Criminal Procedure Flashcards
(263 cards)
1
Q
Brady Evidence/Exculpatory Evidence
A
Before trial the prosecutor also has a duty to disclose all exculpatory evidence in trial prosecutor’s, another prosecutor’s, or police possession.
Failure to do so constitutes a due process violation that will result in the reversal of a conviction if the defendant can prove
(i) that the evidence at issue was favorable to the defendant and
(ii) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).
D doesn’t have to request this information
2
Q
Standard of Proof
A
The defendant is presumed innocent unless the prosecution proves every element of the defendant’s guilt beyond a reasonable doubt.
3
Q
Rules court should follow when fixing bail amount?
A
The rules that a court should follow include:
(1) Likelihood of defendant appearing for trial
(2) Ability of the defendant to make bail
(3) Seriousness of the crime charged
(4) Future safety of the victim and the community
(5) Required bail is not to be an instrument of oppression
4
Q
Can the court consider whether a party is capable of posting bail in determining whether that party is indigent and is still entitled to appointed counsel?
A
No. As a general rule, the court cannot consider whether the defendant has posted or is capable of posting bail. This can be considered, however, insofar as it reflects the defendant’s financial circumstances
5
Q
If the court denies a party’s request to reduce bail, what procedural step, if any, can that party take to seek a reduction in bail, and what argument, if any, can they make for such a reduction?
A
The party can file an application for habeas corpus in the district court.
At the hearing party can argue and present evidence that they are being improperly detained because
(1) bail was set at an excessive amount.
(2) cannot meet the bail set, and
(3) what amount they could meet.
The district judge may order bail reduced.
If the district judge denies relief, they can immediately appeal to the court of appeals.
6
Q
In order for a search warrant to be issued authorizing the search of an apartment for evidence, what facts must be alleged and in what document must they be alleged?
A
Officer must execute a written and sworn affidavit. In that document, the offer must allege facts from which a magistrate can find there is probable cause to believe:
(1) a specific offense has been committed,
(2) the evidence tends to prove that the office was committed or who committed it, and
(3) the evidence is located in the premises to be searched.
7
Q
Rules of Venue for Criminal Proceedings
A
Venue is proper in the county in which the crime was committed when no specific venue rules exist.
8
Q
Specific Venue for:
Offenses outside of state
A
Offenses committed wholly or partially outside of Texas under circumstances giving Texas JX may be prosecuted in any county in which the offender is found or in any county in which an element of the offense occurred
9
Q
Specific Venue for: victim injured in one county and died in another
A
If the victim was injured in one County and died in another because of the injury, the prosecution may take place in either county or in the county in which the dead body was found.
10
Q
Specific venue for: offenses committed on or near county boundaries
A
Offense committed on the boundaries, or within 400 feet of the boundaries, of two or more counties may be prosecuted in any one of those counties.
11
Q
Specific venue for: theft
A
If the property is stolen in one county and moved by the offender to another county, the prosecution may take place in the county where the offender took the property or in any other county through or into which the offender moved the property.
12
Q
Specific venue for: kidnapping and false imprisonment
A
Kidnapping and false imprisonment can be prosecuted and the county in which the offense what’s committed or in any county through or into which the victim was taken
13
Q
Specific venue for: conspiracy
A
Conspiracy may be prosecuted in the county in which the agreement was entered into, in the county in which the agreement was to be carried out, or in any county in which one or more of the conspirators did any act to implement the agreement.
14
Q
Specific venue for: sexual assault
A
Sexual assault maybe prosecuted in the county in which the assault actually took place, the county in which the victim was abducted, or any County into or through which the victim was transported in the course of the abduction and sexual assault.
15
Q
Specific venue for: possession or delivery of marijuana
A
Possession or delivery of marijuana maybe prosecutor and the county in which the offense was committed order (with the consent of the defendant) an accounting adjacent to and in the same judicial district as the county in which the offense was committed.
16
Q
Specific venue for: authorized use of vehicle
A
Unauthorized use of a vehicle may be prosecuted in the county in which the vehicle was originally reported stolen or in any county where the unauthorized use occurred.
17
Q
Specific venue for: organized criminal activity
A
Organized criminal activity can be prosecuted in any County in which any act to affect an objective of the combination was committed.
18
Q
Specific venue for: bigamy
A
Bigamy maybe prosecuted in the county in which the bigamous marriage occurred, any county in which the parties live or cohabit as husband and wife, or any county in which a party to the marriage not charged with the offense resides.
19
Q
Specific venue for: escape
A
Escape can be prosecuted in the County in which the escape occurred or in the county in which the defendant was originally placed in custody
20
Q
Specific venue for: fraudulent use of identifying information
A
Fraudulent use or possession of identifying information can be prosecuted in any county in which the offense was committed or the county of residence of the person whose identifying information was used.
21
Q
Specific venue for: Computer crimes
A
Computer crimes can be prosecuted in any county in which the victim resides
22
Q
Defense motion procedural process to obtain more time to locate/obtain missing witness
A
Move for a continuance to locate a missing witness. The motion must be sworn, and must show
(1) the court,
(2) the name and residence of the witness,
(3) the material facts the witness is planned to show,
(4) the diligence used to try to get the witness, and
(5) that the motion is not being made for delay.
23
Q
Continuance after Trial Begins
A
If a continuance or postponement is requested by either the defense or the state after trial begins, it is to be granted only if the moving party establishes:
(1) some UNEXPECTED OCCURRENCE since the trail began,
(2) that no REASONABLE DILIGENCE would have enabled her to predict this occurrence, and
(3) that she is so taken by surprise that a fair trial cannot be had.
24
Q
Continuance by Agreement of Parties
A
If the parties agree to a continuance, it may be granted by the court upon a showing of good cause
25
Length of Continuance
A continuance may only be granted for as long as necessary.
26
What procedural step can a party take to keep evidence from being introduced, and what arguments can be used in support?
File a motion to suppress the evidence. In support, argue that the stop was unreasonable and in violation of the 4th Amend. because it came from fruits of the poisonous tree.
27
Withdrawal of guilty plea
A plea of guilty to the judge cant withdrawn as a matter of right before the court takes the plea under advisement.
28
Is a withdrawn guilty plea admissible as evidence during trial?
A plea of guilty or solo contendere that is later withdrawn cannot be used against the defendant who entered the plea
29
What procedural steps, can be taken to protect a defendant from the prejudice that may occur if a co-defendant's prior conviction is introduced and they are being tried together?
Move for a severance of the trial. The trial judge must grant the motion because severance is mandatory if the moving defendant shows the co-defendnat has a prior conviction admissible against that co-defendant at trial.
Could get a pretrial determination as to whether the prior conviction is actually admissible by filing a pretrial motion in limine asking the trail court to hold it inadmissible. if the trial court rules the conviction admissible during pretrial, you must still object during trial to preserve error on the motion in limine.
30
What procedural steps can be taken to ensure a witness appears at trail to testify
Obtain a subpoena for the witness by applying for it with the clerk of the trial court. this subpoena will order her to appear. Failure to appear, an attachment may be obtained, which will allow a peace officer to locate the witness and bring them before the court. IF the subpoena is not properly served, then an attachment will not be available.
31
Objection to Court over missing defendant during pretrial proceedings
The court must sustain such objection, as the defendant has a right to be present during all pretrial hearings
32
Challenge for Cause
Challenge of juror on any of the disqualifying grounds as found by law. no limit
Each juror must be able to and willing to consider all penalties authorized by law. a protective juror who is unwilling to consider them is thus biased or prejudiced against part of the law on which the defendant and state are entitled to rely on.
A peremptory challenge may be used if a challenge for cause is denied.
33
What procedural step can be taken to prevent witnesses from talking/working together and from being present in the courtroom
Invoke the rule of exclusion of witnesses from the courtroom. If invoked, and no exception applies, the trial judge must exclude all witnesses, including experts, from the courtroom and order them not to talk with anyone about the case, except with permission of the trial judge.
If a witness violate the rule, the trial court may:
(1) hold the witness in contest, and/or
(2) exclude the testimony of that witness
34
Admissibility of Confession
Object on hearsay grounds, and that admission of the confession would violate the defendant's right to confront witnesses against them.
35
Discovery of Prior Statement of Testifying Witnesses
Statements made by testifying witnesses prior to their testimony are discoverable for cross-examination purposes, and includes police reports as the work product does not apply in this instance.
36
Must the court include a definition of “reasonable doubt” in the jury charge?
No. In fact it should not do so. This is because any effort to define reasonable doubt will be of no help and will tend to confuse the jury.
37
Argument that defendant is guilty because of not testifying during trial. Proper or improper?
Improper. Defendant has a 5th Amend. right not to testify and to not have the jury draw adverse inferences from this failure to testify.
38
how to preserve error for improper arguments
To preserve error, the defense counsel must:
(1) object and get a ruling
(2) request an instruction to the jury to disregard the argument and get a ruling
(3) move for a mistrial on the ground that the instruction cannot be effective and get a ruling on hat motion.
