5 Essay Questions in IRAC Format (BOTH SIDES) - LOOK AT PROBLEMS IN BOOK

5 essay questions in IRAC format (BOTH SIDES)------------LOOK AT PROBLEMS IN BOOK
Professor: Christine Curran E-Mail: curranchristine@yahoo.com Cell: (773) 671-1604 D is arrested. It may be with a warrant, or it may be without a warrant (which is most common). It may be a misdemeanor, and it may be a felony. If you are sentenced to a penitentiary for a misdemeanor, the maximum sentence is 364 days, and the sentence for a felony is a year or more. Misdemeanors in order of Most serious: A, B, C, D. Felonies in order of LEAST serious: 4, 3, 2, 1, x, Super x.
Malum per se crimes or actions are actions that are wrong in and of themselves. There is no way that a crime that is malum in se can possibly be viewed as being a good thing or a positive action. They are always wrong. Crimes in the categories were the original felony offenses. Offenses in this category include murder in all of its forms, robbery, arson, and a couple of other crimes. It is somewhat impossible to think that murdering a person could be a good thing or not wrong and so murder is bad in and of itself and so is malum in se. Malum prohibitum crimes are far more common than malum in se ones. These crimes are wrong because they have been prohibited by a legislature or other law-making authority. These crimes vary from jurisdiction to jurisdiction and can be defined in a wide variety of areas. This type of prohibited action can be either a felony or a misdemeanor depending on the whims of the legislature or other body. Doctrine of Desuetude: that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are not repealed when they become obsolete. It is the legal doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors. Felonies Police make the arrest, and D is informally charged at that point, with whatever class of felony the state's attorneys office feels is appropriate. If it's a drug case, it goes off the weight of the drugs at the station house. The packaging of the drugs makes it much heavier that the drugs really are. The package is part of the weight when it is integral to the packaging of the drugs. o Total estimated weight of drugs has a huge impact on bail amounts. o Factors that affect arrest Nature of the offense Offender behavior Known criminal history Victim- harm to Bias of the cop o ASA- Felony Review called and their factors on whether or not to charge Victim/ damage Evidence Criminal history Willingness and presence SEXY CRIMES- ones that society likes to prosecute. Within a reasonable time after arrest, "without unnecessary delay", you get your Gerstein Hearing/Statement. It's informal and the whole issue is: Is there enough evidence to continue to detain the person. It is not adversarial (although D has a right to an attorney). The state's attorney reads briefly from the arrest report here. Your initial bond will be set here, and you can do a motion to increase/decrease bond, with proper notice. o This is a nonadversarial hearing. Just need evidence to show that a crime was committed and the individual probably did it. o In a felony, fingerprints must clear through computer system before you're put on a bus and taken to Court b/c the rap sheet needs to be known. The preliminary hearing will be set at the Gerstein hearing. o In felony cases, indictment is common to happen before this. Two ways to Formally charge an individual:
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Now, b/c it's a felony, cops don't get to be the carrier of charges. The cops done is done until it's time to testify. There has to be, in a felony, a finding either by a judge, that there is probable cause that a felony was committed by the D, and that is called a preliminary hearing. Probable cause here the clerk decides, after an adversarial hearing, whether there's probable cause that an offense was committed and the D did it. Just need 51% probability to get probable cause. A D in a misdemeanor has no RIGHT to a preliminary hearing. o Indictment - the judge is not who makes the decision in an indictment. The grand jury must vote "true bill" as a finding of probable cause. Prosecutors love grand juries - D doesn't know it's happening, no cross examination, do it on your own time, no cross examining witnesses, etc. o When there has been a finding of probable cause in a preliminary hearing, the piece of paper that comes down is known as the "Information" or a "Charging Sheet." So, you have either an "Information" or an "Indictment." Those are the critical parts of the Complaint on the prosecution's side. o Either preliminary hearing could be based off hearsay or anything else usually not admissible in court. Except: things that are normally privileged: attorney/client, doctor/patient, etc. After being formally charged with a felony. Bail - should he get out, and for how much? This is the possibility of pre-trial release. So, the next stage after Bail is known as your Arraignment. The formal charges must be presented before the defendant, informing them of their right to counsel. This means there must be something in the Court file that mimics the words of the statute the D has violated and the specifics (date/crime/etc.) o With that information, Clerk calls your case, you step in front of the Judge, and do your initial pleading (guilt/not guilty), then Judge hands down the charging sheet or the indictment to the D, plead not guilty, then, you have a choice. You can either waive formal reading, or get it read in front of you in Court (note: always waive formal reading because it takes so long in Court). You don't waive anything else when you waive your right to a formal reading. o Along with the copy of the charging instrument and entering your plea, you get Assigned to your trial judge at the arraignment. If you do not like your first assigned Judge, you can say right there you want a Substitution of Judges for no particular reason required at all. In the suburban districts of Cook County though, you sometimes have to go to the judge you want to SOJ and tell them you don't want them. Sometimes, you also have to go to the Chief Judge. You get 10 days to do your motion for SOJ. Those are automatically granted in Illinois. It gets better if you are charged with a Class X or if there are multiple Ds. Then, there's Pre-Trial Discovery. o Brady material - any evidence that tends to exculpate the accused or prosecute the D. o Expert reports, land reports, audio/video, etc. Then, the Pre-Trial Motions. o Jurisdiction, Venue, Pleadings (if there's something wrong w/them), joinder, severance, o Chapter 725 ILCS 5/114-1 lists most of the motions before trial. It does not list out the motions to suppress evidence though. o Guilty Pleas o Speedy Trial o Double Jeopardy (deals a lot with joinder & severance) - Concurrent and consecutive sentencing Then, the Jury Trial. o Preemptory challenges - for no reason, constrained only by the Supreme Court. Can't build a jury based on race. o Challenges for cause MAKE YOUR CLIENT PAY BEFORE YOU TAKE HIM ON Once you file your appearance, you're in the case. Yes, you can withdraw later, but you can't do so because he doesn't pay. The fee cannot be contingent on winning as well. Gerstein Hearing: Anything over 24 hours on a misdemeanor is not tolerable. Individual gets his Gerstein hearings by then.
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Bond is not set in stone. They look to history of showing up in Court when he's supposed to. Acknowledge Court that he is innocent until proven guilty. Show ties to community/work/family/social life to show that he is less of a flight risk. FRE apply but are relaxed Preliminary Examination/Grand Jury Proceedings: (Felonies only, not misdemeanors) Determine if there is probable cause to formally charge. Complaint for preliminary examination - usually signed by arresting officer. This is even before an Information is handed out. o Lays out the statute that was violated. For Misdemeanors, this stage is known as a Misdemeanor Complaint. Very brief print out of the charges against the individual. o Signed by witness or arresting officer. o Lays out the statute that was violated. Decision to Prosecute & Charge at Enhanced Levels: Misdemeanors - if convicted, maximum penalty is under a year of prison. Felony - if convicted, maximum penalty is a year or more of prison. This stage normally takes place in between an arrest and a preliminary examination. In a misdemeanor case, there is no preliminary hearing/states attorney/grand jury/judge that effects the decision to prosecute. It is entirely in the hands of police officers. o What kinds of challenges can we make to that decision-making power? Is a road block, for purposes of enforcing DUI laws, part of selected-prosecution? Maybe. But case law and policy has arrived at a method to take away the decision from individual police officers. o There are rules set up about road blocks. If you ever get a client arrested from a road block (drugs, DUI, weapons), you MUST DO A MOTION FOR DISCOVERY AND ASK FOR THE GUIDELINES SET FORTH FOR THE ROAD BLOCKS. Must be very random and not based on anything other than randomness. This takes away discretion on part of the officer. It has to be in writing, and must have been issued BEFORE the cops set up the road block. What covers decision to prosecute? Trends in the "sexy crimes." DUIs and Domestic Violence have a lot of heat to prosecute right now. There is no supervision in DUIs (not ones that will expunge the arrest/conviction), Domestic Violence, and Child Predators/abusers. Decision to prosecute is governed by (1) police discretion, (2) societal demands, (3) quantum of evidence, (4) prosecutorial discretion. o Quantum of Evidence really dictates the particular charges that will be charged. o Need to see what evidence would be admissible at trial for a conviction. Oyler v. Boles o State habitual criminal statute does not violated equal protection b/c prosecutors are allowed to consciously exercise some selectivity in enforcing state laws. The selection of the D was not deliberately based on an unjustified reason. o Should you attempt to argue equal protection, it's a very heavy burden of proof on the D. Initially, there is a presumption that there is a legal regularity in enforcing criminal statutes. o Essential Elements to prove unequal protection: Other offenders similarly situated but not similarly charged; Selection of D was intentional/purposeful; Selection was pursuant to an arbitrary classification (sex, race, ethnicity, religion). o D has burden of proof initially to prove this by a "clear preponderance." If you can do that, you will get an evidentiary hearing. Before the Court can even compel discovery from the State, to go forward with your evidentiary hearing, you must show that there was some type of discriminatory effect from all this. o Equal protection claims are so hard to argue and very amorphous. Us v. Sacco o Alleged ties to organized crime is not singling out in a discriminatory way sufficient for equal protection challenge. When someone gets arrested for a felony, it's not the cop that decides if he will be charged with a felony. Every state's attorney offices has a "Felony Review." T his is before formal charges have been made. This is the informal charging stage.
