Criminal Law Flashcards
Who taught criminal law?
Jane Vara
Phases of Criminal Case?
Pre-trial
Trial
Post Trial
Who can be arrested?
Anyone who is 17 years of age or older
Why is someone arrested?
Police officer has formed a belief that there is probable cause to believe a crime has been committed and the individual being arrested is the person who committed the crime.
What is the burden of proof needed for an arrest?
“more likely than not” (a very low burden)
Intake system
24/7/365 Prosecuters DA waiting, police officer calls them
What types of offenses result in an arrest?
Class A, B, & C Misdemeanors
State Jail Felony
1st, 2nd, 3rd Degree Felonies
Capital Murder
Types of Misdemeanors
3 types
Class C
Class B
Class A
Class C misdemeanor jurisdiction is with ____________________________.
municipal and JP courts
Class B misdemeanor jurisdiction is with
County Criminal Courts at Law.
Class A misdemeanor jurisdiction is with
County Criminal Courts at Law.
Class C misdemeanors may be appealed
to a higher court.
Class C misdemeanors may be appealed to a higher court.
True
May arrest for Class C misdemeanors except
speeding and having an open container in vehicle.
Refusing to sign a ticket will
always get you arrested.
____________________ is not within the punishment range.
Confinement
Confinement for Class C misdemeanors
is not within the punishment range.
Confinement is not within the punishment range for Class C misdemeanors.
True
Class B jurisdiction is with
County Criminal Courts at Law.
What Jurisdiction are Class C, B, and A misdemeanors?
C: municipal and JP courts
B: County Criminal Courts at Law
A: County Criminal Courts at Law
Class B and A misdemeanors jurisdiction are both with County Criminal Courts at Law.
TRUE
Class C misdemeanor jurisdiction is with municipal and JP courts.
TRUE
Class B misdemeanor punishment range is
from probation up to 6 months in county jail.
The punishment range of probation up to 6 months in county jail is for
Class B misdemeanors.
Class B misdemeanor punishment range is from probation up to 6 months in county jail.
TRUE
Class B misdemeanor you can _________ be arrested.
always
Class B misdemeanor you can always be arrested.
TRUE
Class A jurisdiction is with County Criminal Courts of Law.
TRUE
Class A misdemeanor punishment range is from
probation up to one year in county jail.
Class A misdemeanor punishment range is from probation up to one year in county jail.
TRUE
The punishment range of probation up to one year in county jail applies to
Class A misdemeanor.
For a Class A misdemeanor you can _______________ be arrested.
always.
For a Class A misdemeanor you can always be arrested.
TRUE
Felony Types
State Jail Felony Third Degree Felony Second Degree Felony First Degree Felony Capital Murder
Felony jurisdiction is with
Criminal District Courts
Criminal District Courts have jurisdiction over
felonies.
Felony jurisdiction is with Criminal District Courts.
TRUE
State jail felony punishment range is
from probation or 6 months to 2 years in State Jail Facility.
Punishment range for State Jail Felony is
from probation or 6 months up to 2 years in State Jail Facility.
What State Jail Felony could get you probation under what circumstances?
Possession of cocaine less than 1 gram with no priors.
What qualifies as a State Jail Felony?
Possession of Controlled Substance less than 1 gram and 4th prostitution
What is the punishment range for 3rd degree Felony?
probation or 2 to 10 years in the prison.
What qualifies as 3rd degree Felony?
- Intoxication Assault, 3rd DWI, 2nd Assault
- Family Violence
Probation or 2 to 10 years in prison
is punishment range for 3rd degree felonies.
2nd degree Felony example
aggravated assault - deadly weapon or by threat. either weapon used, or injure to point of serious bodily injury?
2nd degree felony punishment range is
from probation or 2 to 20 years in the prison.
Probation or 2 to 20 years in the prison is punishment range for
2nd degree felony.
First degree felony (stuff that makes the news) is
murder, aggravated robbery, aggravated sexual assault.
Punishment range for 1st degree felony is
RARE case- probation, or 5 to 99 years or life in prison, up to a $10,000 fine.
