Criminal Procedure

Police Investigation===Arrest===Search and Seizure===Preliminary Hearing===jurisdiction===

Bail===Arraignment and Pleas===Pretrila/trials===Judgement===appeal

Discretion: legal power to make decisions with little specific direction from higher authorities.

Victim: may or may not elect to report a crime; victims are witnesses for the state.

Prosecutor: lawyer who is a government employee and represents the interests of the state (and in an
indirect way, the victim); has discretion to pursue charges & what charges to pursue; based on factors
such as:
1. accused’s criminal record
2. severity of the crime
3. role the victim played in the crime
4. impact of prosecution on the accused and the victim
5. need for deterrence
6. likelihood of conviction

Pre-trial diversion: person is put on probation without pleading guilty.

Expungable probation: person pleads guilty but judgment is held in advance until end of successful
probationary term – then record is expunged.

Pleas: Guilty, Not Guilty, Nolo contendre ( No contest)

Indigent – based on federal poverty guidelines (1 person making $240/week or less)

TCA 40-38-102 Rights of victims and witnesses; waiting areas

(a) All victims of crime and prosecution witnesses have the right to:
(1) Be treated with dignity and compassion; and
(2) Protection and support with prompt action in the case of intimidation or retaliation from the defendant and the defendant's
agents or friends.
(b)(1) Without requiring the expenditure of additional funds or additional construction or renovation, whenever possible, victims
of crime and prosecution witnesses should be provided waiting areas that are separate and secure from the defendant or
defense witnesses during all stages of the judicial process.
(2) In order to accomplish the goals of this section, the court security committee established by § 16-2-505(d)(2) shall have
among its duties the responsibility to assess existing facilities to determine where space could be allocated to provide the
secure waiting areas described in subdivision (b)(1). A report of this assessment shall be included in the findings provided to
the county legislative body and the administrative office of the courts pursuant to § 16-2-505(d)(3)(B). In cases where the
committee determines that existing facilities cannot accommodate the goals of this section, the committee shall include in its
report recommendations as to how a secure waiting area could be provided for in new construction and renovation projects. In
a jurisdiction where existing facilities cannot meet the goals of this section, the local government should consider the
recommendation of the committee's report in planning for any new construction or renovation of courtroom facilities.
(c) All victims of crime shall have the right to collect court-ordered restitution in the same manner as a civil judgment, as
authorized pursuant to § 37-1-131(b)(2) or § 40-35-304(h).

TCA 40-38-104 Grief counseling; educational preferences

(a) If a child is the victim of a homicide not committed by the parents, the parents of such child shall be able to apply to the
criminal injuries compensation fund for reimbursement to such parents for expenses incurred in obtaining necessary grief
counseling.
(b) All vocational schools and technical institutes operated by the board of regents shall, if there are limitations as to the
number of persons who may be admitted to a particular school or institute or in a particular class or program, give preference
in making such admissions to victims of violent crime. For purposes of this subsection (b), "victim" means the person who will
 become the primary wage earner in the victim's family if the victim was the primary wage earner and the crime resulted in such
victim's death or permanent disability.

TCA 40-38-105 Prompt disposition of cases; priorities and preferences

(a) All parties affected by a criminal offense, including the victim and/or survivors of the victim and witnesses to the offense,
shall be able to expect that the operation of the criminal justice system will not be unnecessarily delayed and that they will be
able to return to normal lives as soon as possible. To this end, all persons involved in the criminal justice system shall make
every effort to dispose of any charges against a defendant within one hundred eighty (180) days of the date of the defendant's
indictment, and in those cases in which the defendant is charged with a crime of violence involving death or serious bodily
injury to a victim, all applications for continuance of any court date by any party shall be in writing setting out the reasons for
the continuance. If, at any time during the proceeding, the court grants a continuance to the defendant and the defendant is
not represented by an attorney, the court shall file an order in the records setting out the reasons why the court granted the
continuance. If, for any reason, the case is not tried or otherwise disposed of in one hundred eighty (180) days of the
indictment, the court shall set out in a certificate the reasons why the case is still pending before the court.
(b) All parties affected by a criminal offense shall be able to expect that cases involving crimes against the person are given
judicial and prosecutorial priority over cases involving property crimes.

Felony: punishable by a year or more

Misdemeanor: punishable by less than a year

Summons: notification that you are to appear in court

Citation: notification that you are to appear in court as in minor traffic violations

Arrest: failure to appear as scheduled in the summons may result in arrest.

Stages of Criminal Process:

1. Complaint – formal charge of criminal activity; must provide proof of probable cause for an
arrest warrant to be issued.
2. Custody – suspect is arrested, taken into custody.
3. Initial Appearance – non-adversary hearing; formally notified of charge, advised of basic rights;
appointment of attorney (if defendant is indigent); issue of bail addressed (if defendant is still in
custody); date set for preliminary hearing.
4. Preliminary Hearing – adversary proceeding presided over by a judge (without a jury) and
conducted by the defense attorney & the prosecutor. Must be within 10 days if defendant does not
make bail. Purpose is to determine whether there is probable cause to believe that:
a. A crime was committed and
b. The accused committed it.
i. Probable cause decision cannot be made on hearsay EXCEPT:
1. written report of expert witnesses
2. documentary proof of ownership
ii. Probable cause standard is VERY LOW.
5. Grand Jury: 12 plus foreman; need 12 voting unanimous for true bill (indictment); secret to
public & defendants; if no true bill is found – case can be dismissed or Prosecutor can retry.
a. Serves as a check on prosecutorial abuse by screening cases that do not have enough
merit to justify continuing proceeding in criminal justice system.
b. Investigates possible violations of criminal law.
c. Oversee some public facilities or activities.
d. Has legal authority to issue subpoenas; grant witnesses immunity.
6. Arraignment:
7. Pre-trial conference:
8. Trial:
The Complaint

Tenn. R. Crim. P. , Rule 3: The affidavit of complaint is a written statement alleging that a person has committed an
offense and alleging the essential facts constituting the offense charges. The affidavit of complaint shall be made upon oath
before a magistrate or a neutral and detached court clerk who is capable of the probable cause determination required by Rule
4.

Complaint: the complainant signs a formal charge of criminal activity under oath. The complaint
describes the basic facts of the crime, what offense is being charged and possibly the relevant section
of the criminal code. If the complaint provides adequate proof that there is probable cause to believe
that a crime was committed and that the defendant committed it, the magistrate may issue an arrest
warrant. The complaint may also “toll” the statute of limitations. In misdemeanor cases, the complaint
serves as the formal charge and there may be no indictment to replace it. For felonies, the complaint
will be the first formal charge but may be later replaced by the grand jury indictment or the prosecutor’s
information.

Briefly describes the basic or essential facts:

• Alleged crime
• Accused (if name is unknown – then it must contain any name or description by which
accused can be identified with reasonable certainty
• Victim
Allegations need not be personally observed; may be based on hearsay evidence
Signed
• Voided if unsigned
• Anyone can sign complaint and initiate criminal proceedings
Under oath
• Complainant swears or affirms that s/he is telling the truth
• Before magistrate judge

Begins or initiates the formal criminal process by charging the accused with a crime
• Serves as the written basis for an arrest warrant; described as the “principle function” of the
complaint
• Notifies the accused of the allegations
• Facilitates the Initial Appearance
• Stops or tolls the running of the statute of limitations
• In misdemeanors, the complaint/warrant may be the only pleadings filed and are the only formal
charging documents, unless it goes to a grand jury
• In felonies, the complaint is the first formal charge, but may be replaced by OR charges may be
initiated by:
1. Grand jury indictment,
2. Grand jury presentment, or
2. Prosecutor’s information

Tenn. R. Crim. P., Rule 4: an arrest warrant shall by issued by a magistrate or clerk if it appears from
the affidavit of complaint that there is probable cause to believe that an offense has been committed and that
the defendant has committed it. More than one warrant or criminal summons may issue on the same
complaint. The probable cause finding can be based on hearsay if there is a substantial basis for believing the
hearsay is credible and for believing that there is a factual basis for the information furnished. The arrest
warrant must be signed by the magistrate or clerk and shall contain the name of the defendant or enough
information by which he can be identified with reasonable certainty. The arresting officer does not have to
have the warrant in his possession at the time of the arrest but must show it to the defendant as soon as
possible.
McNabb-Mallory Rule: statements made by suspects during a period of unnecessary
delay in bringing them before a magistrate are inadmissible at trial. This rule is not binding
upon the states and most states have rejected it in favor of a totality test to determine the
admissibility of a confession under the circumstances.

The First Hearing: The Initial Appearance

Tenn. R. Crim. Rule 5.

