Criminal Flashcards
Within what amount of time must a magistrate make a probable cause determination following a warrantless arrest of a person for a felon? What consequences are there, if any, if a magistrate fails to make that determination within that amount of time?
A magistrate judge must make a probable cause determination without unnecessary delay and within 48 hours. If the magistrate fails to make that determination within 48 hours, the arrestee has the right to be released.
What procedural step, if any, can you take to seek a reduction in bail, and what argument, if any, can you make for such a reduction?
You can file an application for a writ of habeas corpus in district court. You could argue that bail is being used as an instrument of oppression. You could also argue that there is a strong likelihood of D appearing for trial and that D cannot afford the higher amount.
Can a D waive the right to be charged by indictment with a felony? IF a D can waive that right, what is the procedural step by which a D may do so?
Yes, the D may waive indictment in all prosecutions, except ones for capital murder. To waive indictment and instead be charged by information, the D must be represented by counsel, the D must waive in writing or in open court, and the waiver must be voluntary.
Can a court compel a witness to answer the grand jury’s questions? If so, by what means?
Yes, a court can compel the witness to answer the grand jury’s questions (unless the witness were to have a legitimate claim that their answers would incriminate herself.) To compel the witness to answer the grand jury’s questions, the court may impose a fine not exceeding $500 or commit her to jail until she is willing to testify.
Does the Texas Code of Criminal Procedure permit two or more offensesto be charged in one indictment?
Yes, the TCCP allows two or more offense to be charged in one indictment when they arise in the same criminal episode. The crimes are part of the same criminal episode here because they are part of the same transaction.
Does D have the right to have an examining trial on the charges alleged in the indictment?
No. Once a D has been indicted by a grand jury, the right to an examining trial is eliminated.
How many days before the pretrial hearing must you file your motion for discovery? What consequences are there, if any, if you fail to file the discovery motion by that time?
A motion for discovery must be filed seven days before the pretrial hearing. Failure to meet this deadline will prevent filing the motion later, except by permission of the court for good cause shown.
Does the TCCP require Prosecutor to take any action in response to Ds request to review a W’s written statement about events on the day of the crime?
Yes, under the TCCP the prosecutor must turn over the statement because it is material evidence in the possession of the State.
What procedural step, if any, can you take to try to prohibit the introduction of evidence found in a drawer D’s home and testimony about it from the PO that found it when the PO were called to the house for assistance? If there is such a procedural step, what argument can you make in support of it?
You can move to suppress the evidence and testimony as a violation of the Fourth Amendment. B/c X said “we need assistance” when she called 911, there were arguably exigent circumstances that allowed PO to enter the house w/o a warrant. However, PO had no PC or warrant to open the drawer. There was no PC to believe evidence would be located in the drawer and, even if there were, there was no exigency related to the drawer. As such, the search of the drawer violates the Fourth Amendment and the evidence and testimony about it should be suppressed.
You and Prosecutor reach a plea agreement that provides for a sentence of probation, D asks you if probation is guaranteed. What is your answer to D’s question?
No, a judge is not obligated to impose the sentencing agreement reached by the parties. If the judge imposes a different sentence, though, the D has the right to withdraw his plea.
Can a D charged with a felony waive the right to have a jury determine her guilt or innocence? If a D can waive the right, what procedural step, if any, must be taken by the D to do so?
Yes, a D can waive her right to be tried by a jury in all cases except prosecutions for capital murder where the State seeks the death penalty. Waiver of jury trial requires the consent of the prosecutor and the judge.
What procedural step, if any, can you take to try to obtain separate trials on each of the counts in an indictment?
You can move to sever all counts. When a defendant is scheduled for trial on multiple charges arising from one criminal episode, she has an absolute right to have the charges severed for separate trials.
What procedural step, if any, should you take to give a jury the option of imposing probation if it finds D guilty?
You should file pretrial an application for probation. THe application should be in writing, be sworn, and state that the D has not previously been convicted of a felony.
What is a challenge for cause? How many challenges for cause are you allowed to make on D’s behalf?
A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the TCCP. There is no limit on the number of challenges for cause each side can make.
What is a peremptory challenge? How many peremptory challenges are you allowed to make on D’s behalf when charged with a non-capital felony?
A peremptory challenge is a mechanism for attorneys to strike prospective jurors without having to specify a rationale. B/c D is charged with a non-capital felony, she is allowed 10 peremptory challenges.
