Crim Flashcards
1
Q
Are misdemeanor offenses hear in County or District Courts?
A
Misdemeanor offenses are heard in County Court; specifially any misdemeanor offense punishable by a fine of over $500 dollars and less than one year of confinement. District courts only hear felony cases and certain stautorily prescribed misdemeanors.
2
Q
What court has jurisdiction over felony cases?
A
Only district courts have jurisdiction over felony cases.
3
Q
What is the formal charging document called in a misdemeanor case?
A
The formal charging document is called an information; which must be filed with a criminal complaint. An information is a written statement filed by the prosecutor with an attached affadavit; charging the accused with a criminal act.
4
Q
What is the procedure called where the judge asks the D how she pleads to the charge?
A
The procedure is called an arraignment.
5
Q
If the D does not answer the judge at the arraingment; whet plea should be noted in the record?
A
When an accused fails to answer a plea; a plea of not guilty should be entered. Accordingly; the judge should enter a plea of not guilty.
6
Q
What is the statute of limitations for a felony?
A
3 years
7
Q
What are the requisites of a search warrant under the TxCCP
A
A search warrant must include (1) a sworn affadavit (2) setting out the facts showing probable cause. (3) state the place or thing to be searched; (4) state the items to be seized; (5) the signature of the issuing magestrate.
8
Q
If evidentiary search warrant sworn affadavit states the particular evidence is located in D’s home and the home’s correct address; is it sufficient as an evidentiary search warrant?
A
No. An evidentiary search requires that the affadavit establish probable cause : (i) of the specific offense that has been committed; and (ii) that the described property is evidence of that offense.
9
Q
How many days do police have to execute a search warrant?
A
Police have three days to execute a search warrant; not including the date of issuance or day of execution.
10
Q
Must deputy obtain one warrant authorizing Suspect’s arrest and a separate warrant authorizing the search of Suspect’s truck?
A
No. Under the TxCCP; Deputy may procure a combination search and arrest warrant.
11
Q
Is arrest without a warrant valid when arrested person is one of 8 employees at a gas station where police where told someone was videoing people in the bathroom and the police arrested the person because he was the only one present at the gas station when the police arrived?
A
Proably not. The TxCCP requires a warrant to arrest with only a few exceptions. It is possible the situation would fall under the exception for a suspect found in a suspicious place; but that would be a weak argument. Other exceptions–offense being committed in view; suspect about to escape; violating protective order; suspect confessing to officer aobut a felony–are not applicable here.
12
Q
Is arrest without a warrant valid if pawnshop owner recognizes goods are stolen and calls police who arrived and arrested Ds for possession of stolen goods?
A
Yes. A police officer can make an arrest without a warrant when an offense is committed in their presence. Here; the police officer was given information from a credible source; and when he arrived; he found Wyatt and Billy in possession of stolen goods. Therefore; the probable cause and warrantless arrest was proper. (also could have said exigent circumstances becasue D’s could have escaped if waited for an arrest warrant)
13
Q
Is an arrest warrant required when officer sees person in. a motel parking lot with a handgun in his waistband?
A
No. An officer may conduct a warrantless arrest when the offender commits; in the officer’s view; a felony or a misdemeanor that is against the public peace. Misdemeanor unlawfully carrying a weapon is a breach of the public peace. Additionally; prosecutor could argue that D was found in a suspicious place; which would also authorize a warrantless arrest
14
Q
Three requirements of a warrantless arrest based on person’s statement that the suspect committted a crime? (suzi tells officer bobby kidnapped her and bobby is in motel lobby and can get to his car)
A
An officer can make a warrantless arrest when; based on information from a credible person; the officer believes (has probable cause that) a felony has been committed and the suspect is about to escape.
15
Q
If a magistrate can issue an arrest warrant can the magistrate issue a summons instead?
A
Yes. A magistrate may; in his discretion; issues a summons rather than an arrest warrant. The summons directs the person to appear but does not authorize the taking of a person into custody
16
Q
Is an offficer authorized to arrest a person in one county on basis of arrest in warrant that was issued in another county?
A
Yes. Under Tx CCP a valid arrest warrant issued by a magistrate extends to every part of the state. Any peace officer is authorized to execute the warrant.
17
Q
What are the requirements of an arrest warrant? (name three)
A
(1) Must be issued in the name of the state of Texas; (2)Individual’s name: it must specify the name of the person to be arrested or reasonably definite description of the person; (3) The offense: it must name the offense; (4) Signature of the magestrate: and (5) name his/her office.
18
Q
Can officer arrest person without a warrant based on seeing her in a photograph with two other suspects?
A
No. She did not commit an offense by being in the photograph; the officer had no warrant; the officer had no probable cause to believe she had committed the crime; the officer did not observe her commit a felony in his presence.
19
Q
Within what time must arrested person be brought before a magestrate? What if not done within that time? If arrested in one county and taken to another county and taken before a magistrate 36 hours after his arrest; was he taken before the magistrate in a timely manner?
A
Yes; An arrestee must be brought before a magestrate without unneccessary delay; but not later than 48 hours after arrest. If not done; then D has right to be actually released on bail and to have bail set so he can make it It may require personal bond—must be no more than $10K Can be taken before a magestrate in another county if it is more expeditious.
20
Q
Name three rights about which a magistrate should advise the accused.
A
CHOOSE ANY THREE: The magistrate should advise the accused of the accusations against her; her right to counsel; her right to remain silent; to have an attorney present during questioning; her right to terminate an interview at any time; and her right to an examining trial.
21
Q
Within what time must an appointed attorney contact the accused?
A
Appointed attorney must make every reasonable effort to contact D no later than the end of the first working day after the date appointed. If attorney fails to do so; the court may replace the attorney.
22
Q
If D wants to pose bail and courts are not in session; may anyone other than a judge set and take bail from D? Who; besides a court; may take the D’s bail bond in the amount set by the magestrate?
A
Yes; the sheriff and peace officer can set and take bail. In felony cases; peace officer can set reasonable bail if court in which case is pending is not in session in the county and no bail has been set by a judicial officer. In misdemeanor cases; peace officer having a suspect in custody may set bail and take it from the suspect if a magistrate is not available. Any peace officer; sheriff; or jailer may take the bail bond.
23
Q
Can a person charged with a felony be denied bail?
A
No; a charged felon cannot be denied bail; the Texas Constitution provides that criminal defendants have a right to bail
24
Q
What facts in a D’s prior criminal record would allow the judge to deny bail?
A
Judge can deny bail if D (i) has two prior felony convictions; (ii) ocmmitted the crime while out on bail for another felony; (iii) had a prior felony conviction and committed the current one with a deadly weapon.
25
Can a magestrate impose a condition for bail on the D that he cannot have any contact with the V?
Yes; a magestrate may impose any reasonable condition on bail related to the safety of the V or the community.
26
How can a D satisfy his bail requirement?
1. bail bond - surety assumes responsibility for bail or D must deposit cash with the court in the amount of the bond. 2. Personal bond: D promises to pay the amount of the bond if he fails to appear and that amount is forfeited.
27
What is a personal bond; and what is one way that it differs from a bail bond?
Under a personal bond; an amount is set and the defendant must pay it if he fails to appear. It differs from a bail bond because no security is required. A bail bond requires security in the form of a surety or a cash deposit.
28
What are the three rules for fixing the amount of bail?
The court must consider: (i) the nature of the charged offense; (ii) the D's ability to make bail; and (iii) the future safety of the victim and community. Bail is to be sufficiently high to ensure the D appears for court settings and for trial. Bail must not be set so high as to be an instrument of oppression.
29
If D denied bail; what procedural step can you take to challenge that ruling; and what are two of the requisites of that procedural step?
You can file a petition for a writ of habeas corpus. The requisites for a petition are: (i) state that the D is illegally restrained and by whom; (ii) attach a copy of the order confining the D; (iii) pray for a writ of habeas corpus; (iv) swear that the allegations in the petition are true.
30
What procedure to seek a reduction in bail and argument to make to support it
File a writ of habeas corpus in district ct Argue Bail is being used as instrument of oppression. Also that there is strong likelihood D will appear for trial and that D cannot affort the higher amount.
31
If D is indigent and asks judge to provide lawyer at no cost; and is accused of a crime punishable by jail confinement; what should the judge do?
A defendant is entitled to counsel at any adversarial proceeding that could result in incarceration. Because the crime is punishable by incarceration and the D is indigent; the court should appoint her a lawyer.
32
Can magistrate deny arrestees request for appointment of counsel based on the ground that she was able to afford bail?
No. The magestrate's ruling was not correct. In determining whether a D is indigent; the court cannot consider whether the D has posted bail. Thus it was an error to base the decision on the fact that the accused was able to afford bail.
33
What is a complaint? What are the requirements of a complaint?
A complaint is a sworn statement that alleges there is probable cause to believe someone committed a crime. Requirements are: in writing; name the offfense and date of crime (if knowable); specify the name or description of the accused.
34
What is a capias?
A capias is a writ issued by a judge that directs a peace officer to arrest a person accused of a crime and to bring the accused before the court immediately or on a specified day.
35
If D cannot afford hiring a psychiatrist and you realize you should present the defense of insantiy at trial; must you forgo hiring the psychiatrist? Is lawyer entitled to reimbursement from the court for hiring a mental health expert when D is indigent and (idicates she was told to commit crime from voices in her head\_?
No. Due process entitles an indigent D to the appointment of an expert; including a psychiatrist; if the experts' expertise is likely to be significant to the case. Lawyer is entitled to reimbursement form the court for hiring a mental health expert to determine if D is competent/was insane - if such is deemed necessary for D's defense.