(a) In General. Any person arrested except upon a capias pursuant to an indictment or presentment shall be taken
without unnecessary delay before the nearest appropriate magistrate of the county from which the warrant for arrest
issued, or the county in which the alleged offense occurred if the arrest was made without a warrant unless a citation is
issued pursuant to Rule 3.5. If a person arrested without a warrant is brought before a magistrate, an affidavit of
complaint shall be filed forthwith. When an arrested person appears initially before a magistrate, the magistrate shall
proceed in accordance with this rule.
(b) Small Offenses Triable by Magistrate. If the offense charged is a small offense triable by the magistrate under
T.C.A. §§ 40-117 and 40-408, without regard to the plea, the magistrate shall advise the defendant of the charge, and
determine defendant's plea. If the defendant pleads guilty the magistrate may hear such evidence as is necessary to a
sound judgment and sentence the defendant to pay a fine. If the defendant pleads not guilty, the case shall be set for
trial at some future day and the defendant's pretrial release dealt with under the provisions of applicable law unless the
defendant agrees to an immediate trial. If the defendant is convicted, appeal lies as a matter of right to the Circuit or
Criminal Court for a trial de novo without a jury.
(c) Other Misdemeanors.
(1) Upon Plea of Guilty. If the offense charged is a misdemeanor, but of greater magnitude than a small offense, the
magistrate shall inquire how the defendant pleads to the charge. If the plea is guilty, the magistrate shall advise the
defendant of the defendant's right to be prosecuted only upon an indictment or presentment, and to be tried by a jury.
Unless the defendant expressly waives these rights in writing, the magistrate shall set a preliminary examination to be
had within ten days if the defendant remains in custody and within thirty days if released under Rule 46, unless the
defendant waives preliminary examination, in which case the magistrate may bind the defendant over to the grand jury.
If the defendant offers to waive the right to a grand jury investigation and a trial by jury, the court may permit it if the
district attorney general or the district attorney general's representative does not then object. In the event of such
waiver, the magistrate shall hear the case upon the guilty plea and fix such sentence as the evidence warrants and the
law directs. An appeal shall lie from a judgment upon a plea of guilty to a misdemeanor after waiver of grand jury
investigation and jury trial, but only as to the sentence imposed.
(2) Upon Plea of Not Guilty. If the plea is not guilty, the magistrate shall set the case for a preliminary examination
within ten days if the defendant remains in custody and within thirty days if released under applicable law, unless the
preliminary examination is expressly waived in writing, in which case the magistrate may then bind the defendant over
to the grand jury. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury and
submit the judgment in the case to the jurisdiction of the general sessions court, and the district attorney general does
not object, the magistrate may after such written waiver hear the case upon the plea of not guilty and enter such verdict
and judgment as the evidence warrants and the law directs, including any fine or jail sentence prescribed by law for
such misdemeanor. The State shall have no appeal from a judgment of acquittal. The defendant may appeal a guilty
judgment or the sentence imposed, or both, to the circuit or criminal court for a trial de novo as provided by law.
(d) Felonies. If the offense charged is a felony, the defendant shall not be called upon to plead. The magistrate shall
inform the defendant of:
(1) the charge and the contents of the affidavit of complaint,
(2) the right to counsel,
(3) the right to appointed counsel if indigent,
(4) the right to remain silent and give no statement,
(5) the fact that any statement given voluntarily may be used against the defendant,
(6) the general circumstances under which the defendant may obtain pretrial release, and
(7) the right to a preliminary examination.
If the defendant waives preliminary examination, the magistrate shall forthwith bind the defendant over to the grand jury.
If the defendant does not waive preliminary examination, the magistrate shall set a preliminary examination within ten
days if the defendant remains in custody, and within thirty days if released under applicable law.
(e) Indictment Before Preliminary Examination. Any defendant arrested prior to indictment or presentment for any
offense, whether misdemeanor or felony, except small offenses, shall be entitled to a preliminary hearing upon the
defendant's request therefor, whether the grand jury of the county be in session or not.
If the defendant is indicted during the period of time in which the preliminary hearing is being continued, or at any time
before accused has been afforded a preliminary hearing on a warrant, whether at the defendant's own request or that of
the prosecutor, the defendant may dismiss the indictment upon motion to the court. Provided, however, that no such
Motion to Dismiss shall be granted after the expiration of thirty days from the date of the defendant's arrest.
(f) The presence of the defendant at the initial appearance shall be governed by the provisions of Rule 43 of the
Tennessee Rules of Criminal Procedure.

Administrative, non-adversarial proceedings

Purposes of initial appearance:

1. Provide information to accused
a. Future proceedings
b. Basic constitutional rights
c. Formally notified of the charges
2. Appoint counsel
3. Schedule future proceedings
a. Preliminary hearings – 10 days if defendant is still in custody
4. Make release decision (pretrial release decision)
a. Gerstein probable cause determination

Gerstein proceeding – a defendant who was arrested w/o a warrant may face a Gerstein
proceeding, which tests the validity of his detention; usually combined with either the initial
appearance or the preliminary examination. 4th amendment requires that a neutral and
detached judicial officer must determine probable cause before a person can be subjected
to an extended restraint of liberty after a warrantless arrest. Determination must occur
within 48 hours of arrest.

After 48 hours the burden is on government to explain why there was a delay.
Remedy for delay – suppression of evidence; any evidence obtained during delay could be
thrown out. (Arguably from time of arrest)

5. Conditions of release

Procedures
1. Felony-misdemeanor distinctions
2. Timing – without unreasonable delay

Initial appearance: (if no bail previously set) brief hearing in which the accused is notified of the
charges and advised of his basic constitutional rights. If the accused is still in custody, bail will be
considered. An attorney may be appointed if the accused is indigent. A date will be set for the
preliminary hearing. At the initial appearance, the prosecutor may only address the issue of
release conditions. There may be no defense counsel present. if the defendant was arrested
without an arrest warrant, the judge may have to determine whether there is probable cause to
detain the defendant. If probable cause exists, the judge will have to issue an arrest warrant in
order to hold the defendant in custody.

If warrant is defective and you move to have it dismissed because it is defective; then the
person could swear out another warrant -- your defendant would have to pay two bonds.
The initial appearance serves many purposes;
1) Providing information to the accused: the accused is formally notified of the charges and may
be given a copy of the complaint, he is informed of relevant constitutional and statutory rights.
2) Appointment of counsel: if the accused is indigent, counsel may be appointed at this time.
3) Schedule future proceedings
4) Make a decision about bail
Gerstein proceeding: tests the validity of the defendant’s detention if he was arrested without a
warrant. The Gerstein hearing may be combined with the initial appearance or the preliminary hearing.
Requires the accused to be brought before a magistrate in a reasonably prompt manner, usually48
hours.
If a defendant charged with a misdemeanor can plead guilty at the initial appearance, the initial
appearance becomes the arraignment.

Tenn. R. Crim. P. , Rule when arrested, the accused shall be brought without unnecessary delay before the nearest
appropriate magistrate. The magistrate may act as the judge in small offenses. IF the offense is a misdemeanor but not a
“small offense” the magistrate shall ask how the defendant pleads. If the defendant pleads guilty, the magistrate shall set a
preliminary examination within 10 days if the defendant remains in custody and within 30 days if the defendant is released. If
the defendant pleads guilty and waives his right to be prosecuted only by an indictment or presentment and to be tried by a
jury, the magistrate shall hear the case and fix the sentence upon a guilty plea. The defendant can then only appeal the
sentence.
If the defendant pleads not guilty, the case is set for preliminary examination with 10 or 30 days, as above, unless the
preliminary examination is waived in which the magistrate can bind the defendant over to the grand jury.
For felonies, the defendant does not have to plead before the magistrate. The magistrate shall inform the defendant
of his rights. The defendant may waive the preliminary examination and be bound over to the grand jury.

Rule 5 – magistrate can accept a guilty plea for small offense for which there is $50 fine and
imprisonment is not possible. No counsel as no chance of going to jail. Misdemeanor that is more than
small offense; DA must agree; magistrate can take guilty plea and sentences the defendant. Sentence
could be appealed.

Forms of Release Pending Trial

Bail Reform Act of 1984 – mandates that federal defendants be released on personal recognizance or
upon execution of an unsecured appearance bond in an amount specified by the court unless it is
determined that either form of pretrial release will not reasonably assure appearance of the defendant
at trial or will endanger the safety of the community.

1. Full cash bond – full amount of bond in cash or credit card

a. If defendant appears – all deposited money is returned
b. If defendant fails to appear – forfeiture of full cash bond
2. Deposit bond – percentage (usually 10%) of full bond
a. If defendant appears – deposit is returned – although court can retain a small amount for
administrative costs
b. If defendant fails to appear – court orders the remaining amount to be paid by defendant
3. Surety bond – bail bondsman signs a promissory note to the court for the full bail amount and
then charges the defendant a percentage of the full amount as a fee
a. If defendant appears – no refund of fee
b. If defendant fails to appear – bond company is ordered to pay full amount to court;
however, court usually gives company time to locate and return defendant.
c. Davidson County – 10% plus $38 fee; two people must sign (guarantee) the bond for
them.
 4. Unsecured bond – defendant promises to pay the bond amount if he fails to appear in court
5. Release on recognizance – defendant gives personal promise to appear
6. Citation release – traffic violation
7. Conditional release – subject to conditions such as restrictions on travel, periodic reporting to
law enforcement agencies, undergoing medical treatment or schooling, etc.
8. Property bond – may require the property have a market value of at least one and one/halve
times the amount of bail. Bond is $50,000 – property bond has to be $75,000 (equity).
9. Pre-trial release - if eligible (same as release on recognizance); slight monitoring –
administrative fee.
10. $75,000 bond or more – and you are paying it in cash (even if it is the 10%) – you have to have
a source hearing; where you come to court and present evidence of where money is coming from.
a. Tax returns, savings account statements

Pretrial detention and release; bail amounts are based upon:

1. likelihood of appearance at trial; and
2. defendant’s potential danger to community

Bail hearing;
1. whether the accused should be released pending trial; and
2. if release is deemed appropriate, the terms and conditions, which may include the specific dollar
amount of bail.
Rules of evidence do not apply; both sides may present witnesses & documentary proof.

Under 8th amendment – “fixing of bail for any individual defendant must be based upon standards
relevant to the purpose of assuring the presence of the defendant”.

Bail Reform Act of 1984

1. Authorizes pretrial detention of defendants who will not likely appear at trial;
2. Permits the detention of defendants who present a risk of harm to society.

Federal rules on bond are different than state rules:

1. not everyone has a right to a bond
a. those not likely to appear at trial
b. those who present a risk of harm to society
c. gives a rebuttable presumption that a person should be detained pending trial when they
are charged
i. with a crime of violence of which the maximum punishment is death
ii. drug crime for maximum punishment is 10 years or more

not a due process violation – not punishment; merely regulation

not cruel and unusual because Congress has a justifiable compelling interest in protecting society

Factors relevant in bond amount decisions: TCA 40-11-118 include

Length of residence in community
Employment status & history of financial conditions
Family ties and relationship
Reputation, character and mental condition
Prior criminal record and history of appearance at court
Nature of offense and apparent probability of conviction and likely sentence
Presumption of probation?
 Prior record and its correlation of potential risk to community
Identity of responsible members of community who will vouch for defendant’s reliability
Any other factor

Misdemeanors - $1,000
Felony involving property crime - $10,000
Felony against a person - $50,000
Homicide - $100,000

Bond: 8th amendment – excessive bail shall not be required but does not guarantee bail.

TN Constitution Article 1, Section 16

That excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.

In TN everyone is entitled to bond unless they are going to be tried for death penalty.
TN Constitution Article 1, Section 15
That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when
the proof is evident, or the presumption great. And the privilege of the writ of Habeas
Corpus shall not be suspended, unless when in case of rebellion or invasion, the General
Assembly shall declare the public safety requires it.