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Pretrial Diversion o Theft school/Drug school/Traffic School Usually after being charged with a misdemeanor. Kind of like traffic school. After doing this, the charges are dropped. Do supervision first, not traffic school. Save that for later b/c it's cheaper. o It's prosecutorial discretion with this stuff. Prosecutorial Discretion o What to charge? How severe? How many things? Death penalty? Habitual criminal act? Felony? Misdemeanor? o Cannot be based on arbitrary classifications based off discriminatory intent. o Nolle Prosequi or SOL - dismissing the prosecution. You can re-file it later. Blackledge v. Perry o When a citizen gets appointed as a justice of the peace. Only allowed in misdemeanor cases. o Justice of the peace, a regular citizen, would act as the judge. If you get convicted, you get a right to a trial de novo. No record from the justice of the peace. o In this case, individual asked for a new case, and then he was tried for more severe charges. o US Supreme Court said you can't do this, unconstitutional, b/c it would keep someone for asking for their trial.
BAIL & Bond NO BAIL IN CAPITAL CASES You are usually working for bond money after all the costs are taken out. Clerk takes 10% of the bond, no matter what. Bond is a condition of if he's going to show up in court. D is taken in front of a judge after the arrest, for his preliminary hearing - the Gerstein hearing. o Need probable cause to detain/continue to detain. o It is non-adversarial. o If they are going to detain you, what do the constitutions say about it? Article 1, Section 9. Except in a certain class of cases, the D is entitled to bail. Bail bondsmen are done away with in Illinois. When a D is held in custody before he's convicted, he's in custody of the county jail where he's been charged. Bail is money posted to the clerk to get out of jail temporarily. It's making bond. Never tell a judge a lie about where the D is. Verify it yourself. o B/c a judge may want it verified, and it will hurt your reputation. o If what your client is doing is illegal, don't let him tell you. Most popular bond - "D" bond - Deposit Bond. o Deposit is 10% of the T bond. o If they don't show up in court, and judgment is entered against D. The other 90% is due then! The judgment will be for the entire amount! If D is in jail, how can he put up bond money? o All the county jails have ATMs. o The individual puts in their name and address. Money will be released to them if they pay for it. o What's really dumb, is if you sign as "guarantor." That puts you on the hook for the D if he jumps bail. The 10% clerk keeps - true of Cash and Deposit Bonds o Clerks always keep 10%, before ANY fees are deducted. o So, the most a bond is EVER worth, is 90% of it's face value. You get the rest of the bond money back if you show up to court, no matter what. IL Constitution, Article 1 9. BAIL AND HABEAS CORPUS: everyone gets opportunity for bail, EXCEPT: Bail in habeas corpus Once you're already in jail, you have right to file petition for writ of habeas corpus. Latin for "Bring up the body" You have a right to get out of jail and in front of a judge to determine the correctness of your incarceration. This right is never suspended.
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Even though Gerstein is law of the land everywhere. Proof is evident or the presumption is great, and, it's one of these following offenses: Capital Cases; Cases where there is no possibility of anything but penitentiary time; Need probation, conditional discharge, or misdemeanors Sentences of life imprisonment; and, Proof is evident or presumption is great that the person did it. Problem? We are supposed to be presumed innocent, and never guilty! Who has the burden of proof here? - THIS SECTION MAY BE ON FINAL Illinois codified it in 725 ILCS 5/110-4(b), which tells us what bailable offenses are. This has been argued as unconstitutional, b/c it puts burden of proof on D to prove his innocence. o Was not changed though. They said it must be read and applied a certain way. People v. Purcell. o It is unconstitutional though, just never changed! It's a two prong consideration: o Look at the type of case it is, then, o High probability that he's guilty. Under this, or 114-10, if marijuana or cocaine case, can get probation. o Probation cannot be expunged from your record, except under 4/210. Under expungable probation, feds will still know about you b/c of finger printing. BAIL REFORM ACT OF 1984 In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight. 18 U.S.C. 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail. The Supreme Court upheld the 1984 bail law's pretrial detention provisions in the 1987 case of United States v. Salerno. US v. Jessup Presumption at FIRST is nobail, then shifts to the state to justify bail. Constitutionality of rebuttable presumption of flight High bail cannot be used to detain, but for the safety of society. 2 steps Congressional intent Not against the due process since the presumption only shift the burden of production and not the burden of persuasion All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption is great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person. The privilege of the writ of habeas corpus shall not be suspended except in cases of rebellion or invasion when the public safety may require it. Any costs accruing to a unit of local government as a result of the denial of bail pursuant to the 1986 Amendment to this Section shall be reimbursed by the State to the unit of local government. Article 110 tells us all about bail.
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110-1talks about sureties and if the person possess a threat to anyone or to society. 110-2 talks about "I" bonds. Certain requirements to be met for this though. They are rarely used by a judge though. Need: Defendant will appear, Apply with all other conditions, Not a threat to community or other persons, THEN, Judge MAY issue it. Almost never used in a felony case. In Dope cases, the drugs' value is usually what sets the bail. For purposes of bond setting, it will be weighed with whatever it is contained in. You need to get paid before you do work. Know 110-1 through 110-5, and the Illinois Constitution section. "I" Bond/Recognizance/Personal Bondo 725 ILCS 5/110.2 o D signs, pays no $ o if D forfeits, a default jdgmt will be entered, if D doesn't go in and vacate it w/in 30 days, a final jdgmt will be entered and he will owe county $ o Generally for drug charges o Total estimated weight & street value of drugs determines bond $ "D" Bondo Most common o D deposits ("posts") 10% of total bond $ with court o If defaults (see above) will owe ENTIRE $ "C" Bond D pays cash Less than $100 Only for less serious crimes EM= Electronic Monitoring "Bailable"= ct has to set bail $ (does not mean that amt that D is capable of paying) o "presumption great" = presumption of guilt o Rebuttable presumption- is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise 725 ILCS 5/110.4- has same "presumption" language o Doesnt this "presumption" violate the constitution because fly in the face of the presumption of innocence? People v. Purcell o Held both the provision of the constitution and 5/110-4 unconstitutional o Bc takes away presumption of innocence and places burden on D to prove innocence Pretrial Discovery Brady Material - exculpatory evidence Reports- lab, police, expert, etc Tapes- surveillance, security, etc Pretrial Motions: Jurisdiction, Venue, Pleadings, Joinder, severance, Limine ILLINOIS STATUES ON BOND - 725 ILCS 5/110-1 = Sureties 1. "Security" is that which is required to be pledged to insure the payment of bail. 2. "Sureties" encompasses the monetary and nonmonetary requirements set by the court as conditions for release either before or after conviction. "Surety" is one who executes a bail bond and binds himself to pay the bail if the person in custody fails to comply with all conditions of the bail bond. 3. The phrase "for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction" means an offense for which a sentence of imprisonment, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction. 4. "Real and present threat to the physical safety of any person or persons", as used in this Article, includes a threat to the community, person, persons or class of persons.
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5 essay questions in IRAC format (BOTH SIDES)------------LOOK AT PROBLEMS IN BOOK - 725 ILCS 5/110-2 = I-bond, used when people are likely to appear in court when required and no danger to any
person. Monetary bail should be set only when it is determined that no other conditions of release will reasonably assure the defendant's appearance in court, that the defendant does not present a danger to any person or the community and that the defendant will comply with all conditions of bond. If does not show up = warrant - 725 ILCS 5/110-3 = warrant issue. Preponderance of the evidence that his failure to appear is not intentional. o If it's felony charge, judge must issue a warrant if the guy skips out on his court date. o If D comes back, he has to show by a preponderance of evidence, that his missing of his court date was not intentional. Better to just be polite and say nothing much more. - 725 ILCS 5/110-4 = Bailable offenses. All persons shall be bailable unless it is capitol, sentences where there is life without possibility of parole, or when after a hearing the defendant poses a threat. Death penalty is nonbail. o Presumption must be great o A person seeking release on bail who is charged with a capital offense or an offense for which a sentence of life imprisonment may be imposed shall not be bailable until a hearing is held.= required hearing o burden of demonstrating that the proof of his guilt is not evident and the presumption is not great= UNCONSTITUTIONAL - 725 ILCS 5/110-5 = What are factors determining the amount of bail? MITIGATION AND AGRIGATION Was there violence/threat of violence? Organized gang membership suggested? Weapons? Judge will take into account: What will reasonable assure presence of D in court, and Assure safety of people in community, Taking into account nature of crime, Residence of Defendant. B/c of flight, bond slips for pay is not always good. - 725 ILCS 5/110-6 = Bail can be adjusted with increased or decreased. Or can revoke. Need notice. - 725 ILCS 5/110-6.1 = Class X and Super X nonprobational offenses. Need HEARING upon state petition that bail should be denied. State must allege defendant is danger to people. Dont need notice. - 725 ILCS 5/110-8 = Case, stocks bonds and real estate as surety for bail. Need to show that you are the owner of it. Market value for the bond or stocks as their value. If they dont comply with the bail bond then it can be REVOKED. - 725 ILCS 5/110-10 = Condition of bail bonds. Need to be in court when they have court dates. Cannot pick up cases. No firearms, need psych evaluation if told to. Or any other conditions that the court tells them (special conditions of bond) - 725 ILCS 5/110-16 = bond forfeiture when non appearance (JBFW/ BFW) 3 ways to charge 1. 2. 3. Complaint- misdemeanor Information- prelim Indictment- GJ
725 ILCS 5/111-3 Form of charge. (a) A charge shall be in writing and allege the commission of an offense by: (1) Stating the name of the offense; (2) Citing the statutory provision alleged to have been violated; (3) Setting forth the nature and elements of the offense charged; (4) Stating the date and county of the offense as definitely as can be done; and
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(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty. (b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State's Attorney and sworn to by him or another. A complaint shall be sworn to and signed by the complainant; provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense, and the complaint need not be sworn to if the officer signing the complaint certifies that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification under Section 1-109 of the Code of Civil Procedure and perjury under Section 32-2 of the Criminal Code of 1961; and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead, unless he specifically requests that a verified complaint be filed. (c) When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, "enhanced sentence" means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not include an increase in the sentence applied within the same level of classification of offense. (c-5) Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt. Failure to prove the fact beyond a reasonable doubt is not a bar to a conviction for commission of the offense, but is a bar to increasing, based on that fact, the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for that offense. Nothing in this subsection (c-5) requires the imposition of a sentence that increases the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense if the imposition of that sentence is not required by law. (d) At any time prior to trial, the State on motion shall be permitted to amend the charge, whether brought by indictment, information or complaint, to make the charge comply with subsection (c) or (c-5) of this Section. Nothing in Section 103-5 of this Code precludes such an amendment or a written notification made in accordance with subsection (c-5) of this Section. 725 ILCS 5/111-5 Formal defects in a charge. An indictment, information or complaint which charges the commission of an offense in accordance with Section 111--3 of this Code shall not be dismissed and may be amended on motion by the State's Attorney or defendant at any time because of formal defects, including: (a) Any miswriting, misspelling or grammatical error; (b) Any misjoinder of the parties defendant; (c) Any misjoinder of the offense charged; (d) The presence of any unnecessary allegation; (e) The failure to negative any exception, any excuse or proviso contained in the statute defining the offense; or (f) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged.
