Crime pro Flashcards

Question

Who can be present at grand Jury?

Answer 1

Once deliberation, only grand jurors can be present. When conducting proceedings (prior to deliberation and voting) the prosecutor, stenographer, bailiff, and an interpreter may be present

Answer 2

Running of SoL is “tolled” and time elapsing not counted: (a) while D is out of the state and (b) while a charging instrument charging the same offense is pending against the accused and later dismissed No period of limitations for: murder and manslaughter; offense involving leaving the scene of an accident; sexual assault where DNA testing such that person not readily ascertainable; child sexual assault Period of limitations (for timely indictment)—from commission of the crime: • Misdemeanors: 2 years (2Ms) • Felonies: 3 year (f3) • Theft, burglary, robbery, kidnapping: 5 years

Answer 3

An indictment or information alleges only facts (crime not IDed by name; statute violated not specified) Substantive requires (a) charging the offense and (b) providing the accused with trial prep notice To “charge the offense”: (a) Facts constituting all elements must be alleged; (b) statutory language usually insufficient; (c) any victim must be named More detail and specificity may be required to provide notice.

Answer 4

Must be met on face of an indictment or information: (1) commence: “In the name and by authority of the State of Texas” (2) name the accused (or describe him) (3) set forth (“charge”) all elements of the offense (4) Specify enough details to give accused notice (5) Allege the crime was committed on a date that is both: • within period of limits and before presentment of indictment (6) Allege commission of the crime in a county within court’s jurisdiction (venue) (7) conclude: “Against the peace and dignity of the State” (8) Be signed (indictment: foreperson/information: prosecution)

Answer 5

Determines the offenses for which the accused can be convicted • Generally, jury can convict D only of an offense charged n indictment BUT sometimes jury is instructed on (permitted to convict of) “lesser included” offenses Specified detailed allegations may give rise to a “variance” between indictment and proof, sometimes requires acquittal.

Answer 6

Other offense is a lesser included offense of the crime charged and Evidence before the jury is such that the jury could find both that: (1) D is not guilty of the charged offense and (2) D is guilty of the lesser included offense.

Answer 7

If D believes name specified as the accused in the indictment is not D’s true name: D must raise this at arraignment; must specify his true/real name AND; judge is then to correct the indictment so it accuses D by his own true name

Answer 8

Permitted at any time if D does not object. Permitted over objection depends when amendment is sought If sought before trial date: Any amendment is permitted whether it is of form or substance Limits: An amendment is not permitted over D’s objection if amendment would • (1) cause indictment to allege a different offense or additional offense or • (2) prejudice substantial rights of D D’s Procedural Protection: Entitled to advance notice of a proposed amendment; trial court must authorize an amendment/prosecution cannot make an amendment unilaterally; If indictment is amended and D requests, D must have not less than 10 days to prep for trial on amended indictment, and right to delay trial if necessary

Answer 9

Takes place in trial court and serves several functions: (1) accused enters a plea; (2) point for fixing accused’s identity; and (3) judge appoints counsel

Answer 10

Pleas by the Accused: Guilty/Not guilty/nolo contendre D must personally make some decisions in a prosecution: (a) what plea to enter; (b) whether to have a trial by jury; (c) whether to take witness stand Notice of D’s intent to intro insanity evid must be filed 20 days before trial No difference in criminal prosecution between guilty and nolo contender BUT if civil lit arises then guilty used as evidence but nolo contendre is not. Nolo Contendre: Judge must inform: (1) D of the range of punishment; (2) D that recommendations by the State are not binding; (3) of the limited right, after guilty plea, to appeal; (4) inform D plea may result in deportation; (5) inquire as to whether there is a plea bargain

Answer 11

Motion to quash must be filed 7 days before pretrial hearing, not just before the day on which trial begins. If not filed then, cannot be raised later except by leave of the court for good cause