Not every 1st degree murder is a capital offense. If state is considering death penalty, no
bond.
Bond is set at initial appearance.
Bond is reviewed by general sessions judge normally at preliminary hearing.
Bond can be reviewed after you are bound over; criminal court judge
Bond can be reviewed by Court of Criminal Appeals – if you challenge it. (not very often)

Reasons for setting bond high:

1. to assure the defendant returns for court appearances
2. prevent tampering or destruction of evidence, witnesses; insure integrity of future trial
3. protect society from violence/criminal behavior
Reason why a person should be released:
1. presumed innocent

Complications due to defendant in custody pending trial:

1. lose his job; loses home; becomes homeless
2. cannot participate in defense/investigation; location of witnesses;
3. more likely to be convicted (statistics show)

US v Jessup:
1. Whether the drug offender/flight presumption represents a reasonable congressional
response to a problem of legitimate legislative concern. Holding: Congress has done
research to determine the significant risk of flight inherent to drug offenders. We conclude
that the government’s interest in the presumption is a strong and legitimate one.

2. Whether the drug offender/flight presumption increases the risk of an erroneous

deprivation of liberty. Holding: The presumption does not significantly increase the risk of
an erroneous deprivation of liberty. The presumption applies only where there is probable
cause to believe that a person is guilty of a serious crime.
The basic purpose of the Bail Reform Act of 1984 is to detain those who present serious
risk of flight or danger but not to detain those who simply cannot afford a bail bond.
1. Rebuttable presumption shifts to defendant burden of production – not burden of
persuasion.
a. Burden of production – defendant would only have to introduce a certain
amount of evidence contrary to the presumed fact.
b. Burden of persuasion – defendant would have to prove he would not flee.

US v Miller:
Whether the district court erred in denying defendants’ motion for bail.
The Federal Bail Reform Act of 1984 states that a person who has been found guilty and
sentenced to a term of imprisonment and who has filed an appeal should be detained,
UNLESS the judge finds:
1) that the defendant is not likely to flee or pose a danger to the safety of any person
or the community if released AND
2) that the appeal is not for the purpose of delay, AND
3) that the appeal raises a substantial question of law or fact, AND
4) that if the substantial question is determined favorably to defendant on appeal, that
decision is likely to result in reversal or an order for a new trial of all counts on
which imprisonment has been imposed.

US v Salerno:
At the arraignment, the Government moved to have Salerno and Cafaro detained pursuant to the Bail
Reform Act of 1984 section 3142(e) on the ground that no condition of release would assure the safety
of the community of any person. There was a hearing and the Government provided evidence that they
were the “boss” and “captain” of the Genovese family, a crime family. The Court finds that the
detention imposed by the Bail Reform Act is regulatory, not punishment. Preventing danger to the
community is a legitimate regulatory goal. In addition, the Act limits the circumstances under which the
detention may be sought to the most serious crimes and the detainees must be housed in a facility
separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody
pending appeal. The Court concludes that the detention is regulatory and does not constitute
punishment before trial in violation of the Due Process Clause. The Government’s interest in
community safety can, in appropriate circumstances, outweigh an individual’s liberty interest
Preliminary Hearing

Tenn. R. Crim Rule 5.1

(a) Probable Cause Finding. If from the evidence it appears that an offense has been committed and that there is
probable cause to believe that the defendant committed it, the magistrate shall forthwith bind the defendant over to the
grand jury and either release the defendant pursuant to applicable law or commit the defendant to jail by a written order.
The finding that an offense has been committed and that there is probable cause to believe that the defendant
committed it shall be based upon evidence which may not be inadmissible hearsay except documentary proof of
ownership and written reports of expert witnesses. The defendant may cross-examine witnesses against him or her and
may introduce evidence. Rules excluding evidence from consideration by the magistrate on the ground that it was
acquired by unlawful means are applicable. The evidence of the witnesses is not required to be reduced to writing by
the magistrate, or under the magistrate's direction, and signed by the respective witnesses; but the proceedings shall
be preserved by electronic recording or its equivalent and when the defendant is subsequently indicted such recording
shall be made available for listening to by the defendant or defendant's counsel to the end that they may be apprised of
the evidence introduced upon the preliminary examination.
(b) Discharge of Defendant. If it does not appear from the evidence that an offense has been committed and that
there is probable cause for believing the defendant committed it, the magistrate shall discharge the defendant. The
discharge of the defendant shall not preclude the State from instituting a subsequent prosecution for the same offense.
(c) Records. After concluding the proceeding the magistrate shall transmit forthwith to the clerk of the criminal court all
papers and records in the proceedings in those cases wherein probable cause is found. Where probable cause is not
found, the records and papers will be returned to the clerk of the general sessions court.

Adversary proceeding before the judge. The purpose is to determine whether there is probable cause
to believe that a crime was committed and that the accused committed it. In some jurisdictions, a less
restrictive set of evidence principles are applicable rather than the formal rules of evidence. Since the
preliminary hearing is in a court with no record, the prosecutor can get the matter bound over to the
Grand Jury for a probable cause determination even if the judge dismisses for lack of probable cause.

4th amendment – probable cause determination; basis for requirement of probable cause
hearing. Finding of probable cause may be based on hearsay; must be factual basis for
information furnished.

Must be within 10 days if defendant is in jail; supposed to be within 30 days if defendant is out on bond
– NEVER HAPPENS; defendant waives this.

Preliminary hearings are for those arrested on a warrant, summons or citation.

The preliminary hearing (examination) is a right given the defendant (Tenn. R. Crim. P. Rule 5, 5.1).
The formal, traditional function of the preliminary hearing is to ensure the State has at least sufficient
proof to demonstrate that “probable cause” exists to believe that a crime has been committed and that
the accused committed the crime. There is no degree of evidence necessary to establish probable
cause at a preliminary hearing but probable cause for an arrest exists where the officers had facts and
circumstances within their knowledge and of which they had reasonably trustworthy information, which
was sufficient to warrant a prudent man in believing that the arrestee had committed an offense.
If the State meets its probable cause burden of proof, the case will be bound over to the grand
jury. If not, the case will be dismissed but can still be pursued through the grand jury. If the charges
were dismissed at the preliminary hearing but reinstated by indictment, the defendant may not have the
right to another preliminary hearing.
The preliminary hearing is a “critical stage” of the proceedings, meaning that there is a right to
counsel. A practical purpose of the preliminary hearing is to make three determinations.
1) Whether the State has proven an offense has probably been committed
2) Whether there is reasonable ground to believe that the defendant is probably guilty of its
commission
3) Whether the bail bond should be modified or changed prior to trial.
 The rules of evidence do apply, but defense counsel may not wish to use all technical objections
available in order to make better use of the discovery available at this stage of the proceedings. If
counsel objects to evidence, they should keep in mind that Tenn. R. Crim. P. 5.1 requires probable
cause to be based upon evidence which may not be inadmissible hearsay except (1) documentary
proof of ownership and (2) written reports of expert witnesses. The court’s ruling does not bar the State
from submitting suppressed evidence to the grand jury when it seeks an indictment for the same
offense. The ruling of the general sessions court is not binding upon the criminal or circuit court if the
grand jury returns an indictment or presentment against the accused. The criminal or circuit court must
decide the admissibility of the evidence anew.
The preliminary hearing is required to be recorded (taped). If defense counsel calls witnesses, the
State will have the opportunity to cross examine the witness and have recorded testimony for use at
trial. Failure to tape or preserve the tape will cause the prelim to be heard again.

The preliminary hearing also serves to:

1) screen out weak cases
i. protect individual from overzealous, careless, unethical prosecutors who misuse
their broad authority and institute baseless criminal charges
2) discover information about the other side’s case
i. crime victims and investigating police officers may refuse to talk to defendant’s
counsel about the crime; but counsel CAN question/cross-examine them at prelim IF they testify.
ii. discovery is extremely limited about what you will learn.
3) preserve testimony for use at trial
i. if witness doesn’t testify at prelim and dies before trial – prosecution may be
barred from using witness’ statements as evidence at trial.
ii. witnesses have not been coached so you may get the best information from them
then.
4) test or prepare witnesses
i. assess whether a particular witness comes across as well or poorly
1. do they sound credible? This can affect plea negotiations, sentencing;
lets you know how much preparation you will have to do with that witness.
5) facilitate later impeachment
i. less prepared witnesses may make contradictory statements which defendant
can get impeached.
6) solidify identification
i. used by prosecution to solidify a witness’s ID of the accused
ii. defendant can waive his right to appear (so he cant be ID’d in court)
1. ask for a photo-array or physical line-up
7) send message to witness
i. communicate/cross-examine
8) reality therapy for the defendant
i. may realize how weak or strong the case is
9) affect plea bargaining
i. may lead defendant to see plea bargaining as more appealing
10) affect the bail decision
i. initial bail decisions may have been made on little info and can always be
reopened by either defense or prosecution on basis of new data

Defendant is entitled to counsel (this is a critical stage) at the preliminary hearing.

Attorney is valuable at prelim because the real purpose of a prelim is DISCOVERY.
Rules of evidence do apply to a prelim; Rule 615 allows either party to exclude potential witnesses from
a hearing until it is there turn to testify. IF you ask for the rule, it applies to ALL witnesses.

Mental health:
A defendant must be competent to go through the proceedings or sanity/insanity at the time of the
crime.
Finding probable cause is not permitted based on hearsay: EXCEPTIONS:
• Documentary proof of ownership
• Written report of an expert

If Evidence is suppressed, no probable cause, case dismissed.

Probable cause – low level of proof. Judge does not have to find probable cause for the charge listed;
can find for lower charge (cannot find for a higher charge).

Alibi defense – at least 10 days prior to trial, must give written notice to the State where defendant was
and the list of witnesses that will be called for his defense.

You can put the defendant on the stand to answer some questions such as where he lives, works, etc.
– this is for the bond part of the hearing.

Judge sets case for preliminary hearing; judge must inform defendant of:
• Charges and contents in the affidavit of complaint
• Right to counsel
• Right to appointed counsel if indigent
• Right to remain silent
• Any statement given voluntarily could be used against defendant.
• General circumstances under which they can obtain bond
• Right to a preliminary hearing.

Preliminary hearing; another probable cause determination

If defendant in custody and not made bond – must be within 10 days; if state cannot go through with
prosecution in 10 days, the case is dismissed.
If defendant makes bond – the preliminary hearing is supposed to be within 30 days; routinely
waived. No reason to hurry the case if defendant is out on bond.

