Criminal Procedure Flashcards
District Court Jurisdiction
Felonies, misdemeanors that are lesser included offenses of charged felonies, misdemeanors involving official misconduct, transferred county court prosecutions for misdemeanors punishable by jail time
Justice Courts Jurisdiction
Offenses punishable by only a fine
Municipal Court Jurisdiction
Exclusive jurisdiction: offenses created by city ordinance and punishable by only a fine
Concurrent jurisdiction: offenses created by state law and punishable by only a fine
County Courts Jurisdiction
Misdemeanors over which exclusive jurisdiction is not given to justice courts
Magistrate
Any judge (including justices of the peace and municipal court judges)
What starts a felony prosecution?
Felony prosecution begins with filing in district court of an indictment
- Earlier a preliminary complaint may be filed
Overview Chart of Felony Prosecution
Arrest Presentment before magistrate Examining Trial Consideration by grand Jury Presentment of indictment Arraignment Pretrial hearing Trial: Guilt/innocence Trial: penalty (assessment of sentence) Pronouncement of sentence Motion for new trial Motion to arrest judgment Notice of appeal Appeal to Court of Appeals Review by Court of Criminal Appeals Habeas Corpus
Habeas Corpus
What is a writ of Habes Corpus? A writ of habeas corpus is a court order commanding someone with a person in custody to produce that person before the court and show why the person is being held.
To whom is writ directed? A writ is directed to someone having another person in restraint. It should name the office of the person to whom it is directed
What remedy does a writ seek? The writ seeks to have the custody of the person restrained produced
By whom may it be granted? The writ may be granted by the court of criminal appeals, district courts, the county courts or a judge of any of these courts
When must officer present person before magistrate after arrest?
The officers must present person before a magistrate without unnecessary delay, but in any case within 48 hours of arrest
Duties of Magistrate when person is brought before him initially after arrest
Magistrate is to:
- Tell person charges
- Tell him of his rights to retain counsel and an examining trial
- Warn him that in regard to police questioning: has the right to remain silent, any statement he makes can be used against him, he has a right to have an attorney present during questioning, he can request an appointed attorney, at any time he can terminate an interview with the police
- Set bail
- May determine whether probable cause exists
If after 48 hours of the arrest no magistrate has determined that probable cause to believe him guilty exists:
Defendant has a right to be released on bond, and to have bond set so this can happen, Bond must be no more then $10,000 and personal bond if necessary to assure release
Release on bail required if no probable cause determination by magistrate
Felonies: After 48 hours of arrest without a warrant
Misdemeanors: After 24 hours of arrest without a warrant
Magistrate can delay release for not more than total of 72 hours
Denial of bail is possible in two types of cases:
- Capital Murder prosecutions
- Certain prosecutions for noncapital felonies
How do prosecutors go about getting bail denied?
Must file a motion for denial of bail in district court. Any order denying bail must issue within 7 days of he defendants apprehension
- Only a district court judge can deny bail in a noncapital prosecution
Bail can be denied in a noncapital case only if at a hearing the prosecution shows:
- Defendant is charges with a noncapital felony AND
- Substantial evidence of Defendants guilt of that crime AND
- Two of the following:
- Two prior felony convictions or
- Present offense committed on bail on felony or
- Both: one prior felony conviction and present offense involved use of a deadly weapon
- Present offense was a violent or sexual offense committed while on felony probation or parole
Bail can be denied if while on bail on a felony charge, Defendant violates a condition of bail related to the safety of the victim or the community
If bail is denied, how does Defendant challenge this?
If bail is denied, how does Defendant challenge this?
Immediately appeal the order denying bail to the Court of Criminal Appeals
If things drag on:
Denial of bail for a noncapital felony can last only until 60 days from the defendants initial detention. At that point, the order denying bail is automatically vacated and the defendant is entitled to have bail set. After 60 days have passed counsel should make a motion to have bail set
- Denial of bail in a noncapital prosecution lasts only 60 days as long as the defense does not move for a continuance of the trial proceedings
What procedures can a defendant take to reduce bail?
What procedures can a defendant take to reduce bail?
1. File application for writ of habeas corpus in district court
2. At hearing introduce evidence showing: bail set was excessive, he cannot meet bail sent and amount of bail he can meet
3. The district judge may order bail reduced
If not, defendant before trial can appeal to the court of appeals
Rules the trial court should follow when fixing the amount of bail:
Factors to be considered in setting bail and deciding whether bail set is excessive:
LASSO
- Likelihood of defendant appearing for trial
- Ability of the defendant to make bail
- Seriousness of the crime charged
-Future safety of the victim and of the community
-Required bail is not to be an instrument of oppression
What does Bail Bond Require? / What does Personal Bond Require?
Bail bond requires a surety or a cash deposit.
Personal bond requires neither kind of security. A personal bond is the accused’s promise to pay the amount if the bond is forfeited
Conditions for Release on Bail
A magistrate may impose any reasonable condition on bail related to the safety of he victim or the community.
Ex: no facts of child abuse, condition ordering to stay away from children is not reasonable
A Jailed defendant must be released (either on personal bond or reduced bond) if the state is not ready for trial within:
A Jailed defendant must be released (either on personal bond or reduced bond) if the state is not ready for trial within: Felony Cases: 90 days of arrest Class A misdemeanors: 30 days of arrest Class B misdemeanors: 15 days of arrest Class C misdemeanors: 5 days of arrest
What courts have jurisdiction to hold examining trials?
What courts have jurisdiction to hold examining trials? Any magistrate can hold an examining trial. Therefore, examining trial may be held in any court
What is the purpose of examining trial?
The purpose of examining trial
The 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
When is defendant entitle to an examining trial?
