|
|
Term
| Newman v. United States 127 USAPPDC 263 (1967 |
|
Definition
| It is not in the province of the Court to tell the attorney general how to bring about its charges of different defendants. Attorney General’s office is an extension of the Executive Branch, and it was not in the province of the court to tell them who to indict and which charges to press. |
|
|
Term
| United States v. Ruiz 536 US 622 (2002) |
|
Definition
| The government brought appeal on the grounds that its plea bargaining process was not unconstitutional. Although the Fifth and Sixth Amendments do provide that a defendant be given exculpatory impeachment evidence from prosecutors, a guilty plea under a plea agreement, with a waiver of rights, can be accepted as knowing and voluntary. |
|
|
Term
|
Definition
| Whether it is within judicial discretion to fail to dismiss a charge against a defendant when it believes that the prosecutor is not using appropriate discretion. It is a violation of the separation of powers for a Judge to assume a prosecutorial role. Just because the district judge disagrees with the Justice Department’s exercise of prosecutorial discretion, a judge must not play the role of U.S. Attorney as it is in violation of the role of Separation of Powers |
|
|
Term
| Brady v. United States, 397 U.S. 742 (1970) |
|
Definition
| Agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit : [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are, by their nature, improper as having no proper relationship to the prosecutor's business (e.g., bribes). |
|
|
Term
| Boykin v. Alabama, 395 U.S. 238 (1969) |
|
Definition
| A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege. |
|
|
Term
| Walker v. State, 304 Ga. App. 55 (2010) |
|
Definition
| When a defendant enters a plea of guilty, and subsequently challenges the validity of the guilty plea, the state may meet its burden of demonstrating that the plea was intelligently and voluntarily entered by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. |
|
|
Term
| Gray v. State, 273 Ga. App. 441 (2005 |
|
Definition
| Uniform Superior Court Rules 33.10 and 33.11(D), requires that the trial court inform a defendant that he has a right to withdraw his guilty plea before sentence is pronounced if the trial court intends to reject a negotiated plea agreement.” |
|
|
Term
| Teemer v. State, 304 Ga. App. 874 (2010) |
|
Definition
| State carried its burden of proving that defendant understood consequences of his negotiated guilty plea to the charges, and thus defendant was not entitled to withdraw plea following sentencing, though defendant was not advised on the record that he would serve his ten-year prison term without possibility of parole; eligibility or ineligibility for parole was not consequence of guilty plea, and defendant signed waiver form indicating that defendant's attorney had fully explained to him maximum possible sentence, including any enhanced or mandatory minimum sentences that applied. |
|
|
Term
| Bazemore v. State, 273 Ga. 160 (2000) |
|
Definition
| Guilty plea transcript did not satisfy dictates of Boykin decision holding that record must reflect voluntary guilty plea, because there was no colloquy with defendant by sentencing court to ensure that defendant understood constitutional rights he would be waiving, court did not pose mandatory questions and advisements required before a court may accept guilty plea, and there was merely a brief factual statement and a form given to defendant acknowledging that probation would be unsupervised. |
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Term
| Rosser v. State, 237 Ga. App. 745 (2005) |
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Definition
| A defendant who attempts to withdraw a guilty plea after entering an “open-ended” or a “non-negotiated” plea does not require the trial judge to comply with a Uniform Superior Court Rule applicable to negotiated pleas. |
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Term
| Hooten v. State, 212 Ga. App. 770 (1994) |
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Definition
| Conditional Pleas of Guilty are no longer allowed in Georgia Courts. |
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Term
| North Carolina v. Alford, 400 U.S. 25 (1970) |
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Definition
| Guilty plea which represented voluntary and intelligent choice among alternatives available to defendant, especially where he was represented by competent counsel, was not compelled within meaning of Fifth Amendment merely because plea was entered to avoid possibility of death penalty. Guilty without being Guilty. |
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Term
| Duncan v. Louisiana, 391 U.S. 145 (1968) |
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Definition