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PRELIMINARY HEARINGS TIME LIMITS o In custody= 30 days o Out custody= 60 days o BCX (mental test) stops timeline FRE apply but are relaxed So, D is in custody, what is next? Must be some kind of filter to screen out cases that are purely speculative. Two ways of formally charging someone in a felony: it's primarily to weed out the weak cases. Judge or grand jury usually steps in, looks at evidence, and sees if its enough to charge the person. o There is lots of embarrassment in being a Defendant in a criminal case. Article 1 of Illinois Constitution - our bill of rights. Say what our rights are, and when they kick in after formal charging. The finding of probable cause by a judge or a grand jury, are NOT appealable, b/c jeopardy has not yet attached. In a jury trial, jeopardy attaches after the jury is in panel. In a non-jury trial, jeopardy attaches as soon as the D gets sworn to take an oath. After arrested, Taken w/out reasonable delay in front of judge for Gerstein Hearing. o Bond is set. Look to see his past history of showing up to court. o Probable cause is determined to see if the person can be continued to be detained. Not an adversarial hearing. Gerstein Hearing is codified at 725 ILCS 109.1 o Done w/or w/out a warrant, at which point it will occur. Still, after Gerstein Hearing, need a finding by a neutral and unbias individual. If there's a felony, need an indictment or charges by Information. o Both are done after some sort of hearing and a finding of probable cause. o Grand jury indictments ALWAYS trump informations. o A briefing of the facts of the arrest take place. o They get into bond here again too. 725 ILCS 109-1&3 o Standard for preliminary examination A preliminary hearing can be waived. Should you, as a defense attorney, ever waive this? NO, NEVER, not without a good deal. If it's a DEAD BANG LOSER, and your client wants to just get this over with, then maybe waive. You get your preliminary hearing within 30 DAYS AFTER BEING ARRESTED, unless your guy is on bond, then you get 60 days. o Doesn't count if you get bond, but just can't afford it. If someone violates his parole, and gets arrested again, posting bond won't get you out of jail. B/c the PAROLE HOLD TRUMPS ANY BOND THAT IS SET. o But, posting bond changes the timeline. You can get more time for your preliminary hearing, etc. So, you do a MOTION TO EXONERATE THE BOND. This is to speed things up, and get off the "on bond" clock. o Speedy trial is 160 days, not 120 days. Assume no parole: If guy is not on bond, 30 days. If he's on bond, go as far as 60 days on calendar. o Assume it's clear guy will come back. o Between your Gerstein Hearing and your Preliminary hearing, the prosecutor can go to the grand jury for an indictment to avoid the preliminary hearing altogether. o As a defense attorney, you want a preliminary hearing b/c you get to be there. You can cross-examine the witnesses and use it as discovery. You can't go to a grand jury hearing! o Everything is admissible in a hearing! The ONLY limitation to testimony are testimonial privileges. Those cannot be breached at ANY STAGE. NEVER agree to a continuance in a preliminary hearing. o NEVER stipulate to the lab in a dope case.
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You can go directly to the arraignment after an indictment. When you go back to your date of the preliminary hearing, after being indicted already, you're out of luck. You get a court date for arraignment where a copy of the indictment will get to you. o Grand jury always trumps preliminary hearing. o No constitutional right to a preliminary hearing. What he does have is a right to a finding of probable cause by a grand jury. The time/clock on preliminary hearing can be stopped if D asks or agrees to a date. Then, the clock becomes meaningless if the D agrees to a grand jury hearing. Preliminary Hearing v. Grand Jury Hearing Why want a preliminary hearing over a grand jury hearing? o Opportunity to cross-examine the witness o Opportunity to lock-in testimony o Opportunity To engage in minimal discovery o Opportunity to perpetuate testimony Where you may end up with substantive evidence from a grand jury hearing. California v. Green said you can do that. o Failure of memory is an exception to the hearsay rule. Transcripts from a preliminary hearing can be admitted as substantive evidence. Helps when witness doesn't cooperate or if old/handicapped. Right to counsel at a preliminary hearing comes from the 6th Amendment. Discovery to look for during Preliminary Hearing Look at chain of Evidence Proceeds Opportunity to Observe: o Lighting o Traffic o Distance Knowledge of one officer is deemed to be knowledge of all. Grand Jury Hearing SECRECY IS KEY Not adversarial ACUSITORIAL BODY AND NOT AJUDICATIVE BODY Result = indictment 5th amendment elements(US v Couch) o Compulsion o Has to be testimonial in nature o Self-incriminatory What actual is on its face What could become Us v. Doe- no 5th amendment privilege for signature since it is not testimonial. 5 amendment only applies to the criminal, not the attorney. 725 ILCS 5/112 GJ o Panel- 16 members mx o "Quorum" = 12 member panel o Empanelled for 18 months max (5/112-3), generally only for 1 month o Conveniens first Monday of each month o 9 members needed to indict (true bill) . o Forman is chosen by the court o GJ CAN ACT AS INVESTIGATORS OR PROTECTORS OF THE INFORMATION FEDERAL GJ o 16-23 members needed
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o Quorum = 16 members o Forman o Deputy Forman o 12 needed to return true bill Jdg can decide to keep indictment secret Must be tx of GJ proceedings (free to PD) 5/112-6: GJ deliberates in private (no attys present) Always trumps preliminary hearing IF YOU DONT TESTIFY WHEN YOU WERE GIVEN IMMINUTY YOU ARE UNDER CONTEMPT Batson applies- GJ has to represent a fair cross-section of the community, anyone may complain that GJ composition violates Batson Reviewing cts hesitate to overturn GJ indictment Federal Rule 5.1 (get at www.cornell.edu)- preliminary hearing unless GJ indictment Prosecutor: o Present evidence o Not obligated to present exculpatory evidence, witnesses (even if aware of them) o Can't testify Defendant- no right to testify at GJ hearing Costello v. U.S.- evidence o Organized crime indictment o Tons of evidence o 3 govt witnesses testified as to hearsay from 141 other witnesses o Costello convicted & appealed claiming he was improperly indicted by use of hearsay evidence o US Sup Ct held- indictment was proper
RANDOM QUESTIONS (MOSTLY ON GRAND JURY) Use Immunity- prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness Transactional Immunity- blanket, completely protects the witness from future prosecution for crimes related to his or her testimony - People have the 5th amendment right in GJ - When someone asserts 5th amendment claim, you can offer them immunity or stop questioning them. - Tax payer want to quash a subpoena duces tecum, cannot challenge it. - Subpoena for the Grand Jury, you have to show up - **If person is in custody, the term is 30 days for a preliminary hearing.** - **If person is out of custody, the term is 60 days for a preliminary hearing.** - A person can never assert 5th amendment in GJ against documents because they are not testimonial in nature. - Challenge to reasonableness of GJ subpoena cannot reveal purpose of why they are there. IT IS SECRET - Dont have to produce exculpatory evidence during GJ - GJ DOESNT need to mirandize the person before taking their testimony - The constitution does not mandate that the GJ inform the witness that they are a suspect. - Person who refuses to co-operate with GJ can be held only until the end of the GJ term or her can purge himself. - The documents that the GJ subpoenas are irrelevant. - Name 2 of the 3 rules of evidence that apply to the testimonial privileges 1. Hearsay is admissible 2. Attorney client 3. Doctor patient 4. Confessor penitent - Ways that the clock of Preliminary hearing 1. Waiver 2. BCX- psych exam 3. GJ indictment
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Charging Instruments o 2 reason for o Notice o Bar against double jeopardy o 6th amendment- right to attorney at critical stages o 725 ILCS 5/111 (1)-(6)- will be heavily tested on final o IL Con Art 1 sec 7 o 3 handouts - GJ transcript (free), Preliminary hearing transcript ($), Indictment o 5/111-1: how prosecution is commenced Complaint Info Probable cause by jury Indictment 5/111-2: in Felonies, only commenced by indictment or prelim hearing 5/111-3: tells what criminal charging instrument must contain All essential elements of charge (a) A charge shall be in writing and allege the commission of an offense by: o (1) Stating the name of the offense o (2) Citing the statutory provision alleged to have been violated o (3) Setting forth the nature and elements of the offense charged o (4) Stating the date and county of the offense as definitely as can be done; and o (5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty. Any enhancing factor is an essential element Enhancement of felony level o Must pleed in the instrument o Extendable- need to tell defense counsel Enough info so D can: Prepare for proper defense Must be specific enough to serve as a bar to prosecution of subsequent offense (double jeopardy), i.e. needs date Russell- must specifically allege act, cant just quote statute Serves as a future bar to double jeopardy Indictment or information is good if it is specific enough to prepare defense or know of charges. It must state the elements of the offense. Any defect can be corrected at any time. The charge can be amended. Bill for particulars, not enough information for a defense. Itemize what you want. Duplicity- one count charging several offenses Multiplicity on offense is charged in several counts Can motion to amend charging instrument if necessary Yes they can be amended to reduce or adjust charges. Defects in charging instrument Formal defects can be changed at any time- spelling name ect.. minor ones If you see them, move to dismiss charges Any objections to charging instruments must be raised prior to trial If fail to object & there is actual prejudice to D can be appealed for ineffective assistance of counsel If information or indictment is too vague (after moving to dismiss for lack of specificity), move for bill of particulars under 5/114-2 (This is also used for notice issues) GENERAL FUNDIMENTAL DEFECTS CANNOT BE AMENDED Motions by D stop speedy trial clock (160 days on bond from demand)
o o