Defendant is entitled to an examining trial if: She is charged with a felony and an indictment has not yet been returned
Defendants Rights at Examining Trial
Defendant has a right to-
- Be Present
- Be represented by counsel
- Have the rules of evidence applied
- Cross-Examine state witnesses
- Subpoena and present defense witnesses
Under what conditions is defendant allowed to make an unsworn statement at an examining trial?
Under what conditions is defendant allowed to make an unsworn statement at an examining trial?
Defendant can make an unsworn voluntary statement but this must be done before any witnesses testify
What if at examining trial magistrate finds that the state failed to show probable cause?
What if at examining trial magistrate finds that the state failed to show probable cause?
It does not prevent prosecution and conviction. But defendant is entitled to go free until and if she is indicted
What instrument must be used to charge defendant?
How does state seek it?
What instrument must be used to charge defendant? State must seek an indictment
How does state seek indictment? To get this a grand jury must vote to return a true bill against defendant. This requires the grand jury to find that probable cause exists to believe defendant is guilty. The foreperson will then sign the indictment and it will be filed in District Court
Can defendant waive right to grand jury indictment?
Can defendant waive right to grand jury indictment?
Yes, waiver of indictment can be waived in all prosecutions except ones for capital murder
What requirement must be in order for a person to waive indictment?
- The defendant must be represented by counsel
- Waiver must be by written instrument or in open court
- The waiver must be voluntary
If defendant waives indictment, how will he be charged with crime?
State will file an information
What requirement must be in order for a person to waive indictment?
- The defendant must be represented by counsel
- Waiver must be by written instrument or in open court
- The waiver must be voluntary
If defendant waives indictment, how will he be charged with crime?
State will file an information
What is an information?
An information is a pleading filed by the state charging the person named with a criminal offense
What is one way information differs from an indictment?
Indictment needs only be approved and signed by the prosecutor. An indictment must be approved by a grand jury and signed by the foreperson . An information (but not an indictment) must be supported by a valid and sworn complain, which must also be filed
What is an information
An information is a pleading filed by the state charging the person named with a criminal offense
If state charges defendant with only a class C misdemeanor (punishable by fine only) in municipal or justice of the peace court, how does state do this?
If state charges defendant with only a class C misdemeanor (punishable by fine only) in municipal or justice of the peace court, how does state do this? State files a sworn complain, which itself is the charging instrument
Who selects the people who will serve on grand jury?
- Prospective Grand Jury commissioners appointed by the district judge or
- In the same manner as trial jurors are selected for civil cases
The prospective grand jurors are summoned to the district court which tests their qualifications and then impanels twelve as a grand jury
When should defense challenge the composition of the grand jury?
If counsel has information before grand jury is impaneled she should raise matter during the grand jury selection process by a challenge to the array. It can be raised later by a motion to set aside the indictment, only if at that time she makes a showing that she did not have an opportunity to raise this by a challenge to the array
What basis should defense counsel challenge the composition of the grand jury?
On the ground that Code of Criminal Procedure requires a grand jury commissioners, to the extent possible, to select grand jurors who represent a broad cross section of the population considering race, sex and age
Ex: if grand jury commissioner is swearing in members of victims family
Can the grand jury compel a defendant to appear and give testimony regarding his possible involvement in the alleged crime?
The grand jury can compel defendant to appear by having a subpoena issued. Grand Jury cannot compel defendant to answer questions if defendant invokes his privilege against self-incrimination
What must occur before defendants questioning if defendant appears voluntarily at Grand Jury Proceedings?
Defendant will be a suspect witness. Before questioning he must be warned:
1. The offense of which he is suspected
2. The county in which it was committed
3. The time of its occurrence
The questions asked and the defendants testimony must be recorded
What must occur if defendant is subpoenaed to appear in grand jury proceedings and what warnings must he receive?
As a subpoenaed suspect witness, he must be given the following warnings before being questioned:
- The testimony will be under oath
- A false answer to a material questions subjects him to prosecution for perjury
- He can refuse to answer incriminating questions
- He has a right to have counsel appointed if he is suitable to employ a lawyer
- He ahs a right to have a lawyer present outside the room
- His testimony can be used against him
- Defendant must be given a written copy of the warnings
- Defendant must have a reasonable opportunity before appearing to obtain and consult with counsel
What rights to defendants have at grand jury in questioning victim of the crime if the victim testifies before the grand jury?
Defendant has no right to so participate. He may appear as a witness (either voluntarily or under subpoena). With the grand jurys permission, he may be allowed to address the grand jury BUT he may not cross-examine the victim. Only the prosecutor and grand jurors may examine witnesses
What circumstances can defense counsel appear and present evidence before a grand jury on behalf of a client?
A lawyer representing a suspect may address the grand jury if:
- The grand jury permits this and
- The prosecutor consents
Can grand jurors ask prosecutor for legal advice when deliberating?
The grand jury may send for the prosecutor and ask for prosecutors advise upon any matter of law
How many people sit on a grand jury? How many must concur for indictment? who writes indictment?
