Criminal Procedure Flashcards
Brady Evidence/Exculpatory Evidence
Before trial the prosecutor also has a duty to disclose all exculpatory evidence in trial prosecutor’s, another prosecutor’s, or police possession.
Failure to do so constitutes a due process violation that will result in the reversal of a conviction if the defendant can prove
(i) that the evidence at issue was favorable to the defendant and
(ii) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).
D doesn’t have to request this information
Standard of Proof
The defendant is presumed innocent unless the prosecution proves every element of the defendant’s guilt beyond a reasonable doubt.
Rules court should follow when fixing bail amount?
The rules that a court should follow include:
(1) Likelihood of defendant appearing for trial
(2) Ability of the defendant to make bail
(3) Seriousness of the crime charged
(4) Future safety of the victim and the community
(5) Required bail is not to be an instrument of oppression
Can the court consider whether a party is capable of posting bail in determining whether that party is indigent and is still entitled to appointed counsel?
No. As a general rule, the court cannot consider whether the defendant has posted or is capable of posting bail. This can be considered, however, insofar as it reflects the defendant’s financial circumstances
If the court denies a party’s request to reduce bail, what procedural step, if any, can that party take to seek a reduction in bail, and what argument, if any, can they make for such a reduction?
The party can file an application for habeas corpus in the district court.
At the hearing party can argue and present evidence that they are being improperly detained because
(1) bail was set at an excessive amount.
(2) cannot meet the bail set, and
(3) what amount they could meet.
The district judge may order bail reduced.
If the district judge denies relief, they can immediately appeal to the court of appeals.
In order for a search warrant to be issued authorizing the search of an apartment for evidence, what facts must be alleged and in what document must they be alleged?
Officer must execute a written and sworn affidavit. In that document, the offer 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 office was committed or who committed it, and
(3) the evidence is located in the premises to be searched.
Rules of Venue for Criminal Proceedings
Venue is proper in the county in which the crime was committed when no specific venue rules exist.
Specific Venue for:
Offenses outside of state
Offenses committed wholly or partially outside of Texas under circumstances giving Texas JX may be prosecuted in any county in which the offender is found or in any county in which an element of the offense occurred
Specific Venue for: victim injured in one county and died in another
If the victim was injured in one County and died in another because of the injury, the prosecution may take place in either county or in the county in which the dead body was found.
Specific venue for: offenses committed on or near county boundaries
Offense committed on the boundaries, or within 400 feet of the boundaries, of two or more counties may be prosecuted in any one of those counties.
Specific venue for: theft
If the property is stolen in one county and moved by the offender to another county, the prosecution may take place in the county where the offender took the property or in any other county through or into which the offender moved the property.
Specific venue for: kidnapping and false imprisonment
Kidnapping and false imprisonment can be prosecuted and the county in which the offense what’s committed or in any county through or into which the victim was taken
Specific venue for: conspiracy
Conspiracy may be prosecuted in the county in which the agreement was entered into, in the county in which the agreement was to be carried out, or in any county in which one or more of the conspirators did any act to implement the agreement.
Specific venue for: sexual assault
Sexual assault maybe prosecuted in the county in which the assault actually took place, the county in which the victim was abducted, or any County into or through which the victim was transported in the course of the abduction and sexual assault.
Specific venue for: possession or delivery of marijuana
Possession or delivery of marijuana maybe prosecutor and the county in which the offense was committed order (with the consent of the defendant) an accounting adjacent to and in the same judicial district as the county in which the offense was committed.
Specific venue for: authorized use of vehicle
Unauthorized use of a vehicle may be prosecuted in the county in which the vehicle was originally reported stolen or in any county where the unauthorized use occurred.
Specific venue for: organized criminal activity
Organized criminal activity can be prosecuted in any County in which any act to affect an objective of the combination was committed.
Specific venue for: bigamy
Bigamy maybe prosecuted in the county in which the bigamous marriage occurred, any county in which the parties live or cohabit as husband and wife, or any county in which a party to the marriage not charged with the offense resides.
Specific venue for: escape
Escape can be prosecuted in the County in which the escape occurred or in the county in which the defendant was originally placed in custody
Specific venue for: fraudulent use of identifying information
Fraudulent use or possession of identifying information can be prosecuted in any county in which the offense was committed or the county of residence of the person whose identifying information was used.