39
Timeliness of request for jury sentencing proceeding
The request or election of jury sentencing must be filed before void dire of the prospective jurors. Failure to file this, by operation of law, the defendant elects to be sentenced by a judge. Jury sentencing may be changed only after the verdict has been reached and if the prosecution consents.
40
Are prior bad acts admissible during the sentencing of defendant?
Yes. at sentencing, all evidence that the trail judge deems relevant to punishment is admissible. by statute, this explicitly includes other "extraneous" offenses even if the defendant has not been charged with or convicted of them.
the State must prove beyond a reasonable doubt that the defendant committed these extraneous offenses. if the defense has requested notice, the prosecution must give pretrial notice of its intent to introduce such evidence.
41
Are officers required by law to obtain one warrant authorizing the search of Ike’s apartment and a separate warrant authorizing the arrest of Ike?
No. A search warrant may also authorize an arrest and thus constitute an arrest warrant as well as a search warrant.
42
Does an officer have the authority to break down a defendant's door in order to enter the apartment pursuant to a search/arrest warrant?
Yes, an officer may break down the door of a house to make an arrest if
(1) the arrest is for a felony,
(2) the officer gives notice of the officer's authority and purpose, and
(3) the officer is then refused admittance.
43
What is a writ of habeas corpus? To whom is it directed? By whom may it be granted?
A writ of habeas corpus is a court order directing someone to produce an individual before the court and to show why that individual is being held. It is directed to a person having the individual in custody or under restraint. the writ may be granted by the court of criminal appeals, a district court, a county court, or a judge of any of these courts.
44
What courts have JX to conduct a trial for burglary of a habitation?
The only court with JX to conduct a trial for burglary of a habitation is a district court
45
what courts have JX to conduct a trial for criminal trespass?
criminal trespass is a misdemeanor, so a county court has JX to conduct a trail for this offense.
46
By what date should you file your motion for discovery? What consequence, if any, is there if you do not file your motion for discovery by that date?
When pretrial hearing has been set, motions for discovery must be filed seven days before the hearing. If it is not filed by that time, it cannot be filed unless the court, for good cause show, permits it to be filed.
47
Is the Prosecution required to disclose the contents of his report that indicate D2 did the crime along? Does this depend on whether the discovery motion requested disclosure of any reports in the Prosecution's possession?
The information that is exculpatory in nature under Brady v. Maryland, must be disclosed. This duty to disclose does not depend on a request by the defendant, so the production of the information does not depend on whether the discovery motion requested disclosure of reports in the Prosecution's possession.
48
Must you disclose names and addresses of all lay and expert witnesses who will testify pursuant to a discovery request for disclosure motion
The trial judge does have authority to order a defendant to disclose to the prosecution the names and addresses of expert witnesses, but there is no basis for the trial judge to oder a defendant to disclose any information regarding lay witnesses to the prosecution.
49
Adequate Description of search warrant
The description must be sufficient to enable officers to identify both the building, and the specific apartment to be searched within that building.
50
How can a warrant be challenge for lack of adequate description
To challenge the warrant, the defense should file a motion to suppress the evidence found by the execution fo the warrant, and ask the court to hold the search warrant and the search of the apartment unreasonable and to bar the prosecution from introducing any evidence flowing from that search.
51
admonitions that the Court must give a defendant before accepting his felony plea of guilty
(1) the range of penalties for the offense
(2) that any recommendation by the state as to the penalty is not binding on the court
(3) that the defendant has a limited ability to appeal if conviction pursuant to a guilty plea.
(4) If not a US citizen, that plea of guilty may result in deportation, exclusion from admission to this country, or the denial of naturalization under federal law.
(5) inquire as to whether there is a plea bargain
52
Prerequisites for sentence of probation
The prerequisites include:
(1) The punishment assessed must not exceed 10 year's imprisonment;
(2) to get probation from the jury the defendant must have filed a pretrial motion for probation; and
(3) to get probation from the jury the defendant must show he has not previously been convicted of a felony.
53
Challenge Juror Statement that Defendant is guilty because he has been charged by the grand jury
Challenge juror for cause because he has shown bias against the defendant and on a part of the law on which the defendant is entitled to rely.
The law provides that the fact a defendant has been indicted gives rise to no inference of guilt.
54
Defense's Timeline for Opening Statement
Defense counsel is entitled, by statute, to make the defense opening statement immediately after the state's opening statement. This right has been extended to permit the defense's opening statement to be made after the state rests its case-in-chief.
55
Discoverability of prior-statements from testifying witness made to the grand jury
A party is entitled to the statement of an opponent's witness after that witness has finished direct examination. "Statement" includes a transcription of testimony by the witness to a grand jury.
56
When you begin to cross-examine D2 about the fact that D2 presently is on probation, the Court cuts you off and states: “Counsel, we’re not going to go into that. It’s got nothing to do with this case.”
A witness may be impeached by a conviction for which the witness received a probated sentence if probation has not expired. The conviction must be for a felony or a misdemeanor involving moral turpitude
57
Can counsel assert personal opinions as argument's to the jury?
No, it is an impermissible jury argument to assert personal opinion on the credibility/weight of evidence/testimony.
58
Admissibility of prior bad acts
Extraneous offenses are inadmissible to prove guilt by showing that a D is a bad person and therefore committed the charged offense.
It could be admitted if it was relevant to guilt in some way other than by proof of the defendant's bad character. such as for mental competency/state at time of acts (MIMIC). Unless the trial judge is convinced the danger of unfair prejudice substantially outweighs the probative value of the evidence.
59
What standard of proof was the State required to meet to obtain a verdict of guilty? How many jurors had to concur in the verdict? What would have been the consequence if fewer than the minimum number of jurors voted for a verdict of guilty?
The state must prove guilt beyond a reasonable doubt.
All members fo the jury had to concur in the verdict of guilty. If all jurors cannot agree on verdict of guilty and they cannot unanimously agree on a verdict of not guilty, the trial judge must declare a mistrial if:
(1) both parties agree, or
(2) the court finds the jury has been kept together long enough to render it altogether improbable tat it could agree.
60
What procedural step can you take to enlighten the court that D2 bribed four of the jurors to convict D1 and attack D1's conviction? How long do you have to take this procedural step?
Counsel can bring this to the attention of the trial court by making a motion for new trial. Long the grounds for a motion for new trial is that a juror hs been bribed or is otherwise guilty of corrupt conduct. Counsel must file a motion for new trial within 30 days of sentencing and then present it to the trial court within 10 days of filing. The trial court can, however, permit Counsel to present it within 75 days of sentencing. If not ruled on w/in 75 days then overruled by operation of law.
61
Is the prosecution barred because the State waited too long to file this felony charge of arson?
The general rule for felonies is three years and no felony has a period of limitations less than three years,. therefore, apart from the special 10 year Sol for arson, the state would have three years to file any felony charge.
62
Competency to Stand Trial; What would you need to establish to prove that Lenny is incompetent to stand trial, and what burden of proof would you need to meet?
To prove Defendant is incompetent to stand trial, Counsel would have to prove either that:
(1) defendant lacks sufficient present ability to consul with his lawyer with a reasonable degree of rational understanding, or
(2) he lacks a rational as well as factual understanding of the proceedings.
Start with presumption of competency, and overcome under a preponderance of the evidence standard of proof.
63
What is bail?
Bail is the security given by a defendant to assure that he will appear in court to answer the accusation against them.
64
What is a bail bond?
A bail bond is a written undertaking by the defend and one or more sureties that they will pay the amount of bail if the defendant does not make his required appearances.
65
In what major way does a personal bond differ from a bail bond?
A personal bond differs from a bail bond in that a bail bond requires either an adequate surety or a cash deposit in the amount of the bond. A personal bond required neither. it is simply the defendant's promise to pay the amount if he fails to make the appearances.
66
What is an indictment?
An indictment is the written statement of a grand jury accusing a named person of a criminal offense.
67
Discuss two ways in which an indictment and an information differ?
Among the ways in which it differs from an information are:
(1) an indictment must be approved by a grand jury and signed by the foreman, while an information need only be authorized and signed by the prosecutor, and
(2) an information must be supported by a sworn complaint filed with the court, while an indictment does not require such support.
68
what will happen if he pleads guilty but the Court does not agree with the plea agreement.
Will the Defendant be allowed to withdraw his guilty plea if the court rejects the plea agreement?
If the trial court decides not to follow the plea agreement and punish something other than what was agreed, the Defendant must be allowed to withdraw his plea and enter a "not guilty" plea if he wishes.
69
Defendant believes that a nolo contendere plea does not have the same legal effect as a
guilty plea.
Is Defendant's belief correct?
Only to a minor degree. In the criminal prosecution itself, the solo contenders plea has the same legal effect as a plea of guilty.
But if civil litigation were to arise out of the same incident as gave rise to the criminal charges, a plea of guilty could be used against the Defendant. A plea of solo contenders could not be so used.
70
What procedural step, if any, can you take to challenge the indictment for failing to state a charge/or some other issue? Assuming that you can take some procedural step, when should that step be taken ?