36
Should D atty consider raisinng (a) incompetency (b) insanity; or © both as a defense at jury trial when D states to attorney that he was unaware of what he was doing at time of offense and that he had a mental episode that caused him to lose all control of his brain but tells you he is fine now?
You should raise insanity becasuse D might have been insane at the time he committed the crime; which would be. Defense. By contrast; incompetency refers to D's inability to stand trial because he does not understand the proceedings or lacks the ability to consult with counsel. Incompetency is not a defense to the crime. You should have D examied by a mental health expert to ensure he is competent to stand trial.
37
Can the defense keep its plan to offer an insatnity defense a secret from the proseuction on gorunds that it was privileged inforamtion prior to trial?
No. a D planning to offer evidence of the insanity defense must file with the court a notice of the D's intention to offer that evidence. If the court has scheduled a pretrial heaing; the D must give notice at the hearing. If there is no pretrial hearing; the notice must be filed at least 20 days before the trial date. A copy of the notice must be served on the prosecutor.
38
If D is charged by indictment; does D have right to examining trial?
No; once D is indicted D does not have right to examining trial.
39
Examining Trial. List 3 rights that D has at an examining trial.
(1) Presence; to cross examine or confront the witness (2) Right to counsel; subpoena witness (3) Right to make an unsworn statement (4) Right to remain silent or assert the 5th Amendment privilege
40
Examining Trial. If D is charged with a felony but not yet indicted; is she entitled to a proceeding in which the truth of the accusation against her will be considered? If there is such a proceeding; what is it and what determination will be made?
Because the D has been charged yet not indicted; she is entitled to an examining trial. At an examining trial; the magestrate will determine if there is enough evidence to demonstrate probable cause to believe D is guilty of the crime.
41
What is an examining trial? (or purpose of examining trial
An examining trial is a pretrial hearing to determine whether probable cause exists to believe the D is guilty of the crime.
42
What warning must the magestrate give the D before the examination of any witnesses at his examining trial?
The magistrate shall inform the accused that it is his right to make a statement relative to the accusation brought against him; but at the same time shall also inform him that he cannot be compelled to make a statement. Also if the accused does make a statement; it can be used against him. (HMM - see answer on three rights - it says D has right to make unsworn statement -- check this - is this instead for grand jury testimony by D?)
43
If a witness testifies as to what a third party told them previously during an examining trial can the testimony be objected to? Is the answer different if the testimony were given during a jury trial?
Yes. That statement would be hearsay because it was made out of court and is being offered for its truth and the statement does not fall within a hearsay exception. The same rules of evidence applicable at trial also apply during the examining trial; so the answer would not be different if the proceeding were a jury trial.
44
Do the rules of evidence apply at an examining trial? Prosecutor introduced hearsay evidence and claimed rules of evidence did not apply.
Prosecutor is incorrect. The same rules of eivdence that govern a criminal trial also apply to an examining trial.
45
May defense attorney cross-examine witnesses at examining trial?
Yes; An examining trial is an adversarial proceeding inn which the prosecutor demonstrates there is probable cause to believe the D is guilty of the crime. The defense has the right to cross-examine witnesses at an examining trial.
46
Is it permissible to conduct an examining trial in without te accused's presence?
No. The accused has a right to be presentat the examining trial. In order to challenge the evidence against him and consult with counsel; the accused must be allowed to be present.
47
Is a defendant's statement in his examining trial required ot be under oath?
No. Ordinarily testimony at an examining trial is sworn and under oath. However; the TxCCP affords the D the right to make a voluntary statement before the examination of any witnesses. The D's statement is transcribed by a court reporter but is not sworn under oath.
48
Hearsay at examining trial How should court rule on D lawyer hearsay objection when prosecutor calls officer to testify as to what a witness told him about the D? Would the answer be different if this was a jury trial?
The court should sustain the objection. It would not make any difference in the answer if this were a jury trial. The same rules of evidence govern an examinining trial and a final trial.
49
Who selects the people to serve on the grand jury? How is a grand jury formed? 2/18; 2/17; 2/19
Grand jurors are selected either (i) by grand jury commissioners by the district judge; or (ii) in the same mannerin which trial jurors are selected for civil cases. The prospective jurors are summoned to the district court; which tests their qualifications and then impanels 12. By summons from a fair cross section of the community like a petit jury.
50
What should D do if officer acted corrruptly in summoning many of the people for Grand Jury service?
Should make a challenge to the grand jury array on the grounds that the CCP requires that grand jurors represent a broad cross section of the population considering age; sex and race. If counsel has this informaiton before the GJ is empaneled; the challenge to the array should be made during the GJ selection process. If the GJ has already been impaneled; counsel can raise the challenge later by making a motion to set aside the indictment and shoing there was no opportunity to raise the challenge to the array.
51
How many jurors serve on a grand jury; how many must concur for a person to be indicted; and who drafts the indictment?
A grand jury consists of 12 jurors and two alternate jurors. 9 grand jurors must concur for there to be a true bill and for the person to be indicted. The prosecutor drafts the indictment.
52
List three participants; other than the grand jurors; who may be present in the grand jury room while the grand jury is conducting proceedings
PICK ANY THREE: The prosecutor; stenographer; the bailiff; an interpreter; witness being examined
53
Does an accused have the right to testify to the grand jury; and does she have the right to have counsel present at the grand jury proceedings?
No. The accused has no right to testify before the grand jury; nor does she have the right to have her counsel present at the grand jury proceedings. Upon approval of the proscution the accused and the accused's lawyer may be permitted to address the GJ but neither has the right to do so. Only the state's attorney and witnesses may address the GJ
54
Does an charged co-felon have a right to address a grand jury?
No. An alleged co-felon does not have the right to address a grand jury. An accused person and even (if the prosecution approves) the accused's lawyer may be permitted to address the grand jury; but neither has a RIGHT to do so
55
Can a witness be compelled to testify before the GJ? (witness is not the D)
Yes; a court can compel the witness to answer the GJ's questions unelss the witness were to have a legitimate claim that her answers would incriminate herself. Court may impose fine not exceeding $500 or commit her to jail until she is willing to testify.
56
If D decides to cooperate; What are three of the warnings that he must be give before he tesifies to the Grand Jury? 2/14 q 3
1) crime of which she is suspected o (2) county in which the crime occurred o (3) time offense occurred o (4) testimony will be recorded o (5) she can refused to answer incriminating questions o (6) she has right to have a lawyer present outside GJ chamber o (7) her testimony can be used against her AND o (8) false answer to question will subject her to prosecution for perjury
57
If Joe agrees to cooperate; who may question hin when he appears before the grand jury?
Only the prosecution (state's attorney) and the grand jurors may question the D.
58
If D lawyer has evidence that would exculpate his client and wants to present it to the grand jury; what steps can he take to have the evidence presented?
D lawyer may get approval from the state's attorney to present the evidence to the grand jury.
59
If D lawyer believes eidence prosecutor will present to grand jury was illegally seized by police; what steps can lawyer take to prevent Prosecutor from presenting the evidence to the grand jury?
None - motion to suppress or motion in limine cannot be used to prevent the evidence from being presented to the grand jury; even if it will not be admissible at trial.
60
Can the prosecutor have someone else (ex: an expert) question a grand jury witness?
No. No person other thatn the attorney representing the state or a grand juror may quesiton a witness before the grand jury.
61
Can a prosecutor enter the grand jury room; during the grand jury deliberation; if requested by the jurors? (or if prosecutor goes to GJ room during deliberations and presents his closinng argument did he follow proper procedure?)
No. The law does not authorize a prosecutor to comply with this sort of request (or to be present once the grand jurors are deliberating) because no one other than the grand jurors may be present while the grand jury is deliberating
62
Can the grand jurors send for the prosecutor and ask him for legal advice during the proceeding (not while in deliberations)?
Yes; the grand jury may send for the attorney representing the state (prosecutor) and ask for his advice on any matter of law.
63
Is the proseuctor obligated to give defense counsel the names and addresses of the grand jurors as part of discovery?
No. Prosecutor is not obliged to give defense counsel the grand juror's names and addresses. Grand jurors' names and addresses are confidential. While the code allows the disclosure of personal information for good cause; this has not been demonstrated here.
64
Can prosecutor call the grand jury foreman to testify at trial that the GJ exercised due diligence in bringing an indictment in the case?
NO. Objection will be sustained. - NEED A REASON! WRONG ANSWER: that the grand juror cannot be a witness in a case they indicted OR that GJ proceedings are secret.
65
Can prosecutor forego a grand jury proceeding and instead draft and sign an indictment charging the D with a second degree felony - does D have a right to be charged by a grand jury indictment?
Yes; D is being charged with a felony. The state must seek a grand jury indictment. A grand jury must vote to return a ''true bill'' against the D and the foreperson must sign it.
66
Can prosecutor use a meeting between an indicted D and his lawyer as evidence of guilt at trial?
No. The act of meeting with or retaining a lawyer is not evidence of guilt and is inadmissible at trial.
67
Can D waive right to be charged by indictment with a felony? If D can waive right; what procedural step must he do?
Yes; D can waive right to be charged by indictment and be charged with an information; as long as not charged with capital offense. o (1) D represented by counsel o (2) Waiver made in writing or in open ct AND o (3) waiver is voluntary
68
What is an indictment; and how does it differ from an information?
An indictment is a written statement of a grand jury accusing a named person of a criminal offense. It differs from an information in that: (i) an indictment must be approved by a grand jury and signed by the foreman while an information need only be authorized and signed by the prosecutor; and (ii) an information must be supported by a sworn complaint filed with the court; while an indictment does not require such support.
69
If D was arrested for felony and indicted 2 years later; is the indictment timely?