Specific venue for: Computer crimes
Computer crimes can be prosecuted in any county in which the victim resides
Defense motion procedural process to obtain more time to locate/obtain missing witness
Move for a continuance to locate a missing witness. The motion must be sworn, and must show
(1) the court,
(2) the name and residence of the witness,
(3) the material facts the witness is planned to show,
(4) the diligence used to try to get the witness, and
(5) that the motion is not being made for delay.
Continuance after Trial Begins
If a continuance or postponement is requested by either the defense or the state after trial begins, it is to be granted only if the moving party establishes:
(1) some UNEXPECTED OCCURRENCE since the trail began,
(2) that no REASONABLE DILIGENCE would have enabled her to predict this occurrence, and
(3) that she is so taken by surprise that a fair trial cannot be had.
Continuance by Agreement of Parties
If the parties agree to a continuance, it may be granted by the court upon a showing of good cause
Length of Continuance
A continuance may only be granted for as long as necessary.
What procedural step can a party take to keep evidence from being introduced, and what arguments can be used in support?
File a motion to suppress the evidence. In support, argue that the stop was unreasonable and in violation of the 4th Amend. because it came from fruits of the poisonous tree.
Withdrawal of guilty plea
A plea of guilty to the judge cant withdrawn as a matter of right before the court takes the plea under advisement.
Is a withdrawn guilty plea admissible as evidence during trial?
A plea of guilty or solo contendere that is later withdrawn cannot be used against the defendant who entered the plea
What procedural steps, can be taken to protect a defendant from the prejudice that may occur if a co-defendant’s prior conviction is introduced and they are being tried together?
Move for a severance of the trial. The trial judge must grant the motion because severance is mandatory if the moving defendant shows the co-defendnat has a prior conviction admissible against that co-defendant at trial.
Could get a pretrial determination as to whether the prior conviction is actually admissible by filing a pretrial motion in limine asking the trail court to hold it inadmissible. if the trial court rules the conviction admissible during pretrial, you must still object during trial to preserve error on the motion in limine.
What procedural steps can be taken to ensure a witness appears at trail to testify
Obtain a subpoena for the witness by applying for it with the clerk of the trial court. this subpoena will order her to appear. Failure to appear, an attachment may be obtained, which will allow a peace officer to locate the witness and bring them before the court. IF the subpoena is not properly served, then an attachment will not be available.
Objection to Court over missing defendant during pretrial proceedings
The court must sustain such objection, as the defendant has a right to be present during all pretrial hearings
Challenge for Cause
Challenge of juror on any of the disqualifying grounds as found by law. no limit
Each juror must be able to and willing to consider all penalties authorized by law. a protective juror who is unwilling to consider them is thus biased or prejudiced against part of the law on which the defendant and state are entitled to rely on.
A peremptory challenge may be used if a challenge for cause is denied.
What procedural step can be taken to prevent witnesses from talking/working together and from being present in the courtroom
Invoke the rule of exclusion of witnesses from the courtroom. If invoked, and no exception applies, the trial judge must exclude all witnesses, including experts, from the courtroom and order them not to talk with anyone about the case, except with permission of the trial judge.
If a witness violate the rule, the trial court may:
(1) hold the witness in contest, and/or
(2) exclude the testimony of that witness
Admissibility of Confession
Object on hearsay grounds, and that admission of the confession would violate the defendant’s right to confront witnesses against them.
Discovery of Prior Statement of Testifying Witnesses
Statements made by testifying witnesses prior to their testimony are discoverable for cross-examination purposes, and includes police reports as the work product does not apply in this instance.
Must the court include a definition of “reasonable doubt” in the jury charge?
No. In fact it should not do so. This is because any effort to define reasonable doubt will be of no help and will tend to confuse the jury.
Argument that defendant is guilty because of not testifying during trial. Proper or improper?
Improper. Defendant has a 5th Amend. right not to testify and to not have the jury draw adverse inferences from this failure to testify.
how to preserve error for improper arguments
To preserve error, the defense counsel must:
(1) object and get a ruling
(2) request an instruction to the jury to disregard the argument and get a ruling
(3) move for a mistrial on the ground that the instruction cannot be effective and get a ruling on hat motion.