Counsel can challenge the indictment by filing an exception to the form of the indictment, or the substance of the indictment. These motions are informally called a motion to quash. This exception or motion to quash must be filed before the day on which the trial on the merits commences. However, if there is a pretrial hearing, then it must be filled 7 days before the pretrial hearing, if not it can't be raised later except by permission of the court on the basis of good cause.
If you fail to timely challenge, then a defect cannot be rises later in the trial court, on appeal, or in post-conviction habeas corpus.
71
Discovery of Police Report as part of Expert's basis for Opinion
After receiving a timely request from the Defendant, the state must provide any written or recorded statement of any law enforcement officer, including the officer's police report
72
What procedural steps can you take to obtain jury sentencing and to allow a jury to recommend community supervision? When should you take these steps?
to obtain a jury sentencing, Counsel should file a written election for jury sentencing. This should be filed before jury voir dire begins.
73
What procedural step , if any, can you take to ensure that the prosecutor will disclose before trial whether he intends to introduce in the State 's case at trial evidence of Defendant's previous bad acts?
To ensure that the prosecutor will disclose before trial that he intends to introduce evidence of past acts as part of guilt-innoncence, Counsel should make a timely request for such notice. If done time, the State must provide such notice prior to trial.
74
What procedural step , if any, can you take to ensure that the prosecutor will disclose before trial whether he intends to introduce in the State 's case at the sentencing stage of Defendant's previous bad acts?
Counsel should make a pretrial notice request of the state's intention to introduce at punishment evidence of extraneous crimes or bad acts. If done timely, the State must provide such notice prior to trial.
75
What procedural step, if any, can you take to have the Court exclude Officer's testimony about Defendant's confession at the police station from coming in as evidence? On what basis, if any, can you take this step?
File a pretrial motion to suppress the testimony concerning the confession. Do this on the basis that evidence that the defendant orally confessed during custodial interrogation is inadmissible unless one of the exceptions applies.
76
What procedural step, if any, can you take to have the Court exclude the receptionist's testimony concerning incriminating statement made by the Defendant from coming in as evidence? On what basis, if any, can you take this step?
To have the court exclude the testimony, Counsel could wait until the prosecutor offers the testimony during trial and then object. Or, Counsel could before trial file a motion in limine asking the court to address the admissibility of the testimony and hold it inadmissible.
There is no basis on which to take either of the steps. Out of court admissions by a crim. defendant are admissible. They are not hearsay because they constitute a statement of a party-opponent. At the time defendant mad these statements, there was no custody issue involved.
77
Peremptory Challenges
No cause is needed and may be done for no reason at all. For capital murder death penalty cases: 15
For noncapital district court felony prosecution: 10
Misdemeanors in Cty, Municipal, or Justice Ct: 3
Misdemeanors tried in Dst. Ct.: 5
Can't be made based on race or gender (See Batson challenge).
78
One juror becomes incapacitated from sitting on the jury. Motion for mistrial. How should the court rule?
The court need not grant a mistrial. If in a felony case a juror becomes disabled after trial begins but before the instructions are red to the jury, the remainder of the jurors can reach valid verdict. All of the jurors, however, must sing the verdict.
79
You ask the Court to allow you to question the prosecution's arson expert about his qualifications and the basis of his opinion outside of the jury's presence. The Court denies your request. Is the Court's ruling correct?
In a crim. case, a party against whom expert testimony is offered has a right on request to conduct a voir dire of the witness on underlying facts and data. This is diff. from civil trials, in which whether to permit this is discretionary.
80
Does Wife have any right to refuse to testify against Defendant-Husband ? Does Defendant-Husband have any right to prohibit the prosecutor from calling Wife as a witness?
Wife has a right to refuse to testify against defendant-husband because the spouse of a criminal defendant has a privilege not to testify for the State. Defendant-Husband has no right to prohibit the prosecutor from calling Wife. This is because the privilege belongs to the testifying spouse and cannot be invoked by the defendant.
81
Does a defendant have the right to be personally present at trial? May the trial proceed in defendant's absence?
A defendant has a right to be personally present and, in fact, can be compelled to be present. But, in a felony trail, a trial can continue without the defendant if the defendant was present through selection of the jury and after the voluntarily absents himself from trial.
82
Is including in the jury charge comments of skepticism as to testimony and that witness was paid proper?
No, in the instruction the court is not to convey to the jury the court's view as to the weight of the evidence, or convey to the jury the judge's opinion of the merits.
83
May the Court ignore the jury's recommendation of community supervision and impose a sentence of incarceration only?
No. if the jury recommends suspension of a sentence and placement of the defendant on community supervision and the defendant is eligible for community supervision, the judge must suspend the sentence and place the defendant on community supervision.
84
Within what amount of time should a magistrate decide whether probable cause exists to believe that a person committed a felony offense ? What is the consequence if a magistrate fails to make a probable cause determination within this amount of time ?
The Magistrate should decide whether probable cause exists within 48 hours of the arrest. If this is not done, the defendant has the right to be released on bail and to have bail set so he can make it. This may require personal bond. The bail must be no more than $10,000.
85
A magistrate is considering releasing the Defendant on bond without sureties or other security. What kind of bond is the magistrate considering? What conditions of bond, if any, can the magistrate impose to allay her concerns about releasing Wilbur on bond?
The magistrate is considering a personal bond, which on forfeiture requires the defendant to pay the amount but does not require a surety or cash deposit.
The magistrate may impose any reasonable condition on the bail that is related to the safety of the victim of the crime or the community.
86
Valid Arrest
An arrest is valid only if the Officer had probable cause. this requires the officer to have facts on which a reasonable person would conclude there was a fair probability the defendant was the perpetrator of a crime.
Any lack of an arrest warrant must be justified by an authorized/recognized exception to the warrant requirement.
87
a defendant waive his right to indictment ? If so, what charging document will be used instead of an indictment?
A defendant can waive indictment in all cases except prosecution for capital murder. If a defendant waives this, the defendant will be charged by information signed and filed by the prosecutor.
88
what requirements must be met to waive right to indictment?
The waiver of indictment has three requirements:
(1) the defendant must be represented by counsel;
(2) the waiver must be in a written instrument or in open court, and
(3) the waiver must be voluntary.
89
Does a defendant have the right to address the grand jury?
A defendant has no right to address the grand jury. However, the grand jury may permit him to appear. The prosecutor must consent to defense counsel's addressing the grand jury, but Prosecutor's consent is not necessary for the Defenses s the suspect party, to himself address the body.
90
Is it permissible to charge multiple offenses in the same indictment, or is a separate
indictment required for each of the offenses?
It is permissible. Generally, an indictment may charge only one crime. However, several crimes may, but don't have to be, all be charged in one indictment, but in different counts, if they are part of the same "criminal episode."
91
criminal episode
(1) Offenses committed pursuant to the same transaction or
(2) constitute a common scheme or plan
(3) the offenses are the repeated commission of the same or similar offense
92
What procedural step can Defense Counsel take to obtain a separate trial for defendant on each
count of the indictment? Could taking this procedural step ultimately affect defendant's sentence?
Defense counsel can move for a severance of the charges for separate trails.
If Defense Counsel does not do this, and Defendant is convicted of all or several offenses, and is sentenced to imprisonment, the prison terms must run concurrently.
However, if defendant gets separate trials, is convicted, and is sentences to imprisonment, the judge has discretion to "stack" the sentences--that is, make the consecutive.
93
Five day deadline for all pleadings after service of indictment. Is this proper amount to file pleadings?
No. In those cases, in which a defendant is entitled to be served with the indictment, the defendant must have 10 days from that service within which to file written pleadings.
94
What procedural step should Defense Counsel take to prohibit Prosecutor from mentioning this fact? If Prosecutor mentions this fact at trial , what should Defense Counsel do to preserve the issue for appeal?
Defense Counsel should make a motion in limine, and to preserve for appeal should object and get a ruling whenever it is mentioned by the Prosecutor during trial.
95
Defense Counsel learns that Prosecutor intends to introduce into evidence at trial digital pictures found on the cell phone taken from the Defendant.
What procedural step, if any, can Defense Counsel take to try to keep evidence from being introduced into evidence, and what arguments , if any, can Defense Counsel make in support of her position?
Defense Counsel can file a motion to suppress the pictures, arguing that they were obtained from a search incident to an invalid arrest and thus the pictures are the inadmissible fruit of the poisonous tree.
96
Witnesses intended to be used to id defendant as guilty party.
What procedural step , if any, can Defense Counsel take to try to stop Ms. Rosie from testifying about this, and what argument, if any, can Defense Counsel make in support of her position?
Defense Counsel can make a motion to suppress witness's testimony. In support, Defense Counsel can argue that due process prohibits the admission of testimony of an eyewitness who, before trail identified the defendant at a show procedure so suggestive that ti t creates a high likelihood that the witness will erroneously identified the defendant as the perpetrator.
97
Prosecution believes that due to Defendant's fame it would be virtually impossible to convict.
What procedural step, if any, can Prosecutor take to seek relief from this problem? If there is some step that Prosecutor can take, what must Prosecutor show in order to obtain this relief?
