Crime pro Flashcards
Rules for Fixing Bail [LASSO] and who can set bail / Denying Bail
LASSO
Likelihood of D appearing for trial
Ability of D to make bail
Seriousness of the crime charged
Safety of victim and community
• Magistrate may impose any reasonable condition on bail related to safety of V or community.
Oppressiveness of bail (can’t be oppressive)
Setting Bail: sheriff, police officer or other jailer can set bail.
Denial of bail: is possible in 2 cases (1) capital murder prosecutions and (2) certain prosecutions for noncapital felonies
• Must file a motion for denial of bail in district court (rule: only a district judge can deny bail in a noncapital prosecution). Any order denying bail must issue within 7 days of D’s apprehension.
Bail can be denied in a non-capital case only if:
• D is charged with a non-capital felony and
• Substantial evidence of D’s guilt of that crime and
• 1 of the following:
• 2 prior felony convictions or
• present offense committed out on bail on felony or
• both: (a) one prior felony conviction and (b) present offenses involved use of a deadly weapon or
• present offense was a violent or sexual offense committed while on felony probation or parole
Appealing Bail Denial
(1) File application for writ of habeas corpus in district court
(2) At hearing, introduce evidence showing:
• Bail set was excessive;
• Cannot meet bail set; AND
• Amount of bail he can meet
(3) District judge may order bail reduced
(4) If not, can appeal before trial to Court of Appeals
Immediately appeal order denying bail to Court of Criminal Appeals (highest TX court).
Denial of bail for a non-capital felony can last only until 60 days from D’s initial detention. At that point, order denyng bail is auto vacated and D entitled to have bail set. After 60 days, counsel should make a motion to have bail set.
Denial of bail for non-capital prosecution lasts only 60 days as long as D does not move for a continuance of the trial proceedings
Search Warrant
Officer must execute a written and sworn affidavit. In that document, officer must allege facts from which a magistrate can find there is probable cause to believe: 1) a specific offense has been committed, 2) the evidence tends to prove that the offense was committed or who committed it, and 3) the evidence is located in the promises to be searched.
Expiration: Three days excluding the date of issuance and the day of execution
Grand Jury (Formation/Deliberations)
A grand juror that issued the indictment cannot serve on the jury.
Formation: By summons from a fair cross section of the community like a petit jury.
Deliberations: No person can be in the grand jury room during deliberations. A prosecutor can only present charges or answer questions of law when the juror are not deliberating.
Missing Witness
To obtain more time, I can move for a continuance to locate a missing witness. The motion must be sworn.
To get the continuance, I must show the court:
1) the name and residence of a witness,
2) the material facts I plan to show by this witness,
3) the diligence I have used to try to get the witness, and 4) that the motion is not being made for delay. Since a pretrial hearing has been set, I must file this motion seven days before the date of that hearing
Compelling a Witness to Testify
Can obtain a subpoena for witness by applying to the clerk of the trial court. Subpoena will order appearance.
If witness does not appear as required by the subpoena, can then get an attachment, which will authorize a peace officer to locate her and bring her before the court. If not properly subpoenaed then cannot get an attachment if witness fails to show up.
Withdrawn Guilty Plea
Plea of guilty to the judge can be withdrawn as a matter of right before the court takes the plea under advisement
Under Texas rule of evidence 410, a plea of guilty that is later withdrawn cannot be used against the defendant who entered the plea
Mandatory Severance
A trial judge must grant the motion because severance is mandatory if the moving defendant shows the co-defendant has a prior conviction admissible against that co-defendant at trial
May get a pretrial determination of whether co-Ds’ conviction is actually admissible by filing a pretrial motion in limine asking a trial court to hold it inadmissible. If a trial court rules the conviction admissible during pretrial, must still object at trial to preserve any issue for appeal.