Yes; the statute of limitations for most felonies is 3 years (if crime different:: No SOL on - murder; manslaughter; leaving scene of accident that resulted in death; sex assault if DNA ascertained; sex abuse of child)
70
KNOW THE REQUIREMENTS OF AN INDICTMENT ENOUGH TO RECOGNIZE DEFECTS 2012 What words should an indictment commence and conclude with? List three requisites of an indictment 2/16
(1) must commence w/ ''In the name and by the authority of the state of Texas (2) presented in the DC andin the county where the GJ was in session (3) must appear to be an act of the GJ in the proper county (4) state the name of the accused or that it is unknown w/adwquate identificationn (5) thtat the offense presented was in the jurisdiction (6) the time anterior to the date of the indictment but within the statute of limitations (7)offense set forth in intellligible words (8) must conclude ''against the peace and dignity of the State'' (9) signed by the jury foreman (10) upon the finding of probable cause
71
If there are defects in the indictment; what procecural step can you take to challenge the indictment? If notice a defect in indictment before the jury retires to deliberate; and you file a motion to quash the indictmet; is your motion to quash the indictment timely? (NO)
You should file a motion to quash the indictment. The motion must be (i) in writing; (ii) filed before the day the trial begins; and (iii) specify the partiticular aspect of the charging instrument that the D regards as defective. No; the motion to quash the indictment is not timely because it should have been filed before the trial had begun. Although there is an exception for fundamental defects when the indictment fails to name a D or when the indictment is so unclear that we cannot determine what crime was charged; neither of these situations appears to be present.
72
Prior to trial; what steps ccna you take to have the court dismiss the indictment based on the sufficiency of the evidence to convict the D? (EX: If the indictment for aggravated assault missing words ''deadly weapon'' ''intentionally; knowingly; or recklessly'' how to challenge it?)
You should file a motion to quash the indictment based on the insufficiency of the evidence. The motion must be filed before the day the trial begins. This is unlikely to be successful because a claim that evidence is insufficient is ordinarlity not grounds to dismiss an indictment. (OR EX: Grounds would be lacking culpable mental state and fails to mention a deadly weapon; which are elements of the offense.)
73
Can a D be charged (in one indictment) with two separate offenses that arise from the same criminal episode?
Yes. The same indictment is proper for more than one offense arising from the same criminal episode.
74
Can two defendants be charged in a single indictment for the same crime?
Yes. It is proper to charge two defendants in the same indictment if they are being changed with the same crime because multiple defendants can be charged together in the same charging instrument as long as they are all charged with the same offense
75
Can a prosecutor file a moton to amend the inictment to charge the D with a different or additional cirme?
No.while the indictment can be amended to fix a defect; it cannot be amended to add an additional crime. Prosecutor must go back to the grand jury and have it indict D for that crime. An indictment cannot be amended by the court to add an additional charge.
76
If an indictment fails to list the appropriate intent requirement and as such fails to charge any violation of the law. What can a Defendant do procedurally?
Should file a motion to set aside; or quash the indictment; for failure to allege an offense. The motion must be in writing and filed before the date on which trial on the merits begins.
77
What is proper venue for kidnapping? What is the proper venue in a criminal case? Is venue proper in county where D committed crime if D properly arrested in another county where D lives? (Is venue proper in Harris county if D is properly arrested in Fort Bend County? --)
Venue is proper in the county where the offense was committed and in any county through which the victim was taken. In general; venue is proper in a criminal case in any county where a significant portion or event associated with the offense took place. Yes; venue is proper in the county where the conduct constituting the crime took place. Here; the victim was killed in Harris County
78
Which party has the burden to prove venue is proper or improper; and what standard of proof must be satisfied to meet that burden?
The prosecution has the burden to prove venue is proper. The standard of proof is by a preponderance of the evidence.
79
When must you file a motion for a change in venue?
A motion for a change in venue must be filed at least 7 days before the pretrial hearing. Failure to do so will prevent any later motion to change venue unless the court gives permission for good cause shown.
80
Can D charged with a felony waive right to have a jury determine her guilt or innocence. If a D can waive that right; what step must she take?
Yes D can waive the right as long as not charged with a capital murder where State seeks the death penalty. Waiver of jury trial requires the consent of the prosecutor and the judge.
81
If D lawyer wants to see the evidence against D; what procecure must he follow to obtain discovery?
In a criminal trial; the prosecution has an obligation to provide discovery to the D; including police reports. Lawyer can also file a motion for discovery.
82
If lLawyer asks Prosecutor for offense reports; statements of D; witnesses; law enforcement officer's statements; and tangible things that contain evidence material to any matter involved in the action; must prosecutor provide this information?
Yes. The prosecutor is required by law to turn over offense reports; statements made by the defendant; witness statements; and law enforcement officer's statments. The state does not have to turn over tangible things; but it must provide Lawyer with ability to inspect it himself
83
What should lawyer provide to prosecutor if the prosecutor provides discovery to lawyer and asks lawyer to provide the defense discovery to prosecutor? May court order D to disclose name and address of testifying expert? (YES)
Lawyer only needs to disclose the names of any testifying experts if requested by prosecutor. The defense is not required to provide the prosecutor with any other pretrial discovery in a criminal case.
84
If lawyer hires a mental health expert who determines D is mentally ill and did not appreciate the nature of her actions when she committed the crime; and lawyer plans to call the doctor to testify at trial; and prosecutor filed a request for notice of intent to call expert witnesses; what shoud lawyer provide to prosecutor in response?
Lawyer must provide the Doctor's name and address; but has no obligation to provide a summary of the Doctor's expeted testimony or any other material.
85
How should the court rule on D motion for discovery of policeman notes of his discussions with the prosecutor about D's case?
The court should grant the motion. Under the discovery statute; any written or recorded statement made by a witness or law enforcement officer must be disclosed to the D.
86
How should court rule on proseuctor's motion to discover names and adresses of all witnesses that D intends to call at trial in D's defense?
The court should deny the prosecutor's motion. The TxCCP does not give the court authority to compel the D to provide the state with the names and addressed of the D's witnesses.
87
If D lawyer makes a timely request for discovery and prosecutor allows you to review discovery in her office; when you request to make a photocopy of the offense report authored by the Officer; can prosecutor refuse to allow you to do so? Does D lawyer have the right to make a photocopy of the offense report?
Yes. The CCP expressly provides that D can inspect and copy police reports
88
What procedural steps do you need to take to subpoena a witness? List three things that you are required to state in your application for a subpoena
File an application for subpoena with the clerk. The day before trial; counsel can get a subpoena issued directing the witness to appear the day of trial. During trial; counsel can get an attachment for the witness directin an officer to bring her into court if the witness was properly subpoenaed and did not appear. (1) the name of the witness; (2) the location and vocation of the witness; (3) that the witness's testimony is material to the defense's case.
89
What must witness testimony include to properly admit a video of the crime in evidence?
The witness must testify that he saw the video and that it was then not altered; that the video fairly and accurately depicts the events recorded; and the video camera was functioning properly when the video was made. Witness personal knowledge of the event is not requried to authenticate the video.
90
Can search by private person that lead to evidence be excluded from evidence at trial -is there a prodecure D attorney can use to prevent it and is the attorney likely to be successful?
D lawyer can move to suppress the evidence. .Illegal search by private person is inadmissible. State action is not needed for exclusion.
91
If prosecutor tells you that she intends to have Deputy testify at trial about evidence he saw when he entered D's property without a search warrant (illegal search); what procedural step can you take to prevent prosecutor from having this testimony presented at trial?
File a motion to supress the testimony because it was the product of an unlawful search. He did not have a warrant to enter the property; No exception to the warrant requirement appears to apply. (no exigent circumstances; D did not consent; search was not incident to arrest)
92
How can you prevent evidence from coming in preemptively before trial commences? (ex if evidence seized illegally) What do you need to do if the prosecutor brings in the evidence anyway in order to preserve error? What steps can you take to prevent testimony of officer regarding the illegally seized item? (where officer entered house without consent then looked at the bottom of the laptop to get password; then got search warrant - illegal seizure)
File a motion in limine requesting that the court address and rule on the admissibility of the evidence in question. The motion in limine; however; does not preserve the issue on appeal. Therefore; if the court rules in favor of prosecutor and she mentions the barred evidence; then the defendant should object to preserve the issue for appeal. COMPARE THIS TO ANSWER RIGHT ABOVE - THIS ANSWER WAS FROM ANSWER SHEET; BUT IS IT CORRECT???? SHOULD IT BE A MOTION TO SUPPRESS? File motion in limine (answer sheet said this but I think it is a motion to suppress) to prevent the officer's testimony at trial. Should argue that the officer violated the 4th Amendment by (i) entering the house without a warrant (ii) and searched the item by moving it without consent; exigent circumstances; or a warrant. If situation entering house was for exigent circumstances but officer then conducted a search not related to the exigent circumstance; file motion to suppress the evidence as violation of the 4th Am. because even though exigent circumstances officer did not have probable cause to search where he searched.
93
If proseuctor informs you that she learned from one witness of a bad act that D did in the past and you fear that prosecutor might mention at trial; what step can you take to prevent prosecutor from mentioning the fact at trial? If prosecutor mentions this fact at trial; what should you do to preserve the issue for appeal?
File a motion in limine to try to prevent prosecutor from mentioning this fact at trial. If prosecutor mentions this fact at trial; you should object and obtain a ruling to preserve the issue because a motion in liminne by itself does not preserve the issue. WRONG ANSWER: file a motion to suppress
94
If prosecutor intends to introduce D's prior conviction for the Class A misdemeanor of evading arrest at trial; what procedural step should you take to try to stop him from introducing this evidence at trial? If this step is unsuccessful; what additional steps should you take to preserve the issue for appeal?
