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Flashcards in Texas - Evidence in Criminal Action TCCP Deck (58)
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1

Where is the presumption of innocence located?

TCCP 38.03

2

Explain provision against judge commenting on evidence during ruling?

TCCP 38.05
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible;

3

Explain provision against judge commenting on evidence at any stage?

TCCP 38.05
nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

4

Explain sufficiency of evidence for corroboration of sexual offense victims?

No, not if:
1. "Sexual Offense" under Chapter 21, Sexual Human Trafficking, Sex Assault, Agg. Sex. Assault;
2. Vic. told someone within 1 year;
3. Vic was:
17 years or younger;
65 or older;
Physical or mental defect
TCCP 38.07

5

Constitutionality of video tape recorded child testimony?

Coronado v. State TCA 2011 - held 38.071 Sec. 2 unconstitutional as to submission of interrogatories to satisfy 6th Amendment Confrontation Clause

6

What is the notice requirement for an "Outcry Statement"?

14 days before proceeding
TCCP 38.072

7

What is the age cut off for outcry?

Younger than 14
TCCP 38.072

8

What is the notice requirement for extraneous sexual acts in child sex case?

30 days before trial - no request required
TCCP 38.37

9

What is the notice requirement for extraneous offenses?

30 days prior to trial - no request required
This is a change from prior notice requirement - like 404
TCCP 38.37

10

What is the notice requirement for an outcry statement?

14 days notice:
a. the name of the witness through whom it intends to offer the statement; and
b. provides the adverse party with a written summary of the statement;
TCCP 38.072

11

What must the court find about the STATEMENT before allowing into evidence?

Court must have hearing outside jury's presence, and find that the statement is reliable based on:
time;
content;
and circumstances of the statement.
TCCP 38.072

12

Does the child have to be available to testify for an outcry statement to be use?

Yes. TCCP 38.072

13

To what crimes does the "Outcry Statement" law apply to?

Victim younger than 14:
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
(2) Section 25.02 (Prohibited Sexual Conduct);
(3) Section 43.25 (Sexual Performance by a Child);(4) Section 43.05(a)(2) (Compelling Prostitution);
(5) Section 20A.02(a)(7) or (8) (Trafficking of Persons); or
(6) Section 15.01 (Criminal Attempt), if the offense attempted is described by Subdivision (1), (2), (3), (4), or (5) of this section.

Tex. Crim. Proc. Code Ann. art. 38.072 (West)

14

Unrelated: What is 28 USC 2254?

State custody; remedies in Federal courts - writ of habeas corpus

15

What is a "person with a disability" with regard to "outcry" statements?

TCCP 39.072
13 years or older, because of age or physical or mental disease, disability, or injury is substantially unable to protect the person's self from harm or provide food, shelter, or medical care for the person's self

16

What is a "person with a disability" with regard to "outcry" statements?

TCCP 39.072
13 years or older, because of age or physical or mental disease, disability, or injury is substantially unable to protect the person's self from harm or provide food, shelter, or medical care for the person's self

17

Is there a rule for inmate testimony?

TCCP 38.073
any deposition or testimony may be taken by video teleconference system in manner described by 27.18
Cody NOTE: Probable 6th A. issues considering Coronado

18

What is a "child" concerning special rules of "child" testimony?

TCCP 38.074
Uses "Sexual Assault" definition - younger than 17

19

What kind of oath should be administered to child?

TCCP 38.074
"a manner that allows the child to fully understand the child's duty to tell the truth"

20

What is the court's duty for questions of a child witness?

TCCP 38.074
"language appropriate to child's age"
"explain to child that child has the right to have the court notified if the child is unable to understand any questions and to have a question restated in a form that the child does understand"

21

When can a testifying child have a "comfort item" or "support person"?

TCCP 38.074
1. child cannot reasonably testify without it;
2. not going to prejudice evaluation of testimony.

22

When can a child have a "comfort item"?

TCCP 38.074

23

What is the limit on support person for child testifying?

TCCP 38.074
1. Cannot obscure view of child from defendant or trier of fact;
2. provide answers to child;
3. assist or influence the testimony.

24

What discretion does court have in accommodating testifying child?

TCCP 38.074
1. Comfort Item;
2. Support Person;
3. Conditions and limitations that are "just and appropriate"

25

What is the limit on sufficiency based on "jail-house snitch"?

TCCP 38.075
Corroborated by some other evidence connecting D with offense
Corroboration not sufficient by just showing offense committed

26

Can statements made during drug treatment be used at trial?

TCCP 38.101
If voluntarily being treated, not admissible.

27

What must court consider when evaluating subpoena to journalist?

1. overboard, unreasonable, oppressive;
2. balance party interest to public interest of press;
3. how essential is info.
must NOT consider only one factor
Order compelling must be very specific with appropriate findings

28

Admissibility of news media recording?

TCCP 38.111
No extrinsic evidence of authenticity needed if broadcast purports to be made by entity with FCC license - court may take judicial notice of license under TRE 201

29

Admissibilty of news media recording?

TCCP 38.111
No extrinsic evidence of authenticity needed if broadcast purports to be made by entity with FCC license - court may take judicial notice of license under TRE 201

30

What two kinds of accomplices are there for testimony?

Matter of Law - indicted
Matter of Fact - could've been indicted - a question for the jury