Barbri - TX and multistate

Question 1

what is a writ of habeas corpus

Answer 1

court order commanding someone with a person in custody to produce that person before the court and show why that person is being held

Question 2

to whom is a writ of habeas directed

Answer 2

• someone having another person in restraint

- it should name the office of the person to whom it is directed

Question 3

what remedy does a writ of habeas corpus seek

Answer 3

to have the custody of the person restrained produced

Question 4

by whom may a writ of habeas corpus be granted

Answer 4

by Court of Criminal Appeals, District Courts, County Courts, or judge of any of these courts

Question 5

under TX law when must a ∆ be taken before a magistrate

Answer 5

officers must present ∆ before a magistrate without unnecessary delay, but in any case within 48 hours of arrest

Question 6

duties of the magistrate at initial appearance

Answer 6

• tell ∆ the charges
• tell ∆ of his right to retain counsel, an examining trial
• warm ∆ that in regard to police questioning he has the right to remain silent, any statement may be used against him, have attorney present during questioning, request appointed attorney, terminate interview with police
• set bail
• may determine whether PC exists

Question 7

denial of bail possible in 2 types of cases

Answer 7

• capital murder prosecutions

- certain prosecutions for noncapital felonies

Question 8

release on bail required if no PC determination by magistrate within XXX days

Answer 8

• felonies: after 48 hours of arrest without warrant
• misdemeanors: after 24 hours of arrest without warrant
• magistrate can delay release for not more than a total of 72 hours

Question 9

if bail is denied how can it be challenged

Answer 9

immediately appeal the order denying bail to the Court of Criminal Appeals

Question 10

bail can be denied in noncapital case only if at hearing the prosecution shows

Answer 10

• ∆ is charged with noncapital felony AND
• substantial evidence of ∆’s guilt AND
• ONE of the following
• 2 prior felony convictions OR
• present offense committed out on bail on felony OR
• both 1 prior felony conviction AND present offense involved deadly weapon OR
• present offense was violent or sexual offense committed while on felony probation

Question 11

procedural steps to seek reduction of bail

Answer 11

• file application for writ of habeas corpus in DC
• at hearing intro evidence showing
• bail set was excessive
• ∆ cannot meet bail set AND
• amount of bail ∆ can meet
• district judge may order bail reduced
• if not ∆ can, before trial, appeal to Court of Appeals

Question 12

factors to be considered in setting bail and deciding whether bail set is excessive (LASSO)

Answer 12

• Likelihood of ∆ appearing for trial
• Ability of ∆ to make bail
• Seriousness of crime charged
• future Safety of the victim and community
• required bail is not to be an instrument of Oppression

Question 13

difference between personal and bail bond

Answer 13

• bail: requires surety or cash deposit

- personal: does NOT require cash or surety deposit… is the accused’s promise to pay the amount if bond is forfeited

Question 14

∆ is entitled to examining trial if

Answer 14

• ∆ charged with a felony AND

- an indictment has not yet been returned

Question 15

purpose of examining trial

Answer 15

• pretrial hearing before a magistrate

- purpose is to require the state to produce evidence showing probable cause to believe ∆ is guilty of the crime

Question 16

under what conditions is ∆ permitted to make an unsworn statement at an examining trial

Answer 16

∆ can make an unsworn voluntary statement but it must be done before any witnesses testify

Question 17

waiver of indictment is permitted in all prosecutions except

Answer 17

capital murder

Question 18

what is an information

Answer 18

pleading filed by the state charging the person named with a criminal offense

Question 19

how is an information different from an indictment

Answer 19

• information: 1) need only be approved and signed by the prosecutor 2) must be supported by a valid and sworn complaint, which also must be filed
• indictment: 1) must be approved by grand jury and signed by the foreperson

Question 20

are there circumstances under which defense counsel can appear and present evidence before a grand jury on behalf of a client

Answer 20

YES. Attorney representing a suspect may address the grand jury if

1) the grand jury permits this AND
2) the prosecutor consents

Question 21

how many jurors serve on a grand jury and how many must agree for an indictment

Answer 21

• grand jury is 12 people

- at least 9 must concur for a person to be indicted

Question 22

what procedure is available to ∆ to challenge an indictment

Answer 22

informally called motions to quash the indictment

• exception to the form of indictment OR
• exception to the substance of the indictment

Question 23

what state of the proceedings must ∆ assert a challenge to an indictment

Answer 23

motions must be filed before the day on which trial begins

Question 24

admonishments the trial judge must give ∆ before accepting a felony plea of guilty or nolo contendre

Answer 24

1) inform ∆ of the punishment range
2) inform ∆ that recommendations by state are not binding
3) inform ∆ of the limited right, after a guilty plea to appeal
4) inform ∆ that plea may result in deportation
5) inquire as to plea bargain

