Arrested on a Search Warrant of Business With Contraband

Question 1

1. Prosecutor informs you that the Smith County grand jury will meet next week to consider indictments against Defendant. Can Prosecutor compel Defendant to testify before the grand jury? What rights does Defendant have regarding an appearance before the grand jury? Explain fully.

Answer 1

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.

Question 2

2. On the day the indictment against Defendant is returned, the Court notifies you that you must file and present any pre-trial motions within the following three days.
   Can the Court compel you to file and present your pre-trial motions under the circumstances outlined above? Explain fully.

Answer 2

The Court cannot compel me to file and present pre-trial motions within three days because I must file them at least seven days before the pre-trial hearing, not three days.

Question 3

3. 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?

Answer 3

The affidavit must allege sufficient facts to establish probable cause that a specific offense has been committed, 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 the items are at or on the particular person, place or thing to be searched.

Question 4

4. 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? Explain fully.

Answer 4

I should 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.

Question 5

5. 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? Explain fully.

Answer 5

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.

Question 6

6. You also 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? Explain fully.

Answer 6

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

Question 7

7. 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? Explain fully.

Answer 7

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.

Question 8

8. 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.

Answer 8

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.

Question 9

9. Defendant decides to plead guilty to the lesser included offense of possession of Methamphetamine 4-200 grams.
   List three admonishments that the Court must give Defendant before accepting his felony plea of guilty.

Answer 9

Prior to accepting a plea of guilty, the court must admonish the defendant of the 1) range of the punishment attached to the offense, 2) that a plea agreement is an unbinding recommendation for penalty by the prosecution, and 3) that deportation is possible if the defendant is not a U.S. citizen.

Question 10

10. Defendant changes his mind and elects to try both stages of his case to a jury. When the jury panel of 42 is assembled, you note that several police officers and a former bar examiner are among the first 15 venire persons. You believe that these individuals 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? Explain fully.

Answer 10

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.

Question 11

11. 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.

Answer 11

A challenge for cause may be made by either the State or the defense for any one of the following reasons:

(i) the juror is not a qualified voter in the state and county,
(ii) the juror has been convicted of misdemeanor theft or a felony,
(iii) the juror served on the grand jury, (iv) the juror is insane, or
(v) the juror will be a witness in the case.

Question 12

12. 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…

DEFENSE LAWYER: Objection!

COURT: What is your objection counsel?

What is the proper objection to Prosecutor’s statement? How should the Court rule? Explain fully.

Answer 12

Neither a withdrawn plea nor a statement made in a plea negotiation is admissible against the defendant in a subsequent proceeding.
Prosecutor is attempting to use the withdrawn plea against Defendant, and because no exception appears to apply, the Court should sustain the objection to the inadmissible comment.

Question 13

13. The State’s first witness is Officer, who executed the search warrant. After he has testified on direct examination, the following exchange occurs:

COURT: Counsel, you may proceed.

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 the Court rule on Prosecutor’s objection? What sanctions may the Court impose if Prosecutor refuses to produce the statement? Explain fully.

Answer 13

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.

Question 14

14. The 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? Explain fully.

Answer 14

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.

Question 15

15. 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? Explain fully.

Answer 15

The Court should overrule Prosecutor’s objection because 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.

Question 16

16. The State’s next witness is Expert, who intends to testify regarding his opinion that the substance seized during the search is indeed Methamphetamine. The following exchange occurs:

PROSECUTOR: Your Honor, the State next calls Expert, a forensic chemist.

DEFENSE LAWYER: We request that the jury be retired in order to conduct a voir dire examination of this witness.

COURT: Denied. You can examine him in the presence of the jury. You have wasted enough time.

Is the Court’s ruling correct? Explain fully.

Answer 16

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.

Question 17

Is the Court’s ruling correct? Even if the Court’s ruling is correct, what, if anything, must you do further to preserve any issue of prejudice on appeal? Explain fully.

Answer 17

The Court’s ruling is correct because 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.

Question 18

18. After the State rests, the following exchange occurs:

DEFENSE LAWYER: Your Honor, the State has rested, and prior to calling my first witness, I now wish to make a brief opening statement to the jury.

COURT: Your request is denied as untimely. Let’s proceed.

Is the Court’s ruling correct? Explain fully.

Answer 18

The ruling is incorrect because 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.

Question 19

19. As your first witness you intend to call Associate, who was Defendant’s business partner at the time of the offense. Although properly subpoenaed, Associate refuses to appear, saying “he doesn’t want to get involved.” What action should you take in response to Associate’s non-compliance with your subpoena? Explain fully.

Answer 19

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 Associate be held in contempt and fined.

Question 20

20. In a desperate last-ditch effort to save himself, Defendant takes the stand in 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? Explain fully.

Answer 20

Because the presence of a representative of the attorney does not destroy the attorney-client privilege, Defendant’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.