Prosecutor can move for a change of venue. At the hearing that will be held on the motion, Prosecutor must show that because of influences in the original county in favor of defendant, a fair and impartial trial to the state cannot be held.
98
Defendant believes he is not guilty and wants jury trial.
What three questions must the court ask in testing the qualifications of a prospective juror?
The three questions are:
(1) are you a qualified voter in this county and state?
(2) have you ever been convicted of theft or any felony?
(3) are you under indictment or accusation of theft or any felony?
99
Prosecutor uses his peremptory challenges to strike all of the male prospective jurors.
What procedural step can Defense Counsel take to challenge Prosecutor's action? How may Prosecutor rebut this challenge? What must Defense Counsel show to succeed in her challenge?
Counsel can make a Batson challenge.
Specifically, she should make a challenge to array:
(1) after both sides submit their lists of challenges to the judge, but
(2) before the judge impanels the final jury.
Prosecutor's striking of all jurors of one gender or race makes a prima facie case of gender or racial motivation, Prosecutor may rebut this by explaining each challenge on gender/race-neutral grounds.
D Ultimately has the burden of proving racial motivation
If found then judge must:
(1) dismiss the array and start jury selection over, or
(2) reinstate those jurors struck for racial reasons
100
Can an expert's testimony of handwriting by comparison alone be sufficient to establish the handwriting of a person?
Proof by comparison of handwriting, either by experts or the jury without expert testimony, is not sufficient to establish that the handwriting is that of a witness or person, if that witness or person denies under oath that this is his signature. if the witness or person does not so deny that the signature is his, comparison is sufficient.
101
In order to discredit a Witness, Defense Counsel begins to cross-examine her about her conviction eight years ago for the misdemeanor of driving while her license was suspended. Prosecutor objects to Defense Counsel's cross-examination on this topic.
How should the Court rule on Prosecutor ' s objection?
The objection should be sustained. A witness can be impeached by a prior conviction for a misdemeanor only if that misdemeanor was a crime involving moral turpitude. Driving while one's license is suspended does not involve moral turpitude.
102
During direct, defense presents testimony from a Preacher that defendant is a law abiding citizen. During cross, Prosecution seek out information defendant told preacher during spiritual advice about prior bad acts of defendant.
On what basis can Defense Counsel object to Prosecutor's question? What should Prosecutor argueinresponse?
Defense counsel should object on the ground that the answer to the question would reveal a confidential communication by defendant to a member of the clergy in the minister's professional character as a spiritual advisor. Prosecutor should resort that the protection of the privilege is waived if the person wit the privlige calls the spiritual advisor as a character witness and the communication are relevant to the aspects of character as to which the advisor testifies.
103
Scope of a valid arrest warrant
A valid arrest warrant issued by a magistrate extends to every part of the state. any peace officer is authorized to execute the warrant
104
Three requirements for an arrest warrant
An arrest warrant must be issued in
(1) the name of the state of Texas,
(2) it must specific the name of the person to be arrest (or a reasonably definite description of the person if his name is unknown),
(3) it must name the offense the person is accused of,
(4) it must be signed by a magistrate, and
(5) name his office.
105
Defendant taken before magistrate 36 horus after arrest. Was this timely?
An arrestee must be brought before a magistrate without unnecessary delay, but not later than 48 hours. Arresting officer may take him before a magistrate in the county where he was arrested or, if it is more expeditious before a magistrate in another county.
106
Do the rules of evidence apply to an examining trial?
No, the same rules of evidence that govern a criminal trial also apply at an examining trial.
107
Did the grand jurors violate the law by asking Prosecutor for his legal advice?
no, the grand jury may send for the attorney representing the state and ask for his advice on any matter of law
108
Is the grand jury required to charge co-defendants separately for a single crime?
No, more than one defendant may be charged in a single indictment if they are both charged with the same offense
109
Amendment of indictment by completely changing charge or adding a new count
Because the charge is a completely different and additional crime, Prosecutor must go back to the grand jury to have it indict the defendant for that crime. An indictment cannot be amended by the court to add an additional charge.
110
Inventory exception to the warrant requirement
Police may inventory all of the items on ap person so long as the police follow an existing department policy and are not engaging in general rummaging.
111
Can a judge asses punishment and provide for community supervision?
for most offenses they can, but for certain enumerated and particularly serious offenses judges may not impose community supervision. only a jury can impose community supervision n for aggravated robbery.
112
Who can place the defendant on deferred adjudication?
Only a judge can place a defendant on deferred adjudication. to be eligible for deferred adjudication, defendant must plead guilty or solo contenders rather than proceeding to trail and being found guilty
113
If co-defendnats face jury trial alone, how many peremptory challenges to prospective jurors do the parties get?
10 for defense and 10 for prosecution
114
if co-defendants face jury trial together, how many peremptory challenges to prospective jurors do the parties get?
6 for each defendant, and 12 for the prosectuion
115
challenges for cause that may be made by the parties to prospective jurors?
(1) not a qualified voter in the county and/or state
(2) has been convicted or is presently indicted for a theft or felony
(3) is biased or prejudiced against D or against applicable law
(4) is a witness in the case
(5) served on a a jury in prior trial of the case
(6) served on indicting grand jury
(7) cannot read and write
(8) insane
116
D2 testifies against D1 and Prosecution offers evidence in support of that statement. Can D1 be evicted on the basis of this evidence
Because they are accomplices, D1 can be convicted on D2s testimony only if there is sufficient corroborating evidence linking D1 to the crime. While the evidence in support can provide corroboration evidence, it must link D1 to the crime and not just that a crime occurred.
117
What evidentiary predicate must the custodian of records provide in order for evidence to be admitted? Business Records Hearsay Exception
Predicate must show that the evidence was
(1) kept in the regular course of business,
(2) that it was the regular course of business for a person with knowledge to make that record,
(3) that the evidence was made at or near the time of the event, and
(4) that the witness is the custodian of records.
Can be made without a witness if:
(1) obtains an affidavit of the custodian of the records containing all the elements identified above
(2) files the affidavit with the records attached with the court at least 14 day before trial starts; and
(3) gives the defense notice of the filing at least 14 days before trial.
118
Witness statement includes recitation of third individual who was not sworn and is not a party to the case
The statement is hearsay because the third individual is not testifying in person under oath and are statements out of court, and the exception of statement of party opponent is not applicable as third person is not a party to the case, and without corroboration are not statements against interest.
119
Situations in which a judge is not required to direct a probation officer to prepare a presentence report in a felony case?
Not required if:
(1) the punishment is assessed by a jury
(2) the only available punishment is imprisonment
(3) the judge is informed that a plea bargain exists under which the defendant agrees to imprisonment, and the judge intents to follow the agreement, or
(4) the defendant is convicted of capital murder.
120
Can a victims statement prior to punishment be used at the punishing phase?
No, although the court must permit the victim to present a statement about how the crime has affected higher, the statement can be fine only after punishment has been assessed.
121
Right after arrest, what rights must judge inform defendant about?
1. Inform of accusation
2. right to counsel
3. right to remain silent
4. right have attorney present during questions
5. right to terminate interview at any time
6. right to an examining trial.
122
When appointed to represent defendant, within what time period should you contact defendant, and what punishments may you suffer for failure to do so?
Must make every reasonable effort to contact her no later than the end of the first working day after the date of being appointed If fail to meet that deadline, the court may replace counsel.
123
What facts would deny court to set bail?
Judge may deny bail if:
(1) defendant has two prior felony convictions
(2) has committed the present offense while on bail for another felony
(3) had a prior felony conviction and committed the present offense with a deadly weapon
(4) present offense was a violent or sexual offense committed while on felony probation or parole
124
What early stage proceeding is available that goes to the truth of the accusation?
When charged with a felony without being indicted, defendant is entitled to an examining trial. at an examining trial, the magistrate will determine whether there is enough evidence to demonstrate probable cause to believe defendant is guilty of the crime. the examining trial may not be had after indictment.
125
What is required for a search warrant to be issued?
A search warrant must contain:
(1) a statement that it runs in the name of the state of texas
(2) a specification of the person, place, or thing to be searched
(3) a specification fo the mites to be seized
(4) an endorsement of the date and hour it was issued and
(5) the signature of the issuing magistrate
126
How many jurors serve on a grand jury, how many must concur for a person to be indicted, and who drafts the indictment?
A grand jury consists of 12 jurors and 4 alternate jurors. Nine grand jurors must concur for there to be a true bill and for the defendant to be indicted. The attorney who represents the state then drafts the indictment.
127
What is a capias
A capias is a writ issued by a judge that directs a peace officer to arrest a person accused of an offense and to bring the arrest person before the court immediately or on a day specified in the writ.
128
When must you file a motion to change venue? What consequence if any is there if you do not file your motion in time.
Motion for venue change must be filed at least seven days before the pretrial hearing. Failure to do so will prevent any later motion to change venue unless the court its permission for good cause shown.
129
Does Law allow jury to assess punishment when defendant enters a guilty plea?
