ConCrimPro2

no constitutional requirement when the arrest is made pursuant to an arrest warrant-probable cause determined prior to arrest by judicial officer

4th amendment requires D be taken before a judicial officer to determine if arrest supported by probable cause

MD initial appearance is more than whether arrest constitutional and is required folowing all arrests

w/o warrant 4th amendment requires prompt presentment before judicial officer (48 hrs presumptively prompt)

District Court-without unnecessary delay and in no event later than 24 hours after arrest, Circuit Court-without unnecessary delay and in no event later than next court session

Confession may not be suppressed, as involuntary, only because of delay, if the confession is obtained within 6 hours of arrest, or longer if because of the magistrate's location-after that based on voluntariness factor

voluntariness factor-was delay deliberate and unnecessary-especially when for interrogation, then must be given "heavy weight" when determining voluntariness-unless made K and I waiver or right to prompt presentment.

• motion to suppress-court determines voluntariness and admissability based on preonderance
• if unsuccessful-only considered by jury if jury finds, beyond a reasonable doubt, that the statement was voluntay under totality of the circumstances

not one-nonadversarial proceeding and no right to counsel has attached, not trial like confrontation

• determine probable cause
• advise of charges-including penalties, gives charging doc
• advise of right to counsel
• advise of right to prelim hearing
• pretrial release determination-8th prohibits excessive bail

Must request within 10 days after initial appearance or it is waived. Set within 30 days after the request, unless rescheduled for good cause shown.

nonindicted D arrested for a felony not in jurisdiction of the district court who requests within 10 days after initial appearance. Does not get if State indicts.

right to counsel attaches, ensures D receives charging document, state presents evidence to establish probable cause, D may cross-examine to get statements to impeach with later, D does NOT present their case. If State wins, can formally charge.

• Probable cause-state may file new or amended charging document within 30 days (or later for good cause shown)
• If fails to charge timely, dismiss for lack of prosecution-State may recharge later.
• No probable cause-dismissed, state may recharge later b/c double jeopardy does not attache at prelim. later charging suject to SofL.

powers not delegated to the federal government ar reserved to the states

states have broad police powers to enact laws that control conduct in that state

both can prosecute since only protects against being twice placed in jeopardy by same soveriegn

sufficient connection between the government/soveriegn and D's conduct

• Rebuttably presummed, D must generate the issue.
• If generated, state must persuade fact finder beyond a reasonable doubt, there is territorial jurisdiction

• limited jurisdiction
• misdeamenors with penalty of 3 years or $2500
• motor vehicle laws and State Boat Act

• general jurisdiction hearing jury and nonjury vases
• exclusive when D exercises constitutional or statutory rightto jury trial-constitution 6th amend when incarceration >6 months, MD potential incarceration (>90 days)

• <7 lacks criminal capacity
• <14 lacked criminal capacity for rape and presumable other offenses
• >14 criminal capacity

• <18 on date of incident, determine whether CC as juvenile or CC as a criminal court
• 1. legal-juvenile or criminal-look to statute, charging doc, birth certificate (>16<18 criminal court with crime agaist persons, handguns, and traffic offenses) (>14<18 criminal court for punishable by death or life
• 2. factual-remain where started or go to other by looking at offenses and offender

• sending from criminal court to juvenile court (ages 14 to 17)
• may not be transferred if previous transfer and adjuducated delinquent, or previously convicted as an adult, or 16 and charged with 1st degree murder

• gae
• mental and physical condition
• ameniability to juvenile treatment
• nature of offense and participation
• public safety

whether juvenile needs guidance, rehabilitation, or treatment

may not exceed 3 years or extend beyond age 21

• Situs or locus of the actus reus
• Murder/manslaughter-where death blow inflicted
• Chesapeake Bay-county where arrested or brought
• Near county boundaries-where arrested
• Rape/sexual offenses-any county where transportation is offered, solicited, begun, continued, or ended (broadest)

• Federal felony charges b/c 5th amendment
• Some states
• MD-permissable

5-23 citizens from rolls of voters, drivers, and taxpayers, plus telephone directories