Coleman v Alabama: whether Petitioners were unconstitutionally denied assistance of counsel,

since they were not provided counsel at the preliminary hearing prior to their indictment, which was a
“critical stage” of the prosecution. The inability of the indigent accused on his own to realize these
advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is
a “critical stage”.

The functions of counsel are to:

1. expose weaknesses in the prosecution’s evidence so the case can be
dismissed;
2. preserve helpful testimony and fashion impeachment evidence for use at
trial;
3. discover the prosecution’s case to assist in trial preparation; and
4. make arguments on such matters as bail and the need for psychiatric
evaluation.
People v Ayala: whether evidence was sufficient to establish probable cause (in this
case, dismissal for lack of probable cause). Prosecution claims that b/c ownership of car
was transferred w/o title, it may be inferred that Ayala must have known the vehicle was
stolen. Although Colorado requires seller of car to transfer title…failure to deliver a title
does not prevent acquisition of ownership rights. “There must be evidence sufficient to
induce a person of ordinary prudence and caution conscientiously to entertain a
reasonable belief that the D committed the crime charged.”
Joinder and Severance

Tenn. R. Crim Rule 8.

(a) Mandatory Joinder of Offenses. Two or more offenses shall be joined in the same
indictment, presentment, or information, with each offense stated in a separate count, or
consolidated pursuant to Rule 13 if the offenses are based upon the same conduct or arise from
the same criminal episode and if such offenses are known to the appropriate prosecuting official
at the time of the return of the indictment(s), presentment(s), or information(s) and if they are
within the jurisdiction of a single court. A defendant shall not be subject to separate trials for
multiple offenses falling within this subsection unless they are severed pursuant to Rule 14.
(b) Permissive Joinder of Offenses. Two or more offenses may be joined in the same
indictment, presentment, or information, with each offense stated in a separate count, or
consolidated pursuant to Rule 13 if the offenses constitute parts of a common scheme or plan or if
they are of the same or similar character.
(c) Joinder of Defendants. Two or more defendants may be joined in the same indictment,
presentment, or information:
(1) if each of the defendants is charged with accountability for each offense included; or
(2) if each of the defendants is charged with conspiracy, and some of the defendants are also
charged with one or more offenses alleged to be in furtherance of the conspiracy; or
(3) even if conspiracy is not charged and all of the defendants are not charged in each count if the
several offenses charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time, place, and occasion that it would be difficult to
separate proof of one charge from proof of the others.

Tenn. R Crim Rule 13

Consolidation. The court may order consolidation of two or more indictments, presentments, or
informations for trial if the offenses and all defendants could have been joined in a single
indictment, presentment, or information pursuant to Rule 8.
Severance. The court may order a severance of offenses or defendants before trial if a severance
could be obtained on motion of a defendant or of the State pursuant to Rule 14.

Tenn. R Crim Rule 14

(a) Timeliness of Motion; Waiver; Double Jeopardy. A defendant's motion for severance of
offenses or defendants must be made before trial, except that a motion for severance may be
made before or at the close of all evidence if based upon a ground not previously known.
Severance is waived if the motion is not made at the appropriate time. A Motion by the State for
severance of counts or defendants may be granted only prior to trial, except by consent of the
defendant. If a motion for severance is granted during the trial and if the motion was made or
consented to by the defendant, the granting of the motion shall not bar a subsequent trial of that
defendant on the offenses severed.
(b) Severance of Offenses.
(1) If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the
defendant shall have a right to a severance of the offenses unless the offenses are part of a
common scheme or plan and the evidence of one would be admissible upon the trial of the others.
(2) If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(a), the
court shall grant a severance of offenses in any of the following conditions:
(i) if before trial on motion of the State or the defendant it is deemed appropriate to promote a fair
determination of the defendant's guilt or innocence of each offense.
(ii) if during trial with consent of the defendant it is deemed necessary to achieve a fair
determination of the defendant's guilt or innocence of each offense. The court shall consider
whether, in light of the number of offenses charged and the complexity of the evidence to be
offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to
each offense.
(iii) if the Court finds merit in both a motion by the district attorney general for a continuance
based upon exigent circumstances that temporarily prevent the State from being ready for trial of
the joined prosecutions and an objection by the defendant to the continuance based on a demand
for speedy trial. If the Court grants a severance under this subdivision, it shall also grant a
continuance of the prosecutions wherein the exigent circumstances exist.

(c) Severance of Defendants.

(1) If a defendant moves for a severance because an out-of-court statement of a codefendant
makes reference to the defendant but is not admissible against the defendant, the court shall
determine whether the State intends to offer the statement in evidence at trial. If so, the court shall
require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence or at which, if admitted, the
statement would not constitute error; or
(ii) a joint trial at which the statement is admitted into evidence only after all references to the
moving defendant have been deleted, if, as deleted, the confession will not prejudice the moving
defendant; or
(iii) severance of the moving defendant.
(2) The court, on motion of the State or on motion of the defendant other than under subdivision
(c)(1), shall grant a severance of defendants if:
(i) before trial, it is deemed necessary to protect a defendant's right to a speedy trial or it is
deemed appropriate to promote a fair determination of the guilt or innocence of one or more
defendants; or
(ii) during trial, with consent of the defendant to be severed, it is deemed necessary to achieve a
fair determination of the guilt or innocence of one or more defendants.
(d) Failure to Prove Grounds for Joinder of Defendants. If a defendant moves for severance at
the conclusion of the State's case or at the conclusion of all the evidence, and if there is not
sufficient evidence to support the allegation upon which the moving defendant was joined for trial
with the other defendant or defendants, and if, in view of this lack of evidence, severance is
deemed necessary to achieve a fair determination of the moving defendant's guilt or innocence,
the court shall grant a severance.

Joinder: process of joining two people or crimes together into one indictment at trial.
• May be efficient but does not necessarily ensure a fair trial.
• Defendant may be prejudiced:
may be become embarrassed or confounded in presenting separate defenses;
jury may use the evidence of one of the crimes charged to infer a criminal
disposition on the part of the defendant from which is found his guilt of the
other crime/crimes charged;
jury may cumulate the evidence of the various crimes charged and find guilt
when, if considered separately, it would not so find.
• Generally increase the chance of a conviction.

Severance: process of undoing a joinder (crimes/people would be tried separately).

• May permit the defendant to testify in one trial and remain silent in the other.
• May induce prosecutor to negotiate a better deal for defendants in plea
bargaining); avoids the time and cost of two trials.
• Severance motions may provide discovery.
Rule 8 – details when offenses and offenders may be joined in an indictment or
information.

Rule 13 – indicates that crimes or defendants may be tried together IF under Rule 8, they
could have been indicted together.

Rule 14 – gives trial court discretion to grant a severance if joinder would cause prejudice.

Joinder of Offenses
Is possible if EITHER of the following is satisfied:
1. Rule 8(a) permits joinder if the crimes are of the same or similar character. OR
2. Joinder of offenses is possible if the crimes either were based on the same
act/transaction or were based on more than one act/transaction that were
connected together or constituted parts of a common scheme or plan.

US v Terry: joinder of drug charges with firearms charge. Violation of Rule 8 requires
reversal only if the misjoinder results in actual prejudice because it had substantial and
injurious effect or influence in determining the jury’s verdict.

Joinder of Defendants
1. Is permissible only if they participated in the same act or transaction, or series
of acts or transactions constituting the crime(s).
2. Must be some connection between the offenders.

US v Satterfield: joinder of co-defendants on robbery charges. Five bank robberies were

charged in indictment; Satterfield was involved in only 2 of them. Whether or not multiple
offenses joined in an indictment constitutes a series of acts or transactions within meaning
of rule relating to joinder of charges against multiple defendants turns on the degree to
which the acts or transactions are related; relation is most often established by showing
that substantially the same facts must be adduced to prove each of the joined offenses.
Mere showing that events occurred at or about the same time or that the acts violated the
same statutes is not sufficient to show that the acts constitute a series of transaction within
meaning of rule permitting joinder of multiple defendants.

Discretionary Relief from Joinder: Severance

Three sources of prejudice are possible that may justify the granting of a severance under
Rule 14 as to JOINDER OF OFFENSES:
1. the jury may confuse and cumulate the evidence and convict the defendant of one
or both crimes when it would not convict him of either if it could keep the evidence
properly segregated.
2. the defendant may be confounded in presenting defenses as where he desires to
assert his privilege against self-incrimination with respect to one crime but not the
other; or
3. the jury may conclude that the defendant is guilty of one crime and then find him
guilty of the other because of his criminal disposition .

Sources of prejudice possible that may justify the granting of a severance under Rule 14
as to JOINDER OF OFFENDERS:
1. where one defendant makes an inculpatory statement inadmissible against his co-
defendant;
 2. where the defendants present conflicting and irreconcilable defenses and there is a
danger that the jury will unjustifiably infer that this conflict alone demonstrates that
both are guilty; and
3. where only one defendant testifies and urges the jury to draw an adverse inference
from his co-defendant’s silence.

Person requesting severance under Rule 14 has burden of proof.

Remedies during a trial:

1. grant a mistrial and schedule proceedings at a later date;
2. require the prosecution to elect which charge(s) or defendant(s) to try at this time
(severance would then be granted for remaining defendant(s) or charge(s).

Examples supporting a severance:

1. mutually antagonistic defenses by two defendants such that acceptance of one
defendant’s defense would preclude acquittal of the other defendant;
2. two robberies joined in one trial when the proof of one of the crimes was very
weak;
3. use of one codefendant’s confession implicating another codefendant;
4. exceptionally complex and lengthy evidence involving multiple defendants where a
jury could not reasonably be expected to separate the evidence.

Zafiro v United States: 4 defendants convicted of federal drug charges were tried
together; all 4 moved for severance.

Severance might be appropriate because of a Bruton problem. (confrontation clause of the

6th amendment). A person requesting severance has the burden of proof.

Bruton Error: type of error arising in a joint trial by admission of a confession of a co-
defendant implicating the defendant where the co-defendant did not testify and the
defendant maintained his innocence. Bruton problem: no opportunity to cross examine.