Yes, law specifies that if a defendant pleads guilty, a jury may be impaneled to assess punishment if the defendant elects jury sentencing
130
What steps can be taken to inspect evidence, and what must be shown?
Move to inspect evidence, and must demonstrate that it is a tangible item, contains material evident, is in the possession of the state, and is not work product of the state.
131
JX of District Court
District court as JX over felonies as well as any lesser included offenses, even if that offense is a misdemeanor.
132
Eligibility for probation:
to be eligible for probation, a defendant must
(1) file a sworn application for probation stating,
(2) in writing,
(3) that the defendant has never been convicted of a felony.
133
What option is available to change the seating of prospective jurors?
Either party may request a jury shuffle in which the jury is randomly reseated. there can be only one shuffle per case. A jury shuffle must be requested before voir dire of the panel begins.
134
Inquiry into D2 making a deal with Prosecution to testify against D1
Allowed because such an agreement shows a motive for D2 to falsify testimony, showing bias or interest. inquiry into such agreement is proper subject for cross.
135
Fact witness asked about if D acted intentionally, and alludes that may have been victim without concrete personal knowledge
Object to testimony on the ground that no testimony on involvement or mental state asserted. and fact witness not allowed to state opinion.
136
Use of extrinsic evidence against witness
A party can use extrinsic evidence to contradict witness, but only if the matter is one that the party would be able to prove as part of the party's own case.
137
Jury disagrees on substance of witness statement, what can jury do to find out what witness actually said?
Jury may request to have court reporter read the relevant testimony. May not request that other portion be read back,. if there is no court reporter, may request that witness be brought to he stand and repeat that information.
138
Standard of review for the legal sufficiency of verdict
View the evidence in the light most favorable in support of verdict, could a rational jury have found all elements of the crime proved beyond a reasonable doubt.
139
Can a court compel witness to answer the grand jury's questions? if so by what means?
Yes, a court can compel witness/individual to answer the grand jury's questions, unless defendant were to have a legitimate claim that the answer would be incriminating. To compel witness/person to answer the gran jury's questions, the court may impose a fine not exceeding $500 or commit defendant to jail until willing to testify.
140
Waiver of jury
Defendant can waive right to jury in all cases except prosecution for capital murder where the state seeks the death penalty. This must be done before trial begins. Waiver of jury trial requires the consent of the prosecutor and the judge.
This won't remove right to elect jury assessment of punishment.
141
Object to child testimony over competency
Just because witness is child does not mean that he cannot be a competent witness. Judge should examine child on the record to determine whether child has sufficient intellect tolerate transaction regarding which the will be asked to testify.
142
Appealing acquittal
Constitutional protection assent double jeopardy forbids state from appealing a jury's verdict of aquittal
143
Can a summons be used over an arrest warrant? what is the diff. to a summons over an arrest warrant?
A magistrate may in his discretion issue a summons rather than an arrest warrant. The summons directs the person to appear but does not authorize the taking of the person in custody.
144
Can bail be denied?
Tex. Const. provide that defendant have a right to bail, but
Denial of bail for a noncapital prosecution lasts only 60 days, as long as the defense does not move for a continuance of the trial proceedings. At the 60 day mark, the order denying bail is automatically vacated and the defendant is entitled to have bail set, and counsel should file a motion to have bail set.
145
Who may be present during grand jury's deliberations?
no one but the grand jurors may be present while the grand jury is deliberating
146
reasonable search/privacy exception standing?
You must have some reasonable expectation of privacy when search was conducted to have standing to assert the Constitutional protections. Searches where your own privacy is not at stake does not give rise to constitutional protection/right to quash evidence against you.
147
What happens after a jury is impaneled
(1) the reading of the indictment or information to the jury by the prosecutor,
(2) the entry of a plea by the defnse
failure to take the steps can can be fixed later during trial. Upon leaning of the error, the indictment should be read to the jury and the defendant should enter a plea.
148
Statements made by con-conspirator during furtherance of conspiracy offered again party
a statement offered against a party is not hearsay if it was made by the party's co-consipirator during an in furtherance of a conspiracy.
Statements made after crime, such as a confession made to police, however, could be challenged on grounds that co-conspirator's right against self-incrimination will prevent D's right to confront witnesses. Additionally, Counsel could request that any references to D be redacted from confession prior to introducing it as evidence.
149
Jailed D must be released (either on personal bond or reduced bond) if t he state is not ready for trial w/in:
(1) Felony Case: 90 days
(2) Class A Mis: 30 days
(3) Class B Mis: 15 days
(4) Class C Mis: 5 days
150
Purpose of an examining Trial
Examining trial is a pretrial hearing before a magistrate. its purpose is to require the State to produce evidence showing probable cause to believe the defendant guilty of the crime.
151
Rights of D at Examining Trial
D has the rights to:
(1) be Present
(2) be represented by counsel
(3) have the rules of evidence applied
(4) cross-examine State witnesses; and
(5) subpoena and present defense witnesses
152
D unsworn statement at examining trial
Can be made, but must be done before any witnesses testify.
153
What is an information
An information is a pleading filed by the State charging the person named with a criminal offense.
154
Method of selecting who will serve on a rand jury
Dist judge directs that 20 to 125 prospective grand jurors be selected and summoned in the same manner as in trial for civil cases. Prospective grand jurors are summoned to the district court, which tests their qualifications. The district court will the impanel 12 grand jurors and 4 alternates.
155
If D is subpoenaed to appear, he must be warned as to:
(1) testimony will be under oath
(2) false answer to material question subjects him to prosecution for perjury
(3) he can refuse to answer incriminating questions
(4) he has a right to have counsel appointed if he is unable to employ a lawyer
(5) he has a right to have a lawyer present outside the room; and
(6) his testimony can be used against him
156
Cross-Examine witness at Grand-Jury
D has no right to do so. D may appear as a witness (either voluntarily or under subpoena) with the grand jury's permission he may be allowed to address the grand jury, but he may not cross-examine any witnesses. Only the prosecutor and grand jurors may examine any witnesses.
157
Requirements for a valid Indictment or Information
(1) Start with: "In the name and by the 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 (i) within period of limitations, and (ii) before presentment of indictment
(6) allege commission of the crime in a county w/in court's JX (venue)
(7) conclude: "Against the peace and dignity of the State"
(8) be signed by foreperson if indictment or information if prosecutor
158
How to get a lesser charge presented to the jury
Counsel should ask the jury be given a charge on the lesser crime. This should be done after the evidence has closed and the parties have rested.
159
When should jury be instructed on an uncharged offense
(1) Is lesser crime a lesser included offense of the charged crime?
(2) Does the evidence permit a conclusion that D is guilty only of the lesser crime?
If yes to both then may instruct on lesser crime
160
What if indictment holds incorrect name of D
Counsel may raise this at the arraignment and inform the judge what the accused name is. The judge will then cause the indictment to accuse the correct D.
This is the only time when it may be raised, not able to raise it after arraignment
161
Offense is a lesser included offense if:
(1) it is proved b y some but not all of the same facts required to prove the more serious offense, or
(2) requires only a less serious injury to the same person, property, or interest as the more serious charge, or
(3) it requires only a less culpable mental state than the more serious offense, or
(4) it consists of an attempt to commit the more serious offense.
162
Who decides what plea will be entered?
Defendant
163
W/ is a motion in limine
a pretrial motion that asks for either:
(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 the judge before raising some matter of evidence or procedure before the jury
164
D testifies at motion to suppress hearing does he waive right to remain silent and may he be cross-examined
Prosecutor may only inquire as to matters related to the hearing issues. Cross-Examination cannot extend to guilty of the charged crime.
D does not waive right to remain silent at the rest of the trial. He may thus decline to testify at trial and his right to do so remains fully effective. D can testify at pretrial hearing only on issues related to that hearing.
165
Can D counsel before trial get access to written confession sims made to police?
Yes, because written confession d made to police is material evidence in the possession of the State, and not work product of the State
166
Can D counsel before trial get samples of physical evidence to enable the defense to test the material before trial?
Yes, because this is material evidence in the possession of the state, and not work product of the State
167
Discovery of Witness lists
State must provide the defense with a list of witnesses the State intends to Call
Expert witness list (name and addresses) must be provided upon d's request at least 20 days before jury selection
168
Discovery by deposition
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, and notice must be given to the state.
A hearing will then be held, where counsel will then show "good reason." "Good Reason": that the witness's testimony will be necessary for trial and that the witness likely to become unavailable before trial.
169
Discovery by Inspection (AKA Real Discovery)
The trial judge has authority to order the State to permit the D to inspect certain things
Inspection must be order if the thing:
(1) is tangible
(2) constitutes or contains material evidence
(3) is in the possession of the state
(4) is not work product of the state
Inspection cannot require the state to give up possession
Inspection must be sufficient to give the accused the information necessary to prepare for trial
170
Allowing testimony of witness not disclosed
May be allowed as it rests with the discretion of the court. Consider:
(1) whether omission was intentional, and
(2) wither the defense received actual notice that witness would testify
171
Incompetency differences from Insanity
(1) Relevant time--> Insanity looks at time of offense, and incompetency looks at time of trial
(2) Standard applied-->insanity the std is that D did not know conduct was wrong, and incompetence std is that D could not consult with counsel or understand proceedings
(3) Result--> With insanity there is a final verdict of not guilty by reason of insanity, but with incompetency it bars proceedings (at least during the time period when D is incompetent).