5 to 99 years or life in prison, rare case probation, and up to $10,000 fine is punishment range fore
1st degree felonies.
If you are sentenced to confinement and it is labeled aggravated, a 3G offense,
it is auto serve half flat, before eligible for parole.
3G offense got its name for the section of the law. A judge cannot give ______________, but a jury can on a 3G offense.
probation except see BUT Sept 1, 2007
BUT as of September 1, 2007, a jury is no longer able to recommend probation for the following offenses:
- Murder
- Indecency with Child by Contact if victim is younger than 14
- Aggravated Sexual Assault if victim is younger than 14
- Aggravated Kidnapping if victim was younger than 14 and kidnapped with intent to commit sexual assault
- Sexual Performance by a Child (video, club, prostitution)
Capital Murder is very narrowly drawn in Texas.
Capital murder is very narrowly drawn in Texas.
Capital Murder is defined in Texas as
- Killing a police officer in the line of duty
- Murder while in course of committing another felony
- Killing more than one individual in the same criminal transaction
The punishment for Capital Murder is
life in prison without parole or death.
You can be arrested for any felony.
TRUE
What happens after an arrest?
- Taken to jail
- Magistrate reads defendant his warnings
- Bond is set
What is bond meant to do?
secure the appearance of the defendant.
Bond is not meant to punish the defendant, because
so far it is just an accusation. Innocent until proven guilty. Bond is just meant to secure the appearance of the defendant.
What is taken into consideration when considering bond?
- Criminal history
- Nature of offense
- Defendant’s ability to post bond
- Ability to flee
- Safety of public
In some cases a _______________ is set.
no bond.
In some cases a “no bond” is set.
TRUE
PR Bond?
personal recognizance
What is the age of culpability?
17 years old
I have never been arrested.
TRUE
Sometimes a “no bond” is set in the case of a _____________________, someone who has been twice convicted of a felony before, and this arrest is the 3rd charge.
true habitual
At the initial court appearance
representation, enter a plea (generally not guilty), and attorney and state negotiate
What representation options are there?
- Hire an attorney
- Request appointed counsel if you can prove indigence
- If incarcerated, some courts will presume indigence
indigence (related to attorney hiring)
truly can’t afford an attorney
disposition of a criminal case
settlement of a criminal case
3 ways for disposition of a criminal case
- Dismissal
- Plea
- Trial
Motions in Trial
- Discovery Motion
- Brady Motion
- Motion to Suppress Evidence
Discovery Motion is
a method of getting information.
Discovery motion is governed by
Code of Criminal Procedure.
Discovery motion should be filed in every criminal case.
TRUE
Discovery motion is somewhat limited. Always entitled to a client’s statement, but other statements are only discoverable after an individual testifies.
TRUE
Brady motion came from the case
Brady v. Maryland
Brady motion is the
absolute duty to turn over any evidence that defendant is innocent.
Brady motion is the
formal method by which you obtain evidence that is favorable to a defendant. The absolute duty to turn over any evidence that the defendant didn’t do it.
The formal method by which you obtain evidence favorable to a defendant is the
Brady Motion.
Brady evidence is called
exculpatory evidence.
Exculpatory evidence is
Brady evidence that tends to show that defendant did not commit the crime or evidence that mitigates his punishment.
Prosecutor has an absolute duty to turn such evidence(Brady) over to the defense if it is in the State’s possession.
TRUE
Grand Jury is
12 citizens who hear probable cause.
A no-bill is when the case stops right there. there is no probably cause to believe offense is committed.
TRUE
A Grand Jury can True Bill or No Bill a case.
TRUE
During a Grand Jury a defense attorney can put together a grand jury packet, but cannot be there to present it.
TRUE
If a Grand Jury True Bill’s a case it moves towards trial.
TRUE
Brady Motion is one of the most important to file.
TRUE
Motion to Suppress Evidence is
method by which you attempt to keep evidence out of trial that harms the defendant.
Motion to Suppress Evidence is
method by which you attempt to keep evidence out of trial that harms the defendant.
Method by which you attempt to keep evidence out of trial that harms the defendant.
