Criminal Procedure Flashcards
District Court Jurisdiction
Felonies, misdemeanors that are lesser included offenses of charged felonies, misdemeanors involving official misconduct, transferred county court prosecutions for misdemeanors punishable by jail time
Justice Courts Jurisdiction
Offenses punishable by only a fine
Municipal Court Jurisdiction
Exclusive jurisdiction: offenses created by city ordinance and punishable by only a fine
Concurrent jurisdiction: offenses created by state law and punishable by only a fine
County Courts Jurisdiction
Misdemeanors over which exclusive jurisdiction is not given to justice courts
Magistrate
Any judge (including justices of the peace and municipal court judges)
What starts a felony prosecution?
Felony prosecution begins with filing in district court of an indictment
- Earlier a preliminary complaint may be filed
Overview Chart of Felony Prosecution
Arrest Presentment before magistrate Examining Trial Consideration by grand Jury Presentment of indictment Arraignment Pretrial hearing Trial: Guilt/innocence Trial: penalty (assessment of sentence) Pronouncement of sentence Motion for new trial Motion to arrest judgment Notice of appeal Appeal to Court of Appeals Review by Court of Criminal Appeals Habeas Corpus
Habeas Corpus
What is a writ of Habes Corpus? A writ of habeas corpus is a court order commanding someone with a person in custody to produce that person before the court and show why the person is being held.
To whom is writ directed? A writ is directed to someone having another person in restraint. It should name the office of the person to whom it is directed
What remedy does a writ seek? The writ seeks to have the custody of the person restrained produced
By whom may it be granted? The writ may be granted by the court of criminal appeals, district courts, the county courts or a judge of any of these courts
When must officer present person before magistrate after arrest?
The officers must present person before a magistrate without unnecessary delay, but in any case within 48 hours of arrest
Duties of Magistrate when person is brought before him initially after arrest
Magistrate is to:
- Tell person charges
- Tell him of his rights to retain counsel and an examining trial
- Warn him that in regard to police questioning: has the right to remain silent, any statement he makes can be used against him, he has a right to have an attorney present during questioning, he can request an appointed attorney, at any time he can terminate an interview with the police
- Set bail
- May determine whether probable cause exists
If after 48 hours of the arrest no magistrate has determined that probable cause to believe him guilty exists:
Defendant has a right to be released on bond, and to have bond set so this can happen, Bond must be no more then $10,000 and personal bond if necessary to assure release
Release on bail required if no probable cause determination by magistrate
Felonies: After 48 hours of arrest without a warrant
Misdemeanors: After 24 hours of arrest without a warrant
Magistrate can delay release for not more than total of 72 hours
Denial of bail is possible in two types of cases:
- Capital Murder prosecutions
- Certain prosecutions for noncapital felonies
How do prosecutors go about getting bail denied?
Must file a motion for denial of bail in district court. Any order denying bail must issue within 7 days of he defendants apprehension
- Only a district court judge can deny bail in a noncapital prosecution
Bail can be denied in a noncapital case only if at a hearing the prosecution shows:
- Defendant is charges with a noncapital felony AND
- Substantial evidence of Defendants guilt of that crime AND
- Two of the following:
- Two prior felony convictions or
- Present offense committed on bail on felony or
- Both: one prior felony conviction and present offense involved use of a deadly weapon
- Present offense was a violent or sexual offense committed while on felony probation or parole
Bail can be denied if while on bail on a felony charge, Defendant violates a condition of bail related to the safety of the victim or the community
If bail is denied, how does Defendant challenge this?
If bail is denied, how does Defendant challenge this?
Immediately appeal the order denying bail to the Court of Criminal Appeals
If things drag on:
Denial of bail for a noncapital felony can last only until 60 days from the defendants initial detention. At that point, the order denying bail is automatically vacated and the defendant is entitled to have bail set. After 60 days have passed counsel should make a motion to have bail set
- Denial of bail in a noncapital prosecution lasts only 60 days as long as the defense does not move for a continuance of the trial proceedings
What procedures can a defendant take to reduce bail?
What procedures can a defendant take to reduce bail?
1. File application for writ of habeas corpus in district court
2. At hearing introduce evidence showing: bail set was excessive, he cannot meet bail sent and amount of bail he can meet
3. The district judge may order bail reduced
If not, defendant before trial can appeal to the court of appeals
Rules the trial court should follow when fixing the amount of bail:
Factors to be considered in setting bail and deciding whether bail set is excessive:
LASSO
- Likelihood of defendant appearing for trial
- Ability of the defendant to make bail
- Seriousness of the crime charged
-Future safety of the victim and of the community
-Required bail is not to be an instrument of oppression
What does Bail Bond Require? / What does Personal Bond Require?
Bail bond requires a surety or a cash deposit.
Personal bond requires neither kind of security. A personal bond is the accused’s promise to pay the amount if the bond is forfeited
Conditions for Release on Bail
A magistrate may impose any reasonable condition on bail related to the safety of he victim or the community.
Ex: no facts of child abuse, condition ordering to stay away from children is not reasonable
A Jailed defendant must be released (either on personal bond or reduced bond) if the state is not ready for trial within:
A Jailed defendant must be released (either on personal bond or reduced bond) if the state is not ready for trial within: Felony Cases: 90 days of arrest Class A misdemeanors: 30 days of arrest Class B misdemeanors: 15 days of arrest Class C misdemeanors: 5 days of arrest
What courts have jurisdiction to hold examining trials?
What courts have jurisdiction to hold examining trials? Any magistrate can hold an examining trial. Therefore, examining trial may be held in any court
What is the purpose of examining trial?
The purpose of examining trial
The examining trial is a pretrial hearing before a magistrate. Its purpose is to require the state to produce evidence showing probable cause to believe the defendant guilty of the crime
When is defendant entitle to an examining trial?
Defendant is entitled to an examining trial if: She is charged with a felony and an indictment has not yet been returned
Defendants Rights at Examining Trial
Defendant has a right to-
- Be Present
- Be represented by counsel
- Have the rules of evidence applied
- Cross-Examine state witnesses
- Subpoena and present defense witnesses
Under what conditions is defendant allowed to make an unsworn statement at an examining trial?
Under what conditions is defendant allowed to make an unsworn statement at an examining trial?
Defendant can make an unsworn voluntary statement but this must be done before any witnesses testify
What if at examining trial magistrate finds that the state failed to show probable cause?
What if at examining trial magistrate finds that the state failed to show probable cause?
It does not prevent prosecution and conviction. But defendant is entitled to go free until and if she is indicted
What instrument must be used to charge defendant?
How does state seek it?