??? Guessing here - answer not in Barbri nor in 7/14 section of answers in file. You should file a motion to suppress the evidence. Only misdemeanor convictions that go to truthfulness are admissible agaist the D. If unsuccessful -- NOT SURE
95
Can D question prosecution witness about the fact that he was convicted two years ago of misdemeanor theft after witness for prosecution testifies at trial?
Yes; it is permissible to impeach a witness by introducing a misdemeanor theft conviction because theft is a crime of moral turpitude. Additonally the conviction is not too stale to be used for impeachment purposes because it is less than 10 years old.
96
What can a defendant do procedurally to attempt to prohibit a prosecutor from entering evidence taken seized without a warrant from a third party into evidence? (seized counterfiet handbags from person who bought them from D and will enter them into evidence) (What argument can prosecutor make in response to D motion to suppress evidence seized without a warrant from a third party's car?)
There is no procedural step a defendant can take under these circumstances because the defendant would have no standing to file a motion to suppress since the evidence was taken without a warrant from the third-party; not the defendant. As such; the defendant had no reasonable expectation of privacy in the third-party's evidence (car) .
97
What argument can prosecutor make in response to D motion to suppress evidence seized without a warrant from D's place of employment? (ex video camera and tapes from gas station where D worked and D accused of illegally taping people)
Proscutor can argue that D does not have standing since he has no reasonable expectation of privacy in the business location. Second (in case of video tapes) can argue that even if D had standing; the exigency exception applied because stations often videotape over old videos so evidence might disappear before a warrant can be executed.
98
If D in last question enters guilty plea and receives plea sentence; will he be barred from appealing the denial of the motion to prohibit introduction of the security camera?
No. Generally a D who pleads guilty pursuant to a plea bargain and gets a sentence within the bargain cannot appeal. Howevver; D's can appeal based on matters raised pre-trial by written motion and ruled on before trial. As long as the motion was written and made pre-trial; D can appeal.
99
Is prosecutor required to disclose exculpatory statement made by V to defense?
Yes. Under the Brady doctrine; the Prosecutor has a duty to disclose all material favorable eivdence; which includes that which is exculpatory or could be used for impeachment.
100
Is prosecutor required to turn over to D a statement made by a witness to the crime?
Yes; Under the TxCCP the prosecutor must turn over the witness statement because it is material evidence in the possession of the State.
101
How should court rule on D's motion to suppress evidence that was seized from D's pockets at the police station after D's arrest?
Deny the motion. Under inventory exception to the warrant requirement; police may inventory all of the items on a person so long as the police follow an existing department policy and are not engaged in general rummaging. Because the item was found pursuant to a routine inventory search; it is admissible. Additionally; if the item was discovered immediately following D's arrest; it would also be admissible under the search incident to arrest doctrine.
102
How should court rule on D's motion to suppress evidence that was seized from D's pockets at time of D's lawful arrest?
Deny the motion. If D was lawfully arrested; under the search incident to arrest doctrine; an officer may search the person of an arrestee and his immediate grabbing space. During the search incident to arrest; the officer can open all items; even if there is no reason to believe the item is incriminating or poses a danger to the officer.
103
What step can D take to keep items from being introduced that were seized pursuant to an invalid inverntory policy (deputy had sole discretion to search in order to discover evidence of a crime)
Move to suppress the evidence; and it should be granted. Deputy searched pusuant to an inventory policy that gives deputy sole discretion to search for evidence of a crime. This is not valid. Inventories must be conducted pursuant to a standard administrative policy in which all officers follow the same protocol. Additionally; inventories cannot be conducted for the purpose of discovering evidence; but to catalog items to protect the property.
104
What step can D take to ensure fair trial when discovers judge was a victim to the crime; what legal basis is there for taking the step? Can judge preside over D's case if judge was victim of D's crime?
You can move to disqualify the judge. Judges can be disqualified if they were victims of the crime; counsel for either side; biased; or related to the D or V within 3rd degree. No - judge has a clear disqualifying interest since he is a victim.
105
If D wants to be placed on community supervision if convicted of aggravated robbery (or for aggravated kidnapping) ; should D have the judge assess punishment? For D to be eligible for community supervision; what action must Lawyer take and when?
No. for most offenses judges can place Ds on community supervision. However; for certain enumerated offenses (3g offenses) and particularly serious offenses including aggravated robbery; only a jury can impose community supervision. Lawyer must file before trial a written sworn motion for community supervision stating the D has no prior felony convictions. (same as for Probation) (if jury fails to recommend CS; judge has discretion to do so)
106
What procedural step must D take to have a jury assess punishment; and when?
D must file a sworn statement for communtiy supervision before trial begins. To have a jury assess punishment; D must elect this in writing before the commencement of voir dire. If D does not elect jury sentencing before the start of trial; the judge will assess the punishment
107
If Doctor testifies that D was insane. If prosecutor asks Lawyer to produce the information Lawyer Doctor and all testing performed and records used by Doctor to reach any opinions; what must lawyer give to prosecutor; if anything?
Lawyer must provide all information that formed the basis of doctor's testimony; including the testing performed and the records.
108
Expert Witness If prosecutor calls ''expert'' to testify to whether evidence is linked to D; and lawyer objects; what inquiry should the court make to determine whether expert is qualified to testify as an expert witness?
Court should inquire whether witness has sufficient background in the field and whether that background goes to the matter on which she is to give an opinion. Court should consider (i) whether technique employed by witness is accepted as valid by the scientific community; (ii) whehter scientific literature supports the technique; (iii) the potential error rate of the technique; (iv) theh qualifications of the expert; (v) the availablilit of other experts; (vi) the clarity with which the technique can be explained to the court;; (vii) the skill and experience of the person who applied the technique
109
Expert Witness If prosecutor calls expert witness to testify; and you request to conduct a vior dire examination before he testifies; how should the court rule on your request?
The court should grant defense's request to conduct a vior dire examination of the expert before he testifies. In criminal cases; a party against whom an expert will testify has the right; upon request; to vior dire the expert on the facts or data upon which the testimony will be based before the expert tesifies.
110
Expert Doctor testifies that D was insane and lacked the abilty to form the intent to commit the crime. If prosecutor objects that the opinion reached the ultimate issue of intent; how should the judge rule?
Judge should overrule the objection. Experts in Texas are permitted to testify on opinions about the ultimate issue of the mental state of the D. The jury decides how much weight to give the opinion.
111
Expert Witness. What three criteria must evidece derived from a scientific theory meet to be reliable?
(1) the underlying scientific theory is valid; (2) the tecnique applying the theory is valid; and (3) the technique was properly applied.
112
Expert Witness. When court grants D objection to the testimony of Prosecutor's choice of expert witness and prohibits expert from testifying; what procedural step should prosecutor take to preserve for appeal the admissibility of the expert's testimony? Or Judge refuses to continue (extend) the trial when D's expert witness is not available to wait for expert to become available; what should lawyer do to preserve the error? Applies to preserving error for any excluded evidence.
To preserve error in excluding evidence; the prosecutor must make an offer of proof showing the substance of the evidence. This can be done either by the prosecutor making an oral summary of the excluded evidence or though a question and answer form. The prosecutor must get a ruling from the judge on the exclusion of the evidence.
113
List three admonishments that the court must give the D before acccepting a plea of guilty.
(1) Inform the D of the range of penalties attached to the offense; (2) that any recommendation by the prosecution as to the penalty will not be binding on the court; (3) that there is a limited right to appeal following a guilty plea.
114
Can prosecutor ge through a gulity pleas proceeding without letting the court know whether the V has been told about the plea agreement? ( plea agreement was very lenient and D atty asks prosecutor to not tell V about it.)
No. The TxCCP requires that the court ask whether the V is aware of the plea bargain agreement. Before accepting a guilty plea; the court must ask the prosecutor (i) whether a vicitm impact statement has been returned to the state; and (ii) whether the prosecutor has notfiied the victim about the existence and terms of the plea bargain agreement.
115
Can D enter guilty plea before a judge or before a jury?
Under the TxCCP; D can enter a guilty plea before a judge or before a jury.
116
When can guilty plea be withdrawn by D?
Plea of guilty to the judge can be withdrawn as a matter of right before the court takes the plea under advisement
117
Does the TxCCP allow a jury to assess punishment when a D enters a guilty plea?
Yes; the TxCCP specifies that if a D pleads guilty; a jury may be impaneled to assess punishment if the D elects jury sentencing.
118
If prosecutor agrees to recommend a specific sentence as part of a plea agreement with D; is the court required to impose that sentence? What if the court imposes a harsher sentence?
No. the court is not obligated to follow the plea agreement reached by prosecutor and D. If the court refuses to impose the plea agreement sentence; the D may withdraw his guilty plea.
119
If a defendant accepts a plea offer; but the court rejects the plea agreement; will the defendant be bound by his guilty plea and have given up his right to a trial?
No; the defendant will not be bound by his guilty plea. If the court rejects a plea bargain; the defendant may withdraw his guilty plea.
120
Can offficer who was present at plea negotiationns testify at trial about statements D made during negotiations? - How should the court rule on D objection to the testimony?
Shoud sustain the objection. Under the TX rules of Evidence; any statement made in the course of plea discussions wiht
121
Does the district court have jursidiction over a misdemeanor that is a lesser included offense of the felony? (D atty proposes plea bargain to Prosecutor that would allow D to plead guilty to a misdemeanor that is a lesser included offense of the felony offense charged in the indictment)
Yes; under the TxCCP; the district court has jurisdiction over felonies as well as any lesser included offense; even if it is a misdemeanor.
122
In what ways is a plea of nolo contendere the same or different from a plea of guilty?
