234 Lecture 2 27 14 Probable cause determination as to whether someone should be charged with the crime for the Grand Jury Indictment a charging document with crimes in it that charges the defendant with those crimes General document doesn t have many facts Broken down into sections Counts each count represents a separate charge Avoid one of two things o Multiplicitous having many counts when it should only be one Ex search a car and find 3 guns charge them for each o Duplicitous when a single count charges more than one separate gun offense Ex Conduct a traffic stop and find 3 bags write up a probable cause search warrant search the house and find 3 lbs of marijuana all on same day but two separate events so you can NOT put them together two separate counts Narrative Speaking Indictment give you background of the offense not as much details of the offense FISA Foreign Intelligence Surveillance Act allows NSA or CIA agents to testify in public but in disguise allows wiretaps etc to get more information on a case Prosecutor s discretion what gets put into the Indictment Indicted ham sandwich Grand Jury almost always approves the indictment If you are given no true bill grand jury didn t approve the indictment then you can go to another grand jury until someone says yes Grand Jury has to decide if each individual count has probable cause Defense attorney can challenge an indictment Under the 5th Amendment someone only goes to federal trial with an indictment Doesn t have to be the first thing you do Information looks exactly like an indictment when a defendant wants to accept his guilt immediately and waive his right to indictment file an information only after he has signed a plea agreement person who signs it is the prosecutor in an indictment person who signs it is in the grand jury Complaint affidavit application for an arrest warrant arrest warrant and then the affidavit asking a judge to find probable cause and issue an arrest warrant o Do this instead of an indictment first in some cases but end up having to have an indictment If he is fleeing Investigation goes both ways Grand Jury Charging Arrest Initial Appearance Hearing Detention Hearing Federal Arraignment Discovery Plea but can happen at any time can happen after suppression hearing Suppression Hearings Trial Sentencing Initial Appearance a judge advises you of your charges gives you a copy of either a complaint or indictment Can have the cop tell you what you are charged with if he arrested you after seeing you commit the crime Would you like a lawyer Detention Hearing what are you going to do before the hearing House arrest Jail time Magistrate judge deals with the detention hearing Two basis to determine whether or not you go to jail before your hearing Risk of Flight if you have Failure to Appear on your record most likely to flee by preponderance of evidence o Presumption under law release Danger to the community o Requires clear and convincing evidence Can be very quick or very long Arraignment how does the defendant appeal to the charges 99 99 appeals not guilty Defendant almost always says not guilty because he doesn t know what evidence was attained This gives him and his lawyer more time to go over the evidence and see what measures they will take In the State Goes from Arrest Preliminary Hearing Preliminary Hearing similar to a complaint taking the complaint giving it to the judge defense witnesses end up getting cross examined are you sure that my defendant was present etc Probable cause finding based on adversarial proceedings Could be bad because they will ask you information you wouldn t normally tell until later in the process Have 30 days to get an indictment can no longer bring one would have to have a preliminary hearing 21 days if out of jail 14 days if detained Discovery one sided exchange from the government to the defendant showing him the evidence against him sometimes the defendant provides evidence to the government Open Discovery During this time prosecutor usually gives the defendant all of their information on the case to avoid prosecution on themselves for lying Duke Lacrosse case Sometimes they do not give cooperating witnesses gangs those witnesses given to the defendant would now kill those witnesses Required by law to turn over at least 4 categories of evidence Brady o Brady v Maryland o Government is required to turn over all exculpatory information anything that negates guilt o Inculpatory information that makes you look guilty o Exculpatory information that makes you look innocent o Have to start looking for it and once found have to turn it over immediately Giglio o U S v Giglio o Required to go through all materials I have and turn over impeachment material Anti credibility information o Plea agreements are always Giglio o Some witnesses or people who testify get paid o Bias is Giglio ex ex girlfriend who is testifying against her ex boyfriend Jencks o Jencks Act requires the government to give over all prior statements from a witness who testified about a case o Grand Jury testimony is Jencks o Could be bad there are always inconsistencies o Witnesses can look over this get people to re read their testimony before trial o If you were questioned by the FBI and he wrote down what you said that s Jencks on him not you Rule 16 o Requires you to turn over any defendant statement that you o All expert information DNA sampler etc but can be turned have police back to the prosecutor Court would like you to show them the gun or other evidence from the scene but it is not the law Plea A contract between the prosecutor and the defendant in exchange for you admitting your guilt or pleaing guilt to the following charges we will recommend a lower sentence Because you are accepting responsibility for what you did which can result in a lesser sentence If you cooperate against other bad guys you will get an even lower sentence Suppression Hearing In reviewing evidence the defense lawyer looks for whether or not the government collected the evidence in a constitutional way if not the evidence can be thrown out or suppressed Search warrant too broad arrested without warrant wiretap on the wrong phone wrong address on search warrant defendant was beaten before given his confession etc Raises this prior to the trial to the judge to see if the evidence can be omitted If given a confession but was done unconstitutionally the prosecutor then has to act as if there was no confession at all Some pieces