| e Fourteenth Amendment guarantees a right of jury trial in all criminal cases which involve “serious” (as opposed to “petty”) offenses. The court does distinguish the line between petty and serious crimes in this case, just that the simple battery in this case that carried a potential sentence of two years imprisonment is a serious crime (court focused on the potential, not actual, sentence). |
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Term
| Williams v. Florida, 399 U.S. 78 (1970) - |
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Definition
| The right to a jury trial does not mean the jury has to be comprised of 12 people; Florida’s 6-man juries did not violate the Sixth Amendment as made applicable by the states through the Fourteenth Amendment. |
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Term
| Geng v. State, 276 Ga. 428 (2003) |
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Definition
| Georgia statute that restricted those accused of traffic offenses only to a bench trial held to be unconstitutional (in part) because certain traffic offenses can be punished as misdemeanors, and denying a trial by jury to defendants subject to potential misdemeanor punishment violates the Georgia Constitution. |
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Term
| Apodaca v. Oregon, 406 U.S. 404 (1972) |
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Definition
| The Sixth Amendment right to a jury trial does not require verdicts to be unanimous, nor is unanimity required by the Fourteenth Amendment’s requirement that racial minorities not be excluded from the jury. |
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Term
| Ballew v. Georgia, 435 U.S. 223 (1978) |
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Definition
| (This is the case where the detective viewed the porn movie in the theater like 8 times, and then SCOTUS watched the porn “in its entirety”). A jury less than 6 people violates the Sixth and Fourteenth Amendments. |
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Term
| Watkins v. State, 265 Ga. App. 54 (2004) |
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Definition
| (*Georgia Case*) Jury charges do not have to track exactly the language of pattern jury instructions, so long as the charge is a correct statement of law and is not confusing or misleading. Also, defendant’s are not entitled to a jury charge on jury nullification. |
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Term
| Taylor v. Louisiana, 419 U.S. 522 (1975) |
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Definition
| (1) A defendant does not have to be a member of the excluded group in order to have standing to assert a jury selection claim. (2) The Sixth Amendment requires that juries be selected from a representative cross-section of the community, and this requirement was violated by the exclusion of women from the jury in this case (where women made up 53% of the citizens eligible for jury duty). (3) Women as a class may not be excluded from jury duty or given automatic exemptions based solely on sex if the resulting consequence is that the remaining jury venires are almost all male. |
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Term
| Duren v. Missouri, 439 U.S. 357 (1979) |
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Definition
| In order to establish a prima facie violation of of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. |
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Term
| Smith v. State, 275 Ga. 715 (2002) - (*Georgia Case*) |
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Definition
| To show that a group is distinctive under the Sixth Amendment, a defendant must show: (1) that the group is defined and limited by some factor ; (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process. Also, the Unified Appeal Procedure requires that the group percentages on the grand jury list be based on the county statistics from the most recent decennial census. In this case, the disparity between the census numbers of hispanics and the number in the traverse jury pool was not unconstitutional because the jury pool must only represent eligible citizens (most of the hispanics were illegal immigrants in that county). |
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Term
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Definition
convicted of possession of cocaine; Shooting occurs, officers get description from witnesses, D matches description so they search him and discover cocaine in his possession. On appeal raises concerns has to the probable cause Officers had in searching his person. Surrounding facts that Court says merit probable cause include: the defendant matched the description of one the shooters provided by eyewitnesses, and the defendant was encountered by the officers near the scene of the shooting shortly after the occurrence.