A grand jury consists of 12 people. At least 9 must concur for a person to be indicted. The prosecutor drafts the indictment
Challenges to Indictments based on Grand Jury Proceedings
Unauthorized person present while grand jury hearing evidence: Only authorized persons should be present, but dismissal is not required
Unauthorized person was present while the grand jury was deliberating or voting: Once the grand jury begins deliberating he only persons who may be present are grand jurors. Violation of this rule requires dismissal of the indictment
An indictment may not be challenged for evidentiary insufficiency
Limitation of Prosecution
Period of Limitation: Criminal prosecutions must be brought (an indictment must be presented) within particular periods of time from the commission of the offenses
Calculation: The running of the period of limitations is tolled and the time elapsing is not counted in two situations:
- While the defendant is out of the state and
- While a charging instrument charging the same offense is pending against the accused and later dismissed
No period of limitations for:
A. Murder and Manslaughter
B. Offense involving leaving the scene of an accident
C. Sexual assault, where DNA testing indicates the perpetrator is not a person whose identity is readily ascertained
D. Sexual assault, continuous sexual abuse, or indecency with child
General Periods of limitation (numerous specific ones for specific crimes)
Misdemeanors: 2 years
Felonies: 3 years
Theft, Burglary, Robbery, Kidnapping: 5 years
Limitation time periods of Prosecutions
No period of limitations for:
A. Murder and Manslaughter
B. Offense involving leaving the scene of an accident
C. Sexual assault, where DNA testing indicates the perpetrator is not a person whose identity is readily ascertained
D. Sexual assault, continuous sexual abuse, or indecency with child
General Periods of limitation (numerous specific ones for specific crimes)
Misdemeanors: 2 years
Felonies: 3 years
Theft, Burglary, Robbery, Kidnapping: 5 years
Indictment or Information Generally
An indictment or information alleges only facts
- It does not identify the charged crime by name
- It does not specify the statue creating the crime
Two distinguishable substantive requirements
- Charging the offense and providing the accused with trial preparation notice
To “Charge the Offense”
A. Facts constituting all elements must be alleged
B. Statutory language is usually sufficient
C. Any victim must be named
More detail and specificity may be required to provide notice
Formal Requisites of an Indictment or Information
Code of Criminal Procedure imposes a list of requisites or requirements that must be met on the face of an indictment or an information
1. Commence: “In the name and by authority of the State of Texas
2. Name the accused (or describe him)
3. Set forth (charge) all elements of the offense
4. Specify enough details to give accused notice
5. Allege the crime was committed on a date that is both:
A. Within period of limitations and
B. Before presentment of indictment
6. Allege commission of the crime in a county within courts jurisdiction (venue)
7. Conclude: Against the peace and dignity of the state
8. Be signed (indictment: foreperson) (information: Prosecutor)
Significance of Indictment for Trial
Determines those offenses for which the accused can be convicted
Generally: Jury can convict defendant only of an offense charged in indictment but sometimes jury is instructed on (permitted to convict of) lesser included offenses
Specific detailed allegations may give rise to a variance between indictment and proof which sometimes requires acquittal.
Uncharged and Lesser Included Offenses
One offense is a lesser included offense of another (and more serious) if:
- It is proved by some but not all of the same facts are required to prove the more serious offense or
- It requires only a less serious injury to the same person, property, or interest as the more serious or
- It requires only a less culpable mental state than the more serious offense or
- It consists of an attempt to commit the more serious offense
A jury should be instructed on an uncharged offense if:
A. The other offense is a lesser included offense of the crime charged and
B. The evidence before the jury is such that the jury could find both that:
Defendant is not guilty of the charged offense and Defendant is guilty of the lesser included offense
What happens to serious offense when defendant is convicted of simpler offense?
Defendant is acquitted of that offense (implied acquittal)
Name of Accused (not defendants true name)
If the defendant believes that the name specified as the accused in the indictment is not the defendants true name:
- The defendant must raise this as the arraignment
- The defendant must specify his true name and
- The judge is then to correct the indictment so it accuses the defendant by his own true name
Counsel may raise this issue at the arraignment and inform the judge of defendants real name. Judge will then cause the indictment to accuse the defendants real name.
When must defects in charging instrument be raised?
Defects in charging instruments must be raised before trial
Exception: (fundamental defects) Defects that prevent instrument from being an indictment or information can be raised at any time
- No person specified as accused
- Cannot tell what crime is charged
Timeliness: motion must be filed before the day trial begins
If trial court quashes indictment state may respond by:
A. Taking an appeal or
B. Obtaining a new indictment or
C. Amend the indictment
What procedure is available to defendant to challenge indictment?
Challenge by the appropriate motion either
A. An exception to the form of indictment or
B. An exception to the substance of the indictment
Formally called “motions to quash” in the indictment
What state of proceedings must defendant assert such a challenge to the indictment?
What state of proceedings must defendant assert such a challenge to the indictment?
Motion must be filed before the day on which trial begins
What is the consequence if defendant fails to timely assert challenge to the indictment?
A defect of form (or of substance) in an indictment must be raise in the trial court before trial. IF it its not the defect cannot be raised later in the trial court, on appeal or in post-conviction habeas corpus.
Conviction should be reversed if defendant shows harm from the defect in the indictment
When can you cure defects of indictment by amendment?
Any amendment permitted at any time if defendant does not object
What amendments are permitted over objection depends on the time the amendment is sought
When amendment is sought before the day of trial:
Any amendment is permitted whether it is of form or substance
Limits: An amendment is not permitted over the defendants objection if the amendment would
1. Cause the indictment to allege
A. A different offense or
B. An addition offense or
2. Prejudice the substantial rights of the defendant
Defendants have procedural protection
- Defendant is entitled to advance notice of a propose amendment
- The trial court must authorize an amendment; the prosecution cannot make an amendment unilaterally
- If the indictment is amended and defendant so requests, defendant must have not less than 10 days to prepare for trial on the amended indictment and to delay in trial if necessary to provide this
When amendment is sought on the day of trial but before trial begins:
No amendments are permitted over objection
When amendment is sought after trial begins:
No Amendments are permitted over objection
If the amendment is made defendant is entitled to at least 10 days to prepare for trial. If amendment is done so that defendant will not have 10 days defendant is entitled to a continuance to have full preparation period.
