Bar Questions Flashcards
One month prior to trial, you make a written request upon the state to provide you with any 404(b) crimes, wrongs, or acts that they intend to introduce. The state refuses your request. What obligation, if any, does the state have to provide you such notice?
Because I have made a timely request for such notice, the state must provide me, in advance of trial, with notice of its intent to introduce in its case-in-chief any evidence of crimes, wrongs, or “bad” acts not charged against D but admissible to prove something other than bad character. No notice is required regarding crimes, wrongs, or bad acts that arose in the same transition as the charged offense.
Prior to trial, you receive a letter from the prosecutor informing you that the state intends to offer what it terms an “outcry” statement of the victim. What are the threshold admissibility requirements for an outcry statement?
(i) the statement was made by a child victim (14 or younger) of a sexual or assaultive offense, and (ii) it was made to the adult to whom the child victim made a statement about the offense.
Seven members of the jury array are black. Although none of these venire persons are stricken for cause, Prosecutor peremptorily challenges all seven. What procedure, if any, should you employ to contest this action?
To challenge Prosecutor’s peremptory challenge of all seven black venire persons, I should make a “Batson motion.” This motion should assert that the state exercised its peremptory challenges on racial grounds. Striking all black venire persons raises a prima facie case for racial motivation. My Batson motion can specifically be a motion to dismiss the array of jurors. It should be made after both sides give their strike lists to the judge, but before the judge empanels the jury.
What remedy should you request if Prosecutor’s peremptory challenges are ruled improper for racial motivations?
(i) I can ask that the judge dismiss the array, which means that jury selection would have to start over
or
(ii) I can ask that the judge reinstate the jurors struck for racial reasons, which means the trial would proceed with a jury containing those jurors
Give two examples of why a lawyer would use a peremptory challenge?
(i) the juror does not seem to relate well to the lawyer
(ii) the juror’s tone of voice suggests to the lawyer that the juror is hostile to points the lawyer hopes to make at trial.
Your next witness is Friend, and without any objection from the state, you elicit testimony from him regarding D’s character. During the state’s cross-examination, the following exchange occurs:
P: “Let me ask you some questions about D’s criminal history. You know, don’t you, that D has been arrested numerous times?
F: “No, I don’t know that. This is the first time I’ve heard that.”
P: “Well, let’s go over this lengthy list of arrests and see if that refreshes your memory.”
You: “Objection”
Court: “Why are you interrupting us again, Counsel? The jury is entitled to know about your client.”
What is the proper objection to P’s questions, and how should the court rule?
The proper objection to P’s questions about specific arrests on the list is that P has not laid the proper foundation for cross-examining a character witness regarding specific instances of conduct by the person about whom the witness testified. As applied to this situation, that foundation consists of showing that: (i) the arrests were for crimes that were relevant tot he character trait as to which Friend testified on direct examination; and (ii) P has a basis in fact for believing that the arrests occurred, and the underlying offenses were committed by D.
The jury find D guilty. Prior to trial, you filed a sworn application for probation on behalf of D, alleging that D has never before been convicted in this state, any other state, or any court in the US. Can the court or the jury now consider a sentence of deferred adjudication as punishment for this offense?
No, neither the court nor the jury can consider a sentence of deferred adjudication as punishment for D’s offense. Deferred adjudication is available only from the judge and only if D enters a plea of guilty or nolo contendere. Once there has been a conviction, deferred adjudication is not available.
At his post-arrest interrogation, D asks to speak with a lawyer. Detective ignores the request, continues the custodial interrogation, and eventually obtains a written inculpatory statement from D. What motion should you file regarding this statement? What basis should such motion allege? At what stage of the proceedings should you file the motion?
I should file a motion to suppress the statement. The motion should allege as its basis that under the 5th amendment as construed under Miranda v. Arizona, custodial interrogation must cease if the suspect clearly indicates a desire for counsel. A statement obtained by improperly continued questioning is inadmissible. The motion should be filed before trial and, if a pretrial hearing is scheduled, before that hearing. The statement can, however, be used to impeach the defendant if he testified during trial.
Prior to the grand jury considering the felony allegation against D, you file a motion requesting an examining trial. What is an examining trial, and what is its purpose? Is D entitled to an examining trial under the circumstances?
An examining trial is a hearing before a magistrate at which the state must introduce evidence establishing probable cause to believe D guilty of the crime. All felony defendants have a right to an examining trial before an indictment is returned. Yes, D is entitled to an examining trial because he is charged with a felony and no indictment has been returned.
As you prepare for trial, you become concerned that D is mentally incompetent to stand trial. What is the legal presumption regarding D’s competency? Who has the burden of proof, and what is the standard of proof regarding competency?
The legal presumption is the D is competent to stand trial. If D seeks a finding of incompetence, D has the burden of proof and must prove his incompetency by a preponderance of the evidence. To place a heavier burden on D would be unconstitutional.
P advises you that, in addition to his written statement, D gave a custodial oral statement concerning this offense. P also informs you that she intends to offer D’s oral statement at trial. Identify three predicates that must be satisfied in order for D’s oral statements to be admissible in a criminal proceeding?
The oral statement will be admissible only if the statement shows that: (i) it was electronically recorded, (ii) during the recording D was warned of his rights and waived them, and (iii) defense counsel was provided with copies of all recordings made of D at least 20 days before trial.
As Prosecutor is preparing for trial, she discovers that the state has two statements from Witness. In a written, signed Statement Number On, Witness says that he saw D assault Victim without provocation. In a subsequent, unsigned Statement Number Two, Witness recants Statement Number One and contends that D struck Victim only after Victim had first attacked D. Because the state does not intend to call Witness to testify, Prosecutor decides that it is not necessary to reveal Statement Number Two to D. Is the state required to disclose W’s name to D? Is P required to disclose Statement Number Two to D? Would it matter whether D had filed a pretrial motion requesting such evidence?
Yes, the state is required to disclose to D W’s name and Statement Number Two. This is exculpatory evidence which, under Brady v. Maryland, the prosecution must disclose to the defense in time for the defense to make use of it at trial. It would not matter whether D filed a pretrial motion requesting exculpatory evidence cause the prosecution has a duty, without request, to disclose exculpatory information. Of course, failure to disclose it would render the conviction invalid only if the statement turns out to be “material.”
If D enters a guilty plea, list three admonishments that the court must give D before accepting his felony plea of guilty.
(i) range of penalties attached to the offense
(ii) a warning that any recommendations by the state are not binding on the court
(iii) the limited right to appeal following a guilty plea
What must you show to establish a proper challenge for cause to a prospective juror?
I must either elicit from juror that the conclusion she has reached about D would influence her verdict in the case or - if she will not acknowledge this - persuade the judge that it will influence her verdict, and she will not render a verdict entirely on the evidence produced at trial.
After Victim testifies on direct examination on behalf of the state, you then move for the production of her written statement for use during your cross-examination. Prosecutor objects citing work-product privilege. How should the court rule on your request? What sanctions may the court impose if P refuses to produce V’s statement?
The court should grant my request. A party is entitled to a prior statement of a witness for the other side after that witness has testified on direct examination. If P refuses to produce the statement, the court may order the testimony of V stricken from the record. Furthermore, the court may declare a mistrial if it determines that the interests of justice require it.
