Texas Crim Pro and Evidence Flashcards
Can Prosecutor compel Defendant to testify before the grand jury? What rights does Defendant have regarding an appearance before the grand jury?
The Prosecutor can compel Defendant to appear at the grand jury, but cannot compel him to answer incriminating questions. Defendant must be advised of his right to remain silent, given a reasonable opportunity to retain or be appointed counsel, and advised of his right to have counsel present outside chambers for advice before he answers any questions.
How many days before trial do you need to file pre-trial motions?
You need to file pre-trial motions at least seven days before the pre-trial hearing.
As you prepare your case for trial, you review the affidavit for the search warrant. What three facts must the affidavit set forth to establish probable cause?
The affidavit must allege sufficient facts to establish PROBABLE CAUSE that 1) a SPECIFIC OFFENSE has been committed, 2) the SPECIFICALLY DESCRIBED ITEMS to be searched for and seized constitute evidence of that offense or that a particular person has committed that offense, and 3) the ITEMS ARE AT or on the particular person, place or thing to be searched.
You conclude that the search warrant is defective. What motion should you file to contest the validity of the search? What must the motion allege and what remedy should you seek?
File a motion to suppress the evidence, alleging that the search warrant was invalid because the affidavit did not set forth enough facts to establish probable cause, or the warrant was otherwise insufficient. If the court agrees, the evidence is “fruit of the poisonous tree” and must be excluded.
The Court conducts a pre-trial hearing on your motion. Following that hearing, the Court grants the relief you requested. Prosecutor immediately announces that she will appeal the Court’s order. Is the State entitled to pursue an interlocutory appeal in this instance? If so, what requirements must be met by the State in order to do so?
The State may pursue an interlocutory appeal filed within 20 DAYS of date the trial court entered the order to be appealed. The prosecuting attorney must certify to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.
You learn that Defendant gave police a post-arrest written, signed statement denying his involvement in this offense. You request that Prosecutor provide you a copy of the statement. Prosecutor refuses your request, claiming work product privilege. Is Prosecutor required to provide you a copy of Defendant’s statement?
The statement is not work product because it is not prepared by an attorney for his own use in connection with the client’s case. Prosecutor must disclose the statement because it is evidence that would negate Defendant’s guilt. If he refuses, I would be permitted to request the document by filing a motion.
You file a pre-trial discovery motion requesting a list of all of the State’s witnesses. Prosecutor files a reciprocal motion requesting a list of all defense witnesses. How should the Court rule on the State’s motion?
The court does not have the discretion to order a defendant to provide to the State a list of his lay witnesses. Here, the Court should grant Prosecutor’s motion as to any expert witnesses Defendant intends to call at trial and deny it as to any lay witnesses that Defendant intends to call at trial.
Defendant elects to have a jury trial and instructs you to file an application for probation on his behalf. List three requirements of a proper application for felony probation.
A proper application for probation must be in WRITING and SWORN, and it must state that the defendant has NEVER before been CONVICTED of a FELONY. When the defendant elects jury sentencing, it must be filed PRIOR to the commencement of VOIR DIRE. When a jury determines a defendant’s punishment, imposes confinement as punishment, and recommends probation, the judge must place the defendant on probation. However, D is not eligible for jury-recommended probation if the defendant is convicted of murder or certain serious felonies when the victim is under the age of 14, or when the defendant is sentenced to imprisonment for more than 10 years.
Defendant decides to plead guilty to a lesser included offense that is still a felony. List three admonishments that the Court must give Defendant before accepting his felony plea of guilty. Do the admonishments need to be written?
Prior to accepting a plea of guilty, the court must admonish D of: 1. Range of the punishment attached to the offense 2. A plea agreement is an unbinding recommendation for penalty by the prosecution 3. Deportation is possible if the defendant is not a U.S. citizen The admonishments do not need to be written; they can be made orally on the record.
You believe certain individuals seated in the jury panel may not be favorable defense jurors. What action, if any, can you take to change the seating order of the venire persons? At what stage of the proceeding should you take this action?
I may request a jury “shuffle,” or the re-seating, in random order, of the prospective jurors in the venire panel. On request of either party, the judge must order the clerk to randomly shuffle the jurors’ names and place them on a new list, but ONLY ONE SHUFFLE is permitted and must be conducted BEFORE VOIR DIRE.