What instrument must be used to charge defendant? State must seek an indictment
How does state seek indictment? To get this a grand jury must vote to return a true bill against defendant. This requires the grand jury to find that probable cause exists to believe defendant is guilty. The foreperson will then sign the indictment and it will be filed in District Court
Can defendant waive right to grand jury indictment?
Can defendant waive right to grand jury indictment?
Yes, waiver of indictment can be waived in all prosecutions except ones for capital murder
What requirement must be in order for a person to waive indictment?
- The defendant must be represented by counsel
- Waiver must be by written instrument or in open court
- The waiver must be voluntary
If defendant waives indictment, how will he be charged with crime?
State will file an information
What requirement must be in order for a person to waive indictment?
- The defendant must be represented by counsel
- Waiver must be by written instrument or in open court
- The waiver must be voluntary
If defendant waives indictment, how will he be charged with crime?
State will file an information
What is an information?
An information is a pleading filed by the state charging the person named with a criminal offense
What is one way information differs from an indictment?
Indictment needs only be approved and signed by the prosecutor. An indictment must be approved by a grand jury and signed by the foreperson . An information (but not an indictment) must be supported by a valid and sworn complain, which must also be filed
What is an information
An information is a pleading filed by the state charging the person named with a criminal offense
If state charges defendant with only a class C misdemeanor (punishable by fine only) in municipal or justice of the peace court, how does state do this?
If state charges defendant with only a class C misdemeanor (punishable by fine only) in municipal or justice of the peace court, how does state do this? State files a sworn complain, which itself is the charging instrument
Who selects the people who will serve on grand jury?
- Prospective Grand Jury commissioners appointed by the district judge or
- In the same manner as trial jurors are selected for civil cases
The prospective grand jurors are summoned to the district court which tests their qualifications and then impanels twelve as a grand jury
When should defense challenge the composition of the grand jury?
If counsel has information before grand jury is impaneled she should raise matter during the grand jury selection process by a challenge to the array. It can be raised later by a motion to set aside the indictment, only if at that time she makes a showing that she did not have an opportunity to raise this by a challenge to the array
What basis should defense counsel challenge the composition of the grand jury?
On the ground that Code of Criminal Procedure requires a grand jury commissioners, to the extent possible, to select grand jurors who represent a broad cross section of the population considering race, sex and age
Ex: if grand jury commissioner is swearing in members of victims family
Can the grand jury compel a defendant to appear and give testimony regarding his possible involvement in the alleged crime?
The grand jury can compel defendant to appear by having a subpoena issued. Grand Jury cannot compel defendant to answer questions if defendant invokes his privilege against self-incrimination
What must occur before defendants questioning if defendant appears voluntarily at Grand Jury Proceedings?
Defendant will be a suspect witness. Before questioning he must be warned:
1. The offense of which he is suspected
2. The county in which it was committed
3. The time of its occurrence
The questions asked and the defendants testimony must be recorded
What must occur if defendant is subpoenaed to appear in grand jury proceedings and what warnings must he receive?
As a subpoenaed suspect witness, he must be given the following warnings before being questioned:
- The testimony will be under oath
- A false answer to a material questions subjects him to prosecution for perjury
- He can refuse to answer incriminating questions
- He has a right to have counsel appointed if he is suitable to employ a lawyer
- He ahs a right to have a lawyer present outside the room
- His testimony can be used against him
- Defendant must be given a written copy of the warnings
- Defendant must have a reasonable opportunity before appearing to obtain and consult with counsel
What rights to defendants have at grand jury in questioning victim of the crime if the victim testifies before the grand jury?
Defendant has no right to so participate. He may appear as a witness (either voluntarily or under subpoena). With the grand jurys permission, he may be allowed to address the grand jury BUT he may not cross-examine the victim. Only the prosecutor and grand jurors may examine witnesses
What circumstances can defense counsel appear and present evidence before a grand jury on behalf of a client?
A lawyer representing a suspect may address the grand jury if:
- The grand jury permits this and
- The prosecutor consents
Can grand jurors ask prosecutor for legal advice when deliberating?
The grand jury may send for the prosecutor and ask for prosecutors advise upon any matter of law
How many people sit on a grand jury? How many must concur for indictment? who writes indictment?
A grand jury consists of 12 people. At least 9 must concur for a person to be indicted. The prosecutor drafts the indictment
Challenges to Indictments based on Grand Jury Proceedings
Unauthorized person present while grand jury hearing evidence: Only authorized persons should be present, but dismissal is not required
Unauthorized person was present while the grand jury was deliberating or voting: Once the grand jury begins deliberating he only persons who may be present are grand jurors. Violation of this rule requires dismissal of the indictment
An indictment may not be challenged for evidentiary insufficiency
Limitation of Prosecution
Period of Limitation: Criminal prosecutions must be brought (an indictment must be presented) within particular periods of time from the commission of the offenses
Calculation: The running of the period of limitations is tolled and the time elapsing is not counted in two situations:
- While the defendant is out of the state and
- While a charging instrument charging the same offense is pending against the accused and later dismissed
No period of limitations for:
A. Murder and Manslaughter
B. Offense involving leaving the scene of an accident
C. Sexual assault, where DNA testing indicates the perpetrator is not a person whose identity is readily ascertained
D. Sexual assault, continuous sexual abuse, or indecency with child
General Periods of limitation (numerous specific ones for specific crimes)
Misdemeanors: 2 years
Felonies: 3 years
Theft, Burglary, Robbery, Kidnapping: 5 years
Limitation time periods of Prosecutions
No period of limitations for:
A. Murder and Manslaughter
B. Offense involving leaving the scene of an accident
C. Sexual assault, where DNA testing indicates the perpetrator is not a person whose identity is readily ascertained
D. Sexual assault, continuous sexual abuse, or indecency with child
General Periods of limitation (numerous specific ones for specific crimes)
Misdemeanors: 2 years
Felonies: 3 years
Theft, Burglary, Robbery, Kidnapping: 5 years
Indictment or Information Generally
An indictment or information alleges only facts
- It does not identify the charged crime by name
- It does not specify the statue creating the crime
Two distinguishable substantive requirements
- Charging the offense and providing the accused with trial preparation notice
To “Charge the Offense”
A. Facts constituting all elements must be alleged
B. Statutory language is usually sufficient
C. Any victim must be named
More detail and specificity may be required to provide notice
Formal Requisites of an Indictment or Information
Code of Criminal Procedure imposes a list of requisites or requirements that must be met on the face of an indictment or an 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:
A. Within period of limitations and
B. Before presentment of indictment
6. Allege commission of the crime in a county within courts jurisdiction (venue)
7. Conclude: Against the peace and dignity of the state
8. Be signed (indictment: foreperson) (information: Prosecutor)
Significance of Indictment for Trial
Determines those offenses for which the accused can be convicted
Generally: Jury can convict defendant only of an offense charged in indictment but sometimes jury is instructed on (permitted to convict of) lesser included offenses
Specific detailed allegations may give rise to a variance between indictment and proof which sometimes requires acquittal.