Answer 12

Pre-trial motion that asks for either (or both): (1) a pretrial ruling on the merits of some question of evidence or procedure that will arise during trial or (2) a pretrial ruling that opposing counsel must alert judge before raising some matter of evidence or procedure before jury • Pretrial ruling on in limine does not preserve a matter for appeal

Answer 13

A motion to suppress may be used to raise pretrial any argument that evidence to be offered at trial is inadmissible. Most often, motion is used to raise a contention that evidence has been illegally obtained or confession is inadmissible. Preferred over waiting to object at trial. Pretrial ruling on a motion to suppress preserves the issue for appeal

Answer 14

Generally state must provide the defense with a list of witnesses the State intends to call Expert: on D’s request, State must provide defense with a list (names and addresses) of expert witnesses it may call at trial (at least 20 days before jury selection) Trial judge has discretion to exclude or admit testimony of a witness left off an ordered witness list. Consider: (1) whether omission was intentional and (2) whether defense received actual notice that witness would testify.

Answer 15

Trial court has authority to order defense to provide State with a list of expert witnesses and their names and addresses. Should enter order compelling. No authority to compel the defense to provide State with a summary of anticipated testimony/no authority compel defense to provide State with any information at all for fact witnesses

Answer 16

Counsel must obtain an order, after filing motion supported by an affidavit stating “good reason” for taking deposition. Notice must be given to the state Either side may be permitted to depose a witness: • Trial judge Must issue an order authorizing the deposition • To obtain this, the party must show good reason for the deposition

Answer 17

Trial judge has authority to order the State to permit D to inspect certain things Inspection must be ordered if the thing: (1) is a tangible thing; (2) constitutes or contains material evidence; (3) is in the possession of the State; and (4) is not “the WP” of the state (physical evidence is not protected WP/police reports and witness statements are no longer covered by WP)

Answer 18

Informer’s identity generally privileged and can be withheld by State. Disclosure may be required if (1) informant provided information by which State obtained evidence in a way D claims was illegal, court has discretion to require disclosure if necessary to establish informer’s reliability; (2) upon a showing the informant can provide testimony necessary to a fair determination of guilt-innocence, court must order disclosure

Answer 19

D’s due process rights under Brady are violated if both: (1) prosecution fails to disclose exculpatory info in its possession and (2) info is “material” (if disclosed, there is a reasonably probability outcome of the case would differ)

Answer 20

D is incompetent to stand trial/witness’ incompetence if either: • Lacks ability to consult w/counsel w/a reasonable degree of rational understanding or • She lacks rational and factual understanding of the proceedings Can be raised by D’s motion, court may raise (trial judge must on court’s own motion suggests D may be incompetent if evidence of incompetency comes to court’s attention)—trial judge must make prelim inquiry, if shows sig evid of incompetency then must hold a full hearing. If either party or judge requests, determination must be made by a jury. • Presumed competent but can rebutted by D’s showing by POE that D lacks ability to consult w/counsel or lacks understanding of proceeding

Answer 21

Venue lies in county where crime was committed or act involved in commission of the offense was committed

Answer 22

(a) Prejudice in county would prevent a fair trial or (b) dangerous combo of influential persons against D would prevent fair trial. Change of venue, D counsel must file (to show sufficient prejudice preventing a fair trial): (1) written motion for change of venue; and (2) affidavits that a fair trial cannot be held in the county by (a) D and (b) 2 credible residents of the county Motion for change of venue must be filed 7 days before pretrial hearing. Failure to do so will prevent a later motion to change venue unless court gives permission for good cause showing.