172
Motion for Change of Venue Req.
(1) A written motion for change of venue
(2) affidavit that fair trial cannot be held in the county by the defendant and two credible residents of the county
(3) at hearing, movant must present evidence showing there is sufficient prejudice in County to prevent a fair trial
173
Judge is disqualified if:
(1) Judge was the victim of the crime
(2) judge was counsel for either side
(3) Judge is related within three degree (by either blood or marriage) to either D or the victim, or
(4) bias
174
Presence of D during felony case or a prosecution for a misdemeanor punishable by jail time
In a felony case or a prosecution for a misdemeanor punishable by jail time, the D must be present at the beginning of the trial
(1) Jury case--> through swearing of the jury
(2) non-jury-->through D's plea to the indictment
D must be present at the end of the trial for the formal sentencing
If D is voluntarily absent in the middle, the trial may nevertheless proceed in D's absence.
175
Presence of D during misdemeanor case not punishable by jail time
D can be absent, because D may appear "by counsel" if the prosecutor consents.
176
Can two defendants be joined in one indictment?
Yes, if defendants are charged with the same crime they can be joined in one indictment
177
Ineffective assistance of counsel std
occurs when:
(1) the lawyer's actions were beyond the bounds of professional competence and were not simply tactical decisions, and
(2) there is a reasonable probability that had counsel been effective, the results of the proceeding would have been different.
Not ineffective assistance:
(1) fails to conduct an adequate investigation
(2) fails to convey to the client an offer of a plea bargain
(3) gave incorrect legal advice that caused D to forego a plea bargain offer
(4) gave incorrect immigration advice
178
Ct. appointed expert--Ake Motion
An Ake motion allows indigent D to be appointed an expert by showing that the area of the expert's expertise is likely to be a significant issue in the case.
This may be done ex pare so that D doesn't reveal thoughts to the State
179
Absolute disqualification to Jury
(1) insane
(2) has been convicted or is presently indicted for a theft or felony
Must set aside verdict if absolutely disqualified juror sat on the jury, and:
(1) raised this before the verdict was entered, or
(2) shows "significant harm" as a result of the juror's service
180
Challenge for Bias or Prejudice
Juror who states he can render a verdict on the law and evidence despite his opinion need not be discharged if the court s satisfied the juror can be impartial.
Thus challenging party must prove to judge that juror would be unable to put aside the opinion and decide the case on law and evidence, if juror says his opinion would not influence his verdict and can apply the law.
181
Order of Proceedings in Texas Felony trial
(1) judge calls for parties gives announcements of ready
(2) prosecutor reads the indictment
(3) defense counsel enters a plea for the defendant
(4) prosecutor makes State’s opening
(5) prosecution presents State’s case in chief
(6) defense counsel makes defense opening statement. (NOTE: could be given right after State's opening--option of D)
7. defense presents defense evidence
8. rebuttal evidence is presented
9. the judge reads the charge to the jury
182
Motion for Directed Verdict
This asks the judge to hold that no reasonable jury could find, on the basis of the State's case-in-chief, that all elements of the crime have been proved beyond a reasonable doubt.
This must be made to the judge, not the jury, thus should be made outside the hearing of the jury.
Should be made both:
(1) at the end of the State's case-in-chief, and
(2) at the close of all evidence
If the challenge is based on lack of venue evidence, this should be made known.
183
Statements Against Penal Interest
Hearsay Exception
Admissible if:
the statement is shown to have been incriminating regarding the
declarant;
b) a reasonable person would not have made it unless she believed it to be
true; and
c) [in criminal trials] there are corroborating circumstances that clearly indicate
the trustworthiness of the statement.
184
Character Witness
Character witness may give two kinds of testimony:
a) the witness’s personal opinion as to the person’s character (opinion character witness); or
b) what the witness believes is the person’s reputation for
the character trait (reputation character witness).
185
Foundation for character testimony:
(1) opinion testimony: the witness is personally familiar with the
person
b) reputation testimony: the witness participated in discussions with others of person’s reputation, or overheard others discussing that reputation
Must be based on facts prior to committing the offense
186
Cross-examination of character witnesses:
(1) Inquiry into specific instances of conduct is permissible.
(2) “Have you heard” questions: OK if reputation witness
(3) “Did you know” questions: OK if opinion witness
187
Extraneous offense evidence may be admissible as relevant to [MIMIC Rule]:
```
Motive
Intent/Knowledge
Mistake
Identity (when D puts it in issue)
Common scheme or plan
```
188
State can prove the defendant’s bad character:
(1) if accused “puts his character in issue” by exercising his right to introduce evidence of good character; and
(2) at punishment stage of the trial.
189
If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce:
(1) any other part of that writing or recorded statement; or
(2) any other writing or recorded statement;
which should in fairness be considered by the jury at the same time. [Evidence
Rule 106]
The other party is entitled to introduce this immediately.
190
If one party introduces part of an act, conversation, or statement, the other party
is entitled to prove “the rest of the subject”. [Evid. Rule 107]
191
Physician-Patient Privilege
Does not apply in criminal litigation
In a criminal proceeding, a communication is inadmissible if:
(1) it was made by a person being treated voluntarily (or being examined for
admission to treatment) for alcohol or drug abuse; and
(2) it was made to a person involved in the treatment or examination.
192
Attorney Client Communication
It is privileged information and not admissible in court
193
Privilege of Defendant’s Spouse
Spouse of a criminal defendant has a privilege not to be called as a witness to testify against the defendant or to not testify against the defendant.
The privilege is a privilege of the spouse-witness, who decides whether to waive it. Thus it provides no basis for a defendant to object to testimony
by a spouse who voluntarily testifies for the State.
Whether the spousal privilege is available turns on whether the witness is married to the defendant at the time of trial.
194
Exceptions to Privilege of D's Spouse
Exceptions: the defendant’s spouse may be called if either:
(1) the prosecution is for an offense committed against—
(i) any minor child;
(ii) a household member of either spouse; or
(iii) the spouse; or
(2) the spouse is called by the State to testify only about matters that occurred
prior to the spouse’s marriage to the defendant.
195
Privilege for Marital Communications
```
Any person (including a criminal defendant) has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication made by the
person to his or her spouse during marriage.
```
Communication is “confidential” only if it was both:
(1) made privately; and
b) not intended for disclosure to any other person.
196
Exceptions to Privilege for Martial Communications
Exceptions: no privilege exists if:
(1) the communication was made to commit a crime or fraud; or
(2) the prosecution is for a crime committed against the person of
(i) any minor child;
(ii) a household member of either spouse; or
(iii) the spouse.
197
Statements Made in Plea Bargaining Discussions
A statement made by the defendant is inadmissible if it was made in the course of plea discussions with a prosecutor.
198
Impeachment with “Bad Conduct”:
A witness may be impeached by showing prior “bad” or criminal conduct only if the cross-examining party establishes:
(1) the conduct resulted in a final criminal conviction;
(2) the conviction is not “stale” (rule of thumb: not more than 10 years since conviction or release from confinement, whichever is later);
(3) the conviction was for a misdemeanor that involved moral turpitude or a felony; and
(4) the prejudicial risk of the inquiry is substantially outweighed by its
probative value.
199
Impeachment by Contradiction
General Rule: A party can impeach a witness for the other side by introducing extrinsic evidence that contradicts what the witness said, unless the witness’s assertion is on a collateral matter.
A matter is collateral if the impeaching party would not be able to prove it as
part of its own case.
200
Moral Turpitude crimes:
theft, perjury, forgery, making false report to police,
| aggravated assault on a female, prostitution.
201
Not Moral Turpitude Crimes
DWI, drunkenness, assault,
| possession of marijuana, liquor law violations, unlawfully carrying weapon
202
Prior Bad Acts for Impeachment
Details can't be developed
Can be used against own witness
Can't be admitted if witness unequivocally admits having made the inconsistent statement at issue.
203
Exceptions to the Rule:
(1) the defendant;
(2) if the defendant is a corporation, an officer or employee of the defendant; or
(3) any person whose presence is shown to be essential to the
presentation of a party’s case; or
(4) the victim, the victim’s guardian, or a close relative of a deceased victim unless the trial court finds that the testimony would be "materially affected" by hearing other testimony.
204
Factors Ct should consider in determining the admissibility of Scientific Evidence
(1) acceptance of the underlying scientific theory and technique as valid by the scientific community;
(2) whether scientific literature supports or rejects the theory and technique;
(3) the potential error rate of the technique;
(4) the qualifications of the expert offered to testify;
(5) availability of other experts to test and evaluate the technique;
(6) the clarity with which the theory and technique can be explained in court;
(7) experience and skill of person who applied the technique in this case.
