Criminal P&E Flashcards
What is a complaint?
A complaint is a sworn statement that alleges that there is probable cause to believe someone committed a crime. A criminal complaint has several requirements, including that it must be in writing, name the offense and date of the crime, and specify the name or description of the accused,
What are three requisites of an arrest warrant?
Must state the name of the person being arrested or a physical description of him, state the name of the offense the person is accused of committing, include the signature of the issuing magistrate, and state the judicial office of the issuing magistrate.
What warning must a magistrate give before the examination of any witness at his examining trial?
The magistrate shall inform the accused that it is his right to make statement relative to the accusation brought against him, but at the same time shall also inform him that he cannot be compelled to make any statement whatsoever. The magistrate shall also inform the accused that if he does make a statement, it may be used in evidence agains him.
What is a personal bond, and what is one way in which it differs from a bail bond?
A person bond is the accused’s promise to pay the bond amount if he fails to comply with the terms. Unlike a personal bond, a bail bond requires surety.
Can a magistrate impose conditions on release?
Yes. A magistrate may impose any reasonable condition on bail related tot he safety of the victim or the community.
Can you appoint an expert even if you are representing a poor client?
yes, due process entitles an indigent defendant to the appointment of an expert, including a psychiatrist, if the expert’s expertise is likely to be a significant issue in the case.
Who selects the people who serve on the grand jury?
By summons from a fair cross section of the community like a petit jury.
Can a prosecutor authorize someone other then them that is not an attorney to question a witness?
No, the prosecutor is not permitted to have the computer expert question the officer. No person other than the attorney representing the State or a grand juror may question a witness before the grand jury.
What steps can be taken to get access to a physical object and what do you have to show?
File a motion to inspect the object. Must demonstrate good cause that the object is a tangible thing, constitutes or contains material evidence, is in the possession of the state, and is not the work product of the state.
The fear of the court not accepting a plea agreement.
The court is not required to follow the plea agreement. However, if the court refuses to impose the sentence recommended by the prosecutor; the court must allow defendants to withdraw the plea.
What procedural step must you take to allow the jury to sentence defendant to probation, and when must you make it?
You must file a sworn application for probation. It must be the application for pretrial and be in writing, sworn, and it must state that the defendant has not been convicted of a felony.
What procedural steps can be taken to prevent prosecutor from introducing physical objects and testimony by an officer. What grounds can you take it?
Move to suppress the object and file a motion in liming to prevent officer’s testimony at trail. Argue that the object and testimony were obtained illegally.
Can a prosecutor move to amend the indictment to allege additional crimes?
No, an indictment can be amended to fix a defect it cannot be amended to add an additional crime. If prosecutor was to add the additional crime he must go back to the grand jury and ask it to indict for the new offense.
What procedural steps can prosecutor take to preclude a person from serving on a jury?
Can asked for the juror to be struck for cause of bias and/or prejudice. If not granted, the prosecutor can use one of their peremptory strikes/.
Are you required to make your opening statement immediately after prosecutor’s opening statement?
No, you can but you are not required to make an opening statement immediately after the prosecutor’s opening. The defense may do so anytime up until after the prosecution rests its case in chief.
Is “Laura informed me that the defendant is very skilled at hacking” admissible?
No, it is hearsay and does not fall into any hearsay exceptions.
Can statements made during plea negotiations that was later withdrawn be used?
No, any statement made in the court of plea discussion with an attorney for the prosecuting authority is not admissible.
What three criteria must evidence derived from a scientific theory meet to be reliable?
Evidence must satisfy that the underlying scientific theory is valid, the technique applying the theory is valid, and the technique was properly applied.
What procedural steps should a prosecutor take to preserve for appeal the admissibility of testimony that was prohibited from testifying?
Submit an offer of proof detailing the substance o the evidence, this can be done either orally or through a question and answer form.
When, if ever, must the defense of insanity be disclosed to the prosecution?
A defendant planning to offer evidence of the insanity defense must file with he court a notice of the defendant’s intention to offer that evidence. If the court has scheduled a pretrial hearing, the defendant must given notice at that hearing, if no pretrial hearing the notice must be filed no later then 20 days before the date the case is set for trial and must be served on the prosecutor.
What must prosecutor show for a defendant to be denied bail?
Demonstrate that defendant is charged with a felony, substantial evidence of his guilt, or either that he has been convicted of two prior felonies or committed this new felony while on bail for a prior felony. Or a showing of capital murder or if the felony was committed with a deadly weapon.