Answer 23

(a) combo or influences in favor of D would prevent fair trial; or (b) lawless conditions would prevent fair trial; or (c) life of D or a witness would jeopardize by local trial

Answer 24

on its own motion because trial fair and impartial to D and State alike cannot be held

Answer 25

IN a felony case or a misdemeanor prosecution punishable by jail time, D must be present at beginning of the trial • Jury: through the swearing of the jury • Nonjury: Through D’s plea to indictment and D must be present at end for formal sentencing. BUT if D voluntarily absent in middle, trial may nevertheless proceed. Fine only misdemeanor, D can be absent because may appear “by counsel” if prosecutor consents

Answer 26

General “One Offense” Rule governs joinder of offenses • Indictment may allege only 1 offense. If an indictment charges more than that, it will be quashed. • D may be tried on only 1 indictment per trial. If D is scheduled for trial on several indictments, D is entitled to have trials severed. State may join in 1 indictment all offenses arising out of 1 “criminal episode” and D will be tried for all of these in one trial unless there is a severance of the charges • If several offenses are charged in 1 charging instrument, each must be in a separate count • Same criminal episode if: (1) part of same transaction; or (2) part of common scheme or plan; (3) same or similar offenses

Answer 27

Several Ds may be joined for trial if: (a) they are charged with the same offense or (b) they are charged with different offenses arising out of same t/o

Answer 28

D who moves for severance and shows co-D has a prior conviction admissible against that co-D at trial must grant severance Otherwise, trial judge’s discretion to grant a motion for severance of trials, and should grant such a motion if a joint trial would be prejudicial to D who has moved for severance.

Answer 29

Motion for continuance must: (a) be in writing; (b) be supported by “good cause” showing; (c) be sworn • In addition motion made after trial has begun must be: (a) based on an occurrence that happened after trial began; and (b) that occurrence could not have been anticipated; and (c) surprise prevents fair trial

Answer 30

Jury size: DC: 12 | County, Municipal, Justice Court: 6 Verdict normally general unless special plea submitted to the jury (true or not true) and jury finds D not guilty by reason of insanity Comms during trial b/w judge and jury once deliberations start: • Jury must comm w/judge in writing through the bailiff • Response must be (1) in writing and (2) read to the jury in open court

Answer 31

Jury trial can be waived except for prosecutions for capital murder where State seeks death. Waiver requires consent and approval of (a) D and (b) the prosecutor and trial court

Answer 32

May be discharged and mistrial if (1) both parties agree; or (2) court finds the jury has been kept together long enough to render it altogether improbable that it could agree

Answer 33

(1) swearing in the panel; (2) qualification of the panel members by the judge; (3) possible jury shuffle (before voir dire) • Only 1 per trial. Either side can demand members of the panel from which jury selected be re-seated in random order. (4) voir dire of the jury panel members (5) challenges for cause (unlimited) (6) peremptory challenges (exercised with no explanation)

Answer 34

Admissible (whether or not out-of-court declarant is unavailable) as against “penal” interest if: • Statement is shown to have been incriminating re: declarant • Reasonable person would not have made it unless she believed it to be true; and • (criminal) there are corroborating circumstances that clearly indicate statement’s trustworthiness

Answer 35

Predicate must be laid by testimony of custodian to make records of regularly conducted activity admissible over a hearsay objection includes testimony by the custodian that: • Records were kept in regular course of business • Regular course of business for a person with knowledge of the matter to make such records or transfer information for inclusion in records • Entries in the record were made at or near the time of the events; and • Witness is the custodian of the records Alt authentication if Prosecutor: (1) obtains an affidavit of the custodian of the records containing all elements IDed above; (2) files the affidavit w/the records attached w/court at least 14 days before trial starts; and (3) gives defense notice of filing at least 14 days before trial

Answer 36

Generally, State cannot intro evidence that D has a “bad character” to prove D’s guilt. But can prove D’s bad character: (1) if accused put his “character in issue” by exercising right to intro good char evidence and (2) at punishment stage of trial

Answer 37

Witness’ personal opinion as to person’s character (opinion character witness) or what the witness believes is the person’s reputation for the character trait (reputation character witness) • Character can NOT be proved by using SPECIFIC instance of conduct Character Testimony: • Opinion: witness is personally familiar w/the person (“diduknow”) • Reputation: witness participated in discussions with others of person’s rep or overheard other discussing that reputation (“haveuheard”) • Cross: Inquiry into specific instances of conduct permissible (but can't admit evidence if witness denies)

