Crim Practice 4 Flashcards
D was arrested following the execution of a search warrant at his business. A search of a safe at the business revealed what appeared to be illegal controlled substances, $95,000 in cash, and a switchblade knife. All of those items were seized and D has been charged with possession with intent to deliver Methamphetamine in an amount between 4 and 200 grams and possession of a prohibited weapon. You are appointed to represent D.
Questions to follow:
- Prosecutor informs you that the Smith County grand jury will meet next week to consider indictment against D. Can Prosecutor compel D to testify before the grand jury? What rights does D have regarding an appearance before the grand jury? Explain fully.
Yes, the Prosecutor can compel D to appear before the grand jury, but it cannot compel him to answer incriminating questions. The D must be advised of his Fifth Amendment right to remain silent and refuse to answer any incriminating questions, must be given a reasonable opportunity to retain counsel or be appointed counsel, and must be advised of his right to have counsel present outside the chamber for advice before he answers any questions.
- On the da the indictment against D is returned, the Court notifies you that you must file and present any pre-trial motions within the following three days. Can the Court compel you to file and present your pre-trial motions under the circumstances outlined above? Explain fully.
No, the Court cannot compel me to file and present pre-trial motions within three days because, once a criminal case is set for a pre-trial hearing and the D has been given at least 10 days notice of the hearing, any preliminary matters not raised of filed by the D 7 days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court after a showing of good cause. Here, I must file the pre-trial motions at least 7 days before the pre-trial hearing, not three days.
- As you prepare your case for trial, you review the affidavit for the search warrant. What three facts must the affidavit set forth to establish probable cause?
The affidavit for an evidentiary warrant must allege sufficient facts to establish probable cause that (i) a specific offense has been committed, (ii) specifically describe the property or items that are to be searched for and seized constitute evidence of that offense or that a particular person has committed that offense, and (iii) the property or items are located at or on the particular person, place or thing to be searched.
- You conclude that the search warrant is defective. What motion should you file to contest the validity of the search? What must the motion allege and what remedy should you seek? Explain fully.
I should file a motion to suppress the evidence gathered during the search, alleging that the search warrant issued was invalid because the affidavit did not set forth enough facts to establish probable cause, or the warrant was otherwise insufficient. If the court agrees that the evidence seized during the search was obtained as a result of an invalid search warrant (and is therefore “fruit of the poisonous tree”), the evidence must be excluded.
- The Court conducts a pre-trial hearing on your motion. Following that hearing, the Court grants the relief you requested. Prosecutor immediately announces that she will appeal the Court’s order. Is the State entitled to pursue an interlocutory appeal in this instance? If so, what requirements must be met by the State in order to do so? Explain fully.
The State may pursue an interlocutory appeal filed within 20 days of date the trial court entered the order to be appealed. The prosecuting attorney must certify to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.
- You also learn that D gave police a post-arrest written, signed statement denying his involvement in this offense. You request that Prosecutor provide you a copy of the statement. Prosecutor refuses your request, claiming work product privilege. Is Prosecutor required to provide you a copy of D’s statement? Explain fully.
In addition to the State’s affirmative duty to provide the D with evidence that would negate guilt or diminish culpability or punishment, upon a D’s motion, the court may also require the State to produce for inspection and copying any evidence, including any document, written statement of the D, photographs, objects or tangible things not privileged, within its control or custody. Here, Prosecutor must disclose the statement because it is evidence that would negate D’s guilt, and if he refuses, I would also be permitted to request the document by filing a motion.
- You file a pre-trial discovery motion requesting a list of all the State’s witnesses. Prosecutor files a reciprocal motion requesting a list of all defense witnesses. How should the Court rule on the State’s motion? Explain fully.
The court does not have the discretion to order a D to provide a list of lay witnesses to the State. Here, the Court should grant Prosecutor’s motion as to any expert witnesses D intends to call at trial and deny it as to any lay witnesses that D intends to call at trial.
[On motion of either party, a court may order one or more of the other parties to disclose the names and addresses of the expert witnesses that the other party may use at trial. Disclosure must be made not later than 20 days before trial begins.]
- D elects to have a jury trial and instructs you to file an application for probation on his behalf. List three requirements of a proper application for felony probation.