Motion to Suppress Evidence
Motion to suppress Evidence examples to suppress could be
coerced statements, physical evidence
Before taking a statement from someone in custody s/he must be read
miranda rights
Trial Option
Jury or Court
In a Court trial, judge decides
both guilt/innocence and punishment
Best option is usually jury trial, unless there is truly only legal issue, no facts in debate, and you know the judge.
TRUE
In a felony jury trial there are
12 jurors.
In a misdemeanor jury trial there are
6 jurors.
“all i need is 1” refers to
lawyers hope to “hang a jury”
Order of a Trial
- Voir Dire
- Opening Statements
- Presentation of Evidence
- Closing Arguments
- Receive Verdict
- Punishment Phase
- from the outline
Batson Motion
must state a race or gender neutral reason why the potential juror was struck
Order of Opening Statements
- State
2. Defense
Presentation of Evidence order
- State
2. Defense
Closing Arguments Order
- State
- Defense
- State
Receive Verdict if guilty, punishment phase begins. If not guilty, it’s over.
TRUE
Two methods of appeal post trial
- Direct Appeal
2. Writ of Habeas Corpus
Direct Appeal is based on what is in the record.
TRUE
Direct appeal (based on what is in the reccord) go to appellate Courts in Houston which ones?
1&14.
Appellate Courts? 2 types?
- Court of Appeals
2. Criminal Court of Appeals
Appeals must be filed. Must file Notice of Appeal. The only automatic appeal is in
death penalty cases.
Direct appeal is review of question of law, not fact.
TRUE
Only a small percentage of cases are reversed on appeal.
TRUE
Writ of Habeas Corpus
set my body free
Writ of Habeas Corpus may raise issues
outside the record.
Writ of Habeas Corpus may raise issues
outside the record.
What type of appeal may raise issues outside the record?
Writ of Habeas Corpus
What could be raised outside of the record in a Writ of Habeas Corpus appeal?
- Actual Innocence
- DNA
- Ineffective Assistance of Counsel
DNA
deoxyribonucleic acid
Writ of Habeas Corpus appeal goes directly to
Court of Criminal Appeals (Texas Highest Court)
Writ of Habeas Corpus appeal may have a hearing in the convicting court regarding issues raised in the writ.
TRUE
Juvenile Law - who is a juvenile in court?
A person who commits a criminal offense and is at least 10 years of age but not older than 16 years of age.
Can a juvenile be arrested?
No, only 17+ are arrested, juveniles are “detained”
Juveniles may be charged with
misdemeanors and felonies. Anything adult can be charged with, so can juvenile.
Juvenile court is a hybrid of
civil and criminal law.
The absolute minimum age for a juvenile is
10.
Class C offenses are handled in
JP and municipal courts like adult offenses.
If Class B misdemeanor or above a juvenile may be ________________ at the time of the offense.
detained
A ____________________ may also be issued for a juvenile.
directive to apprehend
If a judge finds probable cause to detain exists, a _______________________ can be issued for a juvenile.
directive to apprehend
Juveniles do not go to jail, they go to
juvenile detention center.
A __________________________ is issued when a judge finds _______________________________.
- directive to apprehend
2. probable cause to detain exists
probable cause to detain exits
- crime has been committed
2. violation of probabtion
Procedure for getting juvenile released from detention
- Hearing before one of three judges
- Considers factors
- May be placed on pre-adjudication supervision
Name the three judges a juvenile might see.
- Magistrate Judge
- District Court Judge
- Master in District Court
What are the factors considered in a juvenile detention hearing.
- will the juvenile run away or will his parent take him away from jurisdiction
- does juvenile have appropriate supervision
- does juvenile have a parent or guardian who can transport him to court
- is the juvenile a danger to the community or himself
- has the juvenile been found to be a delinquent child previously or been convicted of an offense punishable by term in jail or prison
- is the juvenile likely to commit another offense if released
When is a juvenile detention hearing heard?
in first 48 hours, and then every 10 days.
In court the terminology is different for a juvenile.
true
Juvenile is called a
respondent.