During your voir dire of the jury panel, you conclude that several prospective jurors are legally unfit to serve on the jury. You challenge them for cause. List five challenges for cause which may be made by either the State or the defense. (There are 11)
A challenge for cause may be made by either the State or the defense for any one of the following reasons re: juror: 1. Not a qualified voter in state and county; provided, however, the failure to register to vote shall not be a disqualification 2. Been convicted of misdemeanor theft or any felony 3. Under indictment or other legal accusation for misdemeanor theft or a felony 4. Insane 5. Bodily or mental defect or disease (such as legal blindness) as to render her unfit for jury service, and the court is not satisfied that she is fit for jury service in that particular case 6. Witness in the case 7. Served on the grand jury that found the indictment 8. Served on a petit jury in a former trial of the same case 9. Has bias or prejudice in favor of or against defendant 10. Has established a conclusion as to the guilt or innocence of the defendant such as would influence the juror in finding a verdict 11. Cannot read or write
After the jury is seated, Prosecutor delivers her opening statement. In that statement, she tells the jury as follows: PROSECUTOR: I also expect the evidence to show that Defendant knows full well that he is guilty of this offense. He knows that because he wanted to plead guilty in exchange for our plea bargain… What is the proper objection to Prosecutor’s statement? How should the Court rule?
Neither a withdrawn plea nor a statement made in a plea negotiation is admissible against the D in a subsequent proceeding. Prosecutor is attempting to use the withdrawn plea against D, and because no exception appears to apply, Court should sustain the objection to the inadmissible comment.
The State’s first witness is Officer, who executed the search warrant. After he has testified on direct examination, the following exchange occurs: DEFENSE LAWYER: Your Honor, the defense now moves for the production of Officer’s report for use during cross-examination. PROSECUTOR: We object. The request is untimely. Counsel should have asked for the report at pre-trial. We refuse to produce the report. How should Court rule on P’s objection? What sanctions may Court impose if P refuses to produce the statement?
The Court should overrule Prosecutor’s objection. After a non-defendant witness testifies on direct examination, the party not calling the witness can move to demand any statement of the witness in the possession of the other party. If Prosecutor refuses to deliver the report, the judge will either strike the testimony or declare a mistrial.
State’s next witness is Convict, who intends to testify that he has previously been involved with Defendant in several illegal drug transactions. You request that the Court consider the admissibility of Convict’s testimony in a hearing conducted outside the presence of the jury. What ground, or grounds, should you raise in your effort to exclude Convict’s testimony?
A defendant’s wrongful acts are not admissible to show his criminal propensity. I should argue that Defendant’s prior bad acts are irrelevant, that they are not MIMIC evidence, and that the probative value of the evidence is substantially outweighed by the danger of undue prejudice.
On your cross-examination of Convict, the following exchange occurs: DEFENSE LAWYER: It is true, is it not sir, that you were convicted of robbery in Harris County, Texas, in June of 2000? PROSECUTOR: Your Honor, we object. That conviction is remote since it occurred 6 years ago. COURT: Overruled. The witness is directed to answer the question. How should the Court rule on Prosecutor’s objection? Would the ruling be different if Convict’s conviction is still on appeal?
A conviction for robbery is a felony, and since less than ten years have passed, the conviction is proper impeachment evidence without finding that the “interests of justice” require the conviction to be admitted. If an appeal was pending, the conviction could not be used to impeach Convict.
In a criminal case, must the Court allow a defendant to voir dire the prosecution’s experts?
The Court’s decision is incorrect because, in criminal cases, the judge must permit a defendant to voir dire the prosecution’s experts. Additionally, voir dire of an expert witness must be conducted outside of the jury’s presence.
May a Prosecutor call a Defendant to the stand? If not, what must you do to preserve any issue of prejudice on appeal?
The defendant need not testify against himself, and the State may not call Defendant as a witness. To preserve the issue for appeal, I must object, make a motion for the jury to disregard the prosecutor’s comment, and move for a mistrial on the ground that the curative instruction was insufficient to ensure a fair trial.
When is the defendant permitted to make his opening statement?
A defendant may make his opening statement at the beginning of the trial or he may reserve this right and make his opening statement following the close of the State’s case-in-chief. If Defendant made no opening statement at the beginning of the trial, he has a right to make one at the close of the State’s case-in-chief.
If you properly subpoena a witness but he refuses to appear, what should you do?
When a properly subpoenaed witness in a criminal action fails to appear, the State or the defendant is entitled to have an attachment issued against the witness. Because a witness who refuses to obey a subpoena is also subject to contempt or a fine, I should request that a writ of attachment be issued and that the non-complying witness be held in contempt and fined.