Jury Challenges: For Cause
challenges for cause (unlimited)
• (1) prior conviction for theft or a felony; (2) under formal charge for theft or felony; (3) insane; not qualified to be a voter; is a witness in the case; served on a jury in prior trial of the case; served on indicting grand jury; illiterate; biased or prejudiced against accused or the law (unless states can render verdict despite their opinion)
• If 1-3 sat, conviction must be set aside if D either: (1) raised this pre-verdict entry or (2) shows “sig harm” as a result of juror’s service
—If denied, then can use a peremptory challenge after objecting on the record to the denial
Jury Challenges: Peremptory
- Capital murder death penalty cases: 15
- Other felony: 10
- Misdemeanors in county, muni, or justice: 3
- Misdemeanors in DC: 5
Felony Proceeding Order
Felony Trial:
(1) judge calls for and gives parties announcements of readiness;
(2) prosecutor reads the indictment;
(3) defense counsel enters a plea for D;
(4) Prosecutor makes State’s opening statement;
*(5) prosecution presents State’s Case-n-Chief;
*(6) defense counsel makes defense opening statement;
(7) defense present defense evidence;
(8) rebuttal evidence presented;
(9) judge reads charge or indictment to the jury;
(10) counsel makes final arguments to the jury
o *Exception: Upon request, D counsel may make D’s opening statement immediately after the State’s opening statement
The Rule
Exclusion of witnesses from the courtroom. If I do this, and no exception to the rule applies, the trial judge must exclude officer and the state’s tattoo expert from the courtroom and order them not to talk with anyone about the case, except with the permission of the trial judge.
Sequestration: Rule 615 excludes persons who are witnesses from attending trial or discussing their testimony with others except the lawyers. Can incl. Vs.
Exception: witnesses who are shown to be essential to prosecution of a party’s case; D’s spouse; co’s representative
6th Amendment Confrontation Clause
Even if not inadmissible b/c of hearsay, Confrontation clause can make statement inadmissible against D in a crim case. Testimonial stmts are inadmissible unless the declarant is unavailable AND the D had an opportunity to cross the declarant when the stmt was made. Only in crim cases and only when the prosecution is offering the evid.
Unrecorded Oral Statements
Oral statements must be recorded to be admissible.
Depositions
Follow the rules of civil procedure control where they do not conflict with the CCP or constitutional rights
Preserve Insufficiency of the Evidence Claim
To preserve sufficiency of the evidence challenge on appeal, can file a motion for DV on the basis that evidence is insufficient
Rules for Holding Without Bail
Release on bail required if no probable cause determination by magistrate: (a) felonies after 48 hours of arrest without warrant, (b) misdemeanor after 24 hours of arrest without warrant / magistrate can delay release for not more than 72 hours
Bond Requirements and personal bond
Bail bond requires a surety or cash deposit.
Personal Bond requires neither—just accused’s promise to pay the amount if the bond is forfeited.
Must be released on personal or reduced bail if state not ready within:
90 days for felony cases / Class A: 30 / B: 15 / C: 5
Examining Trial
subs for indictment/prelim hearing
Any magistrate can hold examining trial. Thus, can be held in any court.
Examining trial is a pretrial hearing (charges without indictment) before a magistrate. Its purpose is to require the State to produce evidence showing probable cause to believe D guilty of the crime.
Entitled to Examining Trial if: (a) charged with a felony and (b) an indictment has not yet been returned.
D has rights to: (1) be present; (2) be repped by counsel; (3) have rules of evidence applied; (4) cross-examine State witnesses; and (5) subpoena and present defense witnesses
• Can make an unsworn voluntary stmts before any witnesses testify
If “win” at Examining: prosecution and conviction not prevented but entitled to go free until and if he is indicted
Charging D with a Crime (indictment; Waiver; Information)
State must seek an indictment: to get this a grand jury must vote to return a “true bill” against D. Requires grand jury to find probable cause exists to believe Sims is guilty. Foreperson will then sign the indictment and it will be filed in the DC.
Indictment Waiver: permissible in all prosecutions except for capital murder. To waive: (1) D must be represented by counsel; (2) waiver must be by written instrument or in open court; and (3) waiver must be voluntary
• If waived then State files an information.
Information: A pleading filed by the State charging the person named with a criminal offense. It differs from an indictment in that it need only be approved and signed by the prosecutor (indictment must be approved by a grand jury and signed by the foreperson distinction)
• An information (not indictment) must be supported by a valid and sworn complain, which must also be filed. The sworn complain is itself the charging instrument.
Grand Jury Selection
DC tests grand juror’s qualifications. Then impanels 12 grand jurors and 4 alternates.
Formation: By summons from a fair cross section of the community like a petit jury.
Composition: Any person can challenge array of grand jurors or any person selected. Challenges on p.9 (showing bias or incompetence)
Grand Jury Proceedings: D (compelling appearance vs. voluntary / right to participate? / Lawyer addressing Grand Jury?)