Combined facts and circumstances sufficient “to warrant a prudent person in believing that Davis had committed the offense of discharging a firearm on the property.” |
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Term
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Definition
| convicted of false imprisonment of “step-daughter”; D climbed on top of stepdaughter and then prevented her from leaving the room. D argues he was committing a citizens arrest to question V about theft of $. The D’s suggestion that the stepdaughter committed the theft was mere speculation- uncertain and did not have immediate knowledge that the victim had been the perpetrator of the alleged theft, which is required for a citizen’s arrest. ALso, if citizen’s arrest then the D would have had to immediately have taken the victim before a judicial officer, which he did not. Therefore his actions do not amount to a citizen’s arrest. |
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Term
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Definition
| Class action suit against various Dade County judicial and prosecutorial officials claiming to have a constitutional right to a judicial hearing on the issue of probable cause for pretrial detention and requesting declaratory and injunctive relief. An assessment of probable cause solely by a DA is insufficient. A judicial officer must determine probable cause through a PC hearing. But conviction will not be vacated on the ground that the defendant was detained pending trial without probable cause determination. |
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Term
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Definition
| Action by DA for declaratory judgment relief to enable her to ascertain proper evidentiary standards in preliminary hearings. Magistrate judges are required to admit and weigh hearsay evidence in preliminary hearings. |
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Term
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Definition
| Habeas petition. The D plead guilty to 2nd degree murder to avoid the death penalty though he refused to state his guilt. D assertion of his innocence during the plea invalidated the plea because it negatived any admission of guilt. Set standard that you are now allowed to enter plea of guilty and refrain from admission of guilt. |
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Term
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Definition
| D trafficking cocaine, possession of marijuana and exceeding the speed limit. Waived right to trial by jury from coercion by judge that he would get a lighter sentence and an appeal bond if he opted for a bench trial. Therefore waiver of right was involuntary. |
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Term
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Definition
| D killed a mother by repeatedly shooting her, stabbing her and slashing her throat. He then left her 19 month old daughter in the house in which he set on fire, killing her. Convicted of capital murder, first degree arson and aggravated burglary. Sentenced to death. USSC found the Kansas death penalty statute constitutional because it directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise. |
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Term
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Definition
| Scottsboro boys; A defendant has a right to counsel in death penalty cases. |
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Term
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Definition
| Marine on leave, charged with use of counterfeit money- indicted, arraigned, tried and convicted and sentenced in the same day. Court held that in federal criminal prosecutions the defendant has a right to counsel. |
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Term
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Definition
| Defendant indicted for robbery and requested attorney but judge refused. Court failed to extend the right to counsel. |
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Term
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Definition
| IL standard stated that the defendant had to pay for a transcript, which was a necessary component for appeal. The Court held that you could not discriminate based on poverty and therefore could not limit a defendant’s right to appeal based on their ability to pay for a transcript. |
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Term
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Definition
| Petty criminal convicted of theft. Court extends right to counsel. |
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Term
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Definition
| Extends right to counsel to appeals. |
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Term
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Definition
| Extends right to counsel to juveniles in instances where their liberty is at stake. |
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Term
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Definition
| Constitutional right to counsel in any case in which you stand the chance of being imprisoned if convicted. |
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Term
| State v. Dixon, 286 Ga. 706 (2010 |
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Definition
| Under the Georgia Constitution of 1983, venue is a jurisdictional element of every crime. It is a “constitutional requirement,” not just a “procedural nicety.” |
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Term
| Jones v. State, 297 Ga. App. 843 (2009) |
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Definition
| Under Georgia law, venue is a material element of a crime, and it must be alleged in an accusation or indictment. A charging instrument that does not meet the venue requirement is subject to a general demurrer. : The court disagreed, holding the term “venue” means “the place of trial.” In most cases, venue allegations are sufficient if they state the county in which the crime is alleged to have occurred. |
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Term
| United States v. Rowe, 414 F.3d 271 (2005) |
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Definition
| Where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done. |
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Term
| United States v. Cabrales, 524 U.S. 1 (1998) |