In a desperate last-ditch effort to save himself, D takes the stand on his own behalf. On cross-examination, the following exchange occurs: PROSECUTOR: Mr. Defendant, although you now deny that you are guilty of this offense, that’s not what you told your lawyer’s paralegal is it? Didn’t you admit this whole sorry episode to her? DEFENSE LAWYER: Objection, your Honor. On what grounds should you object to this question? How should the Court rule?
Because the presence of a representative of the attorney does not destroy the attorney-client privilege, D’s communications with his lawyer’s paralegal are protected by the attorney-client privilege and not a proper subject of cross-examination, so the Court should sustain the objection.
What are three rules that a court should follow when fixing the amount of bail?
The amount of bail is within the discretion of the court and is governed by the TX Constitution and by the following rules: 1. Shall be SUFFICIENTLY HIGH to give REASONABLE ASSURANCE that the undertaking will be complied with 2. Power to require bail is not to be used as an instrument of OPPRESSION 3. NATURE OF THE OFFENSE and the CIRCUMSTANCES under which it was committed are to be considered 4. Consider the ABILITY TO MAKE BAIL (proof may be taken upon this point) 5. FUTURE SAFETY of a victim of the alleged offense and the community shall be considered
Can the court consider whether D is capable of posting bail in determining whether D is indigent and is still entitled to appointed counsel?
Court may consider many factors when determining whether a defendant is indigent (e.g., income, assets, debt, expenses, dependents, etc.), but MAY NOT CONSIDER whether Troy has posted or is CAPABLE OF POSTING BAIL, except to the extent that it reflects the defendant’s financial circumstances as measured by the above factors.
If the court denies your request to reduce D’s bail to $10,000, what procedural step, if any, can you take to seek a reduction in bail, and what argument, if any, can you make for such a reduction?
Claim of excessive bail is made through a petition for writ of HABEAS CORPUS CLAIMING INABILITY TO MAKE BAIL and arguing that 1) $10,000 is enough to give REASONABLE ASSURANCE that D will appear; D was charged with a NONVIOLENT, VICTIMLESS crime; Defendant could AFFORD bail at $10,000; and Defendant MADE AN EFFORT to furnish the $25,000 bail.
In order for a search warrant to be issued authorizing the search of D’s apartment for evidence, what facts must Officer allege and in what document must he do this?
A valid search warrant must be based on PROBABLE CAUSE supported by OATH or AFFIDAVIT. Because a showing of probable cause exists when the officer has either (i) PERSONAL knowledge, or (ii) TRUSTWORTHY hearsay from an informant or other person, the supporting affidavit must ALLEGE THE INFORMANT’S VERACITY, RELIABILITY, AND BASIS of knowledge.
Where is venue proper?
As the default, if not stated, proper venue is in any county where the criminal offense OCCURRED. When it is indeterminable where a criminal offense was committed, D can be prosecuted in the county of her RESIDENCE, the county where she was APPREHENDED, or the county to which she is EXTRADITED.
The court sets a pretrial hearing for 9:45 a.m. on December 17, 2008, and sets trial for January 5, 2009. You do not know how to contact a potential witness whom you want to call. What procedural step, if any, can you take to obtain more time before the trial in order to find the witness; by what date must you take such a step, if any; and what must you show the court?
File a MOTION FOR CONTINUANCE at least 7 days before the pre-trial hearing Must contain: 1. NAME AND ADDRESS of witness 2. Allege DILIGENT ATTEMPT to secure her attendance 3. MATERIALITY of her testimony 4. Motion is NOT MADE FOR PURPOSE OF DELAY 5. ABSENCE WAS NOT PROCURED BY D 6. NO REASONABLE EXPECTATION that she will attend
When a criminal case is set for a pre-trial hearing, when must you file preliminary matters? How much notice of hearing does D need?
When a criminal case is set for a pre-trial hearing, any preliminary matters not raised or filed by the defendant SEVEN days before the hearing, if D has been given at least 10 DAYS NOTICE of the hearing, will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown.
What is required for a Terry stop?
A “stop” (also known as a “Terry stop”) is a LIMITED AND TEMPORARY INTRUSION on an individual’s freedom of movement short of a full custodial arrest. A stop is justified on the REASONABLE SUSPICION, based upon ARTICULABLE FACTS that the detainees are or were involved in criminal activity. Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and need not be based on a police officer’s personal knowledge.
