Barbri - TX and multistate Flashcards
what is a writ of habeas corpus
court order commanding someone with a person in custody to produce that person before the court and show why that person is being held
to whom is a writ of habeas directed
- someone having another person in restraint
- it should name the office of the person to whom it is directed
what remedy does a writ of habeas corpus seek
to have the custody of the person restrained produced
by whom may a writ of habeas corpus be granted
by Court of Criminal Appeals, District Courts, County Courts, or judge of any of these courts
under TX law when must a ∆ be taken before a magistrate
officers must present ∆ before a magistrate without unnecessary delay, but in any case within 48 hours of arrest
duties of the magistrate at initial appearance
- 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
denial of bail possible in 2 types of cases
- capital murder prosecutions
- certain prosecutions for noncapital felonies
release on bail required if no PC determination by magistrate within XXX days
- 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
if bail is denied how can it be challenged
immediately appeal the order denying bail to the Court of Criminal Appeals
bail can be denied in noncapital case only if at hearing the prosecution shows
- ∆ 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
procedural steps to seek reduction of bail
- 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
factors to be considered in setting bail and deciding whether bail set is excessive (LASSO)
- 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
difference between personal and bail bond
- 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
∆ is entitled to examining trial if
- ∆ charged with a felony AND
- an indictment has not yet been returned
purpose of examining trial
- pretrial hearing before a magistrate
- purpose is to require the state to produce evidence showing probable cause to believe ∆ is guilty of the crime
under what conditions is ∆ permitted to make an unsworn statement at an examining trial
∆ can make an unsworn voluntary statement but it must be done before any witnesses testify
waiver of indictment is permitted in all prosecutions except
capital murder
what is an information
pleading filed by the state charging the person named with a criminal offense
how is an information different from an indictment
- 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
are there circumstances under which defense counsel can appear and present evidence before a grand jury on behalf of a client
YES. Attorney representing a suspect may address the grand jury if
1) the grand jury permits this AND
2) the prosecutor consents
how many jurors serve on a grand jury and how many must agree for an indictment
- grand jury is 12 people
- at least 9 must concur for a person to be indicted
what procedure is available to ∆ to challenge an indictment
informally called motions to quash the indictment
- exception to the form of indictment OR
- exception to the substance of the indictment
what state of the proceedings must ∆ assert a challenge to an indictment
motions must be filed before the day on which trial begins
admonishments the trial judge must give ∆ before accepting a felony plea of guilty or nolo contendre
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
what if ∆ fails to timely assert the challenge to the indictment
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
procedurally, how does a prosecutor amend an indictment
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
the arraignment takes place in the TC and serves several functions
- accused enters a plea
- point for fixing accused’s ID AND
- (if not done before) the judge appoints counsel
∆ must make some decisions in prosecution
1) what plea to enter
2) whether to have a trial by jury AND
3) whether to himself take the W stand at trial
if a pretrial hearing and conference is set, what must the parties do at least 7 days before that hearing and conference
- 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
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
- 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
can defense counsel before trial examine the police reports of the investigating officer and witness statements
yes, this is material evidence in the possession of the state
a trial judge has discretion to exclude or admit the testimony of a W left off an ordered W list… relevant considerations include
- whether omission was intentional AND
- whether the defense received actual notice that W would testify
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
- 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
incompetency
1) relevant time: time of trial
2) standard applied: could not consult with counsel or understand proceedings
3) result: (perhaps temporary) bar to proceeding
insanity
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
if after being found incompetent the accused’s condition improves
- ∆ can be determined to be competent AND
- the prosecution can then proceed
under what grounds is a judge disqualified in a criminal case
- 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
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
independent source doctrine
a confession obtained in violation of miranda may
be used at trial for impeachment purposes
if a suspect invokes his right to remain silent, the police may
reinitiate questioning only if they scrupulously honor the request to remain silent
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
yes, because the confession is the fruit of the poisonous tree
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
inevitable discovery
the warnings under Miranda do not include that the detainee has the right to
be informed of the charges against him
for Miranda purposes, the term “interrogation” means
any police tactic reasonably likely to elicit an incriminating response
under Miranda, if a detainee makes a request for counsel but the request is ambiguous, the police
may continue questioning
Miranda warnings need only be given prior to police interrogation if the suspect is
in custody (involuntarily detained)
unless waived, the 5th right to counsel under Miranda arises when
there is custodial interrogation by someone known to be police
under Miranda, if a detainee makes an unambiguous request for counsel, the police
must immediately cease questioning
oral confessions are generally
inadmissible because they are spoken and not written