How to amend the indictment
- File a motion for leave to amend
- Defendant must be given adequate notice of the proposed amendment
- Trial judge holds a hearing and decides whether to order amendment made
- If authorized the amendment must be made on the actual indictment
Arraignment
The arraignment takes place in the trial court and serves several functions:
- The accused enters a plea
- This is the point for fixing the accused’s identity and
- (if this has not been done before) the judge appoints counsel
Pleas Available to Accused
- Guilty
- Not Guilty
- Nolo Contendere
Difference between Guilty and Nolo Contendere: No difference in criminal prosecution. IF civil litigation were to arise out of the same incident a plea of guilty could be used as evidence against defendant. Plea of Nolo Contendere could not be used
A Criminal Defendant must personally make some decisions in the prosecution:
- What plea to enter
- Whether to have trial by jury
- Whether to himself take the witness stand
If defendant wants to plead insane
notice of the defense intent to introduce such evidence must be filed 10 days before trial
What admonitions must judge give defendant before accepting felony plea of guilty or nolo contendere:
- Inform defendant of the range of punishment
- Inform defendant that recommendations by state are not binding
- Inform defendant of the limited right, after a guilty plea, to appeal
- inform defendant that plea may result in deportation exclusion from US or denial of naturalization
- Inquire as to whether there is a plea bargain
- Admonishments can be given either in writing or orally
If defendant offers a plea pursuant to a plea bargain and judge decides to impose a different sentence what rights does defendant have?
If defendant offers a plea pursuant to a plea bargain and judge decides to impose a different sentence defendant has a right to withdraw his plea
Can a guilty plea can be withdrawn at any time before trial court takes the matter under advisement?
A guilty plea can be withdrawn at any time before trial court takes the matter under advisement
Ex: Can withdraw if you say I want to plead guilty and judge says I need to give you warnings and then you say I change my mind
Can state introduce at trial evidence that you plead guilty?
No evidence of withdrawn pleas of guilty or nolo contendere are inadmissible
If a pretrial hearing and conference is set: the parties must do certain things 7 days before that hearing and conference:
- Enter any special plea
- Make challenges to the indictment
- Make motions for continuances
- Make motions for change of venue
- Make motions to supers evidence
- Make requires for discovery and
- Raise claims of entrapment
Do you have to set a case for pre-trial hearing and conference?
A trial judge may (but need not) set a case for pre-trial hearing and conference
Does Defendant have a right to be present at any pretrial proceedings?
Defendant has a right to be present at any pretrial proceedings
How many days must motion to quash be filed before pretrial hearings?
Motion to quash must be filed 7 days before pretrial hearings, not just before the day on which trial begins if a pre-trial hearing is set up. If it is not filed 7 days before it cannot be raised later except by permission of the court on the basis of good cause
Motion in Liminie
Motion in Limine: A pre-trial motion that asks for either (or both):
- A pre-trial ruling on the merits of some question of evidence or procedure that will arise during trial or
- A pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury
If either party violates the motion in limine: Object to the reference as if the motion in limine had not been granted
If court denied motion in limine to preserve error: Object to any reference during jury selection and to the evidence itself when it is offered at trial
What do you use a motion to suppress for?
A motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible
Most often, this motion is used to raise a contention that evidence has been illegally obtained or a confession is inadmissible
What ways are available for defense counsel to raise admissibility of evidence issue?
Counsel may either
A. Make a pre-trial motion to suppress the evidence or
B. Wait and object to the evidence when state offers it at trial
Generally a pre-trial motion to suppress is the preferred method of raising contention that evidence was illegally obtained or a confession is inadmissible
If the judge denies a pretrial motion to suppress evidence how does party preserve error?
Don’t have to do anything
A pre-trial ruling on a motion to suppress does preserve the issue for appeal
- Remember: A pre-trial ruling on a motion in limine does not preserve a matter for appeal
If judge orders a motion to suppress hearing to see if evidence should be suppressed and defendant wants to take the stand-
If judge orders a motion to suppress hearing to see if evidence should be suppressed and defendant wants to take the stand-
What issues may prosecutor inquire into on cross-examination? Prosecutor may only inquire as to matters related to the hearing issues. Cross examination cannot extend to guilt of the charged crime.
Ex: If challenging validity of search prosecutor can only inquire into validity
Does Defendant waive his right to remain silent as the remainder of his trial? Defendant does not waive his right to remain silent at the rest of the trial. Defendant may still decline to testify at trial and his right to do so remains in full effect
Defendant can testify at a pre-trial hearing only on issues related to that hearing
Pre-Trial Discovery of Witness List and Expert Witness List
Witness List:
Trial judge has discretion to order the state to provide the defense with a list of witnesses the state intends to call
Expert Witness List:
Trial judge has discretion to order either/both sides to provide the other with list (names and addresses) of expert witnesses sit may call at trial (at least 20 days before trial date)
Deposition / Pre-Trial Discovery and Evidence Preservation Discovery
Either side may be permitted to depose a witness:
A: The trial judge must issues an order authorizing the deposition
B. To obtain this the party must show “good reason” for the deposition
Inspection (or Real Discovery)
The trial judge has authority to order the state to permit the defendant to inspect certain things
Inspection must be ordered if the thing:
- Is a tangible thing
- Constitutes or contains material evidence
- Is in the possession of the state and
- Is not work product of the state
Inspection if ordered, cannot require the state to give up possession of the item
The inspection must be sufficient to give the accused the information necessary to prepare for trial
The defense may request the state to provide of / Other Discovery
- Extraneous offense evidence at guilt and
- Extraneous offense evidence at punishment
Defense can get access to written confessions defendant made to police. This is material evidence in the possession of the state and not work product of the state
Defense can get samples of physical evidence such as drugs, blood, or mechanical devices to enable the defense to test material before trial. This is material evidence in the possession of the state and not work product of the state.
Defense cannot get access to a memo from an assistant DA to the prosecutor who will try to case regarding how to most effectively cross-examine defense witnesses. This is states work product
Defenses cannot get access to examine the report of the state crime lab technician who examined the drugs or blood for the prosecution. This is states work product
*Defense cannot examine the police reports of the investigating officers. This is states work product
Defense cannot inspect written statements given by state witnesses to the police or the prosecutor. This is states work product
Defense can get the names of the witness who appeared before the grand jury and testified regarding the matter. Prosecutor should have endorsed this information on the indictment. IF she did not court can cure this by ordering it provided
Defense can get the testimony of witnesses who testified before the grand jury only if defendant shows particularized need for this
Generally what’s protected by work product and what’s not
- Physical evidence is not protected work product
2. Work product covers reports of state employees, police reports, and witness statements
Should trial court should grant motions for requesting list of all states witnesses?
