Crim Pro (TX) Flashcards
WARRANTLESS ARRESTS
Need PC PLUS one of the statutory grounds (unlike Fed, just need PC):
Presence or view of officer Suspicious place or circumstances Violation of PO Preventing consequences of theft Assault Fleeing felons Fugitives from another state
WARRANTS
Extend to:
ANY part of the whole state
INITIAL APPEARANCE BEFORE MAGISTRATE
Must be within:
without unnecessary delay—no more than 48 hours
INITIAL APPEARANCE BEFORE MAGISTRATE
What must mag inform D of?
(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
WARRANT
SEARCH warrant contents:
ARREST warrant contents:
Can a warrant be both?
(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
WARRANT
Must be executed how fast?
Without delay—no later than 3 days after
CONFESSIONS
Voluntariness is evaluated under what standard?
Totality of circumstances
JACKSON v. DENNO HEARING
What is it?
Motion to suppress statements—challenges ONLY VOLUNTARINESS
JACKSON v. DENNO HEARING
What’s the jury’s role?
Not there for the hearing
If judge rules voluntary, jury can still DISREGARD if they find it was INVOLUNTARY BEYOND A REASONABLE DOUBT
WRITTEN CONFESSION
What’s required for the statement to be admissible?
(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
ORAL CONFESSION
What’s required for the statement to be admissible?
(don’t need this stuff if you’re just using it to IMPEACH)
(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
Pre-arrest vs. post-arrest silence
When can it come in?
Pre-arrest
- Only to IMPEACH
Post-arrest»_space;> NEVER
BAIL
Factors for setting amount:
MUST consider: Assure presence of D Not excessive, instrument of oppression Type of crime charged D's financial resources Safety of V and community
BAIL
When can judge outright deny?
- Capital murder
- D has two prior felonies
- D presently on bail for another offense
- The charged felony involved a deadly weapon
BAIL
What procedural device to challenge bail?
To whom is it directed?
Habeas
An official who has someone in custody
- Judge of CCA
- District judge
- County judge
GJ
How many votes to convict?
9/12
GJ
Examining trial AFTER GJ?
NO
GJ
Requirements for WAIVER of GJ:
(1) Rep by counsel
(2) Open court or written
(3) Voluntary
(4) State isn’t seeking death penalty
GJ
Who’s allowed to be in the room?
Prosecutor, staff Witnesses Grand jurors Court reporter Interpreter, if necessary
GJ
What kinds of crimes get a GJ?
Felonies
GJ
If D appears before GJ, what warnings is he entitled to?
(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
GJ
When is a transcript of GJ available to the defendant before trial?
Only if PARTICULARIZED NEED is shown
PLEADINGS
When is it too late for D to object to a defect in indictment or information?
What motion to challenge the pleading?
The day of TRIAL
Motion to QUASH
INDICTMENT
Required content:
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
DISCOVERY
How soon does P have to respond to a request?
As soon as PRACTICABLE
DISCOVERY
In general, what are the only TWO THINGS a D has to disclose?
(1) Expert witnesses
(2) Insanity defense
DISCOVERY
Deadling for motions filed before a pre-trial hearing?
7 days before the hearing
BRADY
P has to do what?
Does D have to ask?
(1) DISCLOSE:
- All FAVORABLE, MATERIAL evidence in P’s POSSESSION
(2) PRESERVE AND MAKE AVAILABLE if D can’t otherwise obtain it
NO
BRADY
What if the evidence is in police files?
P has a DUTY to investigate—not a defense that material information was in police file and P didn’t know
BRADY
“material” =
Necessary for a FAIR TRIAL
Doesn’t require that the ev would have changed the outcome
INCOMPETENCE
What’s the standard?
What’s the evidentiary BOP?
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
INCOMPETENCE
Entitled to a jury verdict?
Have to be unanimous?
Yes—totally separate jury
- must be UNANIMOUS
INCOMPETENCE
What’s the diff b/w incompetence and insanity from a practical standpoint?
Incompetence just sends D to a mental hospital and places trial on hold
Insanity = ACQUITTAL
INCOMPETENCE
Can be raised before or during trial?
BOTH
INSANITY
What’s the standard?
Evidentiary BOP?
Severe mental defect—didn’t know conduct was WRONG
- PREPONDERANCE
INSANITY
How much notice does D have to give of intention to raise this affirmative defense?
20 days
GUILTY PLEA
Waives which constitutional rights?
Privilege against self-incrimination Right to jury trial Right to confront adverse witnesses Right to call witnesses Right to be convicted by proof BARD
GULITY PLEA
Admonitions:
Court isn’t bound to accept
Right to appeal may be restricted
Ability to impose max punishment
Possibility of deportation
TRIAL
When MUST D be present?
Does trial have to stop if he leaves?
Felony:
- At ALL STAGES
Misd:
- Only if IMPRISONMENT is possible
- Can proceed if he leaves AFTER JURY SELECTION
JURY
Qualifications:
(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
JURY
How many peremptory challenges do you get?
- Capital
- Non-capital felony
- Misd
What if there are 2 D’s charged together?
15
10
3
Felony:
- Each D gets 6
- P gets 12
JURY
Batson procedure:
(1) Prima facie showing
(2) Race-neutral explantion
(3) Rebut as pretext
JURY
Need a unanimous verdict?
- Guilt/innocence
- Punishment
YES
If unanimous on the first but not the second, have to impanel a whole new jury and redo punishment phase
ORDER OF PROCEEDING:
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)
COMMUNITY SUPERVISION
Two types:
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
COMMUNITY SUPERVISION
When must D file his application?
What’s required for eligibility?
BEFORE TRIAL
Must verify that D has NEVER been convicted of a FELONY ANYWHERE in the US
COMMUNITY SUPERVISION
Who determines whether D gets CS?
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.
COMMUNITY SUPERVISION
What’s the difference in having straight probation revoked and having deferred adj revoked?
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
WARNINGS at EXAMINING TRIAL:
- 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