Answer 38

If evidence showing an extraneous offense is relevant to some issue other than the accused’s character, it is admissible unless trial judge convinced danger of unfair prejudice substantially outweighs probative value (Rule 403) Extraneous offense evidence may be admissible as relevant to [MIMIC] • Motive; Intent; Mistake; Identity; Common scheme or plan

Answer 39

In a criminal proceeding, a communication is inadmissible if (1) it was made by a person voluntarily being treated for alcohol or drug absue and (2) it was made to a person involved in the treatment or examination

Answer 40

D’s spouse has a privilege not to be called as a witness to testify against D or to not testify against D Exceptions: D’s spouse may be called if either: • Prosecution is for an offense committed against any minor child; a household member of either spouse; or the spouse OR • Spouse is called by the State to testify only about matter that occurred prior to spouse’s marriage Availability turns on whether witness is married at the time of trial

Answer 41

Any person (incl criminal D) has a privilege to refuse to disclose and to prevent others from disclosing a confi communication made by the person to spouse during marriage Communication is “confi” only if it was both: (a) made privately and (b) not intended for disclosure to any other person Exceptions: No priv exists if: (a) comm to commit crime or fraud; (b) prosecution is for crime against person of minor; household member of either spouse or the spouse.

Answer 42

inadmissible if made during course of plea discussions w/a prosecutor.

Answer 43

(1) Both sides on application to the clerk are entitled to have subpoenas issued for witnesses. (2) Either side entitled to have attachment issued for a witness if both: (a) witness was properly subpoenaed and (b) witness fails to appear

Answer 44

bad conduct (prior convictions); contradiction; char for untruthfulness; bias Dishonesty Crime (theft, perjury, forgery, making false report to police, aggravated assault on a female, prostitution)

Answer 45

Witness may be impeached by showing prior “bad” or criminal conduct only if the cross-examining party establishes • Conduct resulted in a final criminal conviction • Not more than 10 years since conviction or release from confinement (whichever later) • Convicted for misdemeanor involving moral turpitude or a felony and prejudicial risk of inquiry substantially outweighed by its probative value

Answer 46

In making trial rulings, judge must not: comment on the weight of the evidence or convey to the jury the judge’s opinion of the merits

Answer 47

A party is entitled to an item (ex: photo—if prosecutor shows it is a fair and accurate depiction) if it is used by opposing counsel in front of the jury in such a way that its contents become in issue.

Answer 48

Evid obtained in violation of 4, 5, or 6th amendments cannot be used to prove D’s guilt Evid may not be admitted against the accused at trial if it was obtained by an officer or other person in violation of: US/TX Const; US/TX laws Good Faith Exception: Illegally obtained evidence is admissible if it was obtained by an officer: (a) acting in obj good faith reliance upon a warrant and was issued by disinterested magistrate on probable cause. • Question of evidence acquisition legality is a jury question

Answer 49

Trial judge develops a proposed jury charge (instruction) and submits it to both sides In the charge, the judge is not to either: summarize the evidence or comment on the evidence When giving the jury charge: the judge must read the charge to the jury in court; this is done before the lawyers make final arguments; the jury is also given a written copy of the charge.

Answer 50

can be preserved by either an objection or a request for a special charge containing correct law Sufficient if dictated to the court reporter; in the presence of judge and prosecutor; and this is done before the final charge is read to the jury Objections and requests for charges must be in writing BUT this can be accomplished by dictation to the court reporter

Answer 51

Summation of the evidence; making reasonable deductions from the evidence; answering arguments of opposing counsel; and making pleas for law enforcement Not permitted: comment on D’s invocation of self-incrimination rights (D’s failure to testify at trial; D’s silence after arrest and Miranda; or (under TX law) D’s silence after arrest. BUT can comment on D’s silence before arrest); express personal opinions; argue what the community demands; or strike at D over the shoulder of defense counsel