Juvenile is charged by a
petition.
in Juvenile law, Trial is called an
adjudication hearing.
Juveniles are not “guilty” or “not guilty”; they are
found to have engaged in delinquent conduct or found not to have engaged in delinquent conduct.
In Juvenile law, instead of a punishment phase of trial, there is a ___________________ after the adjudication hearing.
disposition phase
In juvenile law, instead of a punishment phase of trial, there is a __________________________- after the adjudication hearing.
disposition phase
Protections given to juveniles
- Before juvenile gives a statement to police, a neutral magistrate must read the juvenile his Miranda warnings
- Prior to beginning the adjudication hearing juvenile must be warned by judge of charges, nature and possible consequences, right against self-incrimination, right to trial and to confront witnesses, right to an attorney, and right to have trial jury
Before a juvenile gives a statement to police a ________________________ must read the juvenile his Miranda warnings.
neutral magistrate
Before a juvenile gives a statement to police, a ______________________ must read the juvenile his Miranda warnings.
neutral magistrate
In a juvenile case, the states burden is
beyond a reasonable doubt.
The adjudication hearing
- juvenile has a right to a jury trial
- Follows civil rules of procedure
- Follows criminal rules of evidence
- Illegally seized or obtained evidence still not admissible
- juvenile can withdraw their plea of guilty if judge does not follow plea bargain
The adjudication hearing follows
civil rules of procedure and criminal rules of evidence.
The disposition hearing the child does not have a right to a jury unless
it is a determinate sentencing proceeding.
At the disposition hearing the courts consider
written reports from probation officers, psychologist, therapists, and witness testimony allowed at that phase.
Before placing the child outside of his home (it is the court’s first goal to keep the kid in own home), the Court must find that juvenile’s home enviroment is
not conducive to the juvenile to meet the conditions of probation.
TYC
Texas Youth Commissions
Prosecutor presents petition to grand jury for approval of determinate sentencing.
true
determinate sentencing applies when juvenile is a habitual felon or has committed the following offenses among others:
- Murder
- Capital Murder
- Manslaughter
- Aggravated Sexual Assault
- Sexual Assault
- Aggravated Sexual Assault
- Aggravated Assault
- Aggravated Robbery
What is Determinate Sentencing in Juvenile Court?
No, really. What is determinate sentencing in juvenile court? (sentencing for a fixed length of time that goes past age of being juvenile?) ?
If determinate sentencing case reaches disposition hearing, it allows the prosecutor to ask a jury for the following sentences
- 40 years for Capital felony, first degree felony, aggravated controlled substance felony
- 20 years for second degree felony
- 10 years for third degree felony
In a determinate sentencing case a jury may still give probation.
true
TYC (Texas Youth Commissions) will keep until ______ years of age and then transfer hearing is heald.
19
Determinate sentences _________be sealed.
can not
In order to transfer a juvenile case to adult criminal court, a _______________________ is held.
certification hearing
In order to transfer a juvenile case to adult criminal court, a ___________________________ is held.
certification hearing
a juvenile certification hearing is
held in order to transfer a juvenile case to adult criminal court.
Juvenile cases can only be transferred to adult court where a ____________has been committed.
felony
Juvenile must be at least _________ years of age and _______________, __________________, or _____________________ in order for a case to be eligible for certification.
- 14
2 capital felony, first degree felony, or aggravated controlled substance felony
Juvenile must be at least ______ years of age and have committed a second degree, third degree, or state jail felony in order for a case to be elgible for certification.
15
Judge in juvenile case determining adult charge considers the following:
- probable cause to believe that juvenile committed the offense
- seriousness of offense
- background of the juvenile
- does the welfare of the community require that certification take place
Information judge in juvenile case determining adult charge must have:
- Diagnostic study
- Social evaluation
- Investigation of the juvenile’s background
- Circumstances of alleged offense
(almost everything is admissible at the hearing, in essence it is a probable cause hearing)
Generally, an attorney is hired and paid by the juveniles parents.
true
The attorney/client relationship is between the attorney and the juvenile.
true
The attorney can not disclose anything to the parents without the juvenile’s permission.
true