o o
o o
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State & Federal systems provide for bill of particulars When not properly plead by the state: Actually prejudice on the defendant Adverse impact on the proceeding o Illinois Constitution SECTION 7. INDICTMENT AND PRELIMINARY HEARING No person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine or by imprisonment other than in the penitentiary, in cases of impeachment, and in cases arising in the militia when in actual service in time of war or public danger. The General Assembly by law may abolish the grand jury or further limit its use. No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause. o Illinois Constitution SECTION 8. RIGHTS AFTER INDICTMENT In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation and have a copy thereof; to be confronted with the witnesses against him or her and to have process to compel the attendance of witnesses in his or her behalf; and to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed. ARRAIGNMENT o Copy of charges given to him o Knowledge receipt o Enter of plea o Waiver formal reading or have the judge read the charges. o Attys enter appearance (6th amendment) o Formal charges presented to D o Attys acknowledge receipt of indictment (waive formal reading) o D enters plea o Get assigned to trial judge (D can motion to substitute judge (SOJ)(dont need reason)) o hearsay evidence Admissible at prelim, Gerstein, Grand Jury hearings Except testimony that is protected/privileged- Atty/client, confessor/penitent (priest), Doctor/patient 725 ILCS 5/113-1 Procedure on arraignment. Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. If the defendant so requests the formal charge shall be read to him before he is required to plead. An entry of the arraignment shall be made of record. o o
725 ILCS 5/114-1 Motion to dismiss charge. (a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds: (1) The defendant has not been placed on trial in compliance with Section 103-5 of this Code. (2) The prosecution of the offense is barred by Sections 3-3 through 3-8 of the Criminal Code of 1961, as heretofore and hereafter amended. (3) The defendant has received immunity from prosecution for the offense charged. (4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant. (5) The indictment was returned by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant. (6) The court in which the charge has been filed does not have jurisdiction. (7) The county is an improper place of trial. (8) The charge does not state an offense. (9) The indictment is based solely upon the
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testimony of an incompetent witness. (10) The defendant is misnamed in the charge and the misnomer results in substantial injustice to the defendant. (11) The requirements of Section 109-3.1 have not been complied with. (b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived. (c) If the motion presents only an issue of law the court shall determine it without the necessity of further pleadings. If the motion alleges facts not of record in the case the State shall file an answer admitting or denying each of the factual allegations of the motion. (d) When an issue of fact is presented by a motion to dismiss and the answer of the State the court shall conduct a hearing and determine the issues. (d-5) When a defendant seeks dismissal of the charge upon the ground set forth in subsection (a)(7) of this Section, the defendant shall make a prima facie showing that the county is an improper place of trial. Upon such showing, the State shall have the burden of proving, by a preponderance of the evidence, that the county is the proper place of trial. (e) Dismissal of the charge upon the grounds set forth in subsections (a)(4) through (a)(11) of this Section shall not prevent the return of a new indictment or the filing of a new charge, and upon such dismissal the court may order that the defendant be held in custody or, if the defendant had been previously released on bail, that the bail be continued for a specified time pending the return of a new indictment or the filing of a new charge. (f) If the court determines that the motion to dismiss based upon the grounds set forth in subsections (a)(6) and (a)(7) is well founded it may, instead of dismissal, order the cause transferred to a court of competent jurisdiction or to a proper place of trial. Venue & Jurisdiction (state & county) o Concurrent jurisdiction= more than one state has jurisdiction and this happens a lot o Where is the corpse= jurisdiction o If you do not raise on jurisdiction then you waive it. 3 Levels of where you end up in the criminal justice system Jurisdiction: State where you are prosecuted in. o Usually all-encompassing. Usually, Illinois. o Judge loses jurisdiction after 30 days of the final order. o Jurisdiction over the defendant for the offense to be prosecuted in Illinois. o Don't think about where the defendant is. Look to where the conduct occurs, in whole or in part. General Rule for Jurisdiction in Illinois: If the D, while within or outside of Illinois, the conduct is in whole or in part in Illinois, it could be in Illinois. Goes for co-conspirators, aiders, abetters, solicitors, etc. o Elements to Jurisdiction in Illinois Offense that occurred wholly or partly in the state of Illinois. Conduct outside of state, was attempt to commit it inside of the State. Venue: County - 725 ILCS 5/114-6 o Can be waived, unlike jurisdiction. o If venue is improper, and you do not bring a motion to transfer/dismiss, it will be waived. o Venue is normally where the offense occurred. o You can do a change of venue on grounds of Prejudice. Motion for Substitution of Judges: 725 ILCS 5/114-5 - WILL BE ON FINAL o Once you get your judge, he's your judge forever, unless you put up a motion to substitute the judge within 10 days. If you're smart, you'll do it right then and there. Particularly, if you were assigned in a court house by the chief judge. o You do not need a reason: it can be based on anything. You get one SOJ as of right. o The SOJ should be in writing, but, some places let you do it orally. o If you think the judge is bias or prejudice, you get unlimited SOJ's. These substitutions for cause can be made at ANY TIME & must be supported by AFFIDAVIT. o Only get 1 normally. If class x then you can name 2 judges on that SOJ. Cannot exceed the number of defendants
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5 essay questions in IRAC format (BOTH SIDES)------------LOOK AT PROBLEMS IN BOOK o 5/114-6: person is subject jurisdiction to action where the offense is committed within the state.
You can waive person jurisdiction 720 ILCS 5/1-6 Place of trial. (a) Generally. Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law. The State is not required to prove during trial that the alleged offense occurred in any particular county in this State. When a defendant contests the place of trial under this Section, all proceedings regarding this issue shall be conducted under Section 114-1 of the Code of Criminal Procedure of 1963. All objections of improper place of trial are waived by a defendant unless made before trial. (b) Assailant and Victim in Different Counties. If a person committing an offense upon the person of another is located in one county and his victim is located in another county at the time of the commission of the offense, trial may be had in either of said counties. (c) Death and Cause of Death in Different Places or Undetermined. If cause of death is inflicted in one county and death ensues in another county, the offender may be tried in either county. If neither the county in which the cause of death was inflicted nor the county in which death ensued are known before trial, the offender may be tried in the county where the body was found. (d) Offense Commenced Outside the State. If the commission of an offense commenced outside the State is consummated within this State, the offender shall be tried in the county where the offense is consummated. (e) Offenses Committed in Bordering Navigable Waters. If an offense is committed on any of the navigable waters bordering on this State, the offender may be tried in any county adjacent to such navigable water. (f) Offenses Committed while in Transit. If an offense is committed upon any railroad car, vehicle, watercraft or aircraft passing within this State, and it cannot readily be determined in which county the offense was committed, the offender may be tried in any county through which such railroad car, vehicle, watercraft or aircraft has passed. (g) Theft. A person who commits theft of property may be tried in any county in which he exerted control over such property. (h) Bigamy. A person who commits the offense of bigamy may be tried in any county where the bigamous marriage or bigamous cohabitation has occurred. (i) Kidnaping. A person who commits the offense of kidnaping may be tried in any county in which his victim has traveled or has been confined during the course of the offense. 720 ILCS 5/1-5 State criminal jurisdiction. (a) A person is subject to prosecution in this State for an offense which he commits, while either within or outside the State, by his own conduct or that of another for which he is legally accountable, if: (1) the offense is committed either wholly or partly within the State; or (2) the conduct outside the State constitutes an attempt to commit an offense within the State; or (3) the conduct outside the State constitutes a conspiracy to commit an offense within the State, and an act in furtherance of the conspiracy occurs in the State; or (4) the conduct within the State constitutes an attempt, solicitation or conspiracy to commit in another jurisdiction an offense under the laws of both this State and such other jurisdiction. (b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State. In a prosecution pursuant to paragraph (3) of subsection (a) of Section 9-1, the attempt or commission of a forcible felony other than second degree murder within this State is conduct which is an element of the offense for which a person is subject to prosecution in this State. In homicide, the "result" is either the physical contact which causes death, or the death itself; and if the body of a homicide victim is found within the State, the death is presumed to have occurred within the State. (c) An offense which is based on an omission to perform a duty imposed by the law of this State is committed within the State, regardless of the location of the offender at the time of the omission.