Solutions to Bruton problem:

1. sever
2. redact (edit to remove any reference of other defendant)
3. omit confession from evidence

Motion for severance must be made before trial unless basis for motion is not known until
after trial starts. The defendant has a right to severance unless the offenses are a part of a
common scheme or plan and the evidence of one would be admissible at the trial of the
others. The court shall grant a severance of offenses if:
1) If motion is made before trial and it is deemed appropriate to promote a fair
determination of the defendant’s guilt or innocence of each offense.
2) If during trial it is deemed necessary to achieve a fair determination of the
defendant’s guilt or innocence of each offense.
3) If the State is granted a continuance and the defendant demands a speedy trial.

If one defendant moves for a severance because of an out-of-court statement of a

codefendant makes reference to the defendant but is not admissible against the
defendant, and the State intends to offer the statement in evidence at trial, the court shall
require the D.A. to elect one of the following courses: (Bruton problem):
 1) A joint trial at which the statement is not admitted into evidence or if admitted the
statement would not constitute error or
2) A joint trial at which the statement is admitted into evidence after all references
to the moving have been deleted and the confession will not prejudice the moving
defendant or
3) Severance of the moving defendant.

The court shall grant severance of defendants if:

1) Before trial, if it is deemed necessary to protect a defendant’s right to a speedy
trial or it is deemed appropriate to promote a fair determination of the guilt or innocence of
one or more defendants, or
2) During trial, it is deemed necessary to achieve a fair determination of the guilt or
innocence of one or more defendants.

Does not bar double jeopardy.

Failure to prove grounds for joinder is also a reason to sever.

Whether offenses should be severed:

Common plan or scheme:
1. distinct design or signature crime
a. establishes identity of guilty party
2. continuing plan or conspiracy
a. common goal or purpose at which the crimes are directed
b. state has to show proof of a working plan operating toward the future
3. same transaction; requires state to show that the crimes occurred during a single
criminal episode
a. stole car to go to liquor store to rob the store owner to buy the crack
b. understand the full story

3-part test for state to meet:

1. that there is a common scheme or plan (of one of the above)
2. would evidence of one be admissable at the trial of the other if they were severed
3. whether the value of the evidence outweighs it prejudicial effect.
a. Is it more relevant than prejudicial?
Motions

Motion: formal request for a judge to issue an order.

• can be oral or written.
• help the parties to define/narrow the issues.
• help in the plea bargaining process.

Types of motions:
• Motions seeking dismissal
• Motions affecting evidence
• Motions affecting pretrial proceedings
• Motions affecting trial structure
• Motions involving defendant’s activities
• Motions to assist in gathering evidence
• Motions incorporating other motions

Motion in Limine: things you want the judge to rule on before trial. The danger of a motion
in limine is that once you have made a motion in limine that acts as an objection (motion to
suppress) and the judge has ruled to admit it, you don’t have to object again during the
trial. However, if the judge’s ruling isn’t clear, you must object again.

Motion for New Trial: (must be made within 30 days of sentencing). If the motion for new
trial is not filed timely, the appeal will be waived. The defendant can waive the right to an
appeal in writing. An appeal can be timely filed and then amended later. The motion for
new trial must include all grounds, which you feel should be overturned. After the motion
for new trial is denied, you can file a Notice of Appeal. The defendant can get an appeal
bond unless convicted of a violent crime. In the federal system, the notice of Appeal must
be made within 10 days.

Motions serve to:

1) obtain specific results: to get a court ruling on the issue raised in the motion; admit or exclude
evidence
2) prerequisite to raising certain issues: failure to file may preclude the party from obtaining a
court order that would have been given had the correct motion been filed.
3) preserve issue for appeal: cannot appeal issues that were not raised at trial.
4) counter claim of inadvertent mistake:
5) provide discovery: limited in criminal cases; If there is a hearing on the motion,
counsel may learn something about other side’s evidence.
6) assist in trial strategy:
7) affect plea bargaining: may encourage negotiations by creating or exposing weaknesses in
the prosecution’s case.
8) educate the participants: educates the judge about the case
9) protect the attorney from malpractice action; A motion has created a
documented record of efforts to represent the accused competently.
10) gain time to further prepare case:

Ethics of Motion Practice:

(1) Don’t file frivolous motions
(2) Don’t file motions for the purpose of delay (except motion for continuance)
(3) Failure to file appropriate motions can constitute ineffective assistance of counsel in
violation of the 6th amendment

Supporting Documents.
• Affidavit – sworn statement. NO CROSS EXAMINATION. Provides facts or opinions
helpful or necessary in resulting the motion. An affidavit may be made by a party or
anyone else, including an expert or even a atty. The only limit is that the affiant
(person whose statement is in the affidavit) must be competent to testify as a witness.
Affidavit is signed by the person providing the information and usually is also signed
by a notary.
• Supporting memoranda and briefs.
• Proposed order. Draft of a court order that implements the motion. The trial judge
may sign the draft order if the motion is granted. Many courts prefer that the draft
order be signed by all lawyers in the case.

Rule 12.1 notice of alibi: written notice when using defense of alibi must say where you
were, who witnesses are, and how DA can reach those witnesses. DA has to provide
written notice of rebuttal witnesses. If either of these is not submitted, then can’t use alibi.
Withdrawn notice of alibi cannot be used in any civil or criminal proceeding.

Rule 12.2 notice of intent to use mental disease or defect defense-if you’re going to offer
expert testimony, then need to file written notice. DA then has opportunity to submit D to
their own expert. What D says to their expert is not admissible except for impeachment.

12.3 notice of intent to seek an enhanced sentence. DA has to file 10 days before trial. If
they don’t more than 10 days before, D can ask for continuance.

Federal Rules of Criminal Proc. (Rule 74):

• This rule requires that motions be in writing unless made during a trial or hearing, or
the court excuses the request for written motion. Rule 12 says pretrial motions may be
written or oral @ discretion of judge.
• Written provides formal record. Oral permits counsel to respond and react quickly.
• Content: Local rules and custom determine the acceptable content. Should contain a
clear statement of what is requested and why. Usually contain:
• Court where filed
• Style of case (names of parties)
• Case #
• Title that summarizes content of motion.
• Statement of relief requested and party requesting it.
• Statement of underlying facts.
• Statements of reasons why entitled to relief
• Confession barred b/c in violation of 4th amdt’s self-incrimination,
14th’s due process clause, and 6th’s rt. to counsel.
• Concluding paragraph.
• Signed by lawyer offering motion
• Indication of service on opposing party.
Ruling by court; counsel submitting a motion must ensure that a decision is made if
counsel wants to preserve the issue for appellate review. Try to get judge to indicate
why motion was granted or denied.

Burden of proof; movant typically has burden of establishing the merits of the motion.

Perron v Perron Whether assistance of counsel was in actuality so defective as to

warrant reversal. Attorney for defendant filed a motion in limine but court did not rule
on it. Court held that although the defense counsel should have demanded a ruling on
the motion, the failure to do so was of little significance since the court would have
denied it anyway.

Two-pronged test to address issue of ineffective counsel:

1. the defendant must prove that counsel’s performance was deficient; and
2. that the deficient performance prejudiced the defense thus depriving him of a fair
trial.
 Jurisdiction and Venue

Jurisdiction: the courts power or authority to resolve a case or issue.

• Exclusive jurisdiction —the only court authorized to handle a case (military
courts – court martials)
• Concurrent jurisdiction—two courts each have authority to resolve case.
Sometimes, a case begun in 1 ct. can be transferred to other court with concurrent
jurisdiction.

Jurisdiction is either by:

1. statute, court rule or constitution
2. geographic

Venue: physical location where case may be heard

• Rules in criminal cases are the product of a statutes, rules and const. provisions.
Improper venue may be challenged in a motion to dismiss an indictment or to acquit.
Venue in a federal ct. is based on the fed. judicial district, while venue in state court is
based on a county or judicial district.
• Venue principles are actually est. by laws that limit the location of jury trials.
• Article III § 2 of Const: Trial shall be held in the state where the crimes have been
committed. When not committed within any state, trial shall be at such Place as
Congress directs.
• 6th amendment: Right to a trial by impartial jury & venue in the state where the crime
was committed. Tenn Const. Article 1, Section 9
• Only court & defense can change venue; prosecution cannot.
• Venue is moved to nearest county that is not affected by trial/crime.
• Change of venue motion must be made as soon as it is known.

MOTION FOR CHANGE OF VENUE MUST BE ACCOMPANIED BY AN AFFIDAVIT.

Criminal Acts or results in multiple counties, districts, or states

• By statute or court rule, states have established several general principles about
venue when acts occur in more than one county or judicial district.
• Separate sovereign rule in double jeopardy - two states can convict an offender for a
crime committed in both states.
• Venue is appropriate in any of the counties where an act or effect occurred., under the
most prevalent venue laws.
• Prosecutor can decide venue where it is impossible to determine where the crime
occurred. Defendant can file a motion for change of venue if dissatisfied.

Continuing crimes = ongoing until something happens to end them, e.g. conspiracy,
which may involve many conspirators performing acts helpful to the conspiracy in
many juris. Venue can be in any district or county where act occurred that was part of
the crime.

Outside any county, distr., or state. Article III, § 2 says that a federal crime committed
in no state shall be tried at such place or places as the Congress may be Law have
directed.
Removal to Federal Court: On rare occasions, state criminal proceedings may be
removed to federal court; because of federalism concerns, such removals are rare and
federal courts are hesitant to order them.

Travis v U.S. Whether an offense against the US which is begun in one district and
completed in another, can be inquired of and prosecuted in ay district in which such
offense was begun or completed. Defendant executed false affidavit documents in
Colorado and filed them (by mailing them) in Washington DC. Court held that venue
lay in DC: when a place is explicitly designated where a paper must be filed,
prosecution for failure to file lies only at that place.

U.S. v Williams Crime involving more than one jurisdiction and a criminal statue
where venue is unclear.
Substantial contacts test:
1. site of defendants act
2. elements and nature of crime
3. locus of the effect of the criminal conduct
4. suitability of each district for accurate fact finding.

Grounds for transfer of venue:

1. Transfer of plea or sentence; defendant is going to plead guilty & receive
probation; easier to work with probation dept where he lives & works.
2. Transfer of trial;
a. Because of hostile publicity; accused has a right to a fair trial by an
impartial jury
i. Other ways to deal with adverse publicity – postpone trial
b. For convenience or in the interests of justice.
3. Transfer of jury; select a “foreign” jury from another area and transport the jurors to
the original venue of the offense.

Platt v Minnesota Mining & Manufacturing Co.