Timeliness of request for jury sentencing proceeding
The request or election of jury sentencing must be filed before void dire of the prospective jurors. Failure to file this, by operation of law, the defendant elects to be sentenced by a judge. Jury sentencing may be changed only after the verdict has been reached and if the prosecution consents.
Are prior bad acts admissible during the sentencing of defendant?
Yes. at sentencing, all evidence that the trail judge deems relevant to punishment is admissible. by statute, this explicitly includes other “extraneous” offenses even if the defendant has not been charged with or convicted of them.
the State must prove beyond a reasonable doubt that the defendant committed these extraneous offenses. if the defense has requested notice, the prosecution must give pretrial notice of its intent to introduce such evidence.
Are officers required by law to obtain one warrant authorizing the search of Ike’s apartment and a separate warrant authorizing the arrest of Ike?
No. A search warrant may also authorize an arrest and thus constitute an arrest warrant as well as a search warrant.
Does an officer have the authority to break down a defendant’s door in order to enter the apartment pursuant to a search/arrest warrant?
Yes, an officer may break down the door of a house to make an arrest if
(1) the arrest is for a felony,
(2) the officer gives notice of the officer’s authority and purpose, and
(3) the officer is then refused admittance.
What is a writ of habeas corpus? To whom is it directed? By whom may it be granted?
A writ of habeas corpus is a court order directing someone to produce an individual before the court and to show why that individual is being held. It is directed to a person having the individual in custody or under restraint. the writ may be granted by the court of criminal appeals, a district court, a county court, or a judge of any of these courts.
What courts have JX to conduct a trial for burglary of a habitation?
The only court with JX to conduct a trial for burglary of a habitation is a district court
what courts have JX to conduct a trial for criminal trespass?
criminal trespass is a misdemeanor, so a county court has JX to conduct a trail for this offense.
By what date should you file your motion for discovery? What consequence, if any, is there if you do not file your motion for discovery by that date?
When pretrial hearing has been set, motions for discovery must be filed seven days before the hearing. If it is not filed by that time, it cannot be filed unless the court, for good cause show, permits it to be filed.
Is the Prosecution required to disclose the contents of his report that indicate D2 did the crime along? Does this depend on whether the discovery motion requested disclosure of any reports in the Prosecution’s possession?
The information that is exculpatory in nature under Brady v. Maryland, must be disclosed. This duty to disclose does not depend on a request by the defendant, so the production of the information does not depend on whether the discovery motion requested disclosure of reports in the Prosecution’s possession.
Must you disclose names and addresses of all lay and expert witnesses who will testify pursuant to a discovery request for disclosure motion
The trial judge does have authority to order a defendant to disclose to the prosecution the names and addresses of expert witnesses, but there is no basis for the trial judge to oder a defendant to disclose any information regarding lay witnesses to the prosecution.
Adequate Description of search warrant
The description must be sufficient to enable officers to identify both the building, and the specific apartment to be searched within that building.
How can a warrant be challenge for lack of adequate description
To challenge the warrant, the defense should file a motion to suppress the evidence found by the execution fo the warrant, and ask the court to hold the search warrant and the search of the apartment unreasonable and to bar the prosecution from introducing any evidence flowing from that search.
admonitions that the Court must give a defendant before accepting his felony plea of guilty
(1) the range of penalties for the offense
(2) that any recommendation by the state as to the penalty is not binding on the court
(3) that the defendant has a limited ability to appeal if conviction pursuant to a guilty plea.
(4) If not a US citizen, that plea of guilty may result in deportation, exclusion from admission to this country, or the denial of naturalization under federal law.
(5) inquire as to whether there is a plea bargain
Prerequisites for sentence of probation
The prerequisites include:
(1) The punishment assessed must not exceed 10 year’s imprisonment;
(2) to get probation from the jury the defendant must have filed a pretrial motion for probation; and
(3) to get probation from the jury the defendant must show he has not previously been convicted of a felony.
Challenge Juror Statement that Defendant is guilty because he has been charged by the grand jury
Challenge juror for cause because he has shown bias against the defendant and on a part of the law on which the defendant is entitled to rely.
The law provides that the fact a defendant has been indicted gives rise to no inference of guilt.
Defense’s Timeline for Opening Statement
Defense counsel is entitled, by statute, to make the defense opening statement immediately after the state’s opening statement. This right has been extended to permit the defense’s opening statement to be made after the state rests its case-in-chief.