Answer 52

An accomplice witness is one who could be convicted of the crime charged. D cannot be convicted on the testimony of just an accomplice unless corroborating evidence that tends to connect D to the crime

Answer 53

(confession corroboration): D cannot be convicted of an out-of-court confession unless there is corroborating evidence that the crime was in fact committed

Answer 54

Can’t be convicted on testimony of V without corroborating evidence unless: • V told someone other than D about offense within1 year of commission; V was under 18 at time of crime; V was impaired unable to satisfy basic needs; or V was 65+

Answer 55

Conviction cannot rest on testimony of person to whom D made a confession while that person was confined in jail w/D. Testimony of such person must be corroborated by testimony tending to connect D to the offense

Answer 56

Deadlock if (1) both sides agree or (2) judge determines jury kept together for deliberation for sufficiently long time to make improbable will reach verdict

Answer 57

Ds have a right to have jury trial assess the punishment (fed: judge does this) State cannot have jury assess punishment if D fails to elect jury sentencing Jury sentencing must be invoked by D by a timely election for jury sentencing Capital Murder: Jury required if State seeks death penalty D who waived jury trial on guilt-innocence may elect jury sentencing

Answer 58

filed before voir dire of jury panel begins

Answer 59

D’s prior crim record; gen rep; D’s character (and opinion testimony); circumstances of the offense for which D has been found guilty; juvenile court convtiction based on felony conduct; and evidence of extraneous crime or bad act by D (even if not convicted)—this can be requested by D

Answer 60

must file a sworn motion for community supervision before trial has begun. Punishment must not exceed 10 years To have a jury assess punishment, must elect this in writing before the commencement of voir dire

Answer 61

D eligible for comm supe if punishment assessed does not exceed 10 years imprisonment Can be revoked: Violation of a condition of comm supe must be shown but only by proof by POR; no jury trial is held; D is required to serve the prison sentence previously assessed (or as reduced by trial judge) If D successfully completes comm supe, trial court has discretion to dismiss the charges.

Answer 62

Neither judge nor jury can give comm supe if convictions are for murder or sex offense with child under 14 Jury can give comm supe if conviction offense for which comm supe not totally barred (capital murder; murder; indecency with child; first degree felony injury to a child; aggravated kidnapping; aggravated sex assault; sex assault; aggravated robbery; certain drug offenses) or deadly weapon finding

Answer 63

Procedure under which the trial court places D on comm supe w/out actually finding D guilty because it defers a finding of guilt D eligible if: • Charge is an offense other than: DWI; intoxicated assault; or intoxicated manslaughter and • D enters guilty or nolo contendre plea

Answer 64

Trial court must: Receive D’s guilty or nolo plea; hear evidence; find evidence substantiates D’s guilt; and inform D of the consequences of violating comm supe—D could get any sentencing in statutory range If D is proven to have violated conditions of comm supe, trial court can “proceed to adj” and find D guilty. Sentence not limited to a sent prev assessed. If D successfully completes, charges dismissed

Answer 65

Must be: filed within 30 days of sentence pronouncement and presented to the court within 10 days of filing (but court can permit presentation within 75 days from sentencing) Prosecution can raise for newly discovered evidence in a motion for new trial

Answer 66

Can be made on grounds that: indictment has a defect of substance; verdict varies from indictment; or judgment is invalid.

Answer 67

D can appeal only after conviction and sentencing D convicted of capital murder and sentenced to death in DC: appeal is mandatory to Court of Criminal Appeals Bail may be denied to a to D eligible for bail pending appeal if the trial court finds either that D will not appear if the conviction is affirmed or is likely to commit an additional offense while on bail.