Transfer of venue; factor of fair and impartial trial as the most important item was not
appropriate; in addition to the essential elements of convenience, expense and early
trial, constituting “interest of justice” in a civil case, a criminal case was impressed with
the fundamental historical right of a defendant to be prosecuted in its own environment
or district
 Discovery

Formal discovery: codified in jurisdiction’s statutes or rules involving written motions &
responses.

Informal discovery: sharing of information without resorting to the formal processes;

ie. Open file practice which allows defense counsel access to all or most of the
information available to the prosecutor

Governed by three sources of rules:

1. US Constitution mandates certain disclosure
2. Formal discovery gives each side the right to obtain certain information from the
other side re physical evidence, expert testimony, prior statements of witnesses;
can also include disclosure of names of witnesses to be used at trial; advance
notice of certain proof or theories to be used at trial.
3. Trial court’s inherent authority to issue orders requiring disclosure of certain
information such as names and addresses of witnesses who will be called to testify
at trial.

DISCOVERY BY THE DEFENDANT:

DISCOVERY- Rule 15 of Tenn. R. Crim. P. The defendant is limited in what he can get under Rule 15.
A civil defendant can get anything.

Constitutional issues re discovery & disclosure: The Brady Rule

The Brady rule is based on the requirement of due process. Its purpose is not to
displace the adversary system as the primary means by which truth is uncovered, but
to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not
required to deliver his entire file to defense counsel, but only to disclose evidence
favorable to the accused that, if suppressed, would deprive the defendant of a fair trial

Brady v Maryland 5th amendment due process issue

Nondisclosure by a prosecutor violates due process. Suppression of evidence
favorable to the accused violates due process where the evidence is material to either
guilt or punishment.

US v Bagley
Reasonable probability test: favorable evidence is material if there is a reasonable
probability that had the evidence been disclosed to the defense, the result of the
proceeding would have been different. Must turn over all evidence - - even if it is false
(question for jury to decide).
Applies to appeals in cases where the defense made a specific request for materials.

Giglio v US – state failed to disclose impeachment evidence – a promise made to a key

state witnesses that he would not be prosecuted if he testified for the state.
Giglio motion – reveal the deal motion.

Jencks Rule (Rule 26.2 Motion for Production of Statements of Witnesses): Once a
witness has testified on direct examination, the other side has a right to move for their
Jencks statements; the prior written statements that bear on the subject matter of their
testimony (parts can be edited that have no bearing on the matter).
Failure to produce Jencks statements; strike the testimony or (if it is the state) declare a
mistrial.

A criminal defendant in a Federal Court is entitled to access to government documents for

assistance in cross-examination of witnesses in order to impeach for prior inconsistent
statements. This rule does not apply in General Sessions.

Some, but not all rules of criminal procedure do not apply to General Sessions.
All rules of evidence apply to General Sessions.
An appeal from General Sessions is de novo. A defendant can’t appeal a guilty plea but
can appeal a sentence.

DISCOVERY BY THE GOVERNMENT

Williams v Florida
Privilege against self-incrimination is not violated by a requirement that the defendant give
notice of an alibi defense and disclose his alibi witnesses.
United States v Nobles
Work product doctrine protects material prepared by agents for the attorney as well as
those prepared by attorney himself (this privilege was waived by defense
counsel when they elected to present the investigator as a witness).
5th Amendment privilege against compulsory self-incrimination is personal to the defendant
and does not extend to the testimony or statements of 3rd parties called as
witnesses at trial; does not extend to information that may incriminate him.

Arizona v Youngblood
Issue: whether the due process clause requires the state to preserve evidentiary material
that might be useful to a criminal defendant. Failure of police to preserve
potentially useful evidence was not denial of due process of law – absent
defendant’s showing bad faith on part of police. File a motion to preserve the
evidence.

United States v Esquivel

Government was entitled to admit statements and testimony of a deceased witness.
Whether state must provide witness list in discovery in criminal case is matter
falling within the court’s sound discretion; some factors for consideration are
needs of defense in preparation for trial; possible intimidation of witnesses;
intrinsic reasonableness of request.

United States v Carrigan

Writ of mandamus is used in exceptional circumstances only and the petitioner must show
a clear and indisputable right to relief. Witnesses in a criminal proceeding
belong to no one, and subject to the witnesses right to refuse to be interviewed,
both sides have the right to interview witnesses before trial.

Rule 12.1 Notice of Alibi; upon written demand of the state, the defendant must supply a
written notice of defendant’s intention to offer a defense of alibi; this is triggered
by the state; if the state does not begin the process, the defendant may offer a
full alibi defense with out providing any notice to the state.

Rule 16:
Upon written request of defendant, the government must disclose to the defendant and
make available for inspection, copying or photographing:
1. any relevant written or recorded statements made by the defendant or copies
thereof, within the possession, custody or control of government;
2. such copy of the defendant’s prior criminal record, if any, within the possession,
custody or control of government;
3. books, papers, documents, photographs, tangible objects, buildings or places or
copies or portions thereof, within the possession, custody or control of government,
and which are material to the preparation of the defendant’s defense or are
intended for use by the government and which are material to the preparation of
the defendant’s defense or are intended for use by the government as evidence in
chief at the trial;
4. any results or reports of physical or mental examinations and of scientific tests or
experiments, within the possession, custody or control of government, and which
are material to the preparation of the defendant’s defense or are intended for use
 by the government and which are material to the preparation of the defendant’s
defense or are intended for use by the government as evidence in chief at the trial;
5. written summary of the testimony that the government intends to use under Rules
702, 703 or 705 of the Federal Rules of Evidence during is case in chief at the trial
(expert witnesses or issue of defendant’s mental health);

Not subject to disclosure: grand jury transcripts, work product; continuing duties to
disclose:
If you find something out late in the matter, you must disclose
Failure to disclose – your evidence may be not allowed; you may be prevented from
presenting your evidence.
Information or Grand Jury Indictment:
Information: a formal charge made by the prosecutor, stating that the named person is
charged with committing a specified crime.
Indictment: prepared by the prosecutor.
Grand Jury: functions as a check on prosecutorial abuse by screening cases for probable
cause. If probable cause is present, the Grand Jury will issue a true bill. If not, they will issue a no true
bill. Although the Grand Jury is usually presented with probable cause issues by the prosecutor, the
Grand Jury can initiate an investigation on its own. If they find that crimes are being committed, they
can issue a presentment. A presentment is a formal allegation that a named person or business has
committed a crime.
Information: true bill by prosecutor without affirmation by grand jury; signed by prosecutor.
Indictment: true bill by grand jury on probable cause determination brought before them by
prosecutor. Signed by prosecutor and grand jury foreperson. An indictment must charge a person with
a crime. It can name John Doe but must have a description that would allow a reasonable person to
know who is being charged. The indictment doesn’t have to allege a specific time (on or about the __
day of ___)
Presentment: true bill initiated by grand jury without the prosecutor.

The grand jury also functions to investigate possible violations of the criminal law (presentments) and to
oversee some public facilities or activities.

The grand jury foreperson has a term of 2 years from the date of appointment. He administers the
oaths to witnesses and must sign the indictments and presentments.

Duties of D.A.:
(1) the D.A. attends the grand jury proceedings for the purpose of giving legal advice when
required by the grand jury
(2) the D.A. prepared the indictments
Although the grand jury proceedings are secret, grand jury testimony may be disclosed as required by
the court to ascertain whether the testimony is consistent with that given in court or disclose the
testimony given before them by any witness charged with perjury.

Both grand juries can use subpoenas to require witnesses to testify or produce physical evidence and
both can grant immunity to a witness forcing the witness to disclose what would otherwise be withheld
as incriminating evidence.

Subject: a person whose conduct is within the scope of the grand jury’s investigation

Target: a person as to whom the prosecutor or the grand jury has substantial evidence linking him to
the commission of a crime, and who, in the judgment of the prosecutor, is a putative defendant.

Tenn. R. Crim. P., Rule 6

The State grand jury consists of 12 jurors and a grand jury foreperson. The grand jury has the duty to :
(1) inquire into, consider, and act upon all criminal cases submitted to it by the D.A. and
(2) inquire into any report of a criminal offense brought to its attention by a member of the grand jury
and
(3) inquire into the conditions and management of prisons and other county buildings and institutions,
and
(4) inquire into the condition of the county treasury and
(5) inquire into the correctness and sufficiency of the bonds of county officers, and
(6) inquire into any abuse of office by state or local officers, and
 (7) report the results of its actions to the court.
STATE GRAND JURY
12 jurors + jury foreperson (13)
jury instructed by judge
required to return reports
Not usually recorded
No one allowed in during deliberations
No definite term
Foreman is appointed by the judge and serves a
term of two years but can be almost permanent
12 votes required for true bill.
All must sign a presentment
Foreman can sign presentment w/o prosecutor
Must include statement that the offense was
“in violation of T.C.A.§_______ and
against the peace and dignity of the State of
Tennessee.
No extraterritorial authority
Normally no stenographer
Normally no lawyer present
FEDERAL GRAND JURY
23 jurors (including foreperson)
jury instructed by judge
cannot return reports
always recorded except during deliberations
No one allowed in during deliberations
18 month term
foreman picked from among jury pool
16 votes required for true bill
unlimited jurisdiction
stenographer always present
government lawyer always present
prosecutor must sign indictment
Arraignment: (defendant enters a plea) brief hearing before the judge and with counsel present. The
defendant is informed of the charges and be given a chance to plead. If the defendant pleads guilty, he
may be sentenced at that time. If he pleads not guilty, a date will be set for trial. The defendant can
also “stand mute.” The judge will take this as a not guilty plea and set the matter for trial.

Pretrial conference: Conference to clarify the issues and resolve procedural matters. The defendant
doesn’t have to be present but he must be represented by counsel.

Trial:
Motions
Discovery
Voire Dire
Jury Selection
Objections to jurors for cause have to have factual and legal grounds for the challenge.
To preserve the record, you have to use all of your peremptory challenges ( 3 in
misdemeanors, 8 for felonies, 15 for federal)
Babson Challenge- removing an African American from the jury.