Question 25

what if ∆ fails to timely assert the challenge to the indictment

Answer 25

defect of form (or of substance) in an indictment must be raised in the TC before trial. If not, the defect cannot be raised later in the TC, on appeal. or in post-conviction habeas corpus

Question 26

procedurally, how does a prosecutor amend an indictment

Answer 26

1) state should file a motion for leave to amend
2) ∆ must be given adequate notice of proposed amendment
3) judge holds a hearing and decides whether to order amendment made
4) if authorized, the amendment must be made on the actual indictment

Question 27

the arraignment takes place in the TC and serves several functions

Answer 27

• accused enters a plea
• point for fixing accused’s ID AND
• (if not done before) the judge appoints counsel

Question 28

∆ must make some decisions in prosecution

Answer 28

1) what plea to enter
2) whether to have a trial by jury AND
3) whether to himself take the W stand at trial

Question 29

if a pretrial hearing and conference is set, what must the parties do at least 7 days before that hearing and conference

Answer 29

• enter any special pleas
• make challenges to the indictment
• make motions for continuance
• make motions for change of venue
• make motions to suppress evidence
• make requests for discovery AND
• raise claims of entrapment

Question 30

if ∆ wants to testify at suppression hearing what may prosecutor inquire into on cross and does ∆ waive his right to remain silent at the rest of trial

Answer 30

• prosecutor may only inquire as to matters related to the hearing
• cross cannot extent to guilt of the charged crime
• ∆ does not waive his right to remain silent at the rest of the trial and he may decline to testify at trial and his right to do so remains fully effective

Question 31

can defense counsel before trial examine the police reports of the investigating officer and witness statements

Answer 31

yes, this is material evidence in the possession of the state

Question 32

a trial judge has discretion to exclude or admit the testimony of a W left off an ordered W list… relevant considerations include

Answer 32

• whether omission was intentional AND

- whether the defense received actual notice that W would testify

Question 33

prosecutor files a motion requesting a list of all W defense counsel intends to call and a summary of their anticipated testimony. when defense fails to comply the state files a motion to compel such information. how should the court rule on the state’s motion

Answer 33

• TC does have authority to order the defense to provide the state with a list of expert Ws and their names and addresses and it should enter an order compelling this
• TC has no authority to compel the defense to provide the state with a summary of the anticipated testimony or any information at all

Question 34

incompetency

Answer 34

1) relevant time: time of trial
2) standard applied: could not consult with counsel or understand proceedings
3) result: (perhaps temporary) bar to proceeding

Question 35

insanity

Answer 35

1) relevant time: time of offense
2) standard applied: did not know conduct was wrong
3) result: final verdict of not guilty by reason of insanity

Question 36

if after being found incompetent the accused’s condition improves

Answer 36

• ∆ can be determined to be competent AND

- the prosecution can then proceed

Question 37

under what grounds is a judge disqualified in a criminal case

Answer 37

• judge was the victim of the crime
• judge was lawyer for either side in the case
• judge is related within 3 degrees to either ∆ or victim
• bias

Question 38

police perform an unC search of a building, find contraband, don’t seize it, and later return to the building with a valid warrant based on information totally unrelated to the unC search. if police seize the contraband pursuant to the warrant, the contraband is admissible under the

Answer 38

independent source doctrine

Question 39

a confession obtained in violation of miranda may

Answer 39

be used at trial for impeachment purposes

Question 40

if a suspect invokes his right to remain silent, the police may

Answer 40

reinitiate questioning only if they scrupulously honor the request to remain silent

Question 41

if police arrest a suspect without a warrant or PC, give him Miranda, interrogate him, and obtain a confession, must the confession be suppressed from use in the state’s case in chief

Answer 41

yes, because the confession is the fruit of the poisonous tree

Question 42

the ______ exception to the exclusionary rule provides that if the state can show police would have discovered the evidence whether or not they had acted unC, the evidence will be admissible

Answer 42

inevitable discovery

Question 43

the warnings under Miranda do not include that the detainee has the right to

Answer 43

be informed of the charges against him

Question 44

for Miranda purposes, the term “interrogation” means

Answer 44

any police tactic reasonably likely to elicit an incriminating response

Question 45

under Miranda, if a detainee makes a request for counsel but the request is ambiguous, the police

Answer 45

may continue questioning

Question 46

Miranda warnings need only be given prior to police interrogation if the suspect is

Answer 46

in custody (involuntarily detained)

Question 47

unless waived, the 5th right to counsel under Miranda arises when

Answer 47

there is custodial interrogation by someone known to be police

Question 48

under Miranda, if a detainee makes an unambiguous request for counsel, the police

Answer 48

must immediately cease questioning

Question 49

oral confessions are generally

Answer 49

inadmissible because they are spoken and not written