Trial court should grant motions for requesting list of all states witnesses. Judge has discretion and generally such lists should be ordered
What if state provides list but leaves off names by accident? Can these people still testify?
Yes, Because whether to exclude testimony of an unlisted witness is discretionary with the trial judge
A trial judge has discretion to exclude or admit the testimony of a witness left off an ordered witness list. Relevant considerations include:
1. Whether omissions was intentional and
2. Whether the defense received actual notice that witness would testify
Does trial court does have authority to order the defense to provide the state with a list?
Trial court does have authority to order the defense to provide the state with a list of expert witnesses and their names and addresses. Courts should enter an order compelling that information
Court has no authority to compel party to provide a summary of the anticipated testimony to other party.
With regard to fact (nonexpert) witness the court has no authority to compel the defense to prove the state with any information at all
If a party wants to take an oral deposition of a witness before trial:
Counsel must obtain a court order
To get this, counsel must file a motion supported by an affidavit stating “good reason” for taking the deposition. Notice must be given to the state
- Good Reason: Testimony will be necessary at trial at witness is likely to become unavailable
Can you Disclose an Informants identity?
The identity of an informer is generally privileged and can be withheld by the state.
When might disclosure of informant be required
- If the informant provided information by which the state obtained evidence in a way the defendant claims was illegal, the court has discretion to require disclosure if necessary to establish the informers reliability
- Upon a showing the informant can provide testimony necessary to a fair determination of guilt-innocence
A defendants due process rights under Brady v. Maryland are violated if
- Prosecution fails to disclose exculpatory (favorable) information that is in its possession
- This information is material, which means if it had bee disclosed there is a reasonable probability the outcome of the case would have been different
Does not depend upon defendant asking for the evidence, state must turn it over even if defendant did not ask for it
What if statements were in police files prosecutor never looked at? Doesn’t matter, stuff in state possession imputed even if they didn’t know they had it.
With regard to exculpatory evidence
- The prosecution has a due process duty to disclose such evidence
- Evidence that impeaches a prosecution witness is material
- Evidence must be disclosed if it is in the possession of:
A. Trial prosecutor
B. Another prosecutor or
C. The police - A conviction is invalid for nondisclosure only if the nondisclosed exculpatory evidence is material
A defendant is incompetent to stand trial if either:
A defendant is incompetent to stand trial if either:
A. She lacks the ability to consult with counsel with a reasonable degree of rational understanding or
B. She lacks a rational and factual understanding of the proceedings
Under federal due process and Texas statute, criminal proceedings cannot continue if the defendant is incompetent to stand trial
IF after being found incompetent to stand trial the accused condition improves:
A. The defendant an be determined to be competent and
B. The prosecution can then proceed
- The defense or the state may motion suggest the defendant may be incompetent or
- The trial court may on its own motion suggest the defendant may be incompetent
The trial judge must on the courts own motion suggest the defendant may be incompetent if evidence suggesting incompetency comes to the attention of the court
How will the issue of competency be resolved
How will issue of competency be resolved? Trial judge must make a preliminary inquiry. If it shows significant evidence of incompetency the judge must hold a full hearing. If either party of the judge requests the determination must be made by a jury
Legal Presumption for competency
The legal presumption is that a defendant is competent. To rebut this the defense must show a preponderance of the evidence that Defendant lacks the ability to consult with counsel or lacks an understanding of he proceedings
Ways in which incompetency differs from insanity
Ways in which incompetency differs from insanity
1. Relevant time
Insanity: Time of Offense
Incompetency: Time of Trial
2. Standard Applied
Insanity: Did not know conduct was wrong
Incompetency: could not consult with counsel or understand proceedings
3. Result
Insanity: Final Verdict of not guilty by reason of insanity
Incompetency: (perhaps temporary) bar to proceeding
Where is venue?
Venue lies in the county where the crime was committed
A defendant may seek a change of venue because
A. Prejudice in county would prevent fair trial or
B. Dangerous combination of influential persons against the defendant would prevent fair trial
The state may seek a change of venue because
A. Combinations of influences in favor of defendant would prevent fair trial or
B. Lawless conditions would prevent fair trial
C. Life of defendant or a witness would be jeopardized by local trial
When can trial court change venue
The trial court may change venue on its own motion because trial fair and impartial to defendant and state alike cannot be held
To obtain a change of venue
- A written motion for change of venue
- Affidavits that a fair trial cannot be held in the county by:
A. The defendant and
B. Two credible residents of the county
At the hearing, he must present evidence showing there is sufficient prejudice in county to prevent a fair trial
How many days before pre-trial hearing must change of venue be filed?
A motion for change of venue must be filed 7 days before the pre-trial hearing. Failure to do so will prevent a later motion to change venue unless the court gives permission for good cause shown
A judge is disqualified if
- Judge was a victim of the crime
- Judge was counsel for either side (in the present case)
- Judge is related within three degrees (be either blood or marriage) to either defendant or the victim
- Bias
Presence of the Accused in a felony case
In a felony case or a prosecution for a misdemeanor punishable by jail time, the defendant must be present a beginning of trial:
A. Jury Case: through swearing of the jury
B. Nonjury Case: Through Defendants plea to the indictment
And the defendant must be present at the end of trial for formal sentencing
BUT if defendant is voluntarily absent in the middle the trial may nevertheless proceed in the defendants absence. Defendant can be absent for trial but not for formal sentencing.
Presence of the Accused in a misdemeanor case
What are the rules in a misdemeanor case?