Discoverability of prior-statements from testifying witness made to the grand jury
A party is entitled to the statement of an opponent’s witness after that witness has finished direct examination. “Statement” includes a transcription of testimony by the witness to a grand jury.
When you begin to cross-examine D2 about the fact that D2 presently is on probation, the Court cuts you off and states: “Counsel, we’re not going to go into that. It’s got nothing to do with this case.”
A witness may be impeached by a conviction for which the witness received a probated sentence if probation has not expired. The conviction must be for a felony or a misdemeanor involving moral turpitude
Can counsel assert personal opinions as argument’s to the jury?
No, it is an impermissible jury argument to assert personal opinion on the credibility/weight of evidence/testimony.
Admissibility of prior bad acts
Extraneous offenses are inadmissible to prove guilt by showing that a D is a bad person and therefore committed the charged offense.
It could be admitted if it was relevant to guilt in some way other than by proof of the defendant’s bad character. such as for mental competency/state at time of acts (MIMIC). Unless the trial judge is convinced the danger of unfair prejudice substantially outweighs the probative value of the evidence.
What standard of proof was the State required to meet to obtain a verdict of guilty? How many jurors had to concur in the verdict? What would have been the consequence if fewer than the minimum number of jurors voted for a verdict of guilty?
The state must prove guilt beyond a reasonable doubt.
All members fo the jury had to concur in the verdict of guilty. If all jurors cannot agree on verdict of guilty and they cannot unanimously agree on a verdict of not guilty, the trial judge must declare a mistrial if:
(1) both parties agree, or
(2) the court finds the jury has been kept together long enough to render it altogether improbable tat it could agree.
What procedural step can you take to enlighten the court that D2 bribed four of the jurors to convict D1 and attack D1’s conviction? How long do you have to take this procedural step?
Counsel can bring this to the attention of the trial court by making a motion for new trial. Long the grounds for a motion for new trial is that a juror hs been bribed or is otherwise guilty of corrupt conduct. Counsel must file a motion for new trial within 30 days of sentencing and then present it to the trial court within 10 days of filing. The trial court can, however, permit Counsel to present it within 75 days of sentencing. If not ruled on w/in 75 days then overruled by operation of law.
Is the prosecution barred because the State waited too long to file this felony charge of arson?
The general rule for felonies is three years and no felony has a period of limitations less than three years,. therefore, apart from the special 10 year Sol for arson, the state would have three years to file any felony charge.
Competency to Stand Trial; What would you need to establish to prove that Lenny is incompetent to stand trial, and what burden of proof would you need to meet?
To prove Defendant is incompetent to stand trial, Counsel would have to prove either that:
(1) defendant lacks sufficient present ability to consul with his lawyer with a reasonable degree of rational understanding, or
(2) he lacks a rational as well as factual understanding of the proceedings.
Start with presumption of competency, and overcome under a preponderance of the evidence standard of proof.
What is bail?
Bail is the security given by a defendant to assure that he will appear in court to answer the accusation against them.
What is a bail bond?
A bail bond is a written undertaking by the defend and one or more sureties that they will pay the amount of bail if the defendant does not make his required appearances.
In what major way does a personal bond differ from a bail bond?
A personal bond differs from a bail bond in that a bail bond requires either an adequate surety or a cash deposit in the amount of the bond. A personal bond required neither. it is simply the defendant’s promise to pay the amount if he fails to make the appearances.
What is an indictment?
An indictment is the written statement of a grand jury accusing a named person of a criminal offense.
Discuss two ways in which an indictment and an information differ?
Among the ways in which it differs from an information are:
(1) an indictment must be approved by a grand jury and signed by the foreman, while an information need only be authorized and signed by the prosecutor, and
(2) an information must be supported by a sworn complaint filed with the court, while an indictment does not require such support.
what will happen if he pleads guilty but the Court does not agree with the plea agreement.
Will the Defendant be allowed to withdraw his guilty plea if the court rejects the plea agreement?
If the trial court decides not to follow the plea agreement and punish something other than what was agreed, the Defendant must be allowed to withdraw his plea and enter a “not guilty” plea if he wishes.
Defendant believes that a nolo contendere plea does not have the same legal effect as a
guilty plea.
Is Defendant’s belief correct?
Only to a minor degree. In the criminal prosecution itself, the solo contenders plea has the same legal effect as a plea of guilty.