Uncharged and Lesser Included Offenses
One offense is a lesser included offense of another (and more serious) if:
- It is proved by some but not all of the same facts are required to prove the more serious offense or
- It requires only a less serious injury to the same person, property, or interest as the more serious or
- It requires only a less culpable mental state than the more serious offense or
- It consists of an attempt to commit the more serious offense
A jury should be instructed on an uncharged offense if:
A. The other offense is a lesser included offense of the crime charged and
B. The evidence before the jury is such that the jury could find both that:
Defendant is not guilty of the charged offense and Defendant is guilty of the lesser included offense
What happens to serious offense when defendant is convicted of simpler offense?
Defendant is acquitted of that offense (implied acquittal)
Name of Accused (not defendants true name)
If the defendant believes that the name specified as the accused in the indictment is not the defendants true name:
- The defendant must raise this as the arraignment
- The defendant must specify his true name and
- The judge is then to correct the indictment so it accuses the defendant by his own true name
Counsel may raise this issue at the arraignment and inform the judge of defendants real name. Judge will then cause the indictment to accuse the defendants real name.
When must defects in charging instrument be raised?
Defects in charging instruments must be raised before trial
Exception: (fundamental defects) Defects that prevent instrument from being an indictment or information can be raised at any time
- No person specified as accused
- Cannot tell what crime is charged
Timeliness: motion must be filed before the day trial begins
If trial court quashes indictment state may respond by:
A. Taking an appeal or
B. Obtaining a new indictment or
C. Amend the indictment
What procedure is available to defendant to challenge indictment?
Challenge by the appropriate motion either
A. An exception to the form of indictment or
B. An exception to the substance of the indictment
Formally called “motions to quash” in the indictment
What state of proceedings must defendant assert such a challenge to the indictment?
What state of proceedings must defendant assert such a challenge to the indictment?
Motion must be filed before the day on which trial begins
What is the consequence if defendant fails to timely assert challenge to the indictment?
A defect of form (or of substance) in an indictment must be raise in the trial court before trial. IF it its not the defect cannot be raised later in the trial court, on appeal or in post-conviction habeas corpus.
Conviction should be reversed if defendant shows harm from the defect in the indictment
When can you cure defects of indictment by amendment?
Any amendment permitted at any time if defendant does not object
What amendments are permitted over objection depends on the time the amendment is sought
When amendment is sought before the day of trial:
Any amendment is permitted whether it is of form or substance
Limits: An amendment is not permitted over the defendants objection if the amendment would
1. Cause the indictment to allege
A. A different offense or
B. An addition offense or
2. Prejudice the substantial rights of the defendant
Defendants have procedural protection
- Defendant is entitled to advance notice of a propose amendment
- The trial court must authorize an amendment; the prosecution cannot make an amendment unilaterally
- If the indictment is amended and defendant so requests, defendant must have not less than 10 days to prepare for trial on the amended indictment and to delay in trial if necessary to provide this
When amendment is sought on the day of trial but before trial begins:
No amendments are permitted over objection
When amendment is sought after trial begins:
No Amendments are permitted over objection
If the amendment is made defendant is entitled to at least 10 days to prepare for trial. If amendment is done so that defendant will not have 10 days defendant is entitled to a continuance to have full preparation period.
How to amend the indictment
- File a motion for leave to amend
- Defendant must be given adequate notice of the proposed amendment
- Trial judge holds a hearing and decides whether to order amendment made
- If authorized the amendment must be made on the actual indictment
Arraignment
The arraignment takes place in the trial court and serves several functions:
- The accused enters a plea
- This is the point for fixing the accused’s identity and
- (if this has not been done before) the judge appoints counsel
Pleas Available to Accused
- Guilty
- Not Guilty
- Nolo Contendere
Difference between Guilty and Nolo Contendere: No difference in criminal prosecution. IF civil litigation were to arise out of the same incident a plea of guilty could be used as evidence against defendant. Plea of Nolo Contendere could not be used
A Criminal Defendant must personally make some decisions in the prosecution:
- What plea to enter
- Whether to have trial by jury
- Whether to himself take the witness stand
If defendant wants to plead insane
notice of the defense intent to introduce such evidence must be filed 10 days before trial
What admonitions must judge give defendant before accepting felony plea of guilty or nolo contendere:
- Inform defendant of the range of punishment
- Inform defendant that recommendations by state are not binding
- Inform defendant of the limited right, after a guilty plea, to appeal
- inform defendant that plea may result in deportation exclusion from US or denial of naturalization
- Inquire as to whether there is a plea bargain
- Admonishments can be given either in writing or orally
If defendant offers a plea pursuant to a plea bargain and judge decides to impose a different sentence what rights does defendant have?
If defendant offers a plea pursuant to a plea bargain and judge decides to impose a different sentence defendant has a right to withdraw his plea
Can a guilty plea can be withdrawn at any time before trial court takes the matter under advisement?
A guilty plea can be withdrawn at any time before trial court takes the matter under advisement
Ex: Can withdraw if you say I want to plead guilty and judge says I need to give you warnings and then you say I change my mind
Can state introduce at trial evidence that you plead guilty?
No evidence of withdrawn pleas of guilty or nolo contendere are inadmissible
If a pretrial hearing and conference is set: the parties must do certain things 7 days before that hearing and conference:
- Enter any special plea
- Make challenges to the indictment
- Make motions for continuances
- Make motions for change of venue
- Make motions to supers evidence
- Make requires for discovery and
- Raise claims of entrapment
Do you have to set a case for pre-trial hearing and conference?
A trial judge may (but need not) set a case for pre-trial hearing and conference
Does Defendant have a right to be present at any pretrial proceedings?
Defendant has a right to be present at any pretrial proceedings
How many days must motion to quash be filed before pretrial hearings?
Motion to quash must be filed 7 days before pretrial hearings, not just before the day on which trial begins if a pre-trial hearing is set up. If it is not filed 7 days before it cannot be raised later except by permission of the court on the basis of good cause
Motion in Liminie
Motion in Limine: A pre-trial motion that asks for either (or both):
- A pre-trial ruling on the merits of some question of evidence or procedure that will arise during trial or
- A pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury
If either party violates the motion in limine: Object to the reference as if the motion in limine had not been granted
If court denied motion in limine to preserve error: Object to any reference during jury selection and to the evidence itself when it is offered at trial
What do you use a motion to suppress for?
A motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible
Most often, this motion is used to raise a contention that evidence has been illegally obtained or a confession is inadmissible
What ways are available for defense counsel to raise admissibility of evidence issue?
Counsel may either
A. Make a pre-trial motion to suppress the evidence or
B. Wait and object to the evidence when state offers it at trial
Generally a pre-trial motion to suppress is the preferred method of raising contention that evidence was illegally obtained or a confession is inadmissible
If the judge denies a pretrial motion to suppress evidence how does party preserve error?
Don’t have to do anything
A pre-trial ruling on a motion to suppress does preserve the issue for appeal
- Remember: A pre-trial ruling on a motion in limine does not preserve a matter for appeal
If judge orders a motion to suppress hearing to see if evidence should be suppressed and defendant wants to take the stand-
If judge orders a motion to suppress hearing to see if evidence should be suppressed and defendant wants to take the stand-
What issues may prosecutor inquire into on cross-examination? Prosecutor may only inquire as to matters related to the hearing issues. Cross examination cannot extend to guilt of the charged crime.
Ex: If challenging validity of search prosecutor can only inquire into validity
Does Defendant waive his right to remain silent as the remainder of his trial? Defendant does not waive his right to remain silent at the rest of the trial. Defendant may still decline to testify at trial and his right to do so remains in full effect
Defendant can testify at a pre-trial hearing only on issues related to that hearing
Pre-Trial Discovery of Witness List and Expert Witness List
Witness List:
Trial judge has discretion to order the state to provide the defense with a list of witnesses the state intends to call
Expert Witness List:
Trial judge has discretion to order either/both sides to provide the other with list (names and addresses) of expert witnesses sit may call at trial (at least 20 days before trial date)
Deposition / Pre-Trial Discovery and Evidence Preservation Discovery
Either side may be permitted to depose a witness:
A: The trial judge must issues an order authorizing the deposition
B. To obtain this the party must show “good reason” for the deposition
Inspection (or Real Discovery)
The trial judge has authority to order the state to permit the defendant to inspect certain things
Inspection must be ordered if the thing:
- Is a tangible thing
- Constitutes or contains material evidence
- Is in the possession of the state and
- Is not work product of the state
Inspection if ordered, cannot require the state to give up possession of the item
The inspection must be sufficient to give the accused the information necessary to prepare for trial
The defense may request the state to provide of / Other Discovery
- Extraneous offense evidence at guilt and
- Extraneous offense evidence at punishment
Defense can get access to written confessions defendant made to police. This is material evidence in the possession of the state and not work product of the state
Defense can get samples of physical evidence such as drugs, blood, or mechanical devices to enable the defense to test material before trial. This is material evidence in the possession of the state and not work product of the state.
Defense cannot get access to a memo from an assistant DA to the prosecutor who will try to case regarding how to most effectively cross-examine defense witnesses. This is states work product
Defenses cannot get access to examine the report of the state crime lab technician who examined the drugs or blood for the prosecution. This is states work product
*Defense cannot examine the police reports of the investigating officers. This is states work product
Defense cannot inspect written statements given by state witnesses to the police or the prosecutor. This is states work product
Defense can get the names of the witness who appeared before the grand jury and testified regarding the matter. Prosecutor should have endorsed this information on the indictment. IF she did not court can cure this by ordering it provided
Defense can get the testimony of witnesses who testified before the grand jury only if defendant shows particularized need for this
Generally what’s protected by work product and what’s not
- Physical evidence is not protected work product
2. Work product covers reports of state employees, police reports, and witness statements
Should trial court should grant motions for requesting list of all states witnesses?
Trial court should grant motions for requesting list of all states witnesses. Judge has discretion and generally such lists should be ordered
What if state provides list but leaves off names by accident? Can these people still testify?
Yes, Because whether to exclude testimony of an unlisted witness is discretionary with the trial judge
A trial judge has discretion to exclude or admit the testimony of a witness left off an ordered witness list. Relevant considerations include:
1. Whether omissions was intentional and
2. Whether the defense received actual notice that witness would testify
Does trial court does have authority to order the defense to provide the state with a list?
Trial court does have authority to order the defense to provide the state with a list of expert witnesses and their names and addresses. Courts should enter an order compelling that information
Court has no authority to compel party to provide a summary of the anticipated testimony to other party.
With regard to fact (nonexpert) witness the court has no authority to compel the defense to prove the state with any information at all
If a party wants to take an oral deposition of a witness before trial:
Counsel must obtain a court order
To get this, counsel must file a motion supported by an affidavit stating “good reason” for taking the deposition. Notice must be given to the state
- Good Reason: Testimony will be necessary at trial at witness is likely to become unavailable
Can you Disclose an Informants identity?
The identity of an informer is generally privileged and can be withheld by the state.
When might disclosure of informant be required
- If the informant provided information by which the state obtained evidence in a way the defendant claims was illegal, the court has discretion to require disclosure if necessary to establish the informers reliability
- Upon a showing the informant can provide testimony necessary to a fair determination of guilt-innocence
A defendants due process rights under Brady v. Maryland are violated if
- Prosecution fails to disclose exculpatory (favorable) information that is in its possession
- This information is material, which means if it had bee disclosed there is a reasonable probability the outcome of the case would have been different
Does not depend upon defendant asking for the evidence, state must turn it over even if defendant did not ask for it
What if statements were in police files prosecutor never looked at? Doesn’t matter, stuff in state possession imputed even if they didn’t know they had it.
