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BAR EXAM > Crim Pro (TX) > Flashcards

Crim Pro (TX) Flashcards

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1
Q

WARRANTLESS ARRESTS

Need PC PLUS one of the statutory grounds (unlike Fed, just need PC):

A 
Presence or view of officer
Suspicious place or circumstances
Violation of PO
Preventing consequences of theft
Assault
Fleeing felons
Fugitives from another state
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2
Q

WARRANTS

Extend to:

A

ANY part of the whole state

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3
Q

INITIAL APPEARANCE BEFORE MAGISTRATE

Must be within:

A

without unnecessary delay—no more than 48 hours

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4
Q

INITIAL APPEARANCE BEFORE MAGISTRATE

What must mag inform D of?

A

(1) Charges against him
(2) Right to counsel
(3) Miranda rights, including right to terminate interview at any time
(4) Right to an EXAMINING TRIAL (if pre-indictment felony)
(5) Amount of bail

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5
Q

WARRANT

SEARCH warrant contents:

ARREST warrant contents:

Can a warrant be both?

A

(1) Runs “in the name of the State of Texas”
(2) Things to be seized and property to be searched
(3) Commands peace officer to conduct the search
(4) DATED and SIGNED by MAGISTRATE, including office
* If it’s an EVIDENTIARY SEARCH WARRANT, need to establish probable cause in the affidavit—the offense and how the evidence sought is linked to it.

(1) Name of person to be arrested
(2) Offense accused of
(3) DATED and SIGNED by MAGISTRATE, including office

Yes

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6
Q

WARRANT

Must be executed how fast?

A

Without delay—no later than 3 days after

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7
Q

CONFESSIONS

Voluntariness is evaluated under what standard?

A

Totality of circumstances

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8
Q

JACKSON v. DENNO HEARING

What is it?

A

Motion to suppress statements—challenges ONLY VOLUNTARINESS

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9
Q

JACKSON v. DENNO HEARING

What’s the jury’s role?

A

Not there for the hearing

If judge rules voluntary, jury can still DISREGARD if they find it was INVOLUNTARY BEYOND A REASONABLE DOUBT

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10
Q

WRITTEN CONFESSION

What’s required for the statement to be admissible?

A

(1) D was given Miranda warnings
(2) Knowing, voluntary waiver of rights
(3) D signed, or handwritten
* This all has to be apparent on the FACE OF THE DOCUMENT

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11
Q

ORAL CONFESSION

What’s required for the statement to be admissible?

(don’t need this stuff if you’re just using it to IMPEACH)

A

(1) Electronic recording (accurate)
(2) Mirand warnings ON THE TAPE
(3) Waiver ON THE TAPE
(4) All voices must be IDENTIFIED
(5) D atty was given a copy 20 DAYS BEFORE TRIAL

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12
Q

Pre-arrest vs. post-arrest silence

When can it come in?

A

Pre-arrest
- Only to IMPEACH

Post-arrest&raquo_space;> NEVER

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13
Q

BAIL

Factors for setting amount:

A 
MUST consider: 
Assure presence of D
Not excessive, instrument of oppression
Type of crime charged
D's financial resources
Safety of V and community
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14
Q

BAIL

When can judge outright deny?

A
  • Capital murder
  • D has two prior felonies
  • D presently on bail for another offense
  • The charged felony involved a deadly weapon
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15
Q

BAIL

What procedural device to challenge bail?

To whom is it directed?

A

Habeas

An official who has someone in custody

  • Judge of CCA
  • District judge
  • County judge
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16
Q

GJ

How many votes to convict?

A

9/12

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17
Q

GJ

Examining trial AFTER GJ?

A

NO

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18
Q

GJ

Requirements for WAIVER of GJ:

A

(1) Rep by counsel
(2) Open court or written
(3) Voluntary
(4) State isn’t seeking death penalty

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19
Q

GJ

Who’s allowed to be in the room?

A 
Prosecutor, staff
Witnesses
Grand jurors
Court reporter
Interpreter, if necessary
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20
Q

GJ

What kinds of crimes get a GJ?

A

Felonies

21
Q

GJ

If D appears before GJ, what warnings is he entitled to?

A

(1) Right to not answer incriminating Qs
(2) Notice of offense (county and time)
(3) Right to counsel OUTSIDE THE ROOM
(4) Right to have Qs and As recorded

22
Q

GJ

When is a transcript of GJ available to the defendant before trial?

A

Only if PARTICULARIZED NEED is shown

23
Q

PLEADINGS

When is it too late for D to object to a defect in indictment or information?

What motion to challenge the pleading?

A

The day of TRIAL

Motion to QUASH

24
Q

INDICTMENT

Required content:

A

OPEN:
- “in the name and by the authority of the State of Texas”
PLACE:
- Presented to and acted upon by a GJ in the proper county
- Place of the offense
NAME
- Person indicted (or reasonable description if unknown)
- Victim
DATE:
- Date of offense (can’t be in the future)
- Watch the YEAR
CHARGE
- Need ALL ELEMENTS
CLOSE:
- “against the peace and dignity of the State”
- Signed by the foreperson and DA

25
Q

DISCOVERY

How soon does P have to respond to a request?