But if civil litigation were to arise out of the same incident as gave rise to the criminal charges, a plea of guilty could be used against the Defendant. A plea of solo contenders could not be so used.
What procedural step, if any, can you take to challenge the indictment for failing to state a charge/or some other issue? Assuming that you can take some procedural step, when should that step be taken ?
Counsel can challenge the indictment by filing an exception to the form of the indictment, or the substance of the indictment. These motions are informally called a motion to quash. This exception or motion to quash must be filed before the day on which the trial on the merits commences. However, if there is a pretrial hearing, then it must be filled 7 days before the pretrial hearing, if not it can’t be raised later except by permission of the court on the basis of good cause.
If you fail to timely challenge, then a defect cannot be rises later in the trial court, on appeal, or in post-conviction habeas corpus.
Discovery of Police Report as part of Expert’s basis for Opinion
After receiving a timely request from the Defendant, the state must provide any written or recorded statement of any law enforcement officer, including the officer’s police report
What procedural steps can you take to obtain jury sentencing and to allow a jury to recommend community supervision? When should you take these steps?
to obtain a jury sentencing, Counsel should file a written election for jury sentencing. This should be filed before jury voir dire begins.
What procedural step , if any, can you take to ensure that the prosecutor will disclose before trial whether he intends to introduce in the State ‘s case at trial evidence of Defendant’s previous bad acts?
To ensure that the prosecutor will disclose before trial that he intends to introduce evidence of past acts as part of guilt-innoncence, Counsel should make a timely request for such notice. If done time, the State must provide such notice prior to trial.
What procedural step , if any, can you take to ensure that the prosecutor will disclose before trial whether he intends to introduce in the State ‘s case at the sentencing stage of Defendant’s previous bad acts?
Counsel should make a pretrial notice request of the state’s intention to introduce at punishment evidence of extraneous crimes or bad acts. If done timely, the State must provide such notice prior to trial.
What procedural step, if any, can you take to have the Court exclude Officer’s testimony about Defendant’s confession at the police station from coming in as evidence? On what basis, if any, can you take this step?
File a pretrial motion to suppress the testimony concerning the confession. Do this on the basis that evidence that the defendant orally confessed during custodial interrogation is inadmissible unless one of the exceptions applies.
What procedural step, if any, can you take to have the Court exclude the receptionist’s testimony concerning incriminating statement made by the Defendant from coming in as evidence? On what basis, if any, can you take this step?
To have the court exclude the testimony, Counsel could wait until the prosecutor offers the testimony during trial and then object. Or, Counsel could before trial file a motion in limine asking the court to address the admissibility of the testimony and hold it inadmissible.
There is no basis on which to take either of the steps. Out of court admissions by a crim. defendant are admissible. They are not hearsay because they constitute a statement of a party-opponent. At the time defendant mad these statements, there was no custody issue involved.
Peremptory Challenges
No cause is needed and may be done for no reason at all. For capital murder death penalty cases: 15
For noncapital district court felony prosecution: 10
Misdemeanors in Cty, Municipal, or Justice Ct: 3
Misdemeanors tried in Dst. Ct.: 5
Can’t be made based on race or gender (See Batson challenge).
One juror becomes incapacitated from sitting on the jury. Motion for mistrial. How should the court rule?
The court need not grant a mistrial. If in a felony case a juror becomes disabled after trial begins but before the instructions are red to the jury, the remainder of the jurors can reach valid verdict. All of the jurors, however, must sing the verdict.
You ask the Court to allow you to question the prosecution’s arson expert about his qualifications and the basis of his opinion outside of the jury’s presence. The Court denies your request. Is the Court’s ruling correct?
In a crim. case, a party against whom expert testimony is offered has a right on request to conduct a voir dire of the witness on underlying facts and data. This is diff. from civil trials, in which whether to permit this is discretionary.
Does Wife have any right to refuse to testify against Defendant-Husband ? Does Defendant-Husband have any right to prohibit the prosecutor from calling Wife as a witness?
Wife has a right to refuse to testify against defendant-husband because the spouse of a criminal defendant has a privilege not to testify for the State. Defendant-Husband has no right to prohibit the prosecutor from calling Wife. This is because the privilege belongs to the testifying spouse and cannot be invoked by the defendant.