Grand jury can compel D to appear with a subpoena. But it cannot compel an answer to questions if D invokes his 5th amendment privilege against self-incrimination
If D appears voluntarily, he will be a suspect witness. Thus, before questioning he must be warned of (1) the offense of which he is suspected; (2) the county in which it was committed; and (3) time of its occurrence.
• Also, questions asked and his testimony must be recorded
D has no right to participate: may appear as witness, and with grand jury’s permission he may address the grand jury BUT he may not cross-examine witnesses.
Lawyer representing a suspect may address the grand jury if: (a) grand jury permits this and (b) the prosecutor consents
Grand jury: Suspect Witness
As a subpoenaed suspect witness, must be given warning before being ques:
(1) testimony is under oath;
(2) a false answer = perjury;
(3) can refuse to answer incriminating questions;
(4) right to counsel appointed;
(5) right to lawyer present outside the room;
(6) testimony can be used against him;
(7) must be given written copy of warnings and
(8) must have reasonable opportunity to obtain and consult with counsel
Who can be present at grand Jury?
Once deliberation, only grand jurors can be present. When conducting proceedings (prior to deliberation and voting) the prosecutor, stenographer, bailiff, and an interpreter may be present
SoL for Prosecution (tolling; no SoL crimes; SoL)
Running of SoL is “tolled” and time elapsing not counted: (a) while D is out of the state and (b) while a charging instrument charging the same offense is pending against the accused and later dismissed
No period of limitations for: murder and manslaughter; offense involving leaving the scene of an accident; sexual assault where DNA testing such that person not readily ascertainable; child sexual assault
Period of limitations (for timely indictment)—from commission of the crime:
• Misdemeanors: 2 years (2Ms)
• Felonies: 3 year (f3)
• Theft, burglary, robbery, kidnapping: 5 years
Charging Instruments
An indictment or information alleges only facts (crime not IDed by name; statute violated not specified)
Substantive requires (a) charging the offense and (b) providing the accused with trial prep notice
To “charge the offense”: (a) Facts constituting all elements must be alleged; (b) statutory language usually insufficient; (c) any victim must be named
More detail and specificity may be required to provide notice.
Formal Requisites of an Indictment or Information
Must be met on face of an indictment or information:
(1) commence: “In the name and by authority of the State of Texas”
(2) name the accused (or describe him)
(3) set forth (“charge”) all elements of the offense
(4) Specify enough details to give accused notice
(5) Allege the crime was committed on a date that is both:
• within period of limits and before presentment of indictment
(6) Allege commission of the crime in a county within court’s jurisdiction (venue)
(7) conclude: “Against the peace and dignity of the State”
(8) Be signed (indictment: foreperson/information: prosecution)
Indictment’s Significance at Trial
Determines the offenses for which the accused can be convicted
• Generally, jury can convict D only of an offense charged n indictment BUT sometimes jury is instructed on (permitted to convict of) “lesser included” offenses
Specified detailed allegations may give rise to a “variance” between indictment and proof, sometimes requires acquittal.
Jury Should be Instructed of Lesser Offense when:
Other offense is a lesser included offense of the crime charged and
Evidence before the jury is such that the jury could find both that: (1) D is not guilty of the charged offense and (2) D is guilty of the lesser included offense.
Incorrect Name of Accused
If D believes name specified as the accused in the indictment is not D’s true name: D must raise this at arraignment; must specify his true/real name AND; judge is then to correct the indictment so it accuses D by his own true name
Curing Defects: Amendment
Permitted at any time if D does not object. Permitted over objection depends when amendment is sought
If sought before trial date: Any amendment is permitted whether it is of form or substance
Limits: An amendment is not permitted over D’s objection if amendment would
• (1) cause indictment to allege a different offense or additional offense or
• (2) prejudice substantial rights of D
D’s Procedural Protection: Entitled to advance notice of a proposed amendment; trial court must authorize an amendment/prosecution cannot make an amendment unilaterally; If indictment is amended and D requests, D must have not less than 10 days to prep for trial on amended indictment, and right to delay trial if necessary
Arraignment 3 Purposes
Takes place in trial court and serves several functions: (1) accused enters a plea; (2) point for fixing accused’s identity; and (3) judge appoints counsel
Pleas
Pleas by the Accused: Guilty/Not guilty/nolo contendre
D must personally make some decisions in a prosecution: (a) what plea to enter; (b) whether to have a trial by jury; (c) whether to take witness stand
Notice of D’s intent to intro insanity evid must be filed 20 days before trial
No difference in criminal prosecution between guilty and nolo contender BUT if civil lit arises then guilty used as evidence but nolo contendre is not.
