There are 4 ways to start a criminal procedure:

• arrest warrant
• criminal citation
• summons
• direct presentment (indictment); grand jury has found probable cause – no prelim.

Rule 5
Initial appearance:
• Must be set without unnecessary delay within 48 hours; magistrate sets bond; & bond conditions;
• If longer than 48 hours – raises presumption that there has been an unreasonably delay which
puts the burden is on government; usually for a bad reason – to continue to investigate the crime
(implies there was no probable cause in the beginning).

Felony charged person – advise of rights at initial appearance

Right to counsel
Right to appointed counsel
Right to remain silent
Any statement will be used
Circumstances to obtain bond
Right to a preliminary hearing

If not on bond - 10 days – preliminary hearing

30 days – if on bond – usually waived

Right to bail; excessive bail should

Everyone in TN is entitled to bond EXCEPT ___

Ways to make bond:

Cash bond – get it all back when you come to court
Property bond – 1 ½ times the value f the bond
Surety bond – bail bondsman; pay 10% to bonding company plus their fee of usually $35
ROR – release on own recognizance

Bond factors that court will consider when setting amount of bond
1. what is the charge?
2. how long a resident of community
3. employment history & financial conditions
4. defendants family ties in the community
5. defendants reputation, character & mental condition
6. record of appearing in court – on other charges
7. nature of the offense and the apparent probability of conviction and likely sentence.
a. C or below felony – presumption of probation at sentencing;
8. prior record – risk to community
9. responsible members of the community who will vouch for the defendant.
Purpose of preliminary hearing: Determine probable cause (whether a crime has been committed and
whether this defendant committed the crime); finding of probable cause cannot be based on hearsay
EXCEPT: written report of expert witness & documentation of written ownership.

Value of preliminary hearing:

• Discovery
• Testing witnesses
• Realty check for client
• Testimony of witnesses at prelim hearing could be used at trial – only if it has been subject to
cross-examination at prelim hearing if the motivation at the trial is the same as that at the preliminary
hearing.
• Educate court/prosecutor – affects plea bargaining
• May affect the bail decision

When should you waive preliminary hearing:

• Don’t want witness testimony preserved
• Might get bond lowered (work out a deal)
• Might work out a deal with prosecutor for information, etc., if you waive prelim
• Facts at hearing might be worse than the ones alleged in the warrant.
• Pretrial publicity might be too hot; may consider waiving hearing just so the press doesn’t get
another thing to put in the paper about the case.

Joinder & severance:

2 offenses; mandatory joinder of offernse – based on same conduct or _______
all crimes are within one court’s jurisdiction
permissive joinder of offenses – allow 2 or more offsenses to be joined if they are part of the
or of the same or similar character

Defendants may be jointed together in one trial if each one is charged with thes ame batch as the others
or each is charge
Acts in furtherance of conspiracy
Offenses are part of a common scheme or plan or where so closely connected in time, space

Permissive joinder – defendant has an absolute right to severance UNLESS

Evidence of one would be admissible

Mandatory joinder – only way that offenses will be severed is if it is determined necessary for a fair
determination of guilt or innocence or the state seeks a continuance of one count because someone is out
of town and the defendant asserts right to a speedy trial.

Severance of defendants:
When a defendant
Inadmissible unless the co-defendant testifies.

Redact to delete all references

What is the rule that discusses severance of – BRUTON

What is a common scheme or plan?

1. Signature crime – distinctive MO; establishes the defendant’s identity as the
perpetrator
2. Continung plan or conspiracy; working plan
3. Same transaction; constellation of crimes occur within a single episode.

Jurisdiction: power of court to decide

Venue: physical location of where the trial has to take place; has constitutional basis US
Const Article 3, Section 2; US Constition 6th Amend; TN Const – Article One, Section 9

Offenses shall be prosecuted in the county where the offenses were committed; more than
one – can be prosecuted in either county

Request change of venue – defendant & court has the right.

If court decides to change venue – next county where the prejudice does not exist.

Rule 16: Discovery – reciprocal rule; if defense requests discovery, then the

What is discoverable; oral statements of the defent to any law enforcement person and all
written or recorded statemenst that the state sw

Defendsnats prior record

Documents & tangible evidence – if state requests – the defendant has to provide.