Answer 68

Appeal is perfected by filing notice of appeal which must be: (1) in writing; (2) filed with the trail court; and (3) fled within 30 days of formal sentencing If motion for new trial, notice of appeal must be filed within 90 days of formal sentencing

Answer 69

dismisses indictment; grants a defense motion to suppress evidence before jeopardy attaches (jury: swearing of jury or bench swearing of first witness); or sustains a D’s claim of double jeopardy Post-Trial: State may appeal if trial court: grants a defense motion for new trial; grants a defense motion to arrest judgment; or imposes an “illegal” sent If a convicted D appeals, State may cross appeal on a question of law decided against the State

Answer 70

Appellant has responsibility to preserve error: preserving error does not require raising a matter in a motion for a new trial; what is required depends on the type of error.

Answer 71

counsel must make an offer of proof showing the substance of evidence. Can be done by either: (1) counsel’s oral summary of the excl evid or (2) Q&A form AND getting a rule excl the evidence

Answer 72

counsel must: (1) make a timely objection; and (2) state specifically the ground to be relied upon on appeal and (3) secure a ruling from the trial judge

Answer 73

by another lawyer or judge, or the asking of an improper question, counsel must: (1)immediately object; and (2) seek instruction to disregard; and (3) move for mistrial; AND get rulings on each of these.

Answer 74

Brought by Habeas Corpus Applicant seeking post-conviction habeas corpus relief is entitled to such relief only upon proof of: an error rendering the conviction void; juris error; violation of a const right; or “actually innocent” (requiring new evidence showing innocence that is now available and by C&C evid that no reasonable jury hearing this new evidence would convict Once D has sought post-conviction habeas corpus relief, D can bring another habeas corpus action only if: the subsequent action is based on a ground not available when the first action was brought or D est both (1) D’s fed const rights were violated and (2) “but for”that violation no rational juror could have found D guilty.

Answer 75

Convicted person may submit to convicting court a motion for forensic DNA testing that has a reasonable likelihood of containing bio matter. Motion must be accompanied by an affidavit, sworn to by convicted person, containing statements of fact in support of the motion

Answer 76

Second trial permitted if: First proceeding ended in a mistrial for “manifest necessity” (hung jury) First proceeding ended in mistrial declared on D’s motion First trial ended in conviction reversed on appeal because of procedural error First trial ended in conviction reversed on appeal because verdict was “against the weight of [sufficient] evidence” or Second prosecution is by a different sovereign entity jurisdiction

Answer 77

Fed Law—Jury: when jury is sworn in / Bench: when first witness is sworn in TX Law—Jury: when jury is sworn in / Bench: when both parties have announced ready and D pleads to the indictment.

Answer 78

Successive prosecutions for different offenses barred only if 1 offense is a lesser incl offense of the other (only then are they the “same”) Blockburger Test for determining “lesser included” nature of different offenses: • If each offense contains at least 1 element not contained in the other, neither is a lesser included offense of the other and successive prosecutions are permitted. Otherwise, one is a lesser incl offense of the other and successive prosecutions are barred

Answer 79

Acquittal of one offense bars second prosecution for different but related offense if D shows both: (a) precise factual basis for acquittal in first proceeding and (b) fact also control in second prosecution

Answer 80

File pre-trial application for writ of habeas corpus • Judge (not jury) would decide the issue • Issue would be resolved before trial • Immediately appealable File a special plea of former jeopardy • Jury would resolve contested issues of fact • Raise during trial • Only if convicted could you appeal

Answer 81

Grant of Immunity Removes Protection o If a person is granted effective immunity, priv no longer applies and person can be compelled to answer Protection Limited to “Testimonial” Behavior o A person can be compelled to engage in non-testimonial self-incriminating behavior; “Testimonial” behavior: an intentional communication of 1’s thought process o Can invoke 5th even in civil trial

Answer 82

Requires: (1) must be pursuant to valid search warrant (exceptions); and (2) based on “probable cause” Probable Cause: Facts from which a reasonable person would conclude that there is a “fair probability” that seizable items will be found in the premises

Answer 83

Warrant must be issued on info constituting “probable cause”: affidavit must set out facts from which issuing magistrate can make an independent judgment that probable cause exists Search must be limited to both: (1) place described and (2) within that place, those locations where described items may reasonably be expected to be located

Answer 84

permitted if officers have “reasonable suspicion” that occupants would: (1) resist the officers by using force or (2) remove or destroy items for which warrant issued.