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Definition
| Venue should be determined from the nature of the crime alleged and the location of the acts or acts constituting it. |
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Term
| Glean v. State, 268 Ga. 260 |
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Definition
| A trial court may not return a jury from the county of venue to the original county for trial,” absent the consent of the parties. Because the record does not reflect that Glean gave his consent to the trial court's decision in this case, the trial court committed error in conducting the trial in Ware County. A defendant must object to a trial court's erroneous reliance on USCR 19.2(B) to preserve the error for review. |
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Term
| Coleman v. Kemp, 778 F.2d 1487 (1985) |
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Definition
| Under Sixth Amendment providing that trial shall be in the “State and district wherein the crime shall have been committed” the constitutional specification is geographic, and geography prescribed is the district or districts within which offense is committed, within doctrine of continuing offenses, as to which trial constitutionally may be had in one or another of districts in which offense is carried on. There is no constitutional right to trial within a division. |
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Term
| U.S. v. Moody, 762 F.Supp. 1485 (1991) |
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Definition
| Defendant Walter Leroy Moody, Jr., charged in a 72–count superseding indictment with, inter alia, the December, 1989 mail-bombing assassinations of Eleventh Circuit United States Court of Appeals Judge Robert S. Vance. Moody was indicted for the bombings and related activities on November 7, 1990. The entire Northern District of Georgia court recused itself from the case, and Chief Justice William H. Rehnquist designated the late Senior Judge Edward J. Devitt, District of Minnesota, to preside over the case. Judge Devitt granted Moody's motion for a change of venue and transferred proceedings to the District of Minnesota. |
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Term
| United States v. Rodriguez-Moreno,526 U.S. 275 (1999) |
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Definition
| the “verb test,” whereby the verbs which appear in a criminal statute and relate to the proscribed conduct are the determinative factor in identifying the substantive nature of the offense. While the “verb test” certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed. When a firearm is used in the commission of a crime of violence, venue is proper in any jurisdiction where that crime occurs. |
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Term
| Melton v. State, 282 Ga.App. 685 (2006) |
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Definition
| A reversal of a conviction on the ground of insufficient evidence of venue is a “question of procedure” and hence a retrial is not barred by the prohibition against double jeopardy. |
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Term
| King v. State, 271 Ga.App. 384 (2005) |
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Definition
| Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. |
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Term
| Edmonds v. State, 275 Ga. 450 (2202) |
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Definition
| As to the prospective juror, Edmonds contended that the court impermissibly rehabilitated the juror after he said he could not be unbiased towards Edmunds; however, Edmunds never challenged the juror at any time during voir dire, as well as the juror having said he could separate his personal beliefs to render an impartial verdict. |
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Term
| Sellers v. Burrowes, 283 Ga. App. 505 (2007) |
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Definition
| When the court allowed a juror who saidshe felt doctors should be given special treatment and did not say definitively that she would set aside her feelings, the trial court abused its discretion for failing to dismiss her for cause. |
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Term
| Hubbard v. State, 274 Ga. App. 184 (2005) |
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Definition
| The court said there was a fine line between asking jurors how they would decide a case and questions that merely expose prejudice. The court felt that the defense’s question fell in line with the former, and that the sustaining of the state’s objection was appropriate. |
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Term
| Keating v. State, 309 Ga. App. 804 (2011) |
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Definition
| On appeal, she contended that the trial court improperly restricted questioning during voir dire related to the possible racial bias, prejudice, or leaning of prospective jurors. Most of the defendants were black, and the victims were of Asian and Latino descent. The trial court allowed a question to be asked whether jurors possessed any biases against minorities but rejected other questions the defense raised pertaining to race. |
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Term
| Wilkins v. State, 246 Ga. App. 667 (2000) |
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Definition
| Wilkins contended that the trial court erred by imposing a requirement that all voir dire questions be submitted in writing before trial. The Court of Appeals disagreed. It said that the control of voir dire is within the sound legal discretion of the court, and only in the event of manifest abuse will it be upset upon review. |
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Term
| Starks v. State, 283 Ga. 164 (2008) |
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Definition
| On appeal, one of Starks’ grounds was that the court erred in refusing him to ask a prospective juror whether they had enough knowledge to determine whether or not a person is suffering from mental issues. Again, the Court of Appeals disagreed and said the trial court is vested with broad discretion to limit the scope of voir dire with regard to abstract or technical legal matters. |
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Term
| Cherry v. State, 230 Ga. App. 443 (1998) |