What is the purpose of an examining trial?
A pre-trail hearing before a magistrate to require the State to produce evidence showing probable cause to believe the defendants guilty of the crime.
Does the defendant have a right to be charged by a grand jury indictment?
Yes, prosecutors cannot circumvent the grand jury and issue felony indictments by themselves. Prosecutors are free to use an information to charge misdemeanor defendants or felony defendants who have waived their right to an indictment. But a felony without an indictment, requires an indictment issued by a grand jury.
What woulds should an indictment commence with and conclude with?
Commence with “In the name and by authority of the State of Texas” and conclude with “Against the peace and dignity of the State”
What should be filed to stop prosecutor from introducing certain evidence and what additional steps should be taken to preserve the issue for appeal?
File a motion in limine asking the court to order the prosecutor not to introduce evidence. If the judge denies the motion, defense counsel should also object to the evidence at the time it is offered at trail in order to preserve the issue for appeal.
What is the required to tell a defendant before the court accepts a guilty plea?
the range of punishment, recommendations by the state are not binding, have a limited right to appeal after pleading, guilty plea could result in deportation, exclusions from the US, or denial of naturalization. The could should also inquire as to whether there is a plea bargain.
What procedural step can you take to obtain more time before the trial? What are three of the necessary statements you must make when you take this step?
File a motion for continuance. In seeking a continuance, defense counsel must make the request in writing, show good cause for delay, and motion must be sworn.
What argument could be made that co defendants should not be tried together?
Maybe that prior conviction admissible against him in trial. If such prior conviction is admissible, severance is mandatory. Could also seek discretionary severance on the ground that a joint trail would be prejudicial.
Can the testimony of someone who the defendant made an admission be the sole bases of the conviction?
No, a conviction cannot rest solely on the testimony of a person to whom the defendant made a confession while that person was confined in jail with the defendant. A jailhouse confession must be corroborated by other evidence connecting the defiant. Addition, if it falls under the accomplice-witness rule corroborating evidence is required too.
During a cross-eximiniaton, is is proper for a conviction two years ago of a misdemeanor to be used?
Yes, it is permissible to impeach a witness by introducing a misdemeanor conviction if it is a crime of moral turpitude that is less then ten years old.
When must a motion to quash an indictment be filed?
The general rule is that a defect in indictments must be raised before trial. Although there is an exception for fundamental defects.
What procedural steps should be taken to bring an omission of evidence of an element of the offense to the courts attention?
Motion for directed verdict of not guilty. This motion asks the judge to hold that no reasonable jury could find, on the basis of the State’s case in shelf, that all elements of the crime have been proven beyond a reasonable doubt. If the court does not grant the motion at the conclusion of the prosecutor’s case in chief, the defense should renew its motion for directed verdict at the close of all evidence.
Must an arrest and search warrant be separate?
No, a search and arrest warrant may be combined.
Is a peace officer authroized on the basis of a arrest warrant in another country to arrest in the current county?
Yes. A valid arrest warrant issued by a magistrate extends to every part of the state.
Which party has the burden to prove whether venue is proper or improper, and what standard of proof must be satisfied to meet the burden?
The prosecution has the burden to prove venue is proper by preponderance of the evidence.
What are the rules for fixing the amount of bail?
The court should considered the likelihood of defendant appearing for trail, the ability of defendant to make bail, the seriousness of the crime charged, the future safety of the victim and the community. Additionally, bail cannot be used awn instrument of oppression.
What other participations, other than grand jurors, may be preset in the grand jury room while the grand jury is conducting proceedings?
witness being examined, prosecution, bailiff, interpreter
How many jurors is the grand jury composed of, and how many of them must concur for a person to be indicted?
A grand jury consists of 12 people and nine must concur for an indictment.
What is an indictment? What is one way in which it differs from an information?
An indictment is the written statement of a grand jury accusing a named person of a criminal offense. It differs from an information because an indictment must be approved by a grand jury and signed by the foreman, which an information need only be authorized and singed by the prosecutor
Will a guilty plea waive a right to appeal a ruling on the admission of testimony about damages?
No, there is still a right to appeal the testimony. Generally, a defendant who pleads guilty waives the right to appeal. However, when the defendant’s appeal is based on matters raised by pretrial written motion and ruled on before trial, the appeal can proceed.