Does a defendant have the right to be personally present at trial? May the trial proceed in defendant’s absence?
A defendant has a right to be personally present and, in fact, can be compelled to be present. But, in a felony trail, a trial can continue without the defendant if the defendant was present through selection of the jury and after the voluntarily absents himself from trial.
Is including in the jury charge comments of skepticism as to testimony and that witness was paid proper?
No, in the instruction the court is not to convey to the jury the court’s view as to the weight of the evidence, or convey to the jury the judge’s opinion of the merits.
May the Court ignore the jury’s recommendation of community supervision and impose a sentence of incarceration only?
No. if the jury recommends suspension of a sentence and placement of the defendant on community supervision and the defendant is eligible for community supervision, the judge must suspend the sentence and place the defendant on community supervision.
Within what amount of time should a magistrate decide whether probable cause exists to believe that a person committed a felony offense ? What is the consequence if a magistrate fails to make a probable cause determination within this amount of time ?
The Magistrate should decide whether probable cause exists within 48 hours of the arrest. If this is not done, the defendant has the right to be released on bail and to have bail set so he can make it. This may require personal bond. The bail must be no more than $10,000.
A magistrate is considering releasing the Defendant on bond without sureties or other security. What kind of bond is the magistrate considering? What conditions of bond, if any, can the magistrate impose to allay her concerns about releasing Wilbur on bond?
The magistrate is considering a personal bond, which on forfeiture requires the defendant to pay the amount but does not require a surety or cash deposit.
The magistrate may impose any reasonable condition on the bail that is related to the safety of the victim of the crime or the community.
Valid Arrest
An arrest is valid only if the Officer had probable cause. this requires the officer to have facts on which a reasonable person would conclude there was a fair probability the defendant was the perpetrator of a crime.
Any lack of an arrest warrant must be justified by an authorized/recognized exception to the warrant requirement.
a defendant waive his right to indictment ? If so, what charging document will be used instead of an indictment?
A defendant can waive indictment in all cases except prosecution for capital murder. If a defendant waives this, the defendant will be charged by information signed and filed by the prosecutor.
what requirements must be met to waive right to indictment?
The waiver of indictment has three requirements:
(1) the defendant must be represented by counsel;
(2) the waiver must be in a written instrument or in open court, and
(3) the waiver must be voluntary.
Does a defendant have the right to address the grand jury?
A defendant has no right to address the grand jury. However, the grand jury may permit him to appear. The prosecutor must consent to defense counsel’s addressing the grand jury, but Prosecutor’s consent is not necessary for the Defenses s the suspect party, to himself address the body.
Is it permissible to charge multiple offenses in the same indictment, or is a separate
indictment required for each of the offenses?
It is permissible. Generally, an indictment may charge only one crime. However, several crimes may, but don’t have to be, all be charged in one indictment, but in different counts, if they are part of the same “criminal episode.”
criminal episode
(1) Offenses committed pursuant to the same transaction or
(2) constitute a common scheme or plan
(3) the offenses are the repeated commission of the same or similar offense
What procedural step can Defense Counsel take to obtain a separate trial for defendant on each
count of the indictment? Could taking this procedural step ultimately affect defendant’s sentence?
Defense counsel can move for a severance of the charges for separate trails.
If Defense Counsel does not do this, and Defendant is convicted of all or several offenses, and is sentenced to imprisonment, the prison terms must run concurrently.
However, if defendant gets separate trials, is convicted, and is sentences to imprisonment, the judge has discretion to “stack” the sentences–that is, make the consecutive.
Five day deadline for all pleadings after service of indictment. Is this proper amount to file pleadings?
No. In those cases, in which a defendant is entitled to be served with the indictment, the defendant must have 10 days from that service within which to file written pleadings.
What procedural step should Defense Counsel take to prohibit Prosecutor from mentioning this fact? If Prosecutor mentions this fact at trial , what should Defense Counsel do to preserve the issue for appeal?
Defense Counsel should make a motion in limine, and to preserve for appeal should object and get a ruling whenever it is mentioned by the Prosecutor during trial.
Defense Counsel learns that Prosecutor intends to introduce into evidence at trial digital pictures found on the cell phone taken from the Defendant.
What procedural step, if any, can Defense Counsel take to try to keep evidence from being introduced into evidence, and what arguments , if any, can Defense Counsel make in support of her position?