(1) it has the same legal effect as a plea of guilty (2) it cannot be used in a civil case to attach liability
123
Will D's guity plea waive his right to appeal the rulinng on the admission of Deputy's testimony about evidence he saw during illegal search?
No. D will still be able to appeal Deputy's testimony. Generally; a D who pleads guitly waives the right to appeal. However; when the D's appeal is based on matters raised by pretrial written motion and ruled before trial; the appeal can proceed
124
What are the requirements for a D to be eligible for probation? And what steps and when should steps be taken. Is a D that has a prior felony conviction in another state eligible for probation?
No. To be eligible for probation; the D must file a written; pre-trial sworn application for probation stating that the D has never been convicted of a felony. If D has a prior conviction in another state D is not eligible for probation.
125
If jury assesses punishment; can it place D on deferred adjudication?
No. only a judge can place D on deferred adjudication. To be eligible for DA; D must plead guilty or nolo contendere rather than proceed to trial and being found guilty.
126
When is deferred adjudication available?
DA is available only from a judge and only if the D enters a plea of guilty or nolo contendere. Once there has been a conviction; DA is NOT available
127
What are three conditions of deferred adjudication? What are the differences between deferred adjudication and probation?
(1) D pleads guilty or nolo contendere (2) Judge finds in best interest of society & D will be served by placing on DA (3) D charged with offense other than DWI or other intoxication related offenses. (1) DA can be imposed without a conviction or finding that D is guilty; while probation can be imposed only if D has been found guilty. (2) Revocation of DA permits the court to sentence D to any term of imprisonment within the statutory range; but revocation of probation limits the term of imprisonment to the one assessed before the D was placed on probation.
128
Can state use prior felony conviction for impeachement of a witness if witness satisfactorily completed probation?
If probation satisfactorily completed and witness has not been convicted of a subsequent crime involving moral turpitude or classified as a felony; the conviction is not admissible and cannot be used for impeachment. Witness can be impeached by a conviction resulting in probation until and f the probation has been successfully completed -- if still on probarion you can use the conviction.
129
If the first 7 prospective jurors seem facially problematic for your case; what action; if any; can you take to change the searing of the prospective jurors? Can you change the seating after juror questioning has begun? At beginning of jury selection; prosecutor requests a jury shuffle. After shuffle done; you request another shuffle and court denies your request. Did court violate the law? (NO)
One can request a jury shuffle; which will reseat the prospective jurors in a random manner. Either the prosecution or the D may request the shuffle; but only one is allowed. The request must be made before voir dire begins.
130
If both D's are tried together and court has ruled that prosecutor will be allowed to introduce other D's prior conviction for a felony; what step can you take on your D's behalf to tray to avoid the introduction of the other D's conviction? 2/16 (or co-D has a prior conviction but facts do not say it will be admitted at trial -use same answer) If two D's are being tried together and no other factors (no prior convictions of other D) ; what steps can D attorney take to get separate trial? If two Ds are being tried together and one has a pror conviction (no ruling yet on whether it will be admitted); what step can lawyer take to get a separate trial? If prosecutor wants to try two D's together but they committed separate but similar crimes ( D's separately bribed the same guard while in jail)
Counsel should move to sever his D's trial from the co-D's trial. When a D has a prior conviction that is admissible against him in this trial; the co-defendant must be granted a severance if he requests it. Thus his severance should be granted. Should move to sever the trials on the basis that a joint trial will be prejudicial to your clien; which would be at the court's discretion. D might be able to demonstrate prejudice if he plans to ofer a defense that is inconsistent with the defense the co-D will make. Lawyer can file a motion to sever. Because Wyatt has a prior conviction that could come in at his trial; that entitles Billy to a severance so he is not unduly prejudiced with this at his trial. Attorney should argue for a severance on bases above; but also that the D's are not charged with one offense committed together but with two separate different offenses and so joinder is improper.
131
What step can D take to obtain separate trials on each of three counts of the indictment? (D charged with three separate offenses from same criminal transaction)
Move for severance of charges for separate trials—D who is scheduled for trial on multiple charges bc they arise from same criminal episode has absolute right to have charges severed for separate trials . If D does not invoke this right and is convicted of all or several offenses in the one trial; prison terms must run concurrently. If D gets separate trials; then judge has discretion to stack the sentences and make them consecutive.
132
Can two Ds be tried jointly given that they were charged in two separate indictments?
Yes. Two or more individuals may be tried jointly for the same offense or offenses arising out of the same transaction.
133
If court insists on jury selection while D is out of town; and D's attorney objects to commeencement in D's absence; but court only states that it will delay the rest of the trial until D returns; Is the court's ruling correct?
No the court's ruling is incorrect. In a felonly case; the D must be present at the beginning of trial through the swearing of the jury. The D was not present at jury selection and the court cannot remedy this error by delaying the trial.
134
During jury selection; can the court prohibit the attorneys from asking proper questions and instead conduct vior dire without the attorney's participation?
No. Although judges have wide discretion in how to conduct vior dire; they may not preclude counsel from asking proper questions. Questions concerning the State's burden of proof are proper questions. More detailed answer if you want it! (Texas case law holds that counsel is entitled to personally participate in conducting vior dire of prospective jurors. Attorneys for both sides are entitled to question prospective jurors regarding any matter that might be relevant to exercising challenges for cause or premptory challenges.)
135
What is a challenge for cause? How many challenges for cause does Lawyer get during jury selection?
A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the TxCCP. There is no limitation to the cause challenges by either defense or prosecution. Only peremptory challenges are limited.
136
If two defendants are being tried in the same case; how many peremptory challenges may each defendant and the prosecutor exercise?
Each defendant may exercise 6 peremptory challenges each and the prosecutor may exercise 12. If two or more defendants are tried together; each defendant is entitle to six challenges and the prosecutor is entitled to six challenges for each defendant.
137
What is a peremptory challenge? If D is tried alone; how many peremptory challenges does he get?
A peremptory challenge is a mechanism for attorneys to strike prospective jurors without having a specific rationale. In a felony case where state does not seek the death penalty; prosecutor and D may each make 10 peremptory challenges.
138
If prospective juror states in vior dire that she could not convict a person for doinng the alleged act; what can prosecutor do to preclude her from serving on the jury?
Prosecutor can challenge the prospective juror for cause on grounds that the juror cannot follow the law. Because doing the act alleged is illegal and the juror says she cannot convict a person for that conduct; the juror is biased against the law and can be struck for cause. If court refuses to strike the juror; the prosecutor can use a peremptory strike.
139
If prospective juror states she will believe D is guilty if D does not testify in her own defense and lawyer challenges her for cause; how should judge rule? ( or any other juror statement that the juror is convinced D is guilty or they have a grudge against D)
Judge should sustain the challenge and dismiss the potential juror because she is biased and unable to appropriately apply the law to the case. D's may not be compelled to testify in their defense and their refusal may not be held against them.
140
Can D use peremptory challenge on juror because wearing ugly plaid shirt? Must you justify your premptory challenges? If prosecutor uses his preemptory challenges to strike all women potential jurors; hwat objection can you make and how may prosecutor defend his use of the challenges?
You can use PCs to strike jurors for wearing an ugly plaid shirt; and you do not need to justify your strikes. You only have to justify PCs if the other party alleges they were motivated by race or gender. Counsel can object to the prosecutor's use of his peremptory challenges was improper for striking jurors based solely on gender. To defend the stries; prosecutor must point to a gender neutral reason for each woman he struck. (ex because she did not make eye contact or appeared to have good rapport with defense counsel)
141
What are three challenges for cause that may be made by the state or D to prospective jurors? How should the court rule on challenges to the following jurors? (a) juror qualified to vote but not registered (b) juror convicted of misdemeanor theft or any felony (c) juror charged with; but not convicted of; misdemeanor theft
1. not a qualified voter; 2. has been convicted or is presently under indictment for misdemeanor theft or felony; 3. is biased or prejudiced. ------------------------------------------------------------------- (a) overrule challenge - juror does not have to be actually registered (b) sustain - conviction for theft is an absolute disqualification (c) sustain - indictment for theft absolute disqualification
142
Can juror who served on he grand jury that issued the D's indictment serve on the D's petit jury?
No. a grand juror that issued the indictment cannot serve on the jury. Can challenge the juror for cause.
143
If after jury is selected and sworn; you discover one of the jurors has previously been convicted of a felony; what should you do to preserve this error for appeal and when should you take it?
Counsel should object as soon as she learns about the juror's felony conviction and in no event later than when the verdict is entered. Conviction for a felony or misdemeanor theft renders a juror absolutely disqualified. A conviction will be reversed for allowing an absolutely disqualified juror to sit only if (i) the D raises the discqualification before the verdict is entered; or (ii) the disqualification was not discovered until after the verdict was entered and the D is able to show signficant harm by the service of the juror.
144
If during jury selection the prosecutor asks jurors that if each element exists is there anyone who could not convict based on that evidence; can the D object and what will be the ruling?
The court should sustain the objection. Prosecutor has asked an improper commitment question. The question does not specify that each element of the offense must be proven BRD. Jurors cannot be asked to commit to a hypothetical scenario without that information.
145
How can counsel use peremptory challenges for alternate jurors?
Alernate jurors are empaneled in the same way as regular jurors. In criminal DC trials may get up to 4 alternate jurors and county courts get up to 2. If 1 or 2 empaneled; state and defense get 1 peremptory challenge. If 3 or 4; state and defense get 2 peremptory challenges each. Cannot use leftover peremptory challenges from selecting regular jurors in the selection of alternate jurors.
146
Under the Code of Criminal Procedure; what two procedural steps must occur after the jury is impaneled and before any evidence is introduced at trial? If these steps are skipped; can the error be fixed later at trial? What are the first two steps in a criminal trial?