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Joinder & Severance (ALL ABOUT TIMING) o Of Offenses: general rule- crimes committed at the same time or otherwise related may be joined together o SOR= harmless error o Of Defendants: 725 ILCS 5/114-7: Joinder (ON FINAL) The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. The procedure shall be the same as if the prosecution were under a single charge. 725 ILCS 5/114-8: Severance (ON FINAL) (a) If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require. (b) In the case of a prosecution of multiple defendants for criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, or aggravated criminal sexual abuse arising out of the same course of conduct, the court, in deciding a motion to sever the charges and try the defendants separately, must consider, subject to constitutional limitations, the impact upon the alleged victim of multiple trials requiring the victim's testimony. Either D or State can motion for severance 725 ILCS 5/111-4(B): tracks Federal Rule 8 (2 or more Ds may be charged together if they are charged w/committing the same act or series of acts, not every D needs to be charged with every count) BIG BIG BIG BIG BIG BIG BIG KNOW CHAPTER 8 Joinder & Severance - Of either multiple defendants or multiple counts. JOINDER FEDERAL RULE OF CRIMINAL PROCEDURE 8 a) Joinder of Offenses. o The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged -- whether felonies or misdemeanors or both 1. are of the same or similar character, or 2. are based on the same act or transaction, or 3. are connected with or constitute parts of a common scheme or plan. b) Joinder of Defendants. o The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. Reason for joinder of defendant MONEY V. FAIRNESS (prejudice- great reasoning for appeal) o Guilt by association
Curative instruction to a jury: dont think that the person is more likely to be guilty if they are charged with a crime with someone else that is a worse person = HORRIBLE IDEA!!! NOT GOING TO HAPPEN!!!--always argue this pro and con The possibility of multiple juries in the same courtroom Prosecution will argue Judicial economy- trying same people, repetition of evidence, witness inconvenience and of course money **Just because you have conflicting defenses does not mean you get severance ***** What is not enough for joinder o FRCP Rule 14 does not require severance as a matter of law when codefendants present "mutually exclusive defenses." While the Rule recognizes that joinder, even when proper under Rule 8(b), may prejudice either a defendant or the Government, it does not make mutually exclusive defenses prejudicial per se or require severance whenever prejudice is shown. Rather, severance should be granted only if there is a serious risk that a joint trial would compromise a specific trial right of a properly joined defendant or prevent the jury from making a reliable judgment about guilt or innocence. The risk of prejudice will vary with the facts in each case, and the Rule leaves determination of the risk, and the tailoring of any necessary remedy, to the
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sound discretion of the district courts. Although separate trialswill more likely be necessary when the risk is high, less drastic measures, such as limiting instructions, often will suffice. Because petitioners, who rely on an insupportable bright line rule, have not shown that their joint trial subjected them to any legally cognizable prejudice, the District Court did not abuse its discretion in denying their motions to sever. Moreover, even if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, which the District Court gave. Know 5/114-1,7&8 Joinder can occur: By way of an indictment; or, By the Court, or By motion of defendant or prosecution. For joinder, must be the same act or same comprehensive transaction. Each defendant doesn't have to be in the same single count though. Us v. Vasquez - failure to severe a defendant from two other defendants' very prejudicial action was reversible error. US v. Jawara Convictions for document fraud related to defendant's personal asylum application and conspiracy to commit marriage fraud to avoid immigration laws are affirmed where although the counts were misjoined, the error did not warrant reversal in this case. Further, there was no reversible error as to claims regarding denial of motions to suppress physical evidence and to conduct a pre-trial hearing addressing the reliability of expert testimony, or various evidentiary rulings. Was it reversible error on appeal= no United States v. Satterfield, 410 F.2d 1351 PROCEDURAL POSTURE: Defendant appealed his conviction by a jury in a federal district court for bank robbery. OVERVIEW: Defendant and his co-defendant were jointly convicted of bank robbery. The district court denied the defendant's motion for severance. The court found that at the time of the ruling, there was no showing that co-defendant's not-guilty defense would deprive defendant of a fair trial of his defense of insanity and that this could not have been anticipated by the trial court. Further, the court found the search of defendant's hotel room was reasonable where the officers had reasonable grounds to believe the co-defendants had recently committed the bank robbery. Finally, defendant challenged the admission of certain pretrial identification evidence. The court determined that the rule that excluded identification evidence tainted by exhibiting the accused, without the aid of counsel, to identifying witnesses before trial did not apply as defendant missed the cutoff date for the rule. The court found that even if the pretrial identifications were made under unconstitutional circumstances, their admission at trial was harmless beyond a reasonable doubt. Defendant had orally confessed to the robbery. Judicial economy- trying same people, repetition of evidence, witness inconvenience and of course money OUTCOME: The court affirmed the district court's conviction of defendant for robbery. NO GUILT BY ASSOCIATION Rule 13. Joint Trial of Separate Cases 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. Rule 14. Relief from Prejudicial Joinder 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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Defendant's Statements. Before ruling on a defendant's motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendant's statement that the government intends to use as evidence. 725 ILCS 5/111-4 Joinder of offenses and defendants. (a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction. (b) Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or in the same comprehensive transaction out of which the offense or offenses arose. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. (c) Two or more acts or transactions in violation of any provision or provisions of Sections 8A-2, 8A-3, 8A-4, 8A-4A and 8A-5 of the Illinois Public Aid Code, Sections 16-1, 16-1.3, 16-2, 16-3, 16-5, 16-7, 16-8, 16-10, 16A-3, 16B-2, 16C-2, 16G-15, 16G-20, 16H-15, 16H-20, 16H-25, 16H-30, 16H-45, 16H-50, 16H-55, 17-1, 17-3, 17-6, 17-7, 17-8, 17-9 or 17-10 of the Criminal Code of 1961 and Section 118 of Division I of the Criminal Jurisprudence Act, may be charged as a single offense in a single count of the same indictment, information or complaint, if such acts or transactions by one or more defendants are in furtherance of a single intention and design or if the property, labor or services obtained are of the same person or are of several persons having a common interest in such property, labor or services. In such a charge, the period between the dates of the first and the final such acts or transactions may be alleged as the date of the offense and, if any such act or transaction by any defendant was committed in the county where the prosecution was commenced, such county may be alleged as the county of the offense. Hypo: o o o o o 3/1- A & B sell drugs to Cop 1 3/5- A & C sell drugs to Cop 1 3/7- A, B, C sell drugs to Cop 1 Can all Ds be tried together? Yes & D A can be prosecuted for all 3 crimes
Pros of joinder: o Judicial efficiency o Witness/evidence efficiency Cons of joinder: o Confusion of evidence btw Ds o Prejudicial spill-over of evidence (jdg can give curative jury instructions) o Remedies- can give each D a jury or have one bench & one jury Test for granting severance: o If evidence would be admissible against each D in separate trials, it is admissible in a joint trial, severance denied o If evidence would not be admissible at separate trials, it will not be admissible in a joint trial, severance granted Evidence of prior bad acts is admissible against a crim D to prove: o Motive o Intent o Knowledge o Identity o Preparation/plan o Absence of mistake/accident o Common plan/scheme Hypo: D is charged w/ 3 bank robberies
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State wants to join all 3 into 1 trial State motions to join D objects based on prejudicial spill over of evidence, confusion of evidence, prejudice of being charged with 3 robberies (would make him look like repeat offender even tho he hasnt been found guilty of any), proof of other bad acts is not admissible to prove D committed this crime State responds- not using prior acts for that reason, using for identity/other exception (listed above) & thus should be admissible- so would be most efficient to join the 3 charges Rule- if the evidence would be admissible in separate trials, it will be admissible in a joint trial so you should try them all together so long as the risk of prejudice does not outweigh the probative value (allegation of unfair prejudice alone is not enough to get severance) Outcome- State wins motion 720 ILCS 5/3-3 Multiple prosecutions for same act. (a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act. (c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.