205
Expert Testimony and Scientific Evidence
Generally, an expert witness may testify to an opinion without first disclosing the facts or data on which that opinion is based.
In criminal cases, a party against whom expert testimony is offered has a right, upon request, to voir dire the expert on the facts or data upon which the testimony will be based before the witness testifies to the opinion. (This is discretionary in civil cases.)
206
Disclosure During Trial
A party is entitled to a writing if witness for the other side used it:
(1) to refresh her memory before or during her testimony.
(2) A party is entitled to the prior written or recorded statement of a witness for the other side (or a statement of the witness made to a grand jury) after that witness has finished direct examination. (does not apply to D )
(3) “Use Before the Jury” Rule: A party is entitled to an item (such as a photograph) if it is used by opposing party in front of the jury in such a way that its contents become in issue.
207
Admissibility of Photographs
General Rule: A photograph is admissible if a witness would be permitted to
give a verbal description of what the photo shows.
Authentication of a photograph generally requires that a “sponsoring” witness testify that:
(1) the witness saw the matter shown in the photo; and
(1) the photo accurately depicts what the witness knows the matter looked like.
208
Arguments of Counsel
In making final arguments, the lawyers are limited to four subjects:
(1) summation of the evidence;
(2) making reasonable deductions from the evidence ;
c) answering arguments of opposing counsel; and
d) making pleas for law enforcement.
Counsel is not permitted to:
(1) comment on D’s invocation of self-incrimination rights;
(2) express personal opinions;
(3) argue what the community demands; or
(4) strike at D over the shoulder of defense counsel. [Don't attack lawyers]
(5) comment on D's silence after arrest and Miranda warnings, or
(6) D's silence after arrest, but yes as to silence before arrest
Order of arguments is regulated by the judge. In a felony case, the arguments may never be restricted to a number of addresses less than 2 on each side.
BUT the state has the right to argue last.
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Accomplice Witness Rule
Accomplice witness: a witness who could be convicted of the
crime charged
A defendant cannot be convicted on the testimony of an accomplice unless there is corroborating evidence that tends to connect the defendant to the crime.
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Corpus Delicti Rule (confession corroboration):
A defendant cannot be convicted on an out-of-court confession unless there is corroborating evidence of the “corpus delicti,” that is, evidence tending to show that a crime was in fact committed.
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Sexual Assault Victim Rule:
A defendant cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the defendant to the offense unless:
(1) the victim told someone other that D about the offense within
one year of its commission;
(2) the victim was under 18 years of age at the time of the crime;
(3) the victim was impaired, that is, unable to satisfy her need for
food, shelter, care and protection; or
(4) the victim was 65 years of age or older.
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“Jailhouse Snitch” Rule:
A conviction cannot rest on the testimony of a person to whom the defendant made a confession while that person was confined in jail with the defendant. The testimony of such a person must be
corroborated by testimony tending to connect the defendant to the offense.
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Rules of Evidence at Sentencing
At a punishment hearing before the jury, the general rules of evidence apply.
But all matters may be proved that the trial court deems relevant to punishment, including:
(1) D’s prior criminal record;
(2) D’s general reputation;
(3) D’s character (and opinion testimony);
(4) circumstances of the offense for which D has been found guilty;
(5) a juvenile court “conviction” (“adjudication of delinquency”) based on felony conduct; and
(6) evidence of an extraneous crimes or bad act by D, whether or not D has been convicted of that. (must be proven beyond reasonable doubt that D committed such crimes)
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Mistrial @ Punishment/Sentencing Phase
May only be granted if jury cannot reach a unanimous verdict on punishment.
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Determination if Death Sentence should be Imposed
(1) Is there a probability that the defendant will commit criminal acts of
violence constituting a continuing threat?
(2) Did the defendant:
(i) actually personally cause the death of the victim; or
(ii) intend to kill the victim; or
(iii) anticipate that a human life would be taken?
3. Are there sufficient mitigating circumstances to warrant life imprisonment rather than death?
Questions 1 and 3 are always submitted. Question 2 is submitted only if at the guilt stage of the trial the judge instructed the jury that it could convict the defendant as a party to a killing actually committed by someone else.
If the jury unanimously votes “yes” on questions 1 and 2 and “no” on question 3, the judge must impose death. Otherwise, life imprisonment is imposed..
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When can probation never be given?
Neither the judge nor the jury can give a defendant community supervision in certain situations, primarily if conviction is for:
(1) murder; or
(2) sex offense with child under 14.
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When can Jury but not Judge give community supervision (probation)?
Jury (but not the judge) can give community supervision if:
(i) conviction is for a “§ 3g” offense for which community supervision is not totally barred under #1 above; or
(ii) deadly weapon finding is made.
§ 3g offenses: murder, capital murder, indecency with a child, first degree felony injury to a child, aggravated kidnapping, aggravated sexual assault,
sexual assault, aggravated robbery, certain drug offenses.
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Deferred Adjudication
Deferred adjudication is a procedure under which the trial court places the defendant on community supervision without actually finding the defendant
guilty, because it “defers” a finding of guilt.
A defendant is eligible for deferred adjudication if:
(1) the charge is an offense other than:
(i) DWI, FWI, or BWI;
(ii) intoxicated assault; or
(3) intoxication manslaughter; and
b) the defendant enters a plea of solo contendere or guilty.
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Procedure for deferring adjudication:
Trial court must:
(1) receive D’s plea of guilty or nolo contendere;
(2) hear evidence;
(3) find that the evidence substantiates D’s guilt; and
(4) inform D of the consequences of violating community supervision—D could get any sentence in the statutory range.
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If D is proved to have violated conditions of community supervision,
The trial court can “proceed to adjudication” and find D guilty.
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If D successfully completes community supervision,
The charges are dismissed.
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Difference between Deferred and Probation
(1) Defendant must be found guilty before probation can be imposed; deferred adjudication involves no such finding.
(2) Defendant can get regular probation after a plea of not guilty; deferred adjudication requires a plea of guilty or nolo contendere.
(3) If deferred adjudication probation is “revoked,” D can be given any sentence in
statutory range; if regular probation is revoked, D gets sentence previously assessed.
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“Formal” Sentencing or Pronouncement of Sentence
Pronouncing the assessed sentence (“formal sentencing”) is done by the trial judge. Before pronouncing the sentence, the judge is to ask the defendant whether he
has anything to say as to why sentence should not be imposed
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Reasons why not to impose “Formal” Sentencing or Pronouncement of Sentence
(1) the defendant has received a pardon;
(2) the defendant has become incompetent to continue the
proceedings; or
(3) the defendant is not the person convicted of the crime.
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Victim's statement at Sentencing
Victim should be permitted this because a victim (or a relative of a deceased victim) has a
right to make a statement to the court and the defendant. It must be permitted only after
the sentence has been pronounced.
The victim may not direct questions to the defendant during the statement.
The court reporter may not transcribe the statement.
If the case is resolved by a plea bargain, the victim must be notified about the
existence and terms of the plea bargain.
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Grounds for New Trial
(1) continuing trial when D required to be present and was not;
(2) verdict was decided by luck;
(3) D’s right to counsel was violated;
(4) a juror was bribed or engaged in other corrupt conduct;
(5) the jurors received evidence after retirement to deliberate;
(6) a juror conversed about the case with someone not on the jury; or
(7) new evidence has been discovered
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General Framework for Appeals by Defendants
Generally, a defendant can appeal only after conviction and sentencing.
D convicted of capital murder and sentenced to death in district court: appeal is mandatory and to Court of Criminal Appeals.
D convicted in district or county court
(1) appeal as of right to Court of Appeals
(2) seek review from Court of Criminal Appeals is optional on Ct
D convicted in a justice court or a municipal court not a court of record
(1) appeal is to county court for trial de novo
(2) appeal to court of appeals only if
(i) fine imposed exceeds $ 100; or
(ii) sole issue is constitutionality of statute or ordinance
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Bond Pending Appeal
A convicted defendant is not eligible for bail pending appeal if the punishment assessed is 10 years’ imprisonment or more.
Bail may be denied to a defendant eligible for bail pending appeal if the trial
court finds either that the defendant:
(1) will not appear if the conviction is affirmed; or
(2) is likely to commit an additional offense while on bail.
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Notice of Appeal
An appeal is perfected by filing notice of appeal, which must be:
(1) in writing;
(2) filed with the trial court; and
(3) generally filed within 30 days of formal sentencing.
If motion for new trial filed, notice of appeal must be filed within 90 days of formal sentencing.
Notice of appeal is required in all cases except those in which the death penalty was imposed.
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A defendant who pleads guilty pursuant to a plea bargain and receives a
sentence within that bargain can appeal only if:
(1) the trial judge grants permission; or
(2) the appeal is based on matters raised by pretrial written motion and ruled on
before trial.
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Appeals by the State
The State may appeal in six pre-trial and post-trial situations:
Pre-trial: State may appeal if trial court:
(1) dismisses the indictment;
(2) grants a defense motion to suppress evidence before
jeopardy attaches; or
(3) sustains a defendant’s claim of double jeopardy;
Post-trial: State may appeal if trial court:
(4) grants a defense motion for new trial;
(5) grants a defense motion to arrest judgment; or
(6) imposes an “illegal” sentence.