In a prosecution for a fine-only misdemeanor, the defendant can be absent because she may appear by counsel if the prosecutor consents
Joinder and Severance of Charges
One offense rule governs joinder of offenses
- An indictment may allege only one offense. If an indictment charges more than that it is to be quashed
- A defendant may be tried on only one indictment per trial. IF a defendant is schedule for trial on several indictments the defendant is entitled to have trials severed
One Offense Rules is subject to the criminal episode exception
A. The state may join in one indictment all offenses arising out of one criminal episode, and the defendant will be tried for all of these in one trial unless there is a severance of the charges
B. If several offenses are charged in one charging instrument each must be in a separate count
C. If a defendant is charged in different indictments with offenses arising out of on criminal episode the state may have those indictments consolidated for trial together
D. Crimes are party of the same criminal episode if the are:
1. Part of the same transaction or
2. Part of a common scheme or plan or
3. The same or similar offenses
E. The state is not required to seek trial together or offenses arising out of one criminal episode
F. A defendant who is scheduled for trial together on multiple charges because those charges arose from the same criminal episode has an absolute right to have the charges severed for separate trials
G. BUT a defendant who invokes the right to severance incurs a potential disadvantage
1. If a defendant is convicted in one trial of several charges arising out of one criminal episode and sentenced to imprisonment the prison terms must run concurrently
2. If a defendant scheduled for one trial on such charges invokes her right to severance at separate trials is convicted of several charges arising out of one criminal episode, and is sentenced to imprisonment the trial judge has discretion to make the prison terms consecutive
If defendant moves for severance prison terms run consecutively
If not, terms run concurrently
Joinder and Severance of Defendants
Several defendants may be charged in one indictment and tried together if they are all charged with same offense
Several defendants may be joined for trial if:
A. They are charged with the same offense or
B. They are charged with different offense arising out of the same transaction
Mandatory Severance: A defendant who moves for severance and shows her codefenant has a prior conviction admissible against that codefendant at trial must be granted severance if prior conviction would be admissible at joint tirla
Discretionary Severance: In other situations a trial judge has discretion to grant a motion for severance of trials and should grant such a motion if a joint trial would be prejudicial to the defendant who ahs moved for severance
- Trial just has discretion whether to grant a motion for severance of trials made on the basis that trying together defendants with inconsistent defenses would prejudice the moving defendant
A motion for continuance must
A motion for continuance must:
A. Be in writing and
B. Be supported by a showing of good cause and
C. Surprise must be such as to prevent a fair trial
A motion after trial has begun must in addition be:
A. Based on an occurrence that happened after trial began and
B. That occurrence could not have been anticipated and
C. Surprise must be such as to prevent a fair trial
All motions for continuances are addressed to the discretion of the trial judge
Ex: if testimony could have been anticipated it may not be enough to delay trial
Defendants motion for a continuance to obtain a missing witness must allege
Defendants motion for a continuance to obtain a missing witness must allege:
- Name and residence of the missing witness
- Efforts made by defense to find and get witness to court
- Material Facts defense expects to prove by witness
When does an indigent defendant have a 6th amendment right to appointed attorney
An indigent defendant sometimes has a sixth amendment right to an appointed attorney
A. A defendant charged with a felony always has such as right
B. A defendant charged with a misdemeanor need not be provided an attorney if no jail is imposed upon conviction
A defendant has a sixth amendment right to represent herself
What must a judge do if defendant wants to represent himself?
If defendant wants to represent himself the judge must make sufficient inquires on the record to assure that defendant is competent to engage in self representation
- Requires only that defendant understand the disadvantages and risks of that course, not that he have legal knowledge
When must an appointed attorney contact the defendant?
An appointed attorney must make every reasonable effort to contract the defendant not later than the first working day after the date of appointment. An attorney is to interview the defendant as soon as practicable.
A judge has discretion to replace an attorney who fails to timely contact or interview the defendant
Can a judge consider whether or not defendant has posted or is capable of posting bail for 6th amendment?
General Rule is that judge may not consider whether a defendant has posted or is capable of posting bail. The exception is that this may be considered as it reflects the defendant financial circumstances as measured by proper considerations such as income, property owned, dependents etc.
A defendants sixth amendment right to effective representation is violated if:
A defendants sixth amendment right to effective representation is violated if:
- The lawyers actions were beyond the bounds of professional competence and were not simply tactical decisions and
- There is a reasonable probability that had counsel been effective the results of the proceeding would have been different
Representation is not effective if counsel
Representation is not effective if counsel:
A. Fails to conduct an adequate investigation or
B. Fails to convey to the client an offer of a plea bargain
Right to Effective Representation/ What to file if you need expert witness
File an Ake motion invoking Ake v. Oklahoma holding that due process entitled an indigent defendant to appointment of an expert.
To get the expert, I must show that the area of the expert’s expertise is likely to be a significant issue in the case.
So that counsel does not have to reveal thoughts to state, can make motion and showing ex parte
The state must pay for an expert to assist appointed defense counsel if the expert’s area is likely to be a significant issue in the trial of the case.
The state may dismiss some or all charges brought:
The state may dismiss some or all charges brought:
A. If must file a written statement of the reasons and
B. Trial judge must consent
No further prosecution may occur if a dismissal occurs after jeopardy attached
Must a criminal defendant be tried by jury?
A criminal defendant must be tried to a jury unless the defendant waives the right to jury trial
Jury Size
District Court: 12
County, Municipal, Justice Court: 6
Verdict is usually general except
Verdict is usually general except:
A. Special plea is submitted to the jury (found true or not true) and
B. Jury finds defendant not guilty by reason of insanity
Communications during trial between judge and jury once deliberations start
Communications during trial between judge and jury once deliberations start:
A. Jury must communicate with judge in writing
B. Judges response must be:
1. In writing and
2. Read to the jury in open court
Burden of proof for state
The state must prove guilty beyond a reasonable doubt. The verdict must be unanimous, so all jurors must concur. If the jurors cannot agree on the required unanimous verdict (either guilty or not guilty) the judge must declare a mistrial
Whether to have a case tried by a jury or not is a decision for who?