After the jury is impaneled; the first two steps are: (i) the reading of the indictment or information to the jury by the prosecutor; and (ii) the entering of a plea by the defense. Failure to take these steps can be fixed later during trial. Upon learning of the error; the indictment should be read to the jury and the defendant should enter a plea. Thereafter; the state should reintroduce the evidence or the parties may stipulate to the evidence already presented.
147
Is D required to make his opening statement immediately after prosecutor's opening statement? If state decides not to make an opening statement; what effect does that have on D's right to make an opening statement?
No. defense has the right to make its opening statement after the State's opening statement but it is not required ot do so. D is entited to wait and make her opening statement after the State rests its case-in-chief. General rule above; + If prosecution waives its right; the defense must wait until their case in chief to make their opening statement
148
What is the burden of proof in a criminal trial?
The prosecutor must prove every element beyond a reasonable doubt.
149
What is the rule of sequestration? Who may not be excluded from the trial under the rule of sequestration? 7/17
'The Rule'' can be invoked to exclude persons who are witnesses from attending trial or discussing their testimony with anyone except the lawyers. (1) D who is a natural person (2) officer or employee of corporate D (3) person whose presence is shown by a aprty to be essential to the presentation of that party's case (4) the victim; unless the court finds the victim's testimony would be materially affected by hearing other testimony.
150
Are victims subject to the rule of sequestration?
Yes; if they are witnesses and their testimony would be materially affected.
151
If the state wants to preserve the testimony of an elderly complainant by taking her deposition before the trial; can it do so in a criminal case?
Yes. The state can take the deposition of an elderly person. Tx law allows pretrial depositions in some circumstances. Either state or D can apply to the court for authorization to depose a witness--must be accompanied by an affadavit setting out ''good cause'' for the taking of the deposition. Notice must be given the opposing party. Hearing his held iand f court finds good cause the ct will grant the application.
152
What procedural rules control the conduct of a deposition?
The rules of civil procedure control where they do not conflict with the Code of Criminal Procedure or constituttional rights.
153
A crucial D witness is out of the country; etc and is unavailable for trial. What steps can D atty take to seek postponement of the trial and what are two of the requisites you must satisfy?
You can file a written motion for a continuance demonstrating good cause. You must demonstrate the name and address of the witness; the effforts made by the defense to find and get the witness to court; and the material facts the defense expects the witness to prove.
154
By what deadline; if any; should prosecutor have made tape recording of D's oral confession at the jail the day of his arrest available to D attorney; given the prosecutor's intent to introduce D's oral confession at trial? What are requirements for oral confession to be admissible? ( proscutor calls policeman as witness who testifies aobut oral confession. D objects that testimony inadmissible because D not informed of confession in response to discovery request. Prosecutor hands you the tape recording and argues statement is admissible. If oral confession not recorded and prosection informs you that witness will be officer testifying about his recollection of the confession; what steps can you take to prevent the introduction of his testimony? Is officer's testimony about the oral statement admissible in evidence at his trial?
The prosecutor must provide the recording to the defense at least 20 days before trial. Oral confessions may be admissible if they are accurately recorded; reflect that the accused was warned of his rights and that he knowingly and voluntarily waived them; and all voices on the recording were identified Move to suppress the oral confession to the officer and exclude it from evidence. Statement was not recorded as requried. Inadmissible unless corrroborated by other evidence. Oral confessions are highly disfvored. Exceptions are for judical confessions; res gestae statements; statements that were electronically recorded; and corroborated statements. None apply here.
155
To suppress confession before trial -----On tape of oral confession; D is talking about the devil and policeman is telling D that the devil wants D to waive his Miranda rights and admit his guilt. What procedural step could you have taken prior to trial to obtain ruling the confession inadmissible and what legal basis for that step?
You would have filed a motion to suppress the confession. Argue D did not validly waive his Miranda rights because did not do so voluntarily since he thought the devil wanted him to. Aso argue policeman coerced the confession through psychological trickery and threats of force if he did not confess.
156
How many days before the pretrial hearing must you file your motion for discovery?
Motion for discovery must be filed 7 days before the pretrial hearing. Failure to meet this deadline will prevent filing the motion later; except by permission of the court for good cause shown.
157
Discovery. What procedural step must D take to get access to and inspect a tangible item (ex. Credit card reader or laptop) that was confiscated that is in the possession of the prosecutor?
D attorney may move to inspect the item. D must demonstrate that it (i) is a tangible item; (ii) constitutes or contains material evidence; (iii) is in the possession of the state; and (iv) is not work product of the state.
158
After jury sworn; court excluded evidence from police search and staate wants to appeal. Can the state appeal the court's ruling to suppress the evidence?
No. An appeal from the grantinng of a motion to suppress evidence cannot be taken after jeopardy attaches when the jury is sworn.
159
Can D admit evidence of a lie detector test D took that he passed?
The court should sustain the prosecutor's objection. Lie detector tests are not admissible evidence.
160
If victim's identification of D was made in suggestive procedure; what steps can D take to exclude it from trial?
D should make a pre-trial motion to exclude V's identification of D at scene of arrest. Motion must establish tha the identification was unnecessarily suggestive and there was a substantial liklihood of misidentification. If victim was told perpetrator was in custody and saw D at police station in handcuffs; then likely thought it was him. If V not wearing glasses; substantial liklihood of misidentification
161
Hearsay If proseuctor wants to admit official police report of Deputy which contains his observations of the vicim at the accident scene as well as other conditions he observed there; how should the court rule on D objection to the admission of the record?
Court should sustain the objection. Although public records may serve as an exception to the hearsay rule; the Tx Rules of Evidence specifically exclude from that exception matters observed by police officers and other law enforcement personnel in criminal cases. Because Deputy is a police officer; his observations in the police report cannot be admitted under the public records exception.
162
Hearsay. Can a statement be offered into evidence if it relates to a statement a third-party made out of court but the statement is not being introduced for the its truth? (e.g.; Sarah testifies: ''When I asked Beck fi the handbags were real Valenti handbags he said 'of course they're real! Do you think I am a cheat?''' - not trying to prove the handbags were real)
Yes. A statement like this is not hearsay because it is not being offered for its truth; i.e.; that the handbags were real. Rather; the prosecutor is trying to prove that Beck falsely claimed that the handbags were real. This is a legally operative fact that related to the charged crime.
163
Is prosecutor required to tell defense prior to trial that it will introduce witness testimony of D's other bad acts? Can a prosecutor enter evidence of other bad acts of the D at trial without first telling the defense attorney that they intend to do so pre-trial? What procedural step could D have taken to avoided being surprised by evidence of other bad acts? When can state introduce evidence of prior bad acts of D?
No. Prosecutor is not required ot tell D about prior bad acts testimony before trial unless D requested notice of prior bad act evidence. Yes. The prosecutor is only required to tell a defense attorney about the testimony before trial if the defense attorney requested notice of bad acts evidence. Pre-trial notice of other-acts evidence is only mandatory if the defendant requests it. Could have made a request that the state provide reasonable notice in advance of trial of its intent to introduce in its case in chief evidence of other crimes; wrongs; or bad acts not arising in the same transaction as the charged crime. Evidence of prior bad acts is admissible to prove such things as motive; knowledge; identity; and intent; but not to prove propensity to commit current crime based on prior bad act.
164
IF prosecutor introduces photo of crime scene and proves that the photo was fairly and accurately represents the matters depicted in the photo; should the court admit the photo into evidence? If witness testifies he is owner of items and the photograph accurately and fairly depicts the items; how should court rule on Lawyer's objection to their admission?
No. the prosecution cannot be the one to say the photo fairly and accurately represents the matters in the photo. The prosecution must offer proof through other witnesses to authenticate it. Overrule. The proper foundation was laid when witness testified he owned the items and the photograph fairly and accuately depicted those items.
165
If D lawyer objects to the prosecution plan to introduce evidence of previous conviction for an unrelated felony and the conviction is on appeal; how should the court rule?
The court should sustain the objection. Under the Texas Rules of Evidence; convictions on appeal are not admissible.
166
What objections should D make to the admissibility of testimony of a witness that D commited a bad act against the witness two years ago? EX: that D stabbed witness in the stomach two years ago for the same reason as the current situation.) Can prosecutor introduce evidence of prior bad act of D to prove the mental state required for the crime? Can D object to introduction on grounds that prior bad act did not result in criminal conviction?
Should object that it is extraneous offense evidence that serves only to show a propensity and therefore is not admissible. The exceptions are to prove motive; intent ;malice; identity; and common scheme or plan--- (are not implicated by testimony of a prior assault when the charge is improper visual recording.-- apply to fact situation). (EX: Above argument by D applies; but prosecutor could respond that while witness is testifying to an extraneous offence; it shows a common scheme and the probative value substantially outweighs the risk of unfair predjudice.) Ordinarily; evidence of prior crimes; wrongs; or bad acts is not admissible to show the D has a propensity to commit the same conduct. However; Prosecutor can argue evidence is admissible because it is relevant to D's mental state. D's ground for the objection is wrong. The Tx Rules of Evidence recognize that intent can be shown by crimes; wrongs; or bad acts; regardless of whether they resulted in a criminal conviction.
167
What steps can D take to prevent child from testifying at trial?
D should object on the grounds that the child is not competent to testify and therefore is discqualified. Child must have sufficient intellect to relate the transactions with respect to which they are offered to testify. If testimony by 5 year old challenged (just because he is 5) ; court should consider overruling the objection. Just because the witness is 5 years old does not mean per se that he cannot be a competent witness. Judge should examine child on the record to determine whether he has sufficient intellect to relate transactions regarding which he will be asked to testify
168
How can prosecutor compel a witness to testify who asserts his 5rh amendment right not to incriminate himself?
