Crim Practice 2 Flashcards
In January of 2008, an anonymous person phones a Travis County Sheriff’s Deputy (“Deputy”) and states that a man in a ball cap will be picking up drugs at Shopping Mall in Austin, Texas, and delivering them to a person named “Top Dog.” Deputy rushes to Shopping Mall and spots a green backpack in front of an army surplus store. Five minutes later, a 20-year-old white male (“D”) wearing a ball cap walks out of the army surplus store and grabs the green backpack. Deputy arrests D, handcuffs him, and warns him of his right to remain silent. D responds: “I ain’t saying’ nothin’.” Deputy opens the backpack and finds cocaine. In the patrol car, Deputy lectures D for twenty minutes on the evils of drugs and then says: “I can convince the District Attorney to help you if you cooperate now.” D breaks into tears and says: “I only got involved to get tuition money.” D is charged with possession with intent to deliver cocaine in an amount between one and four grams. You have been appointed to represent D.
Questions to follow:
- D is released on bond on the condition that he not go near any residence or school where children under the age of 12 are present. D asks you to challenge that condition so that he can visit his young nephews and their friends during weekends. What valid basis, if any, is there for challenging this condition of release? Explain fully.
To secure a D’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim or the community. D here could argue that the condition is unreasonable as it is not related to the safety of a victim or the community because he is charged with a drug crime, not a violent crime or any crime involving children.
- You request an examining trial. D wants to make a statement at the examining trial, but refuses to be placed under oath. Under what conditions, if any, is D permitted to make an unsworn statement at the examining trial? Explain fully.
During the examining trial, the accused may make an unsworn statement which must be made before any witnesses are examined. It must be reduced to writing and signed by the accused.
- During Prosecutor’s direct examination at the examining trial, Deputy testifies that she cannot recall whether D was wearing ball cap when he came out of the army surplus store and grabbed the green backpack. Prior to trial, Deputy retires from service and moves to Florida. Under what conditions, if any, can you introduce Deputy’s examining trial testimony into evidence at D’s jury trial? Explain fully.
Deputy’s examine trial testimony may be used at the jury trial under the former testimony exception to the hearsay rule because Deputy is unavailable as a witness and the Prosecution had an opportunity and similar motive to develop the Deputy’s testimony at the examining trial.
- After the examine trial, you learn that a grand jury will be impaneled in 5 days and that it has been hand-picked by Deputy’s father, who is a jury commissioner, to include only Deputy’s close family members. When and on what grounds should you challenge the composition of the grand jury? Explain fully.
The individual jurors should be challenged as not being qualified to serve because a juror is not qualified to serve on the grand jury if he is related within the third degree of consanguinity or second degree of affinity to any person serving on the same grand jury. Also, any person may challenge the array of jurors before the grand jury has been impaneled, including on the ground that those summoned by order of the court were done so through corruption by the judicial officer.
- The grand jury returns an indictment charging D with possession with intent to deliver cocaine in an amount between one and four grams. You file a motion for discovery and inspection of all police reports written by Deputy that are material to D’s prosecution. Prosecutor files a response opposing your motion. How should the Court rule on your motion? Explain fully.
The State must produce any evidence that is material and favorable to the D, and upon a timely request, must also produce for the D’s inspection any document (except the work product of counsel), including any offense reports, within its control. Thus, the trial court should grant the motion for discovery and inspection because the reports are not work product prepared by the attorney.
- When you watch the 6 o’clock news on television, you see that the lead news story shows D’s mug shot while discussing the Travis County Sheriff’s Department’s new “Punish the Pushers, Put’em in Prison” county-wide, anti-drug campaign. What procedural step, if any, should you take to protect D’s right to a fair trial? What documents must you file in support of your position? What must the evidence show in order for you to prevail? Explain fully.
The correct procedural step is filing a written potion for a change of venue supported by at least two affidavits from credible individuals asserting that a fair trial is not possible based on either prejudice or improper influence because the news story will create unfair prejudice in the current geographical location. An evidentiary hearing must be held unless the State fails to respond, in which case the request will be granted without an evidentiary hearing.
- You decide that, in order to have any chance of winning at trial, you must ask the Court to exclude from evidence: (a) D’s post-arrest statement that he got involved for tuition money; and (b) the cocaine found in the green backpack. On what grounds, if any, can you seek to exclude D’s post-arrest statement from evidence? Explain fully.
I should make a motion to suppress the evidence because it does not appear that Deputy provided D with Miranda warning before interrogation began, the Deputy should have known his statement would have likely elicited an incriminating response, and the totality of the circumstances suggest the confession was not voluntary. Thus, because there are no applicable exceptions, the confession is inadmissible.