Whether to have a case tried by a jury or not is a decision that must be made personally by the defendant. If a defendant wants to have the case tried to a judge the defendant must waive jury trial. This must be done before trial.
The choice need not be the same as to both phases. Whether or not the defendant waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment
Waiver of Jury Trial on Guilty
Jury trial on guilt can be waived except in prosecutions for capital murder where the state seeks death penalty.
Waiver of jury trial on guilt requires consent and approval of:
A. The prosecutor and
B. The trial court judge
When if ever can the jury have the court reporter read from the reporters notes the substance of testimony taken during trial?
The jury may apply to the court for such a reading of testimony if the jury disagrees as to what the testimony was. The judge may have the court reporter read only those notes relating to the specific testimony in dispute
what happens if judge determines the jury has been deliberating long enoug
The judge can (without agreement of the parties) declare a mistrial and discharge the jury if it cannot agree and the judge determines the jury has been deliberating long enough to establish that it is unlikely to reach a verdict
When the jury cannot agree it may be discharged and a mistrial declared if:
When the jury cannot agree it may be discharged and a mistrial declared if:
- Both parties agree or
- The court finds the jury ahs been kept together long enough to render it altogether improbable that it could agree
Steps of Jury Selection Process
- Swearing in the panel
- Qualification of the panel members by the judge
- Possible jury shuffle
- Voir dire of the jury panel members
- Challenges for cause
- Peremptory challenges
- Empanelling the actual jury
When members of jury panel have been sworn and before the voir dire examination of jurors beings, court tests the qualifications of the jurors by asking 3 questions
- Are you a qualified voter
- have you ever been convicted of theft or any felony
- Are you under indictment or accusation of theft or any felony
Jury Shuffle
Counsel may demand a jury shuffle, which will result in the random reseating of venire members
- Must be before voir dire of the venire members begins
- There can only be 1 shuffle per trial (so only one side gets it)
Defendant or State may obtain a Jury Shuffle
A. Either side can demand that the members of he panel from which the jury will be selected in a random manner- doing this is called shuffling the panel
B. A request for a jury shuffle must be made before voir dire of the jury panel beings
Challenge for Cause
A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the Code of Criminal Procedure. There is no limit on the number each side may make but each one made must be justified under one of the statutory grounds
- Challenges for cause that can be made by state or defense:
1. Prior conviction for theft or a felony
2. Under formal charge for theft or a felony
3. Insane
4. Not qualified to be a voter
5. Is a witness in the case
6. Served on a jury in prior trial of the case
7. Served on indicting grand jury
8. Cannot read and write
9. Biased on prejudice for or against the accused
10. Bias or prejudice against any law applicable to the case on which the defense or the state is entitled to rely
Either side may challenge a juror for cause on the ground that juror has a bias or prejudice against any law applicable to the case on which that side is entitled to rely
Juror staring at you is not enough for challenge for cause, could be for peremptory challenge
If an unqualified juror is sat
If an unqualified juror is sat you must raise objection before verdict is entered. If you wait until after counsel must show that jurors service on the case caused him significant harm.
- Most challenges must be made during jury selection
If a absolutely disqualified juror sat on the jury
If a juror absolutely disqualified sat on a jury the conviction must be set aside if the defendant either:
1. Raised this before the verdict was entered or
2. Shows significant harm as a result of the jurors service
The law requires that a juror be able to consider the full range of punishment provided by the law for the offense.
- Make challenge that juror is biased against the law if they are unwilling to accept
If juror says that defendant is guilty and nothing can change his mind
If juror says that defendant is guilty and nothing can change his mind
Defense should make a challenge for cause on basis that juror is biased because he has already formed an opinion on guilt. To prevail, counsel must show that juror cannot put aside this opinion and decide the case on the basis for the law and evidence presented at trial. IF juror admits that the conclusion would influence the verdict the judge must discharge the juror. IF the juror says the opinion would not, counsel must convince the judge that the juror would be unable to put aside the opinion and decide the case on the law and evidence
A juror who states he has formed an opinion that would influence his verdict is biased and must be discharged for cause
A juror who states she can render a verdict on the law and evidence despite his opinion need not be discharged if the court is satisfied the juror can be impartial
If prosecutor ask in jury selection “if evidence shows the defendant threatened victim with gun is there anyone who would not convict” and defense object
If prosecutor ask in jury selection “if evidence shows the defendant threatened victim with gun is there anyone who would not convict” and defense object
- Court should sustain the objection because the prosecutor has asking an improper commitment question. The question fails to specify each element of the offense and that those elements must be proven beyond a reasonable doubt and is therefore not permissible
Peremptory Challenges
Each side in a criminal trial gets a limited number of peremptory challenges- Challenged which can be exercised with no explanation or justification
Capital Murder Death Penalty Cases: 15
Other Felony Cases: 10
Misdemeanors in county, municipal or justice court: 3
Misdemeanors tried in district court: 5
Neither side may exercise peremptory challenges on the basis of race of gender
If suspect that Peremptory Challenge was for race or gender
Counsel should make a Batson challenge on the ground that the state has exercised its peremptory challenges on racial/gender grounds. She should move to dismiss the array of prospective jurors.
Motion should be made:
A. After each side submitted its list of jurors its challenges and
B. Before the trial Court empanels the jury
Proof that part has removed all African American jurors is a prima facie case of racial motivation. Burden therefore shifts to the state to explain its challenges on racially neutral grounds.
Should attempt to explain each challenge on racial neutral grounds
But the other party ultimately has the burden of proving racial motivation
If that party is successful that challenges were racially based Trial judge must do one of two things:
1. Dismiss the array and start jury selection over or
2. Reinstate those jurors struck for racial reasons
Can raise challenge regardless of what race counsel is.
