MBE Criminal Procedure - Trial Rights and Procedures

Group of people who act as an investigative body to determine whether there is sufficient probable cause to bring charges against a suspect. Required for all criminal felonies charged by the federal government.

More info: Grand Juries

Issued by the grand jury upon a finding of probable cause in light of all the evidence presented. Formally charges D with the crime.

No, because witnesses are not in a custodial interrogation. This is true even when the witness is the defendant.

Yes, complete secrecy. There is no judge present, only the prosecutor and witnesses called by the grand jury are present.

No

No

Permission to leave the grand jury room and consult with their lawyer outside before answering a grand jury question.

⚠️ Remember: There is no right to counsel in a grand jury room, because the proceedings are closed and secret.

No, failure for a grand jury to issue an indictment does not preclude another jury from issuing an indictment for the same crime later on.

Yes, can hear evidence that would be inadmissible at trial, including hearsay or illegally obtained evidence.

Subpoena witnesses

Subpoena documents

To secure the presence of the accused at trial, and to ensure the safety of the community (and witnesses).

There is no absolute constitutional right to bail, but the decision to deny bail must comply with Due Process, which requires the denial is not arbitrary.

Any decision to deny bail is immediately appealable.

No higher than is necessary to ensure D appears at trial. Excessive or arbitrary bail is unconstitutional.

There has been no grand jury indictment or judicial issuance of probable cause;

D has been arrested or released on bail; and

It is within 48 hours of D’s arrest (hearing must be held within 48 hours)

Must be voluntarily and intelligently made. D must understand:

The nature of the charge and its elements;

The maximum authorized sentence and any mandatory sentencing;

They have a right to plead not guilty; and

They are waiving their right to a jury trial

Guarantees that D is entitled to a speedy trial under the 6th Amendment.

⚠️ Note: If government deliberately delayed trial to harass D, and the delay resulted in prejudice, this is also a Due Process violation

When the defendant is arrested or charged, whichever is first

Courts balance the following:

Length of delay;

Reason for the delay;

Whether D asserted his right to a speedy trial; and

Amount of prejudice to D resulting from the delay

Dismissal of charges with prejudice

Material evidence that is exculpatory for the defense (including evidence that would impeach a prosecution witness) that is known to the prosecution or police.

Brady v. Maryland

D is entitled to a reversal if:

Evidence was exculpatory; and

Failure to disclose likely affected the outcome of the trial and prejudiced D

For any crime that authorizes a sentence of greater than 6 months (regardless of the actual sentence imposed)

Yes, as long as D voluntarily waives the right. Will result in a bench trial.

At least 6

Yes, after Ramos v. Louisiana (2020), all criminal trials require unanimous jury verdicts.

Must consist of a representative cross-section of the ethnic and gender demographics of the community

⚠️ Note: jury itself does not need to be representative, only the jury pool.

Must show that:

Excluded group was "distinctive" in the community;

Group was not fairly represented in the venire; and

Underrepresentation resulted in systematic exclusion of the group from jury-selection process

Allows parties to disqualify potential jurors, as long as the reason is race and gender neutral.

If the judge believes the party was attempting to strike the juror based on race, the party will be precluded from making the strike and the potential juror will be seated on the jury.

Provide a non-discriminatory (race-neutral) explanation for the strike or withdraw the strike

Whenever race is “inextricably bound up in the case"

Yes, if the potential juror has stated they never impose the death penalty and it would intefere with their ability to properly sentence D

(Witherspoon v. Illinois)

6th Amendment gives D right to confront (meaningfully cross-examine) all witnesses presenting evidence against him.

More info: Confrontation Clause

No, if:

There is an important public policy reason for excluding D from the courtroom; and

Reliability of testimony is otherwise assured

Testimonial evidence

Written or spoken communications whose primary purpose is to establish or prove past events potentially relevant to later criminal prosecution (e.g. affidavits, prior testimony)

Davis v. Washington

Likely no. Statements made to law enforcement or 911 operators to assist in an ongoing emergency are not considered testimonial.

But, statements made after the emergency has ceased, or statements to further the investigation, will be considered testimonial.

Since testimonial hearsay is an out-of-court statement, D did not have the opportunity to confront or cross-examine the declarant, thereby violating his 6th Amendment right to confrontation.

If D had the opportunity to cross-examine the declarant during a previous trial, and the declarant is now unavailable.

No, unless:

Trial is a bench trial;

Co-D testifies and is subject to cross-examination;

Each D has a separate trial (i.e. not a joint trial); and

Confession is redacted to eliminate all references to D

Bruton v. United States