A proper application for probation must be in writing and sworn, and it must state that the D has not been convicted of a previous felony. When the D elects jury sentencing, it must be filed prior to the commencement of voir dire.
- D decides to plead guilty to the lesser included offense of possession of Methamphetamine 4-200 grams. List three 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 for 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 matter raised by written motions filed prior to trial.
[Any three of the admonishments will be correct.]
- D changes his mind and elects to try both stages of his case to a jury. When the jury panel of 42 is assembled, you not that several police officers and a former bar examiner are among the first 15 venire persons. You believe that these individuals may not be favorable defense jurors. What action, if any, can you take to change the seating order of the venire persons? At what stage of the proceeding should you take this action? Explain fully.
I may request a “jury shuffle,” which is the re-seating of the prospective jurors in the venire panel. This may be executed once on the request of either party prior to voir dire.
- During your voir dire of the jury panel, you conclude that several prospective jurors are legally unfit to serve on the jury. You challenge them for cause. List five challenges for cause which may be made by either the State or the defense.
A challenge for cause may be made by either the State or the defense for any one of the following:
(i) The juror is not a qualified voter in the state and county; provided, however, the failure to register to vote shall not be a disqualification;
(ii) The juror has been convicted of misdemeanor theft or any felony;
(iii) The juror is under indictment or other legal accusation for misdemeanor theft or a felony;
(iv) The juror is insane;
(v) The juror has a bodily or mental defect or disease (such as legal blindness) as to render her unfit for jury service, and the court is not satisfied that she is fit for jury service in that particular case;
(vi) The juror is a witness in the case;
(vii) The juror served on the grand jury that found the indictment;
(viii) The juror served on a petit jury in a former trial of the same case;
(ix) The juror has a bias or prejudice in favor of or against the D;
(x) The juror has established a conclusion as to the guild or innocence of the D such as would influence the juror in finding a verdict; or
(xi) The juror cannot read or write.
[Any five would be a correct response.]
- After the jury is seated, Prosecutor delivers her opening statement. In that statement, she tells the jury as follows:
PROSECUTOR: I also expect the evidence to show that D knows full well that he is guilty of this offense. He knows that because he wanted to plead guilty in exchange for our plea bargain…
DEFENSE LAWYER: Objection!
COURT: What is your objection counsel?
What is the proper objection to Prosecutor’s statement? How should the Court rule? Explain fully.
Neither a withdrawn plea nor a statement made in a plea negotiation is admissible against the D in a subsequent proceeding. Here, Prosecutor is attempting to use the withdrawn plea against D, and because no exception appear to apply, the Court should sustain the objection to the inadmissible comment.
- The State’s first witness is Officer, who executed the search warrant. After he has testified on direct examination, the following exchange occurs:
COURT: Counsel, you may proceed.
DEFENSE LAWYER: Your Honor, the defense now movies for the production of Officer’s report for use during cross-examination.
PROSECUTOR: We object. The request is untimely. Counsel should have asked for the report at pre-trial. We refuse to produce the report.
How should the Court rule on Prosecutor’s objection? What sanctions may the Court impose if Prosecutor refuses to produce the statement? Explain fully.
The Court should overrule Prosecutor’s objection because, under the Gaskin rule, after a witness other than the D has testified on direct examination, the party not calling the witness will, on motion, be given any statement of the witness in the possession of the other party. If Prosecutor does not comply with the order to deliver the report, the judge will either (i) order that the testimony of the witness be stricken from the record and that the trial proceed, or (ii) declare a mistrial if required by the interest of justice.
- The State’s next witness is Convict, who intends to testify that he has previously been involved with D in several illegal drug transactions. You request that the Court consider the admissibility of Convict’s testimony in a hearing conducted outside the presence of the jury. What ground, or grounds, should you raise in your effort to exclude Convict’s testimony? Explain fully.
A D’s wrongful acts are not admissible to show his criminal propensity, but they may be admissible to show motive, intent, absence of mistake, identity, and common plan, if the probative value is not substantially outweighed by the danger of undue prejudice. I should argue that D’s prior bad acts are irrelevant, that they are not MIMIC evidence, and that the probative value of the evidence is substantially outweighed by the danger of under prejudice.