• compel testimony
• production of documents
• physical evidence

• use and derivative use immunity (someone refuses to testify by asserting the 5th)
• contempt-can last until end of grand jury term

probable cause - MD and federal law

• 4th-GJ subpoena is not a seizure and is limityed by particularity and reasonable timeframe
• 5th-subpoenaed withness may not refuse but can assert the 5th, suspect has not 5th right to testify and no right to Miranda warnings
• 6th-no right to counsel, takes place prior to adversarial proceedings
• 6th-no right to confrontation including non right to be present when other witnesses testify, no right to cross-examine witnesses, and no right to discovery of evidence presented

• prosecution must provide all exculpatory/favorable testimony and physical evidence whether requested or not
• must provide GJ testimony of each prosecutorial witness who testified before GJ for impeachment by prior inconsistent statements

Any D has standing to challenge the composition of the grand jury and systematic exclusion of a distinctive group is NEVER harmless error

• indictment-issued by grand jury
• criminal information-filed by state's attorney
• statement of charges-D/C filed by police officer
• citation-D/C issued by a law officer or fire marshall
• juvenile petition- alleges juvenile commmitted delinquent act

• offense charged
• defendant- name, description
• essential facts that support elements and criminal agency of D
• time and place with reasonable particularity
• incorporation-one count may incorporate other counts
• legal authority
• right to counsel

one episode so closely linked in time, place, circumstances that must be looked at as a whole. each seperate transaction requires a separate count or charge

• When charged as separate counts in one charging doc if the offenses charged are of similar character or are of a common scheme.
• MGA makes multiple one transaction by statute-theft from multiple victims at multiple times or reckless endangerment of more than one person

interpret the law favorably to the D under the rule of lenity

• look to the gravaman of the offense-what evil was to be prevented
• crimes against persons such as robbery-each victim gets a unit
• theft is one for all property taken in one transaction
• use of a handgun-each use determines units
• possession of handgun-one possession

• defective as multiplicitious when the same conduct is charged in more than one count
• precludes charging the same offense multiple times in separate counts

• joinder of 2 or more offenses in one count (this is prohibited)
• notice and fairness and there can only be one verdict on one count

• Prior to jeopardy attaching:
• in nonjury trial-prior to evidence being taken
• jury trial-prior to jury being sworn in
• After jeopardy attaches:
• W/o consent-only when does not change the character or basic description of the offense-such as owner of stolen goods, date of offense, statutory reference
• With consent-adding new offense, identity of property taken, identity of CDS, increasing max penalty

1 year

2 year

3 year

• Most-starts upon completion of the last element necessary top constitute the offense
• For continuing course of conduct-upon completion of last act, when viewed by itself, constitutes the offense

• substantive criminal legislation that is more onerous that the previous law and applied retroactively to D's who did not have fair warning of the legislation
• when just procedural then allowed

• if w/o counsel informed of right to counsel and consequences of appearing without
• notification of charges and penalties
• defendant enters plea
• establishes trial date

30 days after 1st appearance

• Dismissal because of defective prosecution (double jeopardy, jurisdiction, venue, statute of limitations)
• Dismissal because of defective charging document
• Suppresion of illegally seized physical evidence and/or illegally obtained identifications
• Suppression of illegally obtained statements
• Severance or joinder of offenders and/or offenses

• 5th-privilege against compelled self incrimination entitles defendant to counsel during custodial interogations
• 6th-critical stages where judicial adversarial proceedings or trial like confrontation where has nto attached (pre lim where determining whether D mustb stand trial not determining probable cause)

• indigent defendant right to counsel for 1st appeal of right not discretionary appeals through due process clause (includes trial transcript)
• violation of probation proceeding-case by case if has constitutional challenge or complex case

• initial appearance in CC
• post sentencing review of sentence
• state post conviction proceeding
• preliminary hearing before DC

• express waiver-done through inquiry on the record that waiver is knowing and voluntary
• waiver through inaction (if previously informed of right)
• termination of attorney client

• element of the offense does not develop until after 1st trial-even with due diligence would not of known
• D gets severance of greater and lesser offenses

• jury deadlocks and cannot reach a unanimous verdict
• court committed reversible error
• there is an exigency or emergency with lawyer or judge

determine whether two offenses arising from one criminal transaction are separate offenses or the same offense (focuses on the elements of the offenses)

For a given criminal transaction, determine whether multiple charges are separate offenses or the same offense. If same offense, sentence for lesser included offense merges into sentence for the greater offense, unless legislature says otherwise.