Swearing in of the Jury (this is when double jeopardy attaches),

Initial Jury Instruction
Opening Statement: There is no argument yet. The opening statement is used to share
your theory of the lawsuit with the jury. The State opens because it has the burden of
proof.
Body of the Trial
Direct Examination- Prosecution’s Case (prosecution goes first because they have the
burden of proof) Questions are non leading.
Defenses Motion to Dismiss
Cross Examination -Defense’s Case
Other proof -- rebuttal and surrebuttal
Rule 29 motion for Acquittal
Closing Arguments: the State can rebut the defense’s closing arguments.
Jury Instructions or Charge to Jury: the judge explains the law to the jury.
You can request that specific instructions be given to the jury. You can also object to the
standard jury instructions.

Jury Deliberations
Jury Verdict
If guilty, sentencing date set and sentencing report made.
Sentencing Hearing
Direct Appeal: there is an automatic right of appeal. On appeal, you can only argue questions of
law. If you lose the appeal, you can appeal to the next level but they can grant or deny.
Collateral Attack, Post Conviction Relief: (allege violation of a constitutional right, writ of habeas
corpus)
Executive Clemency: an order by the jurisdiction’s highest executive officer that removes a
conviction completely (pardon) or reduces the sentence (commutation).

Time Limitations
Crime; Pre charge delay; 5th amendment right to due process
• Statute of limitations
 1st degree murder – SOL – life of the defendant
Class A felony - 15 years
Aggravated arson, aggravated rape; 2nd degree murder
Class B felony – 8 years
Class C or D felony – 4 years
Class E – 2 years
Misdemeanor – 12 months
Exceptions: hid the fact there was a crime – this time is not
included in the SOL; time period begins once it is discovered that a
crime occurred
• Assert that the due process of the 5th amendment and under
Article1 Section 8 of Tenn was violated
Delay
Delay has to intentional by government; bad faith;
Actual prejudice

Arrested or Indicted; 6th amendment to a speedy and public trial starts when you are
arrested or indicted:
• arrest warrant does not count unless it is served on defendant;
• indictment does count (even if you do not know you have been indicted)

Dismissal of charges is the only remedy to a violation of 5th amendment (due process) or
6th violation (speedy trial); dismissed – gone forever

Court adopts a 4-pronged balancing test to determine if a defendant was deprived of his
rights to a speedy trial.
1) length of delay (MOST IMPORTANT)
2) reason for the delay
a. negligence on part of government
b. government delays to obtain more evidence
c. valid reason; government is missing an important witness
3) defendant’s assertion of his right
a. if defendant does not assert his right, it weighs against him but failure to
assert the right does not waive the issue
4) prejudice to the defendant (SECOND MOST IMPORTANT)
a. witnesses die; memories fade; physical evidence is ruined, lost, etc.
b. defendant might be sitting in jail; stress; anxiety; lost of concurrent
sentences;

Barker v Wingo
Defendant spent 10 months of this 5 year delay in jail; did not assert his right until like the
12th continuance. In this case, the prejudice to the defendant was minimal and the
defendant did not assert his right until it was to his advantage, so despite the long delay (5
years) without much reason, the Supreme court held that Barker’s 6th Amendment rights
were not denied and the lower court ruling was affirmed.
Doggett v US
Doggett did not know about the indictment; took the state 8 ½ years to find him. The Court
found that the 8 ½ year lag between the indictment and arrest clearly suffices to trigger the
speedy trial inquiry. For 6 years, the government’s investigators made no serious effort to
test their assumption that Doggett was living abroad, and if they had done so, they could
have found him quickly. This was findable negligence.
The Court states that consideration of prejudice is not limited to the specifically
demonstrable and affirmative proof of particularized prejudice is not essential to every
speedy trial claim. Excessive delay presumptively compromises the reliability of a trial in
ways that neither party can prove or identify. The portion of the delay attributable to the
government’s negligence far exceeds the threshold needed to state a speedy trial claim.
Holding based strictly on the lengthy delay; Defendant is entitled to relief.

Federal Speedy Trial Act of 19_4 (only applies on federal prosecutions); sets limits on long
from indictment to trial; 70 days absent an agreement by defendant that it be extended;

Extensions of the 70 days:

Mental evaluations
Pre-trial diversion
Complex trial – not feasible to try in 70 days

Not valid: court docket is full;

When inmate is in another jail; once inmate is removed to jurisdiction that wants to try him;
180 days absent agreement for extension

Cannot try faster than 30 days from arraignment

Tennessee does not have a speedy trial act.

Smith v Hooey
Defendant was in a federal prison; indicted in a Texas court on another charge; requested
speedy trial; Texas court ignored him for like 6 years; Constitutional guarantee of right to a
speedy trial is an important safeguard to prevent undue and oppressive incarceration prior
to trial, to minimize anxiety and concern accompanying public accusations and to limit
possibilities that long delay will impair ability of an accused to defend himself. State of
Texas had obligation to make a diligent, good-faith effort to bring Smith to Texas for trial.
Texas argued re cost of transportation etc; NO price tag on constitutional rights.

US v Marion

US v Lovasco
Defendant arrested 18 months after indictment; lost 2 key witnesses in delay;
Trial

KNOW the Tenn constitution and the US constitution

TN constitution provides greater protection for individuals than does the US constitution;
include both when drafting a motion because you could lose on the US const ground and
win on the TN constitution grounds.

Right to a public trial; right of the accused

When is it appropriate to close a trial room:

1. protect safety of someone involved
2. protection of undercover officer who is testifying as a witness
3. protect defendant (hostile, divorce proceedings)
4. victims age, psychological maturity, nature of crime,

Public’s right to attend – 1st amendment; freedom of speech, freedom of press

Cameras allowed in TN courtrooms.

Right to an impartial judge – due process right of US 5th amendment; applicable to the
state in the TN 14th amendment.

Can disqualify a judge – file an affidavit;

Parties do not have an absolute right to disqualify a judge; Cannot under the state rules.

Voir dire; process by which you pick a jury.

Right to confront witnesses against them; extends to all phases of trial and pre-trial
hearings. Not an absolute right; can waive it. Waiver must be knowing, and voluntarily
and intelligent.

Rule 43 – defendant shall be present at arraignment and every stage of the trial unless the
defendant moves to be excused and the motion is granted.

1. If defendant shows up for the start of the trial and then voluntarily absents himself
for the remainder of the trial. – clear waiver of his right to be present.; trial goes on
without you. If you don’t show up – there will not be a trial.
2. If you act up during a trial – you will be removed. The defendant must be
represented by competent counsel, given a reasonable opportunity to consult with
counsel and offered to be returned if he promises to behave.

Prosecution has burden of proof; beyond a reasonable doubt; must prove all elements.
Affirmative defense of insanity; burden shifts to the defendant – by a preponderance of the
evidence that the affirmative defense exists. If defendant can prove it – the burden shifts
back to the state to disprove it.

Claim of right defense:

1. Defendant acted under an honest belief that he had a claim of right to the property;
2. Defendant acted under the honest belief that he a claim to exercise control over the
property;
3. Defendant honestly believed that the owner, if present, had consented.

Must give notice to government if you are planning an affirmative defense.

Defendants right to testify; no specific right; it is implicit in the 5th amendment due process,
6th amendment compulsory process – to force witnesses to come to court on your behalf; 6th
amendment right to self-representation;

5th amendment forbids comments by prosecution re inference on the defendant’s guilt or

innocence if he does not testify.

If defendant chooses not to testify, he has to sign a waiver acknowledging that he knows he
has the right to testify and after consulting with counsel, chooses not to. It is defendant’s
decision NOT THE LAWYER.

If defense asks for instruction – the judge must instruct the jury that they may not consider
the defendant’s silence.

Defendant’s right to compulsory process - Rule 17 of criminal procedure (fundamental to

having a fair trial) and access to evidence.

Defendant’s right to confront and cross-examine witnesses – 6th Amendment. Cross-

examination is the single most valuable tool for finding the truth.

Cross-examination in federal court is limited; not limited in state court.

Rule 611 of TN Rules of Evidence; cross-examination is relevant to any issue in the case
including the witness’ credibility.

What is meant by confrontation? Physical presence of adverse witnesses; some testimony

may be allowed from a person who is not on the witness stand; i.e., dying declaration
(witness is no longer available).

Crawford v Washington; right to confront witnesses against you; removed the excited
utterance rule (Testimony in a startling event – admissible evidence; makes a spontaneous
declaration – excited utterance rule).
Rule 18: unless a statute or other rule applies, offenses prosecuted in county where
committed. If more than one, then either. D and court can change venues. Can file motion
for change of venue and must have affidavit attached. P gets to decide venue first off,
anyway. As soon as reason is known, then make motion for change of venue (can be after
jury selection started). :

Contemporaneous objection - Rule 51 of Tenn. R. Crim. P.- if you can’t specify the ground
for the objection, it works as a waiver of the objection.
Offer of Proof: Rule 103 (b) Tenn. R. Evid.- When you have evidence you want presented but the court says
that it can’t be put on, you make a Rule 103(b) offer of proof. This is proof on the record but out of the
presence of the jury. The judge has to let you make an offer of proof.

Pretrial Diversion: Diverts the defendant out of the criminal justice system rather than going to trial. Can be
appealed to the Circuit Court from the General Sessions Court.

Appeal Bonds: T.C.A. 40-26-102 et seq. and Rule 32(d) of Tenn. R. App. P.

Trial transcript: (attorney’s responsibility)- this has to be certified by the court reporter and approved by the
judge.
Exhibits:
To be considered on appeal, exhibits must be received into evidence, marked and included in the record sent
to the court of appeals.
Omnibus Hearing: hearing automatically scheduled a number of days before each criminal
trial. The omnibus hearing tries to resolve all outstanding motions and to deal with
administrative matters that will speed up the criminal process.

There are three probable cause hearings:

1) before a magistrate or clerk
2) at the preliminary hearing
3) before the grand jury

KARL DEAN- PRESERVING THE RECORD ON APPEAL- Rule 103 Tenn. R. Evid.
The trial attorney has a right to make an argument no matter how farfetched. Rule 103 says
that you have to state the specific ground of your objection if it is not apparent from the
record. If there is no objection made at trial, it works as a waiver.

Plain error- failure to object at trial denies the defendant a fair trial. Error that is plain on its
face can be overturned on appeal.

All matters must be on the record for appeal because the court of appeals only gets a
transcript. It is the duty of the trial judge to make sure the record is complete. The
transcript should mention any documents and include a copy if possible.
Rule 37 & 38 of Tenn. R. Crim. P. deals with harmless error. You have to show that the error affected the
outcome of the trial.
Preserving evidence to prosecute case. Witness gets on stand and takes oath to tell truth
– that is evidence.