If a convicted defendant appeals, the State may cross-appeal on a question of law decided against the State.
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Interlocutory Appeal by State
The requirements the State must meet are:
(1) show jeopardy had not yet attached when order was entered;
(2) the appeal must be taken within 20 days of the order; and
(3) the State must certify that:
(i) the evidence is of substantial importance in the case; and
(ii) the appeal is not taken for purposes of delay.
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If the State takes an appeal from a pretrial order favoring the defendant, D can:
(1) D in custody is entitled to release on reasonable bail.
| (2) If the order is one that ends the prosecution (that is, a dismissal) D is entitled to personal bond.
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To preserve error in excluding evidence counsel must
make an offer of proof showing the substance of the evidence. This can be done by either:
(1) counsel’s oral summary of the excluded evidence; or
(2) “question and answer” form (“informal bill of exception”);
AND getting a ruling excluding the evidence.
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To preserve error in admitting evidence, counsel must:
(1) make a timely objection; and
(2) state specifically the ground to be relied upon on appeal; and
(3) secure from the trial judge a ruling.
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To preserve error in improper argument or comment by another lawyer or the
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.
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Variance between pleading and proof occurs if both:
(1) the State proves the defendant guilty of the offense charged;
(2) BUT the State’s proof shows guilt in a way that differs—“varies”—from an unnecessarily included detail in the pleading (threatened with Luger rather than Ruger).
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Variance requires:
acquittal only if the variance between the allegation and
the proof was “material,” that is, whether under the circumstances of the case it rendered the indictment insufficient to enable D to prepare a defense.
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Harmless Error
A conviction can be affirmed on appeal despite error if the error is harmless
Nonconstitutional error is harmless if it does not affect the appellant’s “substantial rights.” This means error will be harmless if the error did not
affect the outcome of the case.
Constitutional error is harmless only if the appellate court is convinced beyond a reasonable doubt that the error did not contribute to either:
(1) the conviction; or
(2) the punishment.
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Jeopardy in State v. Fed Cts
Jeopardy isn't violated when prosecution occurs from diff. sovereign states. St. and Fed Govs are diff sovereign states, which can sue same defendant for the same offenses.
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Warrant relying on tip info
Warrant affidavit relying on informant's tip helped by specific facts
indicating:
1) informant was in general sense reliable ; and
2) informant had reliable source for this specific information.
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To successfully challenge a search warrant based on inaccurate facts in the affidavit, a defendant must show:
(1) the affiant misstated certain facts;
(2) the affiant did this intentionally or at least with reckless disregard for whether the stated fact was accurate; and
(3) the misstated fact was material, which means that without that fact the affidavit was not sufficient to support the search warrant.
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A search warrant must contain:
(1) a statement that it runs in the name of “The State of Texas”;
(2) a specification of the person, place or thing to be searched;
(3) specification of the items to be seized;
(4) an endorsement of the date and hour it was issued;
(5) the signature of the issuing magistrate; and
(6) a clearly legible statement of the magistrate’s name.
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Who can issue a search warrant:
A regular search warrant may be issued by any magistrate
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“Four Corners” Rule
In deciding whether a warrant was validly issued, a court may typically consider only the information within the “four corners” of the written affidavit
A magistrate may consider information communicated by telephone or other reliable electronic means in determining whether to issue a search warrant. If an applicant for a search warrant attests to the contents of an affidavit submitted by reliable electronic means, the magistrate must ensure that the testimony is recorded verbatim by a recording device or court reporter.
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Time to Execute Warrant
A search warrant must be executed within three days, exclusive of the day of the
issuance of the warrant and the day of the execution of the warrant.
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Evidentiary search warrant:
warrant that issues for an item that is seizable only because it is evidence that a crime was
committed or a particular person committed it.
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While executing an evidentiary search warrant, officers may seize:
(1) the items described in the warrant; and
(2) items come upon in plain view for which a “regular” search warrant
could issue.
BUT they may not seize items of mere evidence that are
not described in the warrant.
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Evidentiary warrants may be issued only by:
(1) district judge, statutory county court judge, Court of Criminal Appeals judge, Supreme Court justice; or
(2) municipal court of record or county judge who is a licensed
attorney.
EXCEPT: Any magistrate may issue in county without a statutory county court or municipal or county judge who is attorney.
An additional evidentiary search warrant may be issued for the same person, place or thing previously searched under an evidentiary search warrant only by a district or appellate judge.
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General Arrest Rule:
An arrest must be made pursuant to a valid arrest warrant [or combination search and arrest warrant].
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Arrests Without Warrants Permissible if:
1. offense committed in officer’s presence or view;
2. probable cause to believe suspect committed a felony and reason to believe suspect is “about to escape”;
3. suspect is found in a “suspicious place” and has committed a felony or breach of peace;
4. suspect committed violation of protective order;
5. suspect injured another and danger of further injury to victim;
6. suspect found with stolen property;
7. suspect injured member of family or household; or
8. probable cause to believe suspect committed a felony is based on admissible statement to officer.
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Promise will render confession involuntary and inadmissible if:
a) given by someone in authority;
b) definite; and
c) likely to cause an innocent suspect to make a false confession.
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Confession given during improper delay in bringing D before magistrate inadmissible if
D shows a “ causal connection” between delay and making of confession.
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TEXAS “Confession” Statute:
Applies only to statements:
(1) made while in custody; and
(2) resulting from official interrogation.
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Determining voluntariness of challenged confession:
(1) Initial determination must be made by judge at hearing out
of presence of jury .
(2) If this is resolved for the State, defendant sometimes has right to have issue submitted to the jury.
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TEXAS “Confession” Statute: Written Confession Statement Requirements
(1) Must be signed by D, unless it is in the accused’s own handwriting.
(2) The statement must show on its face that the person was warned:
(i) the person has the right to remain silent and not make any statement at all;
(ii) any statement the person makes may be used against that person at trial;
(iii) the person has the right to have a lawyer present to advise that person prior to and
during questioning;
(iv) if unable to employ a lawyer, the person has the right to have a lawyer appointed
to provide advice; and
(v) the person has the right to terminate the interview at any
time.
(3) The warnings were given by either:
(i) a magistrate; or
(ii) the person to whom the statement was given; and
(4) That prior to and during the making of the statement, the person intelligently and
voluntarily waived the rights.
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TEXAS “Confession” Statute: Written Confession Statement Requirements
(1) Must be signed by D, unless it is in the accused’s own handwriting.
(2) The statement must show on its face that the person was warned:
(i) the person has the right to remain silent and not make any statement at all;
(ii) any statement the person makes may be used against that person at trial;
(iii) the person has the right to have a lawyer present to advise that person prior to and
during questioning;
(iv) if unable to employ a lawyer, the person has the right to have a lawyer appointed
to provide advice; and
(v) the person has the right to terminate the interview at any
time.
(3) The warnings were given by either:
(i) a magistrate; or
(ii) the person to whom the statement was given; and
(4) That prior to and during the making of the statement, the person intelligently and
voluntarily waived the rights.
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TEXAS “Confession” Statute: Oral Statements
(1) Generally, whether warnings are required is determined by Miranda.
(2) General Rule: Oral statements made during custodial interrogation are inadmissible because they are oral and thus unreliable.
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TEXAS “Confession” Statute: Oral Statements--Exceptions: Oral statements admissible if [JRRC rule]:
[“J”] (1) The statement was “judicial”:
(i) made in open court ; or
(ii) made before a grand jury .
[“R”] (2) The statement was res gestae of either:
(i) the offense; or
(ii) the arrest .
[“R”] (3) The statement was electronically recorded (see below).
[“C”] (4) The statement was corroborated, meaning:
(i) it contained at least one assertion of fact or circumstances;
(ii) which was incriminating; and
(iii) this was “found to be true” by reliable information developed after the statement was given .
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Res gestae:
D’s impulse and
| spontaneous reaction to the excitement.
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TEXAS “Confession” Statute: Oral Statements--Exceptions: Electronically Recorded Statement admissible only if prosecution shows
(1) recording is accurate and has not been altered
(2) recording reflects that accused was warned of the rights;
(3) during the recording the accused knowingly and voluntarily
waived those rights;
(4) all material voices on the recording are identifiable; and
(5) defense counsel was provided with copies of all recordings
made of D under the statute (must be provided at least 20 days
before trial).
BUT: D need not be told that the statement will be recorded
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TEXAS “Confession” Statute: Statements Obtained Out-of-State or by Federal Officers
(1) Statement obtained in another state is admissible in Texas prosecution if it
was obtained in compliance with the laws of that state.
(2) Statement obtained by federal officer is admissible if obtained in compliance
with the laws of the United States.
Counsel may have the issue submitted to the jury if the evidence before the jury raises an issue regarding the voluntariness of the statement.
Thus counsel must introduce before the jury evidence indicating the confession was not voluntary.
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Inevitable Discovery
Not apply in texas