With regard to exculpatory evidence
- The prosecution has a due process duty to disclose such evidence
- Evidence that impeaches a prosecution witness is material
- Evidence must be disclosed if it is in the possession of:
A. Trial prosecutor
B. Another prosecutor or
C. The police - A conviction is invalid for nondisclosure only if the nondisclosed exculpatory evidence is material
A defendant is incompetent to stand trial if either:
A defendant is incompetent to stand trial if either:
A. She lacks the ability to consult with counsel with a reasonable degree of rational understanding or
B. She lacks a rational and factual understanding of the proceedings
Under federal due process and Texas statute, criminal proceedings cannot continue if the defendant is incompetent to stand trial
IF after being found incompetent to stand trial the accused condition improves:
A. The defendant an be determined to be competent and
B. The prosecution can then proceed
- The defense or the state may motion suggest the defendant may be incompetent or
- The trial court may on its own motion suggest the defendant may be incompetent
The trial judge must on the courts own motion suggest the defendant may be incompetent if evidence suggesting incompetency comes to the attention of the court
How will the issue of competency be resolved
How will issue of competency be resolved? Trial judge must make a preliminary inquiry. If it shows significant evidence of incompetency the judge must hold a full hearing. If either party of the judge requests the determination must be made by a jury
Legal Presumption for competency
The legal presumption is that a defendant is competent. To rebut this the defense must show a preponderance of the evidence that Defendant lacks the ability to consult with counsel or lacks an understanding of he proceedings
Ways in which incompetency differs from insanity
Ways in which incompetency differs from insanity
1. Relevant time
Insanity: Time of Offense
Incompetency: Time of Trial
2. Standard Applied
Insanity: Did not know conduct was wrong
Incompetency: could not consult with counsel or understand proceedings
3. Result
Insanity: Final Verdict of not guilty by reason of insanity
Incompetency: (perhaps temporary) bar to proceeding
Where is venue?
Venue lies in the county where the crime was committed
A defendant may seek a change of venue because
A. Prejudice in county would prevent fair trial or
B. Dangerous combination of influential persons against the defendant would prevent fair trial
The state may seek a change of venue because
A. Combinations of influences in favor of defendant would prevent fair trial or
B. Lawless conditions would prevent fair trial
C. Life of defendant or a witness would be jeopardized by local trial
When can trial court change venue
The trial court may change venue on its own motion because trial fair and impartial to defendant and state alike cannot be held
To obtain a change of venue
- A written motion for change of venue
- Affidavits that a fair trial cannot be held in the county by:
A. The defendant and
B. Two credible residents of the county
At the hearing, he must present evidence showing there is sufficient prejudice in county to prevent a fair trial
How many days before pre-trial hearing must change of venue be filed?
A motion for change of venue must be filed 7 days before the pre-trial hearing. Failure to do so will prevent a later motion to change venue unless the court gives permission for good cause shown
A judge is disqualified if
- Judge was a victim of the crime
- Judge was counsel for either side (in the present case)
- Judge is related within three degrees (be either blood or marriage) to either defendant or the victim
- Bias
Presence of the Accused in a felony case
In a felony case or a prosecution for a misdemeanor punishable by jail time, the defendant must be present a beginning of trial:
A. Jury Case: through swearing of the jury
B. Nonjury Case: Through Defendants plea to the indictment
And the defendant must be present at the end of trial for formal sentencing
BUT if defendant is voluntarily absent in the middle the trial may nevertheless proceed in the defendants absence. Defendant can be absent for trial but not for formal sentencing.
Presence of the Accused in a misdemeanor case
What are the rules in a misdemeanor case?
In a prosecution for a fine-only misdemeanor, the defendant can be absent because she may appear by counsel if the prosecutor consents
Joinder and Severance of Charges
One offense rule governs joinder of offenses
- An indictment may allege only one offense. If an indictment charges more than that it is to be quashed
- A defendant may be tried on only one indictment per trial. IF a defendant is schedule for trial on several indictments the defendant is entitled to have trials severed
One Offense Rules is subject to the criminal episode exception
A. The state may join in one indictment all offenses arising out of one criminal episode, and the defendant will be tried for all of these in one trial unless there is a severance of the charges
B. If several offenses are charged in one charging instrument each must be in a separate count
C. If a defendant is charged in different indictments with offenses arising out of on criminal episode the state may have those indictments consolidated for trial together
D. Crimes are party of the same criminal episode if the are:
1. Part of the same transaction or
2. Part of a common scheme or plan or
3. The same or similar offenses
E. The state is not required to seek trial together or offenses arising out of one criminal episode
F. A defendant who is scheduled for trial together on multiple charges because those charges arose from the same criminal episode has an absolute right to have the charges severed for separate trials
G. BUT a defendant who invokes the right to severance incurs a potential disadvantage
1. If a defendant is convicted in one trial of several charges arising out of one criminal episode and sentenced to imprisonment the prison terms must run concurrently
2. If a defendant scheduled for one trial on such charges invokes her right to severance at separate trials is convicted of several charges arising out of one criminal episode, and is sentenced to imprisonment the trial judge has discretion to make the prison terms consecutive
If defendant moves for severance prison terms run consecutively
If not, terms run concurrently
Joinder and Severance of Defendants
Several defendants may be charged in one indictment and tried together if they are all charged with same offense
Several defendants may be joined for trial if:
A. They are charged with the same offense or
B. They are charged with different offense arising out of the same transaction
Mandatory Severance: A defendant who moves for severance and shows her codefenant has a prior conviction admissible against that codefendant at trial must be granted severance if prior conviction would be admissible at joint tirla
Discretionary Severance: In other situations a trial judge has discretion to grant a motion for severance of trials and should grant such a motion if a joint trial would be prejudicial to the defendant who ahs moved for severance
- Trial just has discretion whether to grant a motion for severance of trials made on the basis that trying together defendants with inconsistent defenses would prejudice the moving defendant
A motion for continuance must
A motion for continuance must:
A. Be in writing and
B. Be supported by a showing of good cause and
C. Surprise must be such as to prevent a fair trial
A motion after trial has begun must in addition be:
A. Based on an occurrence that happened after trial began and
B. That occurrence could not have been anticipated and
C. Surprise must be such as to prevent a fair trial
All motions for continuances are addressed to the discretion of the trial judge
Ex: if testimony could have been anticipated it may not be enough to delay trial
Defendants motion for a continuance to obtain a missing witness must allege
Defendants motion for a continuance to obtain a missing witness must allege:
- Name and residence of the missing witness
- Efforts made by defense to find and get witness to court
- Material Facts defense expects to prove by witness
When does an indigent defendant have a 6th amendment right to appointed attorney
An indigent defendant sometimes has a sixth amendment right to an appointed attorney
A. A defendant charged with a felony always has such as right
B. A defendant charged with a misdemeanor need not be provided an attorney if no jail is imposed upon conviction
A defendant has a sixth amendment right to represent herself
What must a judge do if defendant wants to represent himself?
If defendant wants to represent himself the judge must make sufficient inquires on the record to assure that defendant is competent to engage in self representation
- Requires only that defendant understand the disadvantages and risks of that course, not that he have legal knowledge
When must an appointed attorney contact the defendant?
An appointed attorney must make every reasonable effort to contract the defendant not later than the first working day after the date of appointment. An attorney is to interview the defendant as soon as practicable.
A judge has discretion to replace an attorney who fails to timely contact or interview the defendant
Can a judge consider whether or not defendant has posted or is capable of posting bail for 6th amendment?