Jury Trial
1. Overview
2. Issues Tried by Jury
3. Right to a Jury Trial
Two possible sources: 6th amendment and statutes
a. Sixth Amendment
i. Petty Offenses
(a) Incarceration
--6 mo. jail sentence is short enough to be petty
(Duncan v. Taylor)
--No offense is petty where imprisonment for more
than 6 mos. is authorized…
-- some state constitutions extend the right to a jury
trial explicitly to misdemeanors
(b) Other Sanctions
-- Blanton – “petty” determined by looking at how
serious society regarded the offense – leaves open the
question of what amount of a fine is entitled to jury
trial (though not allowed at $1K in this case)

ii. Juvenile Cases

-- 6th amendment right to jury trial doesn’t apply to juveniles
convicted in juvenile court

iii. De Novo Cases

-- 2-tiered system – person charged w/misdemeanor or
certain felonies has option of first being tried at a bench trial.
If convicted, may appeal to higher court and has right to
receive a jury trial de novo. (US Sup. Ct. ruled this doesn’t
violate 6th amendment)
b. Court Rules

4. Waiver of Jury Trial

- Jury trial actually occurs in surprisingly few cases (of 9% who actually
went to trial, more than half opted for bench trial)
- Approx. half of states allow prosecutors to either directly request jury trials
or to override D’s waiver (Singer)
-- Rule 23 requires waiver to be in writing – must be “knowing, intelligent,
and voluntary” (ABA recommends getting waiver statement in open court)

5. Jury Size
a. Waiver of Full Jury
 -- accused can waive right to full jury and submit for a smaller jury, but
he’s not entitled to know the identity of sitting jurors who leave (US v.
Yonnn)
**although jury of <5 would violate Ballew, if D waives 6, and one
leaves

b. Alternate Jurors
- Every jurisdiction has mechanism for selecting jurors
- alternates hear everything jury hears, dismissed when trial jury retires
to enter verdict
FEDERAL RULES OF CRIMINAL PROCEDURE Rule 24. Trial
Jurors (c)

6. Selection of Jurors
Jury pool – produce petit jury (6-12 ppl) – Voir Dire
a. Eligibility for Jury Services
- Must be 18 yrs old, resident for at least 1 yr, can’t be related to parties
(in most jurisdictions)
- right to be tried by a jury from the district or county where crime was
committed – geographical area from which jurors are selected
- according to fed. law, can’t exclude from jury service b/c of race,
color, religion, sex, nat’l origin, or economic status.

b. Selecting the Panel

- Trial judge’s responsibility to remove prospective jurors who will not
be able to impartially follow court’s instructions…
- Lack of adequate Voir Dire impairs the D’s right to exercise
peremptory challenges
i. Voir Dire Procedures
(a) Names and Addresses of Potential Jurors
- Atty’s are given so they can prepare questions for
indiv. jurors
- no later than 3 days before trial
(b) Juror Questionnaire
- Some courts use – include demographic area,
exposure to info about crime, attitudes about events or
people
(c) Expert Consultation
- since 1970s, jury selection experts or “trial
consultants” have benen used to assist in jury
selection (see the movie “Runaway Jury”!!!!)
- They may be present at voir dire & offer assistance
to counsel about who to keep or not
(d) Interrogation of Potential Jurors: The Voir Dire
Process
 FEDERAL RULES OF CRIMINAL PROCEDURE
Rule 24. Trial Jurors (a) Examination

ii. Challenges for Cause

Challenge for Cause – claim that potential juror is
disqualified from service b/c of an inability to serve or a bias
that would prevent fairness
Peremptory challenge – decision by atty that particular juror
shouldn’t serve on jury (limited in number you can use) –
few limits on this dismissal
(a) Inability to Serve (physical, mental capacity,
understanding of law)
(b) Possible Bias
(c) Death Penalty Cases
iii. Peremptory Challenges
(a) Number of Peremptory Challenges
10 in capital cases, 6 in cases in Superior Court, 2 in
non-record courts, 10 in other cases where
imprisonment in penitentiary is possible
FEDERAL RULES OF CRIMINAL PROCEDURE
Rule 24. Trial Jurors (b) Peremptory Challenges

(b) Procedures for Peremptory Challenges

(c) Grounds for Peremptory Challenges
- Attys often use hunches based on experience to
decide whether to accept or exclude a particular juror
c. Ethical Issues
7. Juror’s Oath
IMPORTANT PROCEDURAL RULES

Rule 3--Affidavit of Complaint--written statement to neutral magistrate--alleges probable cause

Rule 3.5--Criminal Citations
Rule 4--Arrest Warrant or Summons--based on affidavits, magistrate must find probable cause; must
specify suspect with "reasonable certainty"; must be shown to arrested suspect as soon as possible.
Rule 5 --Initial Appearance before Magistrate--persons arrested on warrants must be taken to
magistrate "without unnecessary delay". Magistrate may try small offenses; magistrate may bind over
to grand jury or try (on waiver) misdemeanors; felony cases require advice of charge and rights and
bind over to grand jury. In probable cause determinations, no hearsay admissible.
Rule 6--Grand Jury
Rule 7--Indictments, Presentments, & Informations--May be amended with consent of defendant.
May be amended without consent before jeopardy attaches if no different offense is charged and no
rights prejudiced.
Rule 10--Arraignment--reading of indictment and entering of plea
Rule 11--Pleas--Not guilty, guilty, or nolo contendere (with consent of court). Judge must engage in
colloquy with defendant if he intends to plead guilty or nolo contendere, advising him of his rights.
Judge is not bound to accept plea agreement.
Rule 12--Pleadings and motions before Trial--Must be raised before trial (1) defects in institution of
prosecution; (2) defects in indictment; (3) motions to suppress evidence; (4) requests for rule 16
discovery; (5) requests for severance or consolidation of charges. Failure to raise objections
constitutes waiver.
Rule 12.1--Notice of Alibi--ten days after request from D.A. with names and addresses.
Rule 12.2--Notice of Insanity Defense--must notify D.A. in writing
Rule 12.3--Notice of Intent to Seek Increase Sentence--D.A. must notify not less than 10 days (in
non-capital cases) or 30 days (in capital cases) before trial
Rule 14--Severance of Offenses and Defendants--Must normally be made before trial. Defendant
has right to severance unless offenses are part of common scheme; court will sever if situation is
deemed unfair or too complex for trier of fact; If co-defendant has pleaded guilty and informed against
defendant, D.A. must (1)agree to joint trial without statement; (2) agree to joint trial where statement
has all references to defendant deleted; or (3) agree to sever the trials.
Rule 15--Depositions--Testimony can be taken before trial "due to exceptional circumstances of the
case...in the interests of justice." Defendant has right to be present during deposition unless he waives.
Reasons to depose: death, illness, absence from hearing, exempted by court for privilege.
Rule 16--Discovery and Inspection--Defendant is entitled to copies of own statements, oral
statements to police, and testimony to grand jury; prior record; documents and tangible objects material
to defendant's case which state intends to use in case in chief; reports of examinations and tests
material to the defense or intended for state's case in chief. Defense NOT entitled to reports, memos,
or internal documents by d.a.g. or cops in connection with investigation, or to statements by state
witnesses. Reciprocal rules apply when defense makes such a request. Failure to call listed witnesses
cannot be commented on. Failure to comply with discovery can result in court ordering discovery,
prohibiting introduction of evidence OR SUCH OTHER ORDER AS COURT DEEMS NECESSARY.
Rule 17--Subpoena--Both parties may have court issue subpoenas (at state expense if defendant is
indigent) for witnesses or documents for trial or for deposition, and court may use contempt powers to
enforce subpoenas.
Rule 17.1--Pre Trial Conference--Court may order one or more at its convenience before trial.
Rule 26.2--Production of Statements of Witnesses--After any witness except defendant testifies,
opposing party may move to order opposing side to turn over prior statements. Court may order recess
for examination and preparation of cross-examination. If defense declines to cooperate, testimony of
witness will be stricken. If prosecution declines, it's a mistrial.
Rule 29--Motion for Judgment of Acquittal--Can come from defendant's motion, or court may act on
its own motion. If at close of evidence, judge may reserve decision until jury returns. If after jury
returns, can be made within 30 days. If motion granted, state has right of appeal.
Rule 30.1--Taking of Exhibits to Jury Room--All exhibits can go to jury room unless court for good
cause, excludes one or more.
Rule 33--New Trial--Court may grant on own motion or defendant's motion. Must be in writing within 30
days of date of order of sentence. May be amended until date of hearing. Affidavits in support are to be
considered as evidence. If new trial ordered, either side can request a new judge.
Rule 35--Correction or Reduction of Sentence--must be made within 120 days. State may appeal a
reduction.
Rule 37--Appeal--Defendant may appeal any order or judgment in criminal proceeding and from any
judgment of conviction (if pleaded guilty must have reserved right); before any judgment is final
defendant must file notice of appeal or notice of waiver of appeal.
Rule 38--Appeal of Denial of Pre-Trial Diversion--Defendant can appeal for an abuse of
prosecutorial discretion.
Rule 41--Search and Seizure--Warrants to be issued by magistrate; seized property can include
evidence, contraband, fruits of crime, property intended for use in committing a crime, persons for
whose arrest there is probable cause. Finding of probable cause by magistrate may be upon hearsay
evidence. Warrant must be sufficiently specific as to property, person, and place to be searched.
Officer to whom warrant is directed must be present at search. Written inventory of property taken
must be made. Officer with warrant may break in to extent reasonably necessary to execute warrant. If
fruits of illegal search are improperly admitted and defendant later testifies about property, such will not
be a waiver of right to object to admissibility.
Rule 48--Dismissal--State may be allowed to file dismissal of indictment, etc, and prosecution will
terminate. May not happen during trial without permission of defendant. If there has been unnecessary
delay, court may dismiss.
Rule 51--Exceptions Unnecessary--it is not necessary to except to the court's ruling on objections.
Rule 52--Harmless Error and Plain Error--Harmless Error-No judgment will be reversed except for
errors which affected the result of the trial. Plain Error-An error which affected the substantial rights of
an accused may be notices at any time even though not raised in motion for new trial or cited as error.