Defense Counsel can file a motion to suppress the pictures, arguing that they were obtained from a search incident to an invalid arrest and thus the pictures are the inadmissible fruit of the poisonous tree.
Witnesses intended to be used to id defendant as guilty party.
What procedural step , if any, can Defense Counsel take to try to stop Ms. Rosie from testifying about this, and what argument, if any, can Defense Counsel make in support of her position?
Defense Counsel can make a motion to suppress witness’s testimony. In support, Defense Counsel can argue that due process prohibits the admission of testimony of an eyewitness who, before trail identified the defendant at a show procedure so suggestive that ti t creates a high likelihood that the witness will erroneously identified the defendant as the perpetrator.
Prosecution believes that due to Defendant’s fame it would be virtually impossible to convict.
What procedural step, if any, can Prosecutor take to seek relief from this problem? If there is some step that Prosecutor can take, what must Prosecutor show in order to obtain this relief?
Prosecutor can move for a change of venue. At the hearing that will be held on the motion, Prosecutor must show that because of influences in the original county in favor of defendant, a fair and impartial trial to the state cannot be held.
Defendant believes he is not guilty and wants jury trial.
What three questions must the court ask in testing the qualifications of a prospective juror?
The three questions are:
(1) are you a qualified voter in this county and state?
(2) have you ever been convicted of theft or any felony?
(3) are you under indictment or accusation of theft or any felony?
Prosecutor uses his peremptory challenges to strike all of the male prospective jurors.
What procedural step can Defense Counsel take to challenge Prosecutor’s action? How may Prosecutor rebut this challenge? What must Defense Counsel show to succeed in her challenge?
Counsel can make a Batson challenge.
Specifically, she should make a challenge to array:
(1) after both sides submit their lists of challenges to the judge, but
(2) before the judge impanels the final jury.
Prosecutor’s striking of all jurors of one gender or race makes a prima facie case of gender or racial motivation, Prosecutor may rebut this by explaining each challenge on gender/race-neutral grounds.
D Ultimately has the burden of proving racial motivation
If found then judge must:
(1) dismiss the array and start jury selection over, or
(2) reinstate those jurors struck for racial reasons
Can an expert’s testimony of handwriting by comparison alone be sufficient to establish the handwriting of a person?
Proof by comparison of handwriting, either by experts or the jury without expert testimony, is not sufficient to establish that the handwriting is that of a witness or person, if that witness or person denies under oath that this is his signature. if the witness or person does not so deny that the signature is his, comparison is sufficient.
In order to discredit a Witness, Defense Counsel begins to cross-examine her about her conviction eight years ago for the misdemeanor of driving while her license was suspended. Prosecutor objects to Defense Counsel’s cross-examination on this topic.
How should the Court rule on Prosecutor ‘ s objection?
The objection should be sustained. A witness can be impeached by a prior conviction for a misdemeanor only if that misdemeanor was a crime involving moral turpitude. Driving while one’s license is suspended does not involve moral turpitude.
During direct, defense presents testimony from a Preacher that defendant is a law abiding citizen. During cross, Prosecution seek out information defendant told preacher during spiritual advice about prior bad acts of defendant.
On what basis can Defense Counsel object to Prosecutor’s question? What should Prosecutor argueinresponse?
Defense counsel should object on the ground that the answer to the question would reveal a confidential communication by defendant to a member of the clergy in the minister’s professional character as a spiritual advisor. Prosecutor should resort that the protection of the privilege is waived if the person wit the privlige calls the spiritual advisor as a character witness and the communication are relevant to the aspects of character as to which the advisor testifies.
Scope of a valid arrest warrant
A valid arrest warrant issued by a magistrate extends to every part of the state. any peace officer is authorized to execute the warrant
Three requirements for an arrest warrant
An arrest warrant must be issued in
(1) the name of the state of Texas,
(2) it must specific the name of the person to be arrest (or a reasonably definite description of the person if his name is unknown),
(3) it must name the offense the person is accused of,
(4) it must be signed by a magistrate, and
(5) name his office.
Defendant taken before magistrate 36 horus after arrest. Was this timely?
An arrestee must be brought before a magistrate without unnecessary delay, but not later than 48 hours. Arresting officer may take him before a magistrate in the county where he was arrested or, if it is more expeditious before a magistrate in another county.