The prosecutor can force such a testimony by giving the witness immunity. If a witness is effectively granted immunity; there is no longer any risk of self-incrimination and the privilege does not permit the witness to refuse to answer.
169
If proseuction wants to introduce evidence at trial that D contacted an attorney; what steps can D take to prevent him from doing so?
Move to suppress the evidence. Evidence that D contacted an attorney is not admissible on issue of whether D committed the offense. Neither prosecutor nor trial judge may comment on the fact that the D contacted or retained an attorney
170
Atty-Client Privilege: Can prosecutor compel a witness to testify as to the legal advice his lawyer gave him?
Communications between client and attorney are privileged and non-discoverable unless an exception applies; such as legal advice in aid of future wrongdoing or waiver. Proseuctor can assert an exceptionn to try to compel witness to testify as to conversation.
171
Atty-Client Privilege: If police conduct a valid search of D's lawyer's office and seize lawyer's notes and notes about D; what grounds can Lawyer assert to suppress the evidence?
Lawyer can move for suppression of the evidence by asserting it violates attorney-client privilege. WRONG ANSWER: Lawyer could assert work product privilege.
172
Spousal Privilege If prosecutor calls D's spouse to testify and she wants to be a witness; how should court rule on defense objecton that prosecutor cannot call witness because she is D's wife?
Court should overrule the objection. The spousal privilege allows a spouse not to be called as a witness. But the privilege belongs only to the spouse-witness; who decides whether or not to waive it. The spousal privilege provides no basis for the D to object to testimony by a spouse who voluntarily testifies for the State.
173
Is statement admissible against witness when it waas a written sworn statement that is contradictory to her current testimony?
Yes; a prior sworn statement is not hearsay if gviven under oath subject to the penalty of perjury at a trial; hearing; or other proceeding except a grand jury proceeding in a criminal case; or in a deposition. If the sworn statement was made under this context it is not hearsay. Regardless; the statement is probably a prior inconsistent statement that can be used on cross to impeach the witness
174
Character Evidence. Prosecutor offers evidence that D has commited act similar to the one she is charged with; to prove she intentionally committed the present act. If lawyer objects that this is inadmissible; how should the judge rule?
Judge should sustain the objection. The prosecution is not allowed to use prior bad acts as propensity to show the D acted in conformity with the previos offense and committed the current crime.
175
Character Evidence. Can prosecutor introduce eivdnece at D trial that D unlawfully carried a loaded gun through the front door of a bar that had a sign on it saying ''no loaded guns permitted?'' When D is being accused of taking a gun to work and shooting someone? Can Prosc. introduce evidence the D lied to his employees about having Super Bowl tickets as a bonus for reaching a high profit mark when D is accused of fraudulent reporting of corporate profits?
Yes; to show a plan or absence of mistake.
176
Character Evidence. If prosecutor objects to Lawyer calling D's mother to testify that D has a good character for truthfulness when D is accused of fradulent reporting of corporate profits; how should the court rule?
Overrule the objection. The state attacked the D's character for truthfulness by charging him with lying; so the D may then introduce character evidence for truthfulness -- ie truthfulness is a relevant character trait to the crime charged.
177
Prosecutor seeks to introduce the transcript of a witness' police intterview form the scene of the shooting instead of the witness's live testimony. If D objects; how should the court rule?
Court should sustain the objection. The interview is hearsay to which no exception applies and violates the D's right to confront the witness.
178
Hearsay. Can a statement be offered into evidence it witness testifies she engaged in social media conversation with D (who is accused of impersonating the witnesses friend) ; thinking she was speaking with the friend? If D attorney objects; what will the court rule?
The court will overrule the objection because the social media conversation is an operative fact and not hearsay.
179
Hearsay. Can a statement be offered into evidence if it relates to a statement a third-party made out of court but the statement was made by the defendant? (e.g.; Beck's cousin; Laura; testifies that at lunch with Beck; Beck said: '' I love owning my own business because I can make lots of money telling people whatever I want about my merchandise; and they are so stupid they don't know what is real and what is fake?'')
Yes. A statement like this qualifies as an opposing party's statement--a statement made by a party and offered against that party. An opposing party's statement is not hearsay. (Alternatively; the statement could be admissible under the hearsay exception for statement against interest.)
180
Hearsay. Can a statement be offered into evidence if it relates to a statement D made to a third-party made out of court but the statement was made by a con-conspirator during and in furtherance of a conspiracy? (e.g.; Luigi testifies that Beck paid him $7;500 to make the fake Valenti handbags. He further testifies: ''C.J. said to me: 'Luigi; make sure you make the VVV logos exactly as they appear on the genuine handbags and use the finest leather you can find.''')
Yes. A statement offered against a party is not hearsay if it was made by the party's co-conspirator during and in furtherance of a conspiracy. Here; C.J. gave instruction to Luigi in furtherance of C.J. and Beck's conspiracy to sell counterfeit handbags; thus; C.J.'s statement is not hearsay and is admissible against Beck.
181
Hearsay. Can a third party (victim) testify as to D's statement to him made during the commission of the crime? (D said ''Stick'em up! This is a robbery!''
Yes. This is not hearsay but a statement by a party opponent. Also statement is an operative fact of the offense charged (Robbery); also could be statement against interest and maybe an excited utterance.
182
Hearsay. Is a statement admissible if it was made to a doctor about the cause of injury and who was responsible?
Partially. It is hearsay for doctor to testify about the out of court statement; but there is an exception for statements made for the purpose of medical diagnosis or treatment including describing pain or symptomos. The statements are admissible if reasonably pertinant to diagnosis or treatment. The portion accusing the person responsible is not pertinant to diagnosis or treatment so is not admissible.
183
Hearsay. Can witness testify to statement defendant made to him when he visited her in jail and she told witness she committed the crime? And what foundation must the prosecutor establish for this testimony to be admissible? Is it hearsay when D makes statement to witness and witness testifies to that statement?
Yes the witness can testify. This is a statement by a party opponent; which is not hearsay. Prosecutor must establish that the D is a party opponent; which can be done because she is the D; and that she made the statement to the witness. No - it is a statement by a party opponent
184
Hearsay. Is it hearsay when a witness testifies that a third party ''informed him'' of something about the D?
Yes; it is hearsay without any exception; so is inadmissible.
185
If prosecutor's only evidence of guilt is the testimony of a jail house informant who states that D confessed to committting the crime and at close of prosecutor's case in chief D lawyer moves to enter a judgment of acquittal for the D (move for a DV); should the court grant or deny the motion? (or confession by D made to anyone (like co-D)that is confined in jail with D)
The court should grant the motion for DV in favor of the D. Conviction cannot rest solely on testimony of jailhouse informant. That testimony must be corroborated with independent evidence tending to connect the D to the offense. (If confession made to another D who is being charged separately for similar crimes committed at same time while in jail; even if other D not an accomplice; also make weaker argument that accomplice rule may apply)
186
What objections can D attorney make with regard to the admission of an accomplice statement to the police when she was arrested and the accomplice is asserting her right to remain silent?
D atty should object that admitting the statement violates the Confrontation Clause because D will not have an opportuntiy to cross-examine the accomplice in court. D can request that the statement be redacted to eliminate any reference to D before it is read to the jury. Also can assert that statement is hearsay; that the part of the statement implicating your D is unreliable and should be exised; or severance granted.
187
Can a D be convicted on testimony of accomplice who is cooperating with prosecutor and on evidence gathered on accomplice? (ie accomplices ski mask; shotgun) (or on accomplice testimony alone?) (or cooperating accomplice will testify that D confessed to him?) What steps can D take to try to prevent admission of the accomplice testimony?
No. because the witness is an accomplice; D can be convicted on accomplice's testimony only if there is sufficient corroborating evidence linking D to the crime. (While the accomplice's seized evidence provide corroboration that a crime was committed; the items do not link D to the crime so the evidence is inadequate.) Can move to suppress the testimony if there is no independent corroboration of D's guilt.
188
Can prosecutor object when D attorney on cross examination of accomplice (who made a deal with the prosecution that accomplice will not be prosecuted if accomplice testifies against D ) asks: ''Isn't it true that you made a deal with the Prosecutor and that is why you aren't being prosecuted?''
The court should overrule Proseucutor's objection. If there is such an agreement; it shows a motive for accomplice to falsify her testimony; thus showing bias or interest. Inquiry into such an agreement is a proper subject on cross examination.
189
Can prosecutor ask a witness if he has an opinion whether the D knowingly or intentionally committed the crime? What grounds can D object to prosecutor's question? (witness testified there was an erroneous charge on his CC; he had no idea whether information stolen at place where D worked; he never noticed unusual behavior by D)
D can object that the witness has no factual basis for opining whether D committed the crime. Witness offered no testimony about D's involvement or her mental state. Furthermore; as a fact witness; the witness should be permitted to testify only about facts within his knowledge; not his opinions.
190
During cross examination of witness; can you ask witness ''Didn't you lie on Tuesday about having an affair with your boss?'' Prosecution objects - how should the court rule?
Sustain the objection. A party can contradict a witness's testimony with extrinsic evidence; but only if the matter is one the party would be able to prove as part of the party's own case Whether the witness lied about an affair is a collateral matter; however; and cannot be the subject of cross examination.
191
If prosecutor files motion to have D's fingerprints taken for comparison to crime scene fingerprints; how should court tule on D objection that the fingerprinting would violate D's right against self-incrimination?
Court should overrule the objection. Fingerprints are not testimonial- they are physical attributes and identity
192
Is evidence of prior wrongdoings (that a defendant was never convicted and charged with) be introduced into evidence at the sentencing phase of the trial?