State has to provide defendeant with a list of potential witnesses; don’t have to call all of
them but cannot
Defense has no obligation to provide the state with a list of witnesses.

Material in preparation of defense

Reports of examinations or tests intended for use by the state

Or are material to the defendant’s preparation of defense.

HAVE NOTHING TO DO WITH RECIPROCAL DISCOVERY

1. Notice of Alibi
2. Notice of Insanity
3.Seek increased punishment

If defense does not request discovery; the government still has to provide information if Brady request:
Exculpatory material (Brady) – favorable to the defense and material to the issue of guilt or
innocence
US v BAGLEY – impeachment evidence is
Evidence is material only if there is a reasonable probability that had the evidence been disclosed, the
result of the proceeding would have been different.

Government – doesn’t matter if they act in good or bad faith; Brady

Government - Bad faith analysis for not preserving evidence.

Rule 26.2: JENKS; production of statements/witnesses;

No Jenks until you get to criminal court; have to make a Jenks request after the witness has testified;

General sessions court – NO right to Jenks.

Delay in charging: Due Process based on 5th & 14 Amendment;s & Article 1, Section 8 of TN Const.
Formal accusation: Arrested, indicted (don’t have to know if has been done) or physically taken into
custody:
1. delay between the crime and formal accusation
2. defendant suffered actual prejudice due to delay
3. state used delay to _______

Difficult to show that DA was acting in bad faith.

Delay between formal accusation ant trial: Article 1, Section 9

Length of delay – more than 9 months in TN

D
Negligent delay

Assertion of right: if defendant asserts his right to a speedy trail – waives in his favor; failure to assert
right does NOT waive right.

What is prejudice to defendant? Purpose is to prevent ___ pretrial incarceration

Loss of possible concurrent sentencing; loss of witnesses, memory, exculatory material
Remedy for speedy trial or due process violation: DISMISSAL of charges

Statute of Limitations: how long after a crime the govetn has to bring the charges.
Length of time is based on the seriousness of felony; misdeamenors are 12 months.

If you get convicted of a lesser included offense – make sure it is still within the statute of limitations for
that lesser offense. Conviction of misdeamor when charged with felony.

3 possible pleas:
guilty
not guilty
nolo contendre
Court must agree to accept a nolo contendre plea; value of that plea – is that it is NOT admissible in a
civil case.

3 types of plea bargains:

1. defendant agrees to plead to something in exchange for the DA to agree to a lesser offense or some
charges are dismissed
2. def & DA agree to plead to ________
a. judge can reject these two pleas; you can then withdraw your plea and go to trial.
3. DA recommends to judge the sentencing; judge can reject that and give whatever sentence he wants
and you have not right to withdraw plea

When judge accepts a plea – he has to inform defendant; has to be recorded; 6th amendment
1. nature of charge
2. right to counsel
3. right to plead nonguilty; have a trial, etc.
4. right to testify or not
5. right to compel witnesses
6. right to appellate review
7. plea is voluntary and not the product of coercion or promises

Everyone in TN has right to appeal to Court of Criminal Appeals (1st layer)

Defendant’s Right to public trial – 6th amendment;

Publics right to attend trial – 1st amendment
Right to impartial jury – 6th
Right to impartial judge – 5th amend; TN Article 1, Section 8
Right to attend trial – 6th amendment right to confront & the 5th amendment to due process
May waive this right; if defendant starts his trial and chooses to leave – he is not waiving the
remainder of his rights. His attorney is still there.

Right to testify – 5th amendment due process; Article 1, section 8; 6th amendment self-representation;
5th amend- right against self-incrimination & )))))))))))))

Right to jury trial – federal right

No right for a petty offense – 6 months in custody and/or max possible fine of $500

In Tennessee you can a jury trial for anything.

Juries in TN – 12 people;
Least # is 6

Pool from which jurors are drawn – based on drivers licenses, voter registration, utility data bases; the
venier – has to represent a fair cross section of community;
Petit jury: voir dire; jurors may be excused for case if they are biases; may be excluded at parties
discretion as long as they are not excluding a whole party - Violates equal protection clause of 14th
amendment;