Answer 85

(1) a statement that runs in the name of “The State of TX”; (2) a specify of the person, place, or thing to be searched; (3) specify of the items to be seized; (4) an endorsement of date and hour it was issued; (5) signature of issuing magistrate; and (6) a clearly legible statement of magistrate’s name Search warrant must be executed within 3 days, exclusive of day of issuance of warrant and day of execution (really 5 days)

Answer 86

Warrantless search permitted if officers have both: • Reason to believe delaying the search to get a warrant would result in removal or destruction of the items and probable cause to believe seizable items will be found • Warrantless blood draws due to exigency of BAC dissipating—not auto, totality of circumstance to see if reasonable for police to be able to get a warrant.

Answer 87

Offense committed in officer’s presence or view Probable cause to believe suspect committed a felony and reason to believe suspect is “about to escape” Suspect found in a “suspicious place” and has committed a felony or breach of peace Suspect committed violation of protective order Suspect injured another and danger of further injury to V Found with stolen property Injured family or member of household OR Probable cause to believe suspect committed a felony is based on an admissible statement to officer

Answer 88

Name of person to be arrested or a physical description Name of the offense the person is accused of committing Signature of issuing magistrate and Judicial office of the issuing magistrate

Answer 89

D has 6th amendment right to lawyer present at lineup or showup if it is conducted after judicial proceedings have begun • Not triggered by D’s arrest/no right o lawyer at showing of photos/waivable D has due process right to have procedure not be extremely suggestive If witness IDs D at procedure conducted in violation of either rule: prosecution cannot prove that ID but witness can still make “in court ID” of D if prosecution est this would have been an “independent source”

Answer 90

Involuntary if: (a) result of coercion or threats or (b) on totality of circum, officers’ misconduct overcame D’s will D’s undisclosed mental impairment alone will not create involuntariness Promise will render confession involuntary and inadmissible if: • Given by someone in authority; definite; and likely to cause an innocent suspect to make a false confession Confession given during improper delay in bringing D before magistrate inadmissible if D shows a “causal connection” b/w delay and making of confession

Answer 91

Miranda + right to terminate interview at any time Warnings given by either: a magistrate or person to whom the statement was given (usually officer) and That prior to and during the making of the statement, the person intelligently and voluntarily waived the rights

Answer 92

Confession Statute: (and oral confession rule) applies only if there was: (1) custody and (2) official interrogation! If either is lacking, the statute does not apply and oral statements are admissible

Answer 93

A D must have “standing” under both rules • D’s objection must be based upon a violation her underlying rights • Search situations: this means that the search must have intruded upon D’s privacy • Standing as applied to vehicles: Person only a passenger in a vehicle when it is searched does not have standing to challenge search BUT passengers in car is seized if car is stopped and therefore passenger can challenge that seizure

Answer 94

If a search is unreasonable, all “fruit” (evidence obtained as a result of that search) must be excluded under both rules

Answer 95

Attenuation of taint—number and nature of the link between illegality and police acquisition of evidence may be such that the taint becomes attenuated Good Faith: reasonable officer would believe that the actions taken were reasonable because of: a warrant or statute later held invalid Inevitable Discovery: Evidence would inevitably have been obtained legally Impeachment Exception to Federal Rule: D who takes the witness stand can be impeached by some otherwise inadmissible evidence ——Evidence obtained in violation of Miranda or in an unreasonable search can be used to impeach ——Involuntary confession cannot be used to impeach (it’s unreliable) ——TX has no impeachment exception.

Crime pro Flashcards

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