General Rule is that judge may not consider whether a defendant has posted or is capable of posting bail. The exception is that this may be considered as it reflects the defendant financial circumstances as measured by proper considerations such as income, property owned, dependents etc.
A defendants sixth amendment right to effective representation is violated if:
A defendants sixth amendment right to effective representation is violated if:
- The lawyers actions were beyond the bounds of professional competence and were not simply tactical decisions and
- There is a reasonable probability that had counsel been effective the results of the proceeding would have been different
Representation is not effective if counsel
Representation is not effective if counsel:
A. Fails to conduct an adequate investigation or
B. Fails to convey to the client an offer of a plea bargain
Right to Effective Representation/ What to file if you need expert witness
File an Ake motion invoking Ake v. Oklahoma holding that due process entitled an indigent defendant to appointment of an expert.
To get the expert, I must show that the area of the expert’s expertise is likely to be a significant issue in the case.
So that counsel does not have to reveal thoughts to state, can make motion and showing ex parte
The state must pay for an expert to assist appointed defense counsel if the expert’s area is likely to be a significant issue in the trial of the case.
The state may dismiss some or all charges brought:
The state may dismiss some or all charges brought:
A. If must file a written statement of the reasons and
B. Trial judge must consent
No further prosecution may occur if a dismissal occurs after jeopardy attached
Must a criminal defendant be tried by jury?
A criminal defendant must be tried to a jury unless the defendant waives the right to jury trial
Jury Size
District Court: 12
County, Municipal, Justice Court: 6
Verdict is usually general except
Verdict is usually general except:
A. Special plea is submitted to the jury (found true or not true) and
B. Jury finds defendant not guilty by reason of insanity
Communications during trial between judge and jury once deliberations start
Communications during trial between judge and jury once deliberations start:
A. Jury must communicate with judge in writing
B. Judges response must be:
1. In writing and
2. Read to the jury in open court
Burden of proof for state
The state must prove guilty beyond a reasonable doubt. The verdict must be unanimous, so all jurors must concur. If the jurors cannot agree on the required unanimous verdict (either guilty or not guilty) the judge must declare a mistrial
Whether to have a case tried by a jury or not is a decision for who?
Whether to have a case tried by a jury or not is a decision that must be made personally by the defendant. If a defendant wants to have the case tried to a judge the defendant must waive jury trial. This must be done before trial.
The choice need not be the same as to both phases. Whether or not the defendant waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment
Waiver of Jury Trial on Guilty
Jury trial on guilt can be waived except in prosecutions for capital murder where the state seeks death penalty.
Waiver of jury trial on guilt requires consent and approval of:
A. The prosecutor and
B. The trial court judge
When if ever can the jury have the court reporter read from the reporters notes the substance of testimony taken during trial?
The jury may apply to the court for such a reading of testimony if the jury disagrees as to what the testimony was. The judge may have the court reporter read only those notes relating to the specific testimony in dispute
what happens if judge determines the jury has been deliberating long enoug
The judge can (without agreement of the parties) declare a mistrial and discharge the jury if it cannot agree and the judge determines the jury has been deliberating long enough to establish that it is unlikely to reach a verdict
When the jury cannot agree it may be discharged and a mistrial declared if:
When the jury cannot agree it may be discharged and a mistrial declared if:
- Both parties agree or
- The court finds the jury ahs been kept together long enough to render it altogether improbable that it could agree
Steps of Jury Selection Process
- Swearing in the panel
- Qualification of the panel members by the judge
- Possible jury shuffle
- Voir dire of the jury panel members
- Challenges for cause
- Peremptory challenges
- Empanelling the actual jury
When members of jury panel have been sworn and before the voir dire examination of jurors beings, court tests the qualifications of the jurors by asking 3 questions
- Are you a qualified voter
- have you ever been convicted of theft or any felony
- Are you under indictment or accusation of theft or any felony
Jury Shuffle
Counsel may demand a jury shuffle, which will result in the random reseating of venire members
- Must be before voir dire of the venire members begins
- There can only be 1 shuffle per trial (so only one side gets it)
Defendant or State may obtain a Jury Shuffle
A. Either side can demand that the members of he panel from which the jury will be selected in a random manner- doing this is called shuffling the panel
B. A request for a jury shuffle must be made before voir dire of the jury panel beings
Challenge for Cause
A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the Code of Criminal Procedure. There is no limit on the number each side may make but each one made must be justified under one of the statutory grounds
- Challenges for cause that can be made by state or defense:
1. Prior conviction for theft or a felony
2. Under formal charge for theft or a felony
3. Insane
4. Not qualified to be a voter
5. Is a witness in the case
6. Served on a jury in prior trial of the case
7. Served on indicting grand jury
8. Cannot read and write
9. Biased on prejudice for or against the accused
10. Bias or prejudice against any law applicable to the case on which the defense or the state is entitled to rely
Either side may challenge a juror for cause on the ground that juror has a bias or prejudice against any law applicable to the case on which that side is entitled to rely
Juror staring at you is not enough for challenge for cause, could be for peremptory challenge
If an unqualified juror is sat
If an unqualified juror is sat you must raise objection before verdict is entered. If you wait until after counsel must show that jurors service on the case caused him significant harm.
- Most challenges must be made during jury selection
If a absolutely disqualified juror sat on the jury
If a juror absolutely disqualified sat on a jury the conviction must be set aside if the defendant either:
1. Raised this before the verdict was entered or
2. Shows significant harm as a result of the jurors service
The law requires that a juror be able to consider the full range of punishment provided by the law for the offense.
- Make challenge that juror is biased against the law if they are unwilling to accept
If juror says that defendant is guilty and nothing can change his mind
If juror says that defendant is guilty and nothing can change his mind
Defense should make a challenge for cause on basis that juror is biased because he has already formed an opinion on guilt. To prevail, counsel must show that juror cannot put aside this opinion and decide the case on the basis for the law and evidence presented at trial. IF juror admits that the conclusion would influence the verdict the judge must discharge the juror. IF the juror says the opinion would not, counsel must convince the judge that the juror would be unable to put aside the opinion and decide the case on the law and evidence
A juror who states he has formed an opinion that would influence his verdict is biased and must be discharged for cause
A juror who states she can render a verdict on the law and evidence despite his opinion need not be discharged if the court is satisfied the juror can be impartial
If prosecutor ask in jury selection “if evidence shows the defendant threatened victim with gun is there anyone who would not convict” and defense object
If prosecutor ask in jury selection “if evidence shows the defendant threatened victim with gun is there anyone who would not convict” and defense object
- Court should sustain the objection because the prosecutor has asking an improper commitment question. The question fails to specify each element of the offense and that those elements must be proven beyond a reasonable doubt and is therefore not permissible
Peremptory Challenges
Each side in a criminal trial gets a limited number of peremptory challenges- Challenged which can be exercised with no explanation or justification
Capital Murder Death Penalty Cases: 15
Other Felony Cases: 10
Misdemeanors in county, municipal or justice court: 3
Misdemeanors tried in district court: 5
Neither side may exercise peremptory challenges on the basis of race of gender
If suspect that Peremptory Challenge was for race or gender
Counsel should make a Batson challenge on the ground that the state has exercised its peremptory challenges on racial/gender grounds. She should move to dismiss the array of prospective jurors.