Order of Proceeding in a Texas Felony Trial
- Judge calls for and parties give announcements of ready
- Prosecutor reads the indictment
- Defense Counsel enters a plea for the defendant
- Prosecutor makes states opening statement
- Prosecution presents states case in chief
- Defense counsel makes defense opening statement
- Defense presents defense evidence
8 . Rebuttal evidence is presented - The judge reads the instructions to the jury
- Counsel make final argument to the jury
- Upon request defense counsel may make the defense opening statement immediately after the states opening statement
*If judge trys to force defense to make opening statement after states opening statement:
Defense has the right on request to make the opening statement after the State’s opening statement. But defense cannot be required to do this Defense counsel is entitled to proceed under general rule: opening statement is to be made after the state rests its case-in-chief
If defense thinks that state has failed to prove guilt beyond a reasonable doubt after state presented its case-in-chief and rests:
If defense thinks that state has failed to prove guilt beyond a reasonable doubt after state presented its case-in-chief and rests:
Defense should make a motion for a directed verdict of not guilty. This asks the judge to hold that no reasonable jury could find on the basis of the stats case-in-chief that all elements of the crime have been proved beyond a reasonable doubt. This presents an issue for the judge rather than the jury, the motion should not be made within the hearing of the jury.
Basic Trial motion for acquittal without going to the jury is a motion for a directed verdict of not guilty:
This should be made both:
1. At the end of the state’s case-in-chief and
2. At the close of all the evidence
IF made because evidence of venue is lacking, specify this
Out of court declarations by a party opponent
But you can testify as to what witness heard the defendant say: Out of court declarations by a party opponent are not hearsay and are always admissible
- Party Opponent is Defendant
If prosecution wants to admit confession of a party but that party will invoke fifth amendment right if forced to take stand what can defendant do?
Defense should object that since defense cannot cross-examine party introducing the confession would violate defendants sixth amendment right to conform witness against him. IF that is unsuccessful counsel should ask that any reference to defendant as parties partner in crime be redacted from the confession before it is introduced
Hearsay exception for statements against interest means (among other things)
Hearsay exception for statements against interest means (among other things) a statement is admissible if it is shown to have been made against the declarants penal interest
A hearsay statement is admissible as against penal interest if:
A. 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
A hearsay statement against interest is admissible whether or not the out-of-court declarant is unavailable
In criminal litigation a statement against penal interest is admissible only if corroborating circumstances indicate it is trustworthy
Predicate that must be laid by the testimony of the custodian to make records of regularly conducted activity admissible over a hearsay objection includes testimony by the custodian that:
- The records were kept in the regular course of business
- It was the regular course of the business for a person with knowledge of the matter to make such records or transfer information for inclusion in the records
- Entries in the records were made at or near the time of the events and
- The witness is the custodian of the records
If custodian is unavailable to testify about business records
The business record can alternatively be authenticated if Prosecutor:
1. Obtains an affidavit of the custodian of the records containing all the elements identified in the last answer
2. Files the affidavit with records attached with the court at least 14 days before trial starts and
3. Gives the defense notice of the filing at least 14 days before
State and Defense bad character evidence
State cannot introduce evidence that the defendant has a bad character to prove the defendants guilt
Defense can introduce evidence of the accuses good character in an effort to establish his innocence (that would be putting defendants character in issue)
State can prove the defendants bad character:
A. If accused “puts his character in issue” by exercising his right to introduce evidence of good character and
B. At punishment stage of trial
Character witness testimony
- The witnesses personal opinion as to the persons character (opinion character evidence)
- What the witness believes is the person’s reputation for the character trait (reputation character evidence)
Character cannot be proved by evidence of specific instances of conduct
Reputation testimony is hearsay but admissible under an exception
Foundation for character testimony
Opinion- Witness is personally familiar with the person
Reputation- Witness participated in discussions with others of persons reputation or overheard others discussing that reputation
Cross Examination of Character Witness
Inquiry into specific instances of conduct is permissible
“Have you heard” questions: Ok if reputation witness
- Usually specific instances of conduct and that’s ok
“Did you Know” questions: Ok if opinion witness
These types of questions cannot be switched, can’t ask did you know questions to reputation witness
At the guilt stage of a criminal trial, a character witness is qualified to testify as to the defendants character only if:
A. On reputation the witness was substantially familiar with the defendants reputation prior to the day of the offense or
B. On personal opinion the witness was substantially familiar with the facts on which that opinion is based prior to the day of the offense
Extraneous Offense
Crime of which the accuse cannot be convicted in this trial
Evidence of extraneous offense is inadmissible. Such evidence shows only that the accused is a bad person. The prosecution cannot prove guilt by proving that the accuse is a bad person, has a bad character, and thus must have committed the charged crime
If evidence showing an extraneous offense is relevant to some issue other than the accuseds character it is admissible unless the trial judge is convinced that the danger of unfair prejudice substantially outweighs the probative value of the evidence
Extraneous offense evidence may be admissible as relevant to (MIMIC)
Motive
Intent or Knowledge
Mistake or accident (to rebut)
Identity (when defendant has put that in issue)
Common scheme or plan
Ex: If defense has put identity into issue prosecutor is allowed to bring in evidence that he committed other quite similar offenses unless the probative value is substantially outweighed by the risk of unfair prejudice
A defendant puts his identity into issue (and thus triggers states ability to use evidence that he committed similar extraneous offenses) by either:
A. Introducing evidence that he was not the perpetrator such as alibi testimony or
B. Impeaching all the states eyewitnesses
Upon timely request by defendant, state must give notice of:
- Of intent to introduce evidence of other crimes, wrongs, or bad acts
- Not arising in same transaction as charged crime
- To be introduced in the states case-in-chief
- The notice must be given in advance of trial
- No such notice is required concerning crimes, wrongs or acts arising in the same transaction as the charged offense