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Definition
| On appeal, Cherry complained that he was not allowed to ask a specific question on voir dire regarding possible racial bias. The court recognized the fact that Cherry had a right to question the panel of whether or not they had any racial biases; however, it said the trial court did not abuse its discretion in disallowing Cherry’s question because he his questions was seeking an opinion as to guilt or innocence based, in part, upon facts of the case. |
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Term
| Sallie v. State, 276 Ga. 506 (2003) |
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Definition
| The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. Questions of a technical legal nature and questions that call for prejudgment are improper in a voir dire examination. Since there is often a fine line between asking potential jurors how they would decide the case and questions that merely seek to expose bias or prejudice, the scope of the voir dire examination, of necessity, must be left to the sound discretion of the trial court. |
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Term
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Definition
defendant testified that he did not know why he was asked to leave the courtroom and he did not know that he missed them talking to the jurors about telephone call hang ups that they had received
HELD: defendant had a right to be present for voir dire regarding telephone calls that some of the jury members had received |
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Term
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Definition
defendant was not present for sentencing after being convicted for reckless driving & involuntary manslaughter
HELD: defendant has the constitutional right to be present during all portions of her trial & absence without a valid waiver is a harmful error |
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Term
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Definition
defendant was removed from courtroom for repeated disruptive behavior & abusive language towards judge
HELD: a defendant can lose his right to be present at trial if after being warned by the judge he persists |
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Term
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Definition
defendant was required to wear prison jumpsuit and shackles after shooting unarmed/unrestricting victim, attempted to shoot 2nd clerk, threatened to kill his counsel, was in a fight in prison & destroyed continuously trial clothes provided to him
HELD: every court has power to preserve and enforce order and prevent interruption |
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Term
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Definition
defendant defecated on the table & told the sheriff that’s what he thought about the court, and the court required him to wear jail clothing & shackles
HELD: not an abuse of discretion |
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Term
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Definition
defendant wore an electric security device under his clothers
HELD: defendant did not show that the security measures were so inherently prejudicial as to be an unacceptable threat to his fair trial |
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Term
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Definition
defendant was denied his request for civilian clothes from an officer at the jail
HELD: state cannot compel an accused to stand trial while dressed in prison clothing, however, they failed to make an objection to the trial court |
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Term
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Definition
| A defendant has the right to “the guiding hand of counsel at every step in the proceedings against him.” |
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Term
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Definition
| A defendant in all federal criminal trials has the right to have counsel’s assistance in a criminal trial. |
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Term
| Reece v. Georgia, 350 U.S. 85 (1955) |
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Definition
| The Supreme Court held that the assignment of counsel in a state prosecution at such time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of a capital case is a denial of due process of law. Under the State of Georgia's rule of practice at the time this case arose, when an ‘accused has been arrested for the commission of a penal offense and is committed to jail, he was to be told that his case or the charge against him would be presented to a grand jury for investigation, and it was incumbent upon him to raise objections to the competency of the grand jurors before that grand jury returned an indictment against him. The Supreme Court, citing its opinion in the Powell case, held that a defendant had the right to have the effective assistance of counsel in challenging the racial composition of the grand jury which was to investigate any cases against him. The effective assistance of counsel in such a case is a constitutional requirement of due process which no member of the Union may disregard. Georgia specifically created a requirement that a challenge to the grand jury composition be made prior to an indictment and therefore it was unreasonable to expect the defendant to submit a challenge without the assistance of a lawyer. |
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Term
| Gideon v. Wainwright, 372 U.S. 395 (1963) |
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Definition
| Established the right to have assistance of counsel in all criminal trials at the state level whether the death penalty was being sought (as in Powell) or not. |
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Term
| McMann v. Richardson, 397 U.S. 759 (1970) |
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Definition
| Whether a plea of guilty is unintelligent, and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends, as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but, on the other hand, defendants facing felony charges are entitled to the effective assistance of competent counsel. |
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Term
| Strickland v. Washington, 466 U.S. 668 (1984) |