Bruton Doctrine: (ON FINAL) Hypo: D Talker & D Silent have a joint murder trial D T says " D S & I killed the victim" during post-arrest interrogation D T's statement is admissible as a statement against interest (No other way stmt would get in- no other exception applies) D T will not testify at trial (constitutional right not to) D S has a 6th amd right to confront (cross-x) D T as a witness against him Bruton Rule: D's get separate trial when: 1 or more. Multiple Ds State wants joint trial D1 makes a stmt that inculpates a co-D That stmt is not admissible under any other exception to the hearsay rule Declarant (D1) will not testify at the joint trial (has const right not to) NO OTHER EXCEPTION TO HEARSAY EXCEPT DECLARATION AGAINST INTEREST Remedies o 2 juries o Severance o Curative instructions Hypo: o D talker & D Blabber mouth both confess but DB says DT did it much worse o Both stmts are getting in since both inculpatory Exceptions to Bruton:- ie joinder will be granted Co-conspirator stmts: are admissible against all Ds (common plan/scheme evidence exception) = joint trial (bc would be admissible in separate trials) But there must be independent evidence of conspiracy (not just stmt) for the stmt to be admissible against the non-speaker If DS has opp to cross-ex DT at pretrial hearing but doesnt, severance will be denied (California v Green)- doesnt apply to pretrial evidence suppression hearings
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Can renew motion for severance throughout trial Redaction that replaces D's name with an obvious deletion will be insufficient for prevent severance US v. Vasques, et al (prof's case) o Vasques- DCS o Ramirez-DCS o Rodriguez-DCS o One occurrence, R & R later kidnap confidential informant o D moved to sever V from R & R, denied o Appealed claiming trying kidnapping w/ drug charges caused prejudicial spill over to V & won
Question on Final: Bruton Case (1968) o SUMMARY: Petitioner was tried with Mr. Evans (co-defendant) for armed postal robbery; both were convicted by a jury. At trial, the court allowed testimony of a witness, who indicated that co-defendant confessed to the crime and to having the help of Petitioner in committing the crime, to be admitted against co-defendant, but instructed the jury not to consider it in determining Petitioners guilt. On appeal, the Circuit Court of Appeals upheld Petitioners conviction, and Petitioner challenges, on certiorari, his conviction here. o Two Defendants, T&S o T made a statement out of court: S & I did it. o It was an inculpatory statement. o It was hearsay. o T won't take the stand. o It's not being used to impeach, it's being used for truth of the matter asserted. o If T was the sole Defendant, it would be admitted as a statement against a party's interest. o But, no other exception applies here. The defendants would need to be severed for it to come in. o What if, both defendants talked? In other words, interlocking inculpatory statements. Parker v. Randolph US Supreme Court says: they're screwing themselves, and each other. So, it gets in. o RULE: When a co-defendants confession implicates a criminal defendant, and the co-defendant does not testify at trial, the admission of the confession violates the criminal defendants rights under the 6th amendment Confrontation Clause, even when jury instructions are given that instruct the jury to disregard the co-defendants confession in deciding the criminal defendants guilt. Exception to Bruton: Co-conspirator's statements -those get in. And, both defendants don't even need to be charged with conspiracy. o Statements made by co-conspirators is admissible against both defendants. Not necessarily confessions either. o However, the statement cannot be the only evidence of the conspiracy. Must be other evidence of a conspiracy before that evidence is even considered. Hypo: A &B charged together for armed robbery. o A says "Hey B, kill that guy." That statement alone is not enough to use it against B. Must be other independent evidence. Must show something that they concerted together. o This is where Joinder is going to happen. This is an exception to Bruton. California v. Green - Exception #2 to Bruton. o Assume there has been the opportunity to confront the speaking co-defendant witness. o But, let's say they put him on as a witness at a preliminary hearing (bad idea because discovery hasn't been done yet). o The other co-defendant then has the ability to cross examine the defendant-talker on that inculpatory statement. o If you have the chance to cross examine the speaker at the preliminary hearing, you have to do it. It will get in. Hypo: Pre-Trial Motion to Suppress o Imagine Defendant-T is going to testify about his right to unreasonable searches was violated. So, it's based on 4th Amendment. He testifies to this.
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o o Let's say while testifying, he says it was his and Defendant-S' dope. They lose the motion. At trial, prosecution brings in the evidence. Defendant-S argues that it should not get in due to Bruton. US Supreme Court says NO b/c the issue at a pre-trial motion to suppress evidence has NOTHING to do with guilt/innocence, so you WOULDN'T have cross-examined the speaker (Defendant-T). This is Lee v. Illinois.
Pre-Trial Redaction o Imagine statement is "S and I did it." And the judge says "ok, let's white it out, and have it say '__ and I did it'." o However, this really does not have much of an impact and is prejudicial. o However, the US Supreme Court has said you should still get your severance b/c it is prejudicial.
FEDERAL SPEEDY TRIAL The Federal Statute recognizes that everybody has an interest in a speedy trial. How long is speedy trial? o If D is NOT on bond, state has 120 days from date of arrest to try it. o If D is ON bond, 160 days from date of arrest o Write a written demand for a speedy trial. If you think you're going to have a speedy trial issue in this case, you re-file it. General Rule: Speedy Trial in Federal Statutes codifies US Supreme Court Rule: Barker v. Wingo o Criteria under which how fast a D has to be put to trial by the prosecution. Federal Prosecutors must file an indictment/information for an arrest within 30 days. The trial gets 70 days. This makes a total of 100 days. Illinois Speedy Trial: Basis- 6th and Barker v. Wingo: There is a societal interest to providing a speedy trial that is considered separate and apart from the interest of the accused. Not just what D and P want, but what society at large wants. It costs the taxpayer a lot of money. **TRIGGER DATE = Arrest date Crucial factor is: is the D in custody or out of custody. o 120 days if he's in jail o 160 days if he's on bond. o The delays are all the same as in federal cases. o If the delay is occasioned by the D, the clock stops. o If the delay is occasioned by the P, the clock does not stop. Must make written demand for speedy trial- DOESNT MATER WHETHER IN OR OUT OF CUSTODY If it is Stricken for Leave to reinstate and renew the prosecution w/in 30 days; or a Nolle Prosque (choosing not to prosecute), then the clock DOES stop, even though P brings both of those. o These are both granted as a matter of course, and it stops the speedy trial stop. Then, they can be reraised anytime within the statute of limitations. Why important- presumption of innocence (damage to accused's rep), effect on D's ability to present a good defense, effect on State's ability to prepare prosecution (witnesses die, forget) Delays: o When occasioned by D (motions, demands, discovery requests, etc), clock stops Ex- if D is in custody for 4 days after arrest & then mom posts bond, now D is on the 160 day clock & his speedy trial must be w/in 156 days Ex- if D files motion to suppress on day 159 & it is not heard till day 170, the interim days do not count as speedy trial days, now must file a new request for speedy trial o When D is not a usual & public resident of the state - clock stops How long between when an act was committed, and when a prosecutor can bring the charges. Felonies: 3 years.
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Misdemeanors: 1 1/2 years. Once this clock has run, that's it. No statute of limitations on murder cases, NEVER EVER EVER. Same with 2nd degree murder, involuntary manslaughter, attempted 1st degree murder, and a hit & run that caused death.
725 ILCS 5/103-5 Speedy trial. (a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record. The provisions of this subsection (a) do not apply to a person on bail or recognizance for an offense but who is in custody for a violation of his or her parole or mandatory supervised release for another offense. The 120-day term must be one continuous period of incarceration. In computing the 120-day term, separate periods of incarceration may not be combined. If a defendant is taken into custody a second (or subsequent) time for the same offense, the term will begin again at day zero. (b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal. The defendant's failure to appear for any court date set by the court operates to waive the defendant's demand for trial made under this subsection. For purposes of computing the 160 day period under this subsection (b), every person who was in custody for an alleged offense and demanded trial and is subsequently released on bail or recognizance and demands trial, shall be given credit for time spent in custody following the making of the demand while in custody. Any demand for trial made under this subsection (b) shall be in writing; and in the case of a defendant not in custody, the demand for trial shall include the date of any prior demand made under this provision while the defendant was in custody. (c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days. If the court determines that the State has exercised without success due diligence to obtain results of DNA testing that is material to the case and that there are reasonable grounds to believe that such results may be obtained at a later day, the court may continue the cause on application of the State for not more than an additional 120 days. (d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance. (e) If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subsections (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered pursuant to the Unified Code of Corrections or, if such trial upon such first charge is terminated without judgment and there is no subsequent trial of, or adjudication of guilt after waiver of trial of, such first charge within a reasonable time, the person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which such trial is terminated; if either such period of 160 days expires without the commencement of trial of, or adjudication of guilt after waiver of trial of, any of such remaining charges thus pending, such charge or charges shall be dismissed and barred for want of prosecution unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104-13 of this Act, by a fitness hearing, by an adjudication of unfitness for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal; provided, however, that if the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days. (f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. Where such delay occurs within 21 days of the end of the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section, the court may continue the cause on application of the State for not more than an additional 21 days beyond the period prescribed by
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subsections (a), (b), or (e). This subsection (f) shall become effective on, and apply to persons charged with alleged offenses committed on or after, March 1, 1977. 720 ILCS 5/3-5 720 ILCS 5/ 3-6 is all types of exceptions. 720 ILCS 5/3-7: Exception to the statute of limitations. Usual and public resident exception: if D has committed a crime, and then becomes a non-public resident of the state that seeks to prosecute him, then that period is excluded from the statute of limitations. It makes sense. Ex: D robs a bank in Illinois. Then he goes to Indiana, out of the jurisdiction of Illinois (or stays in Illinois but changes his name and identity), then the statute of limitations halts for the period that the D is gone. The clock starts under Statute of Limitations until the LAST ACT IN FURTHERANCE OF THE CONSPIRACY occurs. The speedy act that causes a speedy trial is arrest. Know Illinois Supreme Court Rule 411, 412, 413, 414(a)(e), Illinois Supreme Court Rules: 411; 412; 413; 414 Motion for List of Witnesses: 725 ILCS 5/114-9 By motion of defendant. You don't have to give rebuttal witnesses. They don't have to be excluded from the court room during trial either. Motion to Produce Confession: Court orders state to furnish defendant copy of any written confession. Ask for videotape if they have one. And, list of witnesses to its making. If it is not handed in before trial, it cannot be used. Supreme Court Rule 411: All rules where D could go to jail applies to criminal cases. 5/115-4 & 115-3
Defendant is entitled to jury trial. He can waive it though, but IT MUST BE IN WRITING.
A defendant, in a capital case, gets 20 peremptory challenges to get rid of a juror. Unlimited for-cause. In a non-capital case, a D gets 10 peremptory challenges, unlimited for-cause. Multi-Defendant cases: If it's a capital case, each D gets 12. If non-capital, each D gets 6.
Guilty Pleas - During a guilty plea, DEFENDANT MUST SPEAK FOR HIMSELF, on the record.
Supreme Court Rule 402 State does not have to agree to a 402, neither does a judge. Defendant gets the chance to withdraw plea within 30 days after making it.