• greater offense merges into specific offense
• lesser included offense with greater offense not the greater sentence
• no merger when actual evidence is the same but required evidence is different

• exculpatory evidence tending toward not guilty
• mitigation evidence tending toward lesser guilt or lesser sentence
• impeachment evidence such as actual or implied agreement for favorable treatment in return for testimony
• knowing perjured testimony

• material known to prosecutor on that case and others in that office
• material known to police personnel working on that case

automatic and mandatory disclosure of helpful material, even if not requested

duty to learn of it and to disclose

• Bad faith or reckless indifference.
• If they accidently or negligently lose or destroy Brady material - it is not a Brady violation.

• when examining all the evidence, there is a reasonable probability that, had the evidence or information been disclosed, the result would have been different.
• If there is a reasonable probability of a different outcome, the error cannot be harmless.

if state uses testimony that it knew or should have known was perjured, testimony is material if there is any reasonable likelihood the false testimony could have affected the jury.

• specificity of defense request for disclosure
• closeness of case and cumulative weight of evidence of guilt
• centrality of witness to State's case
• significance of inducement to testify
• whether and extent of witness' credibility otherwise questioned
• state's reliance on witness' credibility in closing argument

if D makes particularized shwoing that the State has Brady material, the trial court may conduct hearing (may be in camera) to determine if there is Brady material.

• dead
• cannot testify because of age or mental or physical illness
• refuses to testify and not compellable because of privilege
• fails to respond to subpoena

• D and Co-D statements
• States witnesses including statements, names, and addresses
• Searches, seizures, surveillance, and pretrial ID
• Experts
• Tangible evidence-inspect, copy, photograph it
• D's property-inspect

• Experts info
• Tangible evidence
• D's person-provide ID, fingerprints, try on clothes etc
• D's bodily fluids or physical or mental exam by motion granted by court

• mental impressions
• trial strategy
• personal beliefs
• attorney work product
• state's confidential informant (if not putting on stand)

• agreements between state and witnesses
• materially inconsistent witness statements
• witness medical or psychiatric condition, if known
• negative polygraph results of witnesses
• failure of witness to ID D or Co-D

motion that seeks a pretrial ruling on the admissability of evidence, which must be made in writing prior to trial

within 30 days after D's or counsel's 1st appearance, motions deemed waived if non-compliance unless good cause is shown

• defects in prosecution-i.e., double jeopardy
• defects in charging doc
• transfer from CC criminal court to CC juv court
• illegal search and seizure
• illegal identifications
• illegal confessions
• illegal interceptions of communications
• improper joinder or severance

to join offenses or offenders based on judicial economy

when they participated together as principals or accessories

if they were charged in separate charging doc, may be joined for trial if they could have been joined in one charging doc

• on motion or sua sponte
• if appears a party will be prejudiced or
• if they have been improperly joined

• When evidence is not mutually admissable as to all offenses or offenders.
• Prejudicial effect outweighs probative value and defeats goal of judicial economy.

harmless error analysis

• understand proceedings
• assist counselwith reeasnoable degree of rational and actual understanding

D has burden to show by preponderance of the evidence through the DPC

• after 10 yrs in capital case
• 5 years in cases subject to incarceration
• must provide state and victim opportunity to be heard

sanity is rebuttably presumed, D has burden of production to generate the issue

D is NCR if at the time of the conduct, D b/c of mental disorder or mental retardation, lacks substantial capacity to appreciate the criminality of their conduct or conform that conduct to the requirements of the law

• step 1: burden of pleading
• step 2: burden of production done by D, measured at time of offense
• step 3: burden of persuassion on D

• when arrested or formally charged
• if dismissal then unattaches

permanent dismissal of charges

• 1. length of delay-from arrest or charging doc to start of trial
• 2. reason for delay
• 3. demand/waiver-failure to demand is factor
• 4. prejudice-key factor-must show actual prejudice

cases must commence in 100 days after arrest or summons

• trial court must dismiss the charges but decides whether with or without prejudice, based on seriousness of the offenses and relative fault leading to dismissal
• presumptively remedy is dismissal without prejudice