A

As soon as PRACTICABLE

26
Q

DISCOVERY

In general, what are the only TWO THINGS a D has to disclose?

A

(1) Expert witnesses

(2) Insanity defense

27
Q

DISCOVERY

Deadling for motions filed before a pre-trial hearing?

A

7 days before the hearing

28
Q

BRADY

P has to do what?

Does D have to ask?

A

(1) DISCLOSE:
- All FAVORABLE, MATERIAL evidence in P’s POSSESSION

(2) PRESERVE AND MAKE AVAILABLE if D can’t otherwise obtain it

NO

29
Q

BRADY

What if the evidence is in police files?

A

P has a DUTY to investigate—not a defense that material information was in police file and P didn’t know

30
Q

BRADY

“material” =

A

Necessary for a FAIR TRIAL

Doesn’t require that the ev would have changed the outcome

31
Q

INCOMPETENCE

What’s the standard?

What’s the evidentiary BOP?

A

D is presumed competent. Must show:

(1) Ability to consult with atty with a reasonable degree of rational understanding

OR

(2) Rational and factual understanding of the proceedings against him
* PREPONDERANCE

32
Q

INCOMPETENCE

Entitled to a jury verdict?

Have to be unanimous?

A

Yes—totally separate jury

  • must be UNANIMOUS
33
Q

INCOMPETENCE

What’s the diff b/w incompetence and insanity from a practical standpoint?

A

Incompetence just sends D to a mental hospital and places trial on hold

Insanity = ACQUITTAL

34
Q

INCOMPETENCE

Can be raised before or during trial?

A

BOTH

35
Q

INSANITY

What’s the standard?

Evidentiary BOP?

A

Severe mental defect—didn’t know conduct was WRONG

  • PREPONDERANCE
36
Q

INSANITY

How much notice does D have to give of intention to raise this affirmative defense?

A

20 days

37
Q

GUILTY PLEA

Waives which constitutional rights?

A 
Privilege against self-incrimination 
Right to jury trial
Right to confront adverse witnesses
Right to call witnesses
Right to be convicted by proof BARD
38
Q

GULITY PLEA

Admonitions:

A

Court isn’t bound to accept
Right to appeal may be restricted
Ability to impose max punishment
Possibility of deportation

39
Q

TRIAL

When MUST D be present?

Does trial have to stop if he leaves?

A

Felony:
- At ALL STAGES

Misd:
- Only if IMPRISONMENT is possible

  • Can proceed if he leaves AFTER JURY SELECTION
40
Q

JURY

Qualifications:

A

(1) Qualified to vote in the state and county (don’t have to be registered)
(2) No CONVICTIONS for felony/theft
(3) Not under INDICTMENT/ACCUSATION for felony/theft

41
Q

JURY

How many peremptory challenges do you get?

  • Capital
  • Non-capital felony
  • Misd

What if there are 2 D’s charged together?

A

15
10
3

Felony:

  • Each D gets 6
  • P gets 12
42
Q

JURY

Batson procedure:

A

(1) Prima facie showing
(2) Race-neutral explantion
(3) Rebut as pretext

43
Q

JURY

Need a unanimous verdict?

  • Guilt/innocence
  • Punishment
A

YES

If unanimous on the first but not the second, have to impanel a whole new jury and redo punishment phase

44
Q

ORDER OF PROCEEDING:

A 
Indictment/information read
Plea by D
OPENING STATEMENTS: 
- State first
- D can go now or wait until state rests
CASE IN CHIEF
- State
* D can move for directed verdict 
- D case in chief (after opening if didn't do it earlier) 
REBUTTAL and SUR-REPLY (if requested)
JURY INSTRUCTIONS 
- Parties must object first
- Then read to the jury 
FINAL ARGUMENTS
- State opens AND closes 
Jury deliberations
Verdict 
(repeat everything for punishment phase)
45
Q

COMMUNITY SUPERVISION

Two types:

A

Strait probation

  • D is FOUND GUILTY
  • Imposition of a sentence is suspended and D is allowed to return to community under supervision

Deferred adjudication

  • If program is completed, D is NOT found guilty
  • If D FAILS, judge can impose the MAXIMUM PENALTY
46
Q

COMMUNITY SUPERVISION

When must D file his application?

What’s required for eligibility?

A

BEFORE TRIAL

Must verify that D has NEVER been convicted of a FELONY ANYWHERE in the US

47
Q

COMMUNITY SUPERVISION

Who determines whether D gets CS?

A

Straight probation:
- JURY — Judge MUST FOLLOW their recommendation

Deferred adjudication:
- Only the JUDGE. D must plead nolo contendere, rather than proceeding to trial and being found guilty.

48
Q

COMMUNITY SUPERVISION

What’s the difference in having straight probation revoked and having deferred adj revoked?

A

If revoked SP, judge can impose sentence UP TO the length of the probation, no more

If revoked DA, judge can impose the MAXIMUM SENTENCE

49
Q

WARNINGS at EXAMINING TRIAL:

A
  • D may make an unsworn statement BEFORE the witnesses are examined
  • But he does not HAVE to make a statement
  • Anything D says could be used against him
  • He has a right to have his statement recorded

BAR EXAM (25 decks)

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