[In Texas, an oral confession that is the result of custodial interrogation is inadmissible unless one of the following exceptions applies: (i) the oral confession is electronically recorded and contains the applicable warnings and waivers; (ii) the oral confession contains facts that can be corroborated by evidence; (iii) the oral confession is a spontaneous utterance; (iv) the oral confession is made at trial or before a grand jury; (v) the oral confession is used to impeach a witness; or (vi) the oral confession is obtained in compliance of the laws of another state.]
- On what grounds, if any, can you seek to exclude the cocaine from evidence? Explain fully.
At a suppression hearing, once standing is established, D should challenge whether the anonymous tip provided the reasonable articulable suspicion necessary to justify Deputy’s initial stop of D and whether Deputy then developed the probable cause necessary to justify her arrest of D. If either the initial stop or the arrest of D is determined to have been unlawful, the cocaine will be excluded under the fruits of the poisonous tree doctrine.
- At a pretrial hearing on whether to exclude D’s post-arrest statement, Deputy testifies that she was silent in her patrol car and that D spontaneously blurted out: “I only got involved to get tuition money.” D testifies that Deputy’s drug lecture and promise to convince the District Attorney to help D if he cooperated coerced him into making his statement. At the end of the hearing, the Court refuses to exclude D’s post-arrest statement from evidence at trial. What procedural step, if any, can you take to have the jury at D’s trial consider whether D’s post-arrest statement was voluntarily made? What evidence must you present, if any, to get the Court to allow the jury to consider the voluntariness issue? Explain fully.
A claim that a confession should be excluded because it is involuntary must be decided by the trial judge as a preliminary question of fact, and not by the jury. Because the voluntariness of the confession must be proved again beyond a reasonable doubt to the trier of fact, the State must put the officer on the stand, and the officer must be subject to cross-examination.
- At the same pretrial hearing, the Court refuses to exclude from evidence the cocaine found in the green backpack. Can a jury at D’s trial still consider whether the cocaine in the green backpack was obtained in violation of federal or state law? What procedural step, if any, should you take to have the jury consider this issue? Explain fully.
A challenge to the search of the D’s backpack should be considered by the Court before the trial, but the admissibility of the cocaine in the backpack must be proved again beyond a reasonable doubt to the trier of fact. This means that the State must put the officer on the stand, and the officer is subject to cross-examination.
- D decides to accept the Prosecutor’s plea bargain and plead guilty to the offense as charged. List 3 admonishments that the Court must give D before accepting his felony plea of guilty.
Prior to accepting a plea of guilty, the court must admonish the D of the following: (i) the range of the punishment attached to the offense; (ii) that a plea agreement is a recommendation (unbinding) for a penalty by the prosecution, and the court is not bound by any plea agreement; (iii) that deportation is possible if the D is not a U.S. citizen; and (iv) that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the D and his attorney, the trial court must give its permission to the D before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.
[Any three would be correct.]
- D reconsiders his decision to plead guilty and decides to go to trial instead. D tells you he wants a jury to decide his punishment if he is convicted. What procedural step should you take to have the jury assess punishment, and when should you take that step? If D is convicted by the jury, can D then change his mind and have the Court decide punishment? Explain fully.
In Texas, a D may elect before trial to have a jury sentencing in non-capital cases, but must make that election in writing before voir dire or the judge will set the punishment instead. If the jury finds the D guilty, the D may change his election of who assess the punishment with the consent of the State.
- The jury panel is assembled and voir dire examination begins. As the questioning progresses, you notice that a prospective juror keeps staring at you. Can you exercise either (a) a challenge for cause or (b) a peremptory challenge to exclude the prospective juror on the basis of the juror’s stare alone? Explain fully.
I can make a preemptory challenge to the juror but I cannot make a challenge for cause because, although it is appropriate to make a challenge for cause to a particular juror because of some fact that renders the juror incapable or unfit to serve on the jury, here it is unknown why the juror is staring. However, a peremptory challenge can be made for any reason except race or gender.
- Prosecutor exercises peremptory challenges to strike every African-American on the panel. In light of the fact that D is a 20-year-old white male, can you challenge Prosecutor’s action? If so, what should you do: how should Prosecutor respond; and how should the Court rule? Explain fully.
Because the Equal Protection clause of the Fourteenth Amendment always prohibits parties from exercising peremptory challenges based solely on race, I should challenge the Prosecutor’s use of peremptory challenges by make a Batson challenge. If I establish a prima facie case that Prosecutor is excluding jurors solely on account of their race, then the burden shifts to prosecutor to give a racially neutral explanation for the peremptory challenges to prevent the Court from assembling a new panel or re-seating the improperly challenged jurors.
