Criminal P & E Flashcards
Oral Confessions
Oral statements made during custodial interrogation cannot be used to prove D’s guilt.
It would be allowed if at least one incriminating fact in the statement is found to be true by reliable information developed by the PO after the statement was made
Exceptions: Res gestae statement, judicial statement, corroborated statement, or recorded statement
Bond if Charged w/Sexual Offense
Okay to require D to not go near child (even if he lives in the residence) - this is explicitly authorized (i.e. to not go near a specific residence that is frequented but he child victim)
(Kindapping - Relatively un serious - no harm to vic)
*Generally, Ds lack of resources, family in the area, and other factors tying D to the community (lack of criminal record or other indications he poses no danger to others)
If the victim cannot recall where the “assault” occurred where is venue proper?
Where the D was apprehended or the county where the D resides
Warrentess Arrest
Permitted if the O had PC to believe that the D committed an assault upon a member of the D’s family or HH and it resulted in bodily injury tot he vic. (Such as child says the D “hurt” her)
W/or w/out - need probable cause
Other exceptions:
- Offense committed in an officer’s presence or view
- Belief D is about to escape
- In a suspicious place
- (Think PC to believe a felony is being committed in O’s presence - like a child in the trunk = kidnapping)
Motion for Continuane when Witness is Unavailable
1) Name and residence of missing W
2) The diligence used to try and obtain the presence of the W and
3) Material facts expected to prove by using this W
Discussions of Plea Bargain
Not admissible if the discussions do not result in a plea of guilty or result in a guilty plea that is later w/drawn
Timely Notice for Request of 404(b) Evidence
Because I have made a timely request for such notice, the state must provide me, in advance of trial w/ notice of its intent to introduce in its case in chief any evidence of crimes, wrongs, or “bad” acts not charged against the D but admissible to prove something other than bad character. No notice is required regarding crimes, wrongs, or bad acts that arose out of the same T/O as the charged offense
Threshold Requirements for Outcry Statement
- The statement was made by a child vic (14 or under) of a sexual assault offense AND
- It was made to the first person 18 years old or older to whom the child vic made a statement about the offense
Challenge to racial premptory challenges
Use Batson - The motion should assert that the party exercised its preemptory challenges on racial grounds. If all venire persons of the same race are struck, it raises a prima facie case of racial motivation. The Batson motion can specifically be a motion to dismiss the array of jurors. Should be made after both sides give their strike list to the judge but BEFORE the judge impanels the jury.
If Judge rules strikes improper:
- Dismiss the array (jury selection would have to start over)
- Ask the judge to reinstate the jurors struck for racial reasons, which means the trial would proceed w/a jury containing those jurors
Exception to Spousal Privilege (Minor Child)
Wife can be compelled to testify against husband if the crime alleged to have been committed against a minor child - the spousal privilege does NOT apply
Predicate that must be laid for by custodian of records to allow for business records HS exception
- Records were kept in regularly conducted biz activity
- It was regular practice of the biz to make such records
- Entries in the records were made at or near the time of the events
- Entries were made by, or from information transmitted by, a person with firsthand knowledge of the events; and
- The W is a custodian of the records
Defendant has the right not to …
Testify
Have no reference made of his failure to testify
*No matter what stage
Patient/Phy Privilege
Applies ONLY to civil litigation - and only to certain mental health information
Foundation to Cross Character Ws re: specific instances of conduct by the person about whom the W testified
- Arrests were crimes that were relevant to the character as to which the W testified on direct
- Pros has a basis in fact for believing the facts occurred
- The underlying offenses were committed by D
Deferred Adjudication
Only available from the judge and only if the D entered a plea of guilty or nolo contender - once there has been a conviction by a jury - deferred adjudication is NOT available.
How long does a maj. have to make a PC determination following a warrantless arrest for a felony? What consequences if man fails to meet?
- 48 hours
- Fails to make, arrestee may be released
If bail is excessively high, what argument can you make for reduction?
File an App for Writ of HC in DC
Ague that bail is being used as an instrument of oppression & that there is a strong likelihood of D appearing for trial and that she cannot afford a higher amount
NOTE: If bail is DENIED –> Immediately file an appeal in Court of Criminal Appeals
Can a D waive the right to be charged w/an indictment?
Yes - the D may waive indictment in ALL (including felony) prosecutions - EXCEPT for capital murder. D must be represented by counsel, the D must waive in writing or in open court, and the waiver must be voluntary.
*THINK: D will be indicted with an information
Can a court compel a W to testify at a GJ hearing?
Yes - unless the W has a legitimate claim the answers would incriminate her.
To compel - charge the W w/fines not exceeding $500 or commit to jail until she is willing to testify
May two or more criminal offenses be charged in one indictment?
YEs - when they arise out of the same criminal episode/transaction
When is the right to an examining trial eliminated?
Once the D has been indicted by the GJ.
Timing to file motion for discovery
7 days before PT hearing
Failure to do so will prevent filing later except w/permission of the court for good cause
If parties reach a sentencing agreement via a plea deal, is the sentencing (such as probation) guaranteed?
No. The TJ is not obligated to impose the sentencing agreement reached by the parties. If the J imposes a different sentence though, the D has a right to w/draw his plea.
Waiver to jury trial is allowed in ALL cases except
Prosecutions for Capital Murder where the State seeks the death penalty.
Waiver of a jury trial requires the consent of the prosecutor and the judge.
What procedural step is to be used to obtain separate trials on each of the counts in an indictment?
Move to sever. When a D is schedule for trial on multiple charges arising from one criminal episode, she has an absolute right to have the charges severed for separate trials.
If you want to give the jury the option for probation if W is guilty what should you file?
File a pretrial application for probation. The application should be in writing, sworn, and state that the D has not been previously convicted of a felony.
Number of Preemptory Strikes for non-capital felony?
10
May a Pros. appeal a Jury’s acquittal?
No. Double Jeopardy Forbids the State from doing so.