Nolo Contendre: Judge must inform: (1) D of the range of punishment; (2) D that recommendations by the State are not binding; (3) of the limited right, after guilty plea, to appeal; (4) inform D plea may result in deportation; (5) inquire as to whether there is a plea bargain
Motion to Quash Time Limit
Motion to quash must be filed 7 days before pretrial hearing, not just before the day on which trial begins. If not filed then, cannot be raised later except by leave of the court for good cause
Motion in Limine
Pre-trial motion that asks for either (or both): (1) a pretrial ruling on the merits of some question of evidence or procedure that will arise during trial or (2) a pretrial ruling that opposing counsel must alert judge before raising some matter of evidence or procedure before jury
• Pretrial ruling on in limine does not preserve a matter for appeal
Motion to Suppress Evidence
A motion to suppress may be used to raise pretrial any argument that evidence to be offered at trial is inadmissible. Most often, motion is used to raise a contention that evidence has been illegally obtained or confession is inadmissible.
Preferred over waiting to object at trial.
Pretrial ruling on a motion to suppress preserves the issue for appeal
Witness Lists: Prosecution
Generally state must provide the defense with a list of witnesses the State intends to call
Expert: on D’s request, State must provide defense with a list (names and addresses) of expert witnesses it may call at trial (at least 20 days before jury selection)
Trial judge has discretion to exclude or admit testimony of a witness left off an ordered witness list. Consider: (1) whether omission was intentional and (2) whether defense received actual notice that witness would testify.
Witness Lists: Defense
Trial court has authority to order defense to provide State with a list of expert witnesses and their names and addresses. Should enter order compelling.
No authority to compel the defense to provide State with a summary of anticipated testimony/no authority compel defense to provide State with any information at all for fact witnesses
Deposition of Witness
Counsel must obtain an order, after filing motion supported by an affidavit stating “good reason” for taking deposition. Notice must be given to the state
Either side may be permitted to depose a witness:
• Trial judge Must issue an order authorizing the deposition
• To obtain this, the party must show good reason for the deposition
Inspection
Trial judge has authority to order the State to permit D to inspect certain things
Inspection must be ordered if the thing: (1) is a tangible thing; (2) constitutes or contains material evidence; (3) is in the possession of the State; and (4) is not “the WP” of the state (physical evidence is not protected WP/police reports and witness statements are no longer covered by WP)
Informant Disclosure
Informer’s identity generally privileged and can be withheld by State.
Disclosure may be required if (1) informant provided information by which State obtained evidence in a way D claims was illegal, court has discretion to require disclosure if necessary to establish informer’s reliability; (2) upon a showing the informant can provide testimony necessary to a fair determination of guilt-innocence, court must order disclosure
Federal Constitutional Duty to Disclose Exculpatory Evidence
D’s due process rights under Brady are violated if both: (1) prosecution fails to disclose exculpatory info in its possession and (2) info is “material” (if disclosed, there is a reasonably probability outcome of the case would differ)
Competency to Stand Trial
D is incompetent to stand trial/witness’ incompetence if either:
• Lacks ability to consult w/counsel w/a reasonable degree of rational understanding or
• She lacks rational and factual understanding of the proceedings
Can be raised by D’s motion, court may raise (trial judge must on court’s own motion suggests D may be incompetent if evidence of incompetency comes to court’s attention)—trial judge must make prelim inquiry, if shows sig evid of incompetency then must hold a full hearing. If either party or judge requests, determination must be made by a jury.
• Presumed competent but can rebutted by D’s showing by POE that D lacks ability to consult w/counsel or lacks understanding of proceeding
Venue
Venue lies in county where crime was committed or act involved in commission of the offense was committed
D May Seek Change of Venue if:
(a) Prejudice in county would prevent a fair trial or (b) dangerous combo of influential persons against D would prevent fair trial.
Change of venue, D counsel must file (to show sufficient prejudice preventing a fair trial): (1) written motion for change of venue; and (2) affidavits that a fair trial cannot be held in the county by (a) D and (b) 2 credible residents of the county
Motion for change of venue must be filed 7 days before pretrial hearing. Failure to do so will prevent a later motion to change venue unless court gives permission for good cause showing.
State May Seek Change of Venue if:
(a) combo or influences in favor of D would prevent fair trial; or (b) lawless conditions would prevent fair trial; or (c) life of D or a witness would jeopardize by local trial