Santabello v. New York - issue was "What are the consequences when defendant has pled, pursuant to a negotiated plea bargain, and prosecution does not keep up its end of the deal?" It permits the withdrawal of the guilty plea, and defendant goes back into the "not guilty" stance. Discovery
Brady v. Maryland- ON FINAL o If exculpatory evidence (negates guilt, negative impact on sentencing) is in states control or that state could reasonably get w/in parameters of job it has to turn it over
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o o Based on general principle of due process Regardless of good faith of Pros, violations are same as if Pros acted in bad faith
412: Disclose to the Accused o Cant get work product, info on CI's unless they were transactional to the offense o Nat'l security exception 413: Disclose to Prosecution o C) Medical & scientific report - must be given over if done o D) defense has to inform state of any defenses (including affirmative) intended to use at trial/hearing and witnesses/evidence; if alibi intended to be prove need specific info w/witnesses 725 ILCS 5/114-13 o Any officer participating in investigation of criminal case has statutory duty to provide state with anything state asks for o Gents Act: give stmt prior to testimony, make motion for early proffer Fed sec 3500: discovery of written stmts After direct, court on (D) motion, shall order pros to hand over anything in possession relating to subject matter of testimony Always do motion for early Gents disclosure 414: Evidence Depositions o Permissible to be used as substantive evidence where threat of witness not being at trial o D has right to confront & cross- ex any deposition witnesses 415: Catch All o Discovery cannot be impeded o Ct can provide protective orders on discovery o Sanctions for not complying w/ SCR: continuance granted Evidence excluded Other approp measure
PROOF OF PRIOR BAD ACTS FRE 609 and Montgomery Evidence Inadmissible because action and conformity therewith Exceptions: o Motive o Intent o Absence of mistake o Identity- knowledge o common scheme of plan Double Jeopardy & Res Judicata Operates to collaterally estop pros of something thats already been decided When already proven, cannot use in any further proceeding Ashe v. Swenson- when issue of ultimate fact has been litigated to final jdgmt, it cannot be later re-litigated Jury Trial/ Peremptory Challenges 725 ILCS 5/115-3 Ds challenges 12 member jury o 1D Capitol offense 20 perempt Unlim for cause o 1 D Non-capital 10 perempt Unlim for cause o Mtpl D Capitol offense
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o Mtpl D non-capitol Felony- Each D gets 6 perempt Misdemeanor- each D gets 3 perempt
Guilty Pleas
Batson- cannot use peremptory challenge to excuse jurors on basis of race Sequestration - Not until all evidence is received D can waive right to trial by jury BUT MUST BE WRITTEN - ON FINAL (725 ILCS 5/115-4) FRCP 11, 20 725 ILCS 5/115-2 Keep system moving SCR 402: conference w/judge, everyone bound by plea o State doesnt have to agree to 402 conference & neither does judge o Off record, after discovery, State gives plea offer o If state doesnt stick to offer, D can withdraw guilty plea o When D's atty requests 402 conference, judge must 'admonish' D in open court that: ( to determine if plea is knowing): Nature of charge Minimum & maximum penalty Giving up right to testify, have trial, present witnesses, present evidence, etc (to determine if plea is voluntary): Ask if were nay forces, promises, threats to induce D into accepting plea (other than the plea offer itself) (to find factual basis of plea (pros gives brief stmt of what happened & D must stipulate to it)): D must answer all above admonishments himself & must be on record By accepting plea, D is agreeing that he did what he was charged w/doing Non- 402 plea offer: o Judge does not have to accept it & Judge can offer plea o Governed by general principles of contract law o Cannot motion for substitution of judge bc u dont like offer judge makes o Judge cannot make state reduce the charges, can give minimal sentence Blind Plea: o No conference o No offer by state o D stands b4 judge: Asks to stipulate to facts Asks to enter guilty plea Asks judge to do ____ in return for guilty plea
Federal Sentencing Guidelines Grid that dictates sentencing per offense How to depart from them: o Get down levels 2 levels if D's guilty plea clearly shows acceptance of responsibility of bad conduct 3 levels if D makes prompt guilty plea On state's motion D has provided substantial assistance in the prosecution or investigation of another person- no rule of how many levels reduced, depends on circs Santobello v. NY o Consequences when D has plead pursuant to negotiated plea and pros does not keep up its end of the deal (pros says give D the max) o A significant promise not kept = D can withdraw guilty plea, reinstate plea on not guilty, case goes to trial
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BordenKircher v. US o D refuses plea offer o Pros recommends sentence under habitual offender statute (diff from plea offer) o D appealed claiming violation of due process o Sup Ct held- nope, state can up anty on trial if D refuses to accept guilty plea
Homicide Cases 725 ILCS 112 has all the information on grand juries we need to know. Plus, federal rules on grand juries. Only need 9 out of 16 people in a grand jury to indict a defendant. If there's 12? 9. Usually, they are unanimous. Don't let your client testify before a grand jury. Have him invoke his 5th amendment right against self-incrimination. Or, get him a grant of immunity beforehand. There must be a transcript of the grand jury proceeding, which you get for free as a defendant (unlike a preliminary hearing's transcript). The only thing not admissible at these things are privileged testimonies. www.law.cornell.edu Federal Rules - Much more indictments in federal cases. FR 5.1 - D has a right to a preliminary hearing in a federal case, unless he's indicted. Just like Illinois' system. Being charged by indictment trumps preliminary hearings. Sometimes, prosecutor doesn't want a grand jury proceeding. But, they are cheaper. And, there are no continuances and cops show up there b/c they are scheduled. Hurtado v. California - in federal court, you can be prosecuted by preliminary hearing or by indictment. State due process does not require a D to be indicted by grand jury only. Can be done by preliminary hearing. Batzen - applies to grand jury compositions as well. D has a right to ensure that the grand jury reflects a fair outlook of the community. D not a member of the excluded group can still argue it's not fair. Even if you're a white female, and it's a grand jury of all females, you can still complain. Costello v. US - it was an organized crime indictment. D was charged w/income tax evasion. The quantum of evidence was enormous, 141 witnesses on prosecutor's side. D said improper evidence was given to grand jury during indictment stage, b/c u can't have 3 government witnesses testifying to what 141 witnesses said. US Supreme Court said "Yes you can." As long as it's not discriminatory, it's okay really. Reviewing courts are typically very unwilling to mess with grand jury proceedings, particularly when there's not an equal protection issue. How about illegal arrests/illegally seized evidence? Warrants that are faulty? US v. Calandra - all that stuff is still admissible. It may be denied at trial, but may be needed to find a true bill by a grand jury. Confessions illegally obtained (b/c not voluntary), is that admissible before grand jury? YES. Defendant's like preliminary hearings over grand juries b/c they can cross-examine and get some discovery done. You get hired for not what will happen, but for your knowledge of what may happen. Can't make promises of what will happen, and can't charge on that. You get paid for what you know. Tell your client to be where he has to be 30 mins before he should, call him night before, tell him to dress appropriate, present himself well, lose the earrings, etc. What kind of prosecutorial conduct will lead to a reversal of the grand indictment from a grand jury?
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P can't offer his personal opinion on the evidence Can't act as a witness Can't made an adverse comment on D's refusal to testify Can't be deceptive. What if there's exculpatory evidence that is not presented by the P? Does the P have to disclose it at the grand jury? o NO, doesn't have to do that. Idea is that this is a small, quick, tight proceeding. Grand juries originally acted as a shield against frivolous prosecutions. It wasn't until later that the grand jury became a screening device to weed out frivolous cases. Grand jurors get to ask questions to the witnesses. o They take their role very seriously. D has no right to get in front of the grand jury to testify. You can waive your right to substitute a judge. You only get 10 days to do it once the judge is chosen. 5/113 - Defects in arraignments don't mean much. FINAL EXAM REVIEW #1: Two defendants are charged jointly for murder, Pre-Trial discovery shows A has confessed, and implicated defendant B. What should B do? He could ask the court to instruct jury to not have A's confession used against him. He could make a pre-trial motion for severance. He could move to have A not permitted to testify. Answer: MOVE FOR A MOTION FOR SEVERANCE. Brutin case. #2: Pursuant to Illinois Supreme Court Rules, State must provide defense with a list of rebuttal witnesses? FALSE #3: Goal of pretrial discovery process is to: Both NARROW ISSUES AND AVOID TRIAL BY AMBUSH. #4: Brady v. Maryland requires..? Exculpatory Speedy trial act requires defendant released on bond be tried within how many days? 160 days if you're out on bond; 120 days if you're in jail. Issue for Gerstein Hearing is: Probable cause to continue to detain the defendant. D can be formally charged with a felony offense by: Both an information or an indictment. D gets his formal charge against him at: Arraignment Issues at a Preliminary hearing is: Probable cause to formally charge. State has attempted to charge a D with possession of drugs by way of preliminary hearing. Judge finds State has failed to meet its burden, and dismisses the case. What can prosecution now do? Both (b) and (c), jeopardy has not attached yet. File another indictment/information or have another preliminary hearing.