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Definition
Case created 2 prong test to determine if counsel’s performance provided for a truly adversarial proceeding:
1. Defendant must show counsel’s performance fell below professional standards
2. Defendant must show that performance was so prejudicial as to create the uncertainty about the reliability of the outcome of the case
The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The Constitution guarantees a “fair trial” through the Due Process Clause of the 5the Amendment. The 14th Amendment’s Due Process Clause requires that state criminal prosecution comport with the due process requirement. A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of the issues presented by the charges against an accused. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. The Supreme Court recognizes that the right to counsel is the right to the effective assistance of counsel. The meaning of the requirement of effective assistance of counsel must be defined by whether or not counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. |
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Term
| US v Cronic 104 S.Ct. 2039 (1984) |
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Definition
| check kiting scheme, defendant (Cronic) was convicted, sentenced to 25 years; was appointed attorney who had 25 days to prep for trial, even though government had 4.5+ years to go through documents and investigate the case; The Court of Appeals reversed the conviction because it inferred that respondent's constitutional right to the effective assistance of counsel had been violated. That inference was based on its use of five criteria: “ ‘(1) [T] he time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel. Supreme Court vacated and remanded. The right to the effective assistance of counsel is the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted, the kind of testing envisioned by the Sixth Amendment has occurred. Only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial. |
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Term
| Lafler v. Cooper, 132 S. Ct. 1376 (2012) |
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Definition
A favorable plea offer was reported to the client but, on advice of counsel, it was was rejected. After the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. Trial counsel's advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment.
Scalia, J. (and therefor Thomas, J.) dissents writing that: “The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice.” “[this] decision upends decades of our cases, violates a federal statute, and opens a whole new boutique of constitutional jurisprudence ("plea-bargaining law") without even specifying the remedies the boutique offers.” |
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Term
| Young v. State, 217 Ga. 744 (1995) |
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Definition
| “Mears testified that he made strategic decisions that he considered best in the DeKalb County action. Despite Mears' concern about the Douglas County action, he defended the DeKalb action in an appropriate manner.” “Moreover, there is no evidence that the alleged conflict adversely affected Mears' performance. In fact, Young was acquitted of the two charges of possession of a firearm during the commission of a crime.” Mears’ case that he got life in one county for non-capital charges in the other. |
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Term
| - Defense counsel don'ts (from the ABA standards) |
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Definition
DONT: imply your fee is compensation for anything other than prof. services
charge unreasonable fees
- give anything of value for referrals
- accept referrals from potential conflicts of interest
- agree in advance of the commission of a crime that you will serve as counsel, except as a part of a bona-fide effort to determine the validity, scope, meaning, and application of the law. |
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Term
| Holloway v. Arkansas, 435 U.S. 475 (1978) |
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Definition
- Having counsel represent multiple defendants where their defenses create a conflict, deprives them of the guarantee of assistance of counsel.
- In this case, a single public defender was appointed to represent 3 defendants all with contrary defenses. |
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Term
| Cuyler v. Sullivan, 466. U.S. 335 (1990) |
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Definition
This was the case of the two private attorneys representing 3 people charged with murder, they rested after the prosecutions first case as a strategic move, basically sacrificing the first defendant. There are a few rules.
- Unless the state trial court knows or reasonably should know that a particular conflict exists, the court itself need not initiate an inquiry into the propriety of multiple representation.
- In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance
- The possibility that a conflict of interest arose from multiple representation is insufficient to impugn a criminal conviction |
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Term
| McMann v. Richardson, 397 U.S. 759 (1970) |
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Definition
| - Inadequate assistance of counsel as the result of a conflict of interest violates 6th amend guarantee. |
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Term
| Strickland v. Washington, 466 U.S. 668 (1984) |
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Definition
| - " but for counsel's errors, the outcome of the trial would have been different." standard on ineffective assistance of counsel claim |
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Term
| Franks v. State, 278 Ga. 246 (2004) |
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Definition
- Trial counsel's accepting a fee from def. family to represent him on murder charges in a different county at the same time that counsel was appointed to represent defendant on murder did not prejudice defendant. No evidence that counsels representation of defendant on murder charges in another country detracted from his representation of client.
- Counsels use of the same expert that evaluated the children victims in the case did not amount to ineffective assistance of counsel. |
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