Yes; so long as the prosecutor can prove that the wrongdoing was done beyond a reasonable doubt. At the sentencing hearing; the state and the defense may offer evidence as to any matter the court deems relevant to sentencing; which includes extraneous crimes or bad acts regardless of whether the defendant has been charged with or convicted of those crimes or bad acts. However; if the state seeks to prove other crimes or bad acts but he defendant of which the defendant has not been convicted; the state must prove the crimes or bad acts beyond a reasonable doubt.
193
What evidentiary predicate must a custodian of records provide in order for the business record to be admitted into evidence/
Must show that the record was kept in the regular course of business; that it was the regular course of business fo ra person with knowledge to make that record; the record was made at or near the time of the event; and that the witness is the custodian of records.
194
What procedure must D lawyer use to get business records admitted without having a witness?
1. Notice must be given to prosecutor and affadavit must be filed 14 days prior to trial. 2. Affadavid must be made by person who could lay the foundation for the business records exception; state that the records meet the requirements for business records exception 3. Records attached must be originals or exact duplicates 4. Must be served on every other party to the case at least 14 days before trial.
195
Confrontation Clause: When prosecutor calls chief of records of the county crime lab; to introduce a lab report written by the forensic analyst which concludes that V's blood and D's DNA are on the knife that the police found what objection should D atty make?
Should object that the admission of of the report violates the Confrontation Clause. Under recent Supreme Court precedent; the forensic analyst who conducted the testing must testify and be subject to cross-examination. Here prosecutor is putting forward a different person rather than the forensic analyst.
196
Can the proscutor request that the court allow the jury to hear all of the evidence of both guilt and punishment before it deliberates and returns any verdict? If denied; was the court correct?
The court was correct to deny the request. The guilt and punishment phases in criminal cases are bifurcated into separate proceedings. Evidence related to the punishment cannot be brought before the jury until a D has been found guilty. Prosecutor's request would potentially prejudice the jury by allowing them to hear evidence unrelated to whether the D is guilty of the charges.
197
If D does not testify and during closing argument prosecutor says that if D was not guilty he would have explained his actions; how should judge rule on Lawyer's objection to the statement?
The court should sustain the objection because the prosecutor's statement was improper argument. State should never mention D not testifying because it violates D's right to remain silent. Defense should ask that it be stricken from the record; for a jury instruction to disregard; and a mistrial.
198
How should judge rule on lawyer's motion for mistrial when on the way to deliberations; the jurors had a conversation about the case with former co-defendant?
The Judge should grant Lawyer's motion for a mistrial as jurors are only permitted to speak with other members of the jury. It is juror misconduct to speak to anyone about the case; particularly a former co-defendant. (if question concerned a co-defendant; would say cannot speak with parties to the action)
199
After a motion by D lawyer for the court to enter a jugement of acquittal for D is granted; can the Prosecutor re-open the case so it can present new evidence of guilt?
DO NOT KNOW THE ANSWER!!!!Answer not in our materials.My answer would be that under the Constitution; opening the trial after conviction would be a violation of the Double Jeopardy Clause because an aquittal is a determination that the D is not guilty. IBut next question said to assume the trial was re-opened- confusing. WRONG ANSWER: (examiner said this missed the question altogether: Court should not allow the case to be reopened because the D was acquitted; or that prosecutor should file motion for new trial.
200
After the presentation of the evidence is complete and both sides have rested their cases; what procedural step should D's attorney take to preserve the sufficiency of the evidence challenge for appeal?
D's lawyer should move for a directed verdict on the basis that the evidence is insuffiient for conviction.
201
What step should you take when after proseuctor presents witnesses and rests his case; you realize he failed to introduce any evidence of one of the elements of the offense?
You should file a motion for a directed verdict of not guilty on the basis that no reasonable jury could find that all the elements of the crime have been proven beyond a reasonable doubt. If the court does not grant the motioin; the defense should renew the motion for a directed verdict at the close of all the evidence.
202
In Texas; is the closing jury charge given by the court before or after the lawyers give their closing arguments?
Before.
203
If the court charges the jury that a particular witness' testimony was important for the jury to pay attention to in deciding the case and D's lawyer objects that the comment was improper; how should the court rule? what must D lawyer do; in addition to objecting to the Court's comment about the witness testimony; to preserve error; if any; for appeal?
Sustain the objection. The instruction was a comment on the weight of the evidence. Judge cannot comment on the weight of the evidence or summarize the evidence. D lawyer should request a jury instruction and move for a mistrial.
204
If court refuses to give the jury instruction requested by the prosecutor; can the prosecutor seek appellate review of this ruling before the trial has concluded?
Yes. Prosecutor can get appellate review before the trial has concluded.
205
Jury instruction - If you decide you want the D to be acquitted based on an affirmative defense; what step should you take to give the jury the option? How can you preserve the issue for appeal if the court prohibits the jury from considering that option?
As long as counsel has introduced evidence to support the affirmative defense; counsel should move that the jury be instructed that the D can be acquitted based on the affirmative defense. Counsel should make clear that there is evidence in the record to support an acquittal based on the defense. If the judge refuses to instruct the jury about the defense; counsel should object to the jury instructions.
206
D objects to jury charge and submits a written jury charge containing a definintionn of reasonable doubt. Court overrules D's objection and refuses to include definitioin. Was court required to include definition of reasonable doubt?
NO; the court was not required to include the definition of reasonable doubt. Definitions of reasonable doubt are not likely to be helpful to the jury and should not be given.
207
What can a jury do to find out what a witness testified to when during deliberations the jurors disagree about what a witness testimony was?
The jury may request of the judge that the court reporter read the relevant testimony from her notes. If there is no court reporter or her notes cannot be read; the jury can requiest that the witness again be brought to the stand to repeat the relevant portion of his testimony.
208
Can jury ask the court a question during deliberations; and how must the communication occur?
The jury is always permitted to communicate with the court in writing through the baliff.
209
Describe two situations in which a judge is not required to direct a probation officer to prepare a presentence report in a felony case.
1. if the punishment is assessed by a jury; 2. the only available punishment is imprisonment; 3. the D is convicted of capitol murder.
210
If jury returns gulity verdict but cannot agree on the punishment; is the court correct if it grants D motion for a mistrial and request a new trial as to D's guilt and punishment?
NO; the court is incorrect. When the jury is able to reach a guilty verdict but unable to reach a verdict on punishment; the court may grant a mistrial only with respect to punishment. The guilty verdict should remain intact and the D should only be retried with respect to punishment.
211
What procedural step can D attorney take to try to overturn a guilty verdict when before sentencing occurs newly discovered evidence establishes D's innocence?
D can move for a new trial based on the newly discovered evidence.
212
What requirements at trial must have been met before D's atty can raise an issue on appeal tht the court allowed an incompetent (ie child) witness to testify at trial?
D attorney must: have: 1. contemporaneous objection with an adverse ruling 2. state specifically the ground to be relied upon on appeal 3. Secure from the trial judge a ruling
213
Jury misconduct - Is there a step by which you can bring jury misconduct to the cout's attention? (juror called cousin; a proseuctor; during deliberations- you find out after trial over)
Counsel should file a motion for a new trial. A motion for a new trial can be granted on multiple grounds; including (i) joror conversed abou the case with someone who was not on the jury (ii) jurors received new evidence after retiring to deliberate. Motion for new trial must be filed within 30 days of pronoundement of sentence and ordinarily must be presented to the court within 10 days of filing.
214
When D is convicted and appeals challenging the legal sufficiency of the evidence; what is the legal standard of review for the legal sufficiency of the evidence?
The standard of review for the legal sufficiency of the evidence is ''viewing the evidence in the light most favorable to the state; could a rational jury have found all the elements of the crime proved BRD? The standard is very deferential to the prosecution; so D is unlikely to be successful.
215
Before sentencing; is a victim allowed to appear in court and make a statement about the effect the offense had on him?
No. the statement can be given only after punishment has been assessed.
216
If D is convicted; what step can lawyer take to overturn the conviction before he files an appeal; and when must he take it?
He should file a motion for a new trial within 30 days of sentencing and present to the court within 10 days of filing (but court can permit presentation within 75 days within sentencing.
217
If D convited in state court can he also be charged in federal court for the same crime or does it violate the Double Jeopardy clause?
No. Texas and the federal government are separate sovereigns. Separate sovereigns can prosecute in succession. Second; if the second offense charged requires proof of one element different than or additional to the first; DJ does not attach and they could be both proseucted even in Texas court without violating DJ
218
If D is found not guilty of stealing food from a store; can prosecutor then charge her with stealing water from the store in the same incident?
No. The court should sustain the objection. Jeopardy has attached and theft of the water would be charging D with the same crime as all the elements are the same and it arose from the same transaction.
219
Can prosecutor file an appeal from an acquittal for the crime? If lawyer files a motion to dismiss the appeal in the Court of Appeals; how should the court rule?
The court should grant the motion because D was acquitted. The constitutional protectoin against double jeopardy forbids the State from appealing a jury verdict.
220
Claims for ineffective assistance of counsel at trial and available remedy.
Standard for ineffective assistance of counsel: - D can attack his conviction on the ground of ineffective assistance of counsel only by showing that: -----(1) considering the totality of lawyer's representations the lawyer did ot providde representation that was reasonably effective and -----(2) because counsel's deficiencies; the defense was prejudiced - there was a reasonable probability that if counsel had performed adequately; the result of the proceeding wouuld have been different. REMEDY: the remedy is that the conviction is invalid If D is acquitted; that means D was not prejudiced and cannot make a claim of ineffective assistance of counsel