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Jeopardy does not attach until, in a bench trial, when the first witness is sworn. In a jury trial, when the jury is enpaneled. Once jeopardy attaches, anything that happens after that, D is in jeopardy, so result of that proceeding ends it. And, you can't put him in jeopardy again. Imagine D is in custody, not released on bond. How much time does state have to provide him with a preliminary hearing? Assuming no continuances, etc. 30 DAYS. When D is on bond, how much time does state have to give him preliminary hearing? 60 DAYS. Assuming no continuances/competency hearings agreed to by D. Questions on defendant's acting in concert, or co-conspirators, or aiding and abetting. Topics? Joinder/severance. Watch for: if it's 2 defendants, 1 defendant 2 or more offenses, joinder, severance? 725 ILCS 5/114-1 - vehicle for pre-trial motions on everything. 2 D's can be joined for trial under Illinois Law under what circumstances? If they are part of the same transaction or plan of crime. Example: Conspiracy charges. What has to be disclosed to D at trial? In Illinois and Fed. Court, discovery is a two-way street. D is entitled to copy of rap sheet, criminal records, and everything of every witness P intends to call. P must disclose any witnesses' statements prior to the time the witness testifies as well. So, as D's counsel, a judge will always order early list sheet. In Illinois, they are given prior to trial, not when the witness is on the stand. Assume D is mayor of small town, and charged with sexual harassment of 4 girls, on 4 different dates. P brought this under single information/indictment for trial. What should D do? Consider prejudicial spill-over of evidence from one to the other 3. D should file a motion for severance, b/c case involves 4 different victims and 4 different dates. File it under 5/114-1 prior to trial. Jurisdictional Questions: Illinois State Jurisdiction: Under what circumstances will the case be properly tried in the State of Illinois? Circumstances under which jurisdiction is proper. Many circumstances where jurisdiction can lie in two different states. Assume J & L. L stole J's cat. J plans to kill L. J lives in NW indiana under house arrest. J sees L on the expressway on the verge of paying his toll. While still in Indiana, J shoots L while L is in Indiana. Assume Illinois and Indiana have same jurisdiction statute. Where? Either state. Venue: What county a case is tried in. Know rules about venue. There will be a question of mandatory venue and discretionary venue. Test for Multiple Charges in a single indictment/information: C: Crimes for bad acts. Bond/Bail: Assume D, charged with felony, is released on bail. He fails to appear for a scheduled court date. What is the likely result? Court MUST issue an arrest warrant. Know which Offenses that are non-bailable: Both A&B. Writ of Mandamus: Trying to get court to order public official to take action. Assume you are a citizen and want P to try someone. You go to court and seek a writ of mandamus. A: Heavy political Context? B: D is within jurisdiction of Court.
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C: You are able to prove that there exists some particular duty owed to P. Answer is C. Equal protection: Element essential to challenging a P on equal protection grounds is: C: To not be unfairly prosecuted based on arbitrary classifications. & A: Those similarly situated are not being prosecuted. P is allowed some discretion on who to prosecute. Testimony from a preliminary hearing, admissible b/c witness forgot his testimony by time of trial? Yes, only if D was represented by council at preliminary hearing and had opportunity to cross-examine the witness at the preliminary hearing. Does D charged with felony have a right to council at a preliminary hearing? YES. Evidence admissible at preliminary hearing: Privileged info? NO. EVERYTHING ELSE, INCLUDING HEARSAY, IS. Hearsay evidence is admissible in front of grand jury or preliminary hearing. Guilty Pleas: Assume P agrees that if D pleads guilty, he will make no recommendation to sentence. D accepts. After D pleads guilty, P recommends maximum sentence allowed by law. As attorney for D, what should you do? Make a motion to withdraw the guilty plea. What principles apply to plea negotiations? Contract or due process? Contract. Indictment by grand jury is required to find someone in criminal contempt? NO. Any other felony has to have an indictment by grand jury. At Arraignment, the following occurs: C: Both A&B. D can plead not guilty, and get a copy of the indictment. Witness under subpoena in front of a grand jury, does he have a right to an atty? NO. Witness under immunity must answer all questions in front of grand jury except: Both professor and atty-client privilege. How many people in a Quarum grand jury? 12. Under Illinois Law, grand jury sits for how long? B: Any period not in excess of 18 months. Know difference in charging when separate offenses are charged in single account. What is it called? Duplicity? Multiplicity? Consecutive charging? Duplicity. Does D have an absolute right for a bill of particulars? NO, need a written motion! Under Federal sentencing guidelines, a prompt guilty plea will have the following effect: 2 or 3 level decrease in offense level? Three level decrease. Substantial assistance in investigation/prosecution of another person, will do what for a federal defendant? Total Departure.
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Pleading guilty in Illinois State Court: When court takes guilty plea, D's counsel must respond to court's inquiries and admonitions? False. The Defendant has to say it! At what stage in the proceeding may D enter a guilty plea? At anytime. D has absolute right to plead guilty. He can do it blind or anything. Double Jeopardy: A: When issue of ultimate fact had been determined. Double jeopardy attaches when trial starts. What is required for valid waiver of D's right to jury trial? Signed Jury Waiver. D who pleads guilty in Illinois Court has to be put aware of the maximum sentences available? YES, TRUE. In Illinois, D must tell P of his intent to use which defense? All affirmative defenses. Anything that requires any burden of proof. How many challenges for cause dos a D get in jury selection? Unlimited. D must be physically present in Court during his trial? FALSE, he can waive his right. Felony D on bond in Illinois, how long to get a preliminary hearing or indictment? 60 Days.
Bordenkircher v. US - guilty plea offer given to D. D chose instead to go to trial and refused to plea bargain. Then, P amends the information to seek sentencing as a habitual criminal offender. Then, P was convicted and sentenced. On appeal, he said that violated his due process rights. U.S. Supreme Court said "No, he had his chance, and they had the right to up the ante when he turned down the guilty plea." State can up the charges on trial when the defendant refuses to plead guilty. QUESTIONS 1. 2 Ds charged jointly for murder, D A confesses & implicates DB o Separate trials under Bruton 2. Pursuant to pre trial discovery, List of rebuttal witnesses? -No 3. Goal of pretrial discovery o Narrow scope o Prevent trial by ambush o Both *** 4. Brady v Maryland- Exculpatory 5. Ill speedy trial, D on bond- 160 days out 6. Prelim hearing- Probable cause to detain 7. Felony- Info & indictment 8. D charged w felony gets formal charges- Arraignment 9. Issues in prelim hearing is probable cause in charging 10. State charges D w/ poss of controlled sub in prelim, D sues - State can seek indictment 11. Time state has for prelim- 30 days 12. Time state has for prelim when D is out on bond- 60 days 13. Witness who testified at prelim, cannot remember at trial what his testimony wasis his prior testimony admissible due to his being "unavailable" due to loss of memory o Yes, if D had opp to confront/cross-ex witness at prelim 14. Does D charged w felony have right to counsel at prelim- Yes, doesnt have to demand it 15. What kind of evid is admissible at prelim- Everything except when protected by privilege (atty/client, dr/patient, confessor/pennant) 16. Is hearsay admissible at either grand jury or prelim- Yes
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17. Pros agrees if D pleads guilty, he will make no recommendation for sentence, D accepts, afterwards pros recommends harshest sent, as defense counsel what to do o Motion to withdraw guilty plea 18. What principles apply to guilty pleas- Contract 19. Indictment by gj is necessary to formally charge person w crim contempt o False o This is the exception to the req that felonies must be charged by indictment or information 20. Quorum of GJ- 12 21. GJ sits for any period not exceeding 18 months 22. When mtpl charges are in 1 count its called- Duplicity 23. Does crim D have absolute right to bill of particulars in discovery - No, he has to do a written motion (see statute) 24. All pretrial motions are governed by 725 ILCS 5/114-1 25. 2 Ds may be joined for trial under what circumstances- charged w/ conspiracy, chgd w committing same offense 26. State has to disclose to D prior to trial- Gents act- witnesses & statements prior to witness testifying (can motion for early disclosure) 27. Mayor chgd w sexual assault of 4 vics on 4 days, state has charged on single indictment seeking they be joined for trial, what would defense do? o Raise issue of prejudicial spill over o Move to sever on basis of 4 diff vics & 4 sep occasions 28. What happens at arraignmento Get formal charge o Enters plea o Both *** 29. No right to atty when in front of GJ 30. Witness must answer all qs before GJ unless covered by o Att/client priv o Confessor/pennant priv o Both *** 31. Test for when multiple charges may be joined in single indictment: o If were tried sep, evidence would be inadmissible in the other trials as "past crimes & bad acts" 32. 2-3 IL jurisdictional qs- know circs under which jurisdiction is proper - Larry & Roul the cat- juris is proper in either 33. Know venue rules, q of mandatory venue (when occurred in that count), change of venue based on prejudice in a particular county 34. Felony D fails to appear, what is the likely result- Judge MUST issue warrant 35. What offenses are non-bailable offenses: Signif past crim history has NOTHING to do with whether bail is available 36. What element is essential to obtaining a writ of mandamus- U are able to prove that there is some particular duty owed to you as P 37. Element essential to challenging prosecution on equal protection grounds o Lots of people similarly situated are not prosecuted o The choice of this D was based on some arbitrary classification like race o Ie "both A & C" 38. Is pros entitled to exercise some selectivity in det which person to prosecute- Yes as long as it doesnt violate EPC. Random is OK 39. Under Fed sentencing guidelines, a prompt guilty plea has- 3 level decrease 40. Fed sentencing guidelines, substantial assistance in pros of another person has- Total departure 41. Pleading guilty in IL state ct, when ct takes guilty plea, defense counsel must respond to the cts inquiries and admonitions- FALSE- the defendant himself must respond 42. At what stage of proceedings may D enter guilty plea- Anytime 43. Ash v Swenson provides that- When issue of ultimate fact has been litigated to final jdgmt, it cannot be later re-litigated 44. What is reqd for valid waiver of jury- Signed jury waiver 45. D who pleads guilty in IL ct must be informed of max sentence available under law- TRUE 46. D must give notice to pros ahead of time of his intent to use following defenses- All defenses 47. How many for cause challenges does a D get- Unlimited
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48. D must be physically present at trial - FALSE, D can waive right 49. Felony D on bond, IL law, how soon does he get prelim for indictment- 160 days from date of arrest 50. If D fails to appear on bond in a felony case, the judge MUST issue an arrest warrant (no discretion as is in misdemeanor case) 1
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5 Essay Questions in IRAC Format (BOTH SIDES) - LOOK AT PROBLEMS IN BOOK

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