Motion should be made:
A. After each side submitted its list of jurors its challenges and
B. Before the trial Court empanels the jury
Proof that part has removed all African American jurors is a prima facie case of racial motivation. Burden therefore shifts to the state to explain its challenges on racially neutral grounds.
Should attempt to explain each challenge on racial neutral grounds
But the other party ultimately has the burden of proving racial motivation
If that party is successful that challenges were racially based Trial judge must do one of two things:
1. Dismiss the array and start jury selection over or
2. Reinstate those jurors struck for racial reasons
Can raise challenge regardless of what race counsel is.
Order of Proceeding in a Texas Felony Trial
- Judge calls for and parties give announcements of ready
- Prosecutor reads the indictment
- Defense Counsel enters a plea for the defendant
- Prosecutor makes states opening statement
- Prosecution presents states case in chief
- Defense counsel makes defense opening statement
- Defense presents defense evidence
8 . Rebuttal evidence is presented - The judge reads the instructions to the jury
- Counsel make final argument to the jury
- Upon request defense counsel may make the defense opening statement immediately after the states opening statement
*If judge trys to force defense to make opening statement after states opening statement:
Defense has the right on request to make the opening statement after the State’s opening statement. But defense cannot be required to do this Defense counsel is entitled to proceed under general rule: opening statement is to be made after the state rests its case-in-chief
If defense thinks that state has failed to prove guilt beyond a reasonable doubt after state presented its case-in-chief and rests:
If defense thinks that state has failed to prove guilt beyond a reasonable doubt after state presented its case-in-chief and rests:
Defense should make a motion for a directed verdict of not guilty. This asks the judge to hold that no reasonable jury could find on the basis of the stats case-in-chief that all elements of the crime have been proved beyond a reasonable doubt. This presents an issue for the judge rather than the jury, the motion should not be made within the hearing of the jury.
Basic Trial motion for acquittal without going to the jury is a motion for a directed verdict of not guilty:
This should be made both:
1. At the end of the state’s case-in-chief and
2. At the close of all the evidence
IF made because evidence of venue is lacking, specify this
Out of court declarations by a party opponent
But you can testify as to what witness heard the defendant say: Out of court declarations by a party opponent are not hearsay and are always admissible
- Party Opponent is Defendant
If prosecution wants to admit confession of a party but that party will invoke fifth amendment right if forced to take stand what can defendant do?
Defense should object that since defense cannot cross-examine party introducing the confession would violate defendants sixth amendment right to conform witness against him. IF that is unsuccessful counsel should ask that any reference to defendant as parties partner in crime be redacted from the confession before it is introduced
Hearsay exception for statements against interest means (among other things)
Hearsay exception for statements against interest means (among other things) a statement is admissible if it is shown to have been made against the declarants penal interest
A hearsay statement is admissible as against penal interest if:
A. The statement is shown to have been incriminating regarding the declarant
B. A reasonable person would not have made it unless she believed it to be true and
C. (In criminal Trials) there are corroborating circumstances that clearly indicate the trustworthiness of the statement
A hearsay statement against interest is admissible whether or not the out-of-court declarant is unavailable
In criminal litigation a statement against penal interest is admissible only if corroborating circumstances indicate it is trustworthy
Predicate that must be laid by the testimony of the custodian to make records of regularly conducted activity admissible over a hearsay objection includes testimony by the custodian that:
- The records were kept in the regular course of business
- It was the regular course of the business for a person with knowledge of the matter to make such records or transfer information for inclusion in the records
- Entries in the records were made at or near the time of the events and
- The witness is the custodian of the records
If custodian is unavailable to testify about business records
The business record can alternatively be authenticated if Prosecutor:
1. Obtains an affidavit of the custodian of the records containing all the elements identified in the last answer
2. Files the affidavit with records attached with the court at least 14 days before trial starts and
3. Gives the defense notice of the filing at least 14 days before
State and Defense bad character evidence
State cannot introduce evidence that the defendant has a bad character to prove the defendants guilt
Defense can introduce evidence of the accuses good character in an effort to establish his innocence (that would be putting defendants character in issue)
State can prove the defendants bad character:
A. If accused “puts his character in issue” by exercising his right to introduce evidence of good character and
B. At punishment stage of trial
Character witness testimony
- The witnesses personal opinion as to the persons character (opinion character evidence)
- What the witness believes is the person’s reputation for the character trait (reputation character evidence)
Character cannot be proved by evidence of specific instances of conduct
Reputation testimony is hearsay but admissible under an exception
Foundation for character testimony
Opinion- Witness is personally familiar with the person
Reputation- Witness participated in discussions with others of persons reputation or overheard others discussing that reputation
Cross Examination of Character Witness
Inquiry into specific instances of conduct is permissible
“Have you heard” questions: Ok if reputation witness
- Usually specific instances of conduct and that’s ok
“Did you Know” questions: Ok if opinion witness
These types of questions cannot be switched, can’t ask did you know questions to reputation witness
At the guilt stage of a criminal trial, a character witness is qualified to testify as to the defendants character only if:
A. On reputation the witness was substantially familiar with the defendants reputation prior to the day of the offense or
B. On personal opinion the witness was substantially familiar with the facts on which that opinion is based prior to the day of the offense
Extraneous Offense
Crime of which the accuse cannot be convicted in this trial
Evidence of extraneous offense is inadmissible. Such evidence shows only that the accused is a bad person. The prosecution cannot prove guilt by proving that the accuse is a bad person, has a bad character, and thus must have committed the charged crime
If evidence showing an extraneous offense is relevant to some issue other than the accuseds character it is admissible unless the trial judge is convinced that the danger of unfair prejudice substantially outweighs the probative value of the evidence
Extraneous offense evidence may be admissible as relevant to (MIMIC)
Motive
Intent or Knowledge
Mistake or accident (to rebut)
Identity (when defendant has put that in issue)
Common scheme or plan
Ex: If defense has put identity into issue prosecutor is allowed to bring in evidence that he committed other quite similar offenses unless the probative value is substantially outweighed by the risk of unfair prejudice
A defendant puts his identity into issue (and thus triggers states ability to use evidence that he committed similar extraneous offenses) by either:
A. Introducing evidence that he was not the perpetrator such as alibi testimony or
B. Impeaching all the states eyewitnesses
Upon timely request by defendant, state must give notice of:
- Of intent to introduce evidence of other crimes, wrongs, or bad acts
- Not arising in same transaction as charged crime
- To be introduced in the states case-in-chief
- The notice must be given in advance of trial
- No such notice is required concerning crimes, wrongs or acts arising in the same transaction as the charged offense
If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce
A. Any other part of that writing or recorded statement or
B. Any other writing or recorded statement
Which should in fairness be considered by the jury at the same time
The other party is entitled to introduce this immediately
Rule of Optional Completeness
If one party introduces part of an act, conversation or statement the other party is entitled to prove the rest of the subject
Ex: Defense introduces of evidence of bad blood between victim and defendant. Prosecutor then ahs right to introduce evidence that victim doesn’t like defendant because defendant assaulted his sister under the rule of optional completeness to show the rest of the subject
Physician-Patient Privilege
Physician-Patient Privilege does not apply in criminal litigation
In a criminal proceeding a communication is inadmissible if:
- It was made by a person being treated voluntarily (or being examined for admission to treatment) for alcohol or drug abuse and
- It was made to a person involved in the treatment or examination
Clients Communication to Attorney
Clients Communication to Attorney
The client of an attorney has a privilege to have kept confidential a private communication to the attorney
- Including representatives of the lawyer (ex: paralegal)
Privilege of Defendant’s Spouse
Spouse of a criminal defendant has a privilege not to be called as a witness to testify against the defendant or to not testify against the defendant
Exceptions: the defendant’s spouse may be called if either:
A. The prosecution is for an offense committed against
1. Any minor child
2. A household member of either spouse
3. The spouse
B. The spouse is called by the state to testify only about matters that occurred prior to the spouses marriage to the defendant
Spouse has to invoke privilege, not lawyer
The privilege is a privilege of the spouse-witness who decides whether to waive it. This it provides no basis for a defendant to object to testimony by a spouse who voluntarily testifies for the state
Whether the spousal privilege is available turns on whether the witness is married to the defendant at the time of trial
Privilege for Marital Communications
Any person (including a criminal defendant) has a privilege to refuse to disclose and to prevent others from disclosing a confidential communications made by the person to his or her spouse during marriage
Communication is confidential only if it was both:
A. Made privately and
B. Not intended for disclosure to any other person
Exceptions: no privilege exists if:
A. The communication was made to commit a crime or fraud or
B. The prosecution is for a crime committed against the person of
1. Any minor Child
2. A household member of either spouse or
3. The spouse
Statements made in plea bargaining discussions
Statements Made in Plea Bargaining Discussions
A statement made by defendant is inadmissible if it was made in the course of plea discussions with a prosecutor
Both sides on application the clerk are entitled to have subpoenas issued for
Both sides on application the clerk are entitled to have subpoenas issued for witnesses
Either side is entitled to have an attachment issued for a witness if both:
A. The witness has been properly subpoenaed and
B. The witness fails to appear
Before trial counsel can get a subpoena issued directing witness to appear on the day of trial
During trial counsel can get an attachment for witness directing an officer to bring her into court, if witness was property subpoenaed and she did not appear as directed
How do you apply for subpoena
Counsel must state:
- Name of Witness
- Location and Vocation of witness
- That Witnesses testimony is material
Child witness competency
Should be examined by the judge to determine whether the witness has sufficient intellect to relate transactions regarding which he will be asked to testify. If witness does not have this he will not be competent. This should be on the record to preserve any possible error for appeal
Is judge presiding over trial a competent witness?
Rules of evidence provide explicitly that the judge presiding over the trial is not a competent witness
Methods of Impeachment
- Bad conduct (prior convictions)
- Contradiction
- Showing character for untruthfulness
- Showing bias or interest
Impeachment with bad conduct
a witness may be impeached by showing prior bad or criminal conduct only if the cross-examining party establishes:
A. The conduct resulted in a final criminal conviction
B. The conviction is not stale (rule of thumb: no more than 10 years since conviction or release from confinement, whichever is later)
C. The conviction was for a misdemeanor that involved moral turpitude or a felony; and
D. The prejudicial risk of the inquiry is substantially outweighed byts probative value
Impeachment by Contradiction
A party can impeach a witness for the other side by introducing extrinsic evidence that contradicts what the witness said unless the witnesses assertion is on a collateral matter
A matter is collateral if the impeaching aprty would not be able to prove it as part of its own case
Other matters can be explored on cross-examination in order to correct a misleading impression left by the witness
Ex: Witness deal with state for reduced sentence, shows a motive for the witness to falsify and thus bias or interest. Inquiry into any such agreement is thus proper cross-examination
When is a conviction to remote?
General Rule is 10 years for conviction to be to remote
- A conviction can be used to impeach only if it is final and one on appeal is not.
What should a part use to impeach their own witness?
A party can impeach the credibility of the parties own witness
Can do this by using prior inconsistent statements: To do this counsel must-
1. Tell the witness the contents of the prior inconsistent statement
2. Tell the witness the time and place of that statement and the person to whom it was made
3. Afford the witness an opportunity to explain or deny the statement
If witness says they did not make statements, extrinsic evidence of that statement may not be admitted
If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce
A. Any other part of that writing or recorded statement or
B. Any other writing or recorded statement
Which should in fairness be considered by the jury at the same time
The other party is entitled to introduce this immediately
Rule of Optional Completeness
If one party introduces part of an act, conversation or statement the other party is entitled to prove the rest of the subject
Ex: Defense introduces of evidence of bad blood between victim and defendant. Prosecutor then ahs right to introduce evidence that victim doesn’t like defendant because defendant assaulted his sister under the rule of optional completeness to show the rest of the subject
Physician-Patient Privilege
Physician-Patient Privilege does not apply in criminal litigation
In a criminal proceeding a communication is inadmissible if:
- It was made by a person being treated voluntarily (or being examined for admission to treatment) for alcohol or drug abuse and
- It was made to a person involved in the treatment or examination
Clients Communication to Attorney
Clients Communication to Attorney
The client of an attorney has a privilege to have kept confidential a private communication to the attorney
- Including representatives of the lawyer (ex: paralegal)
Privilege of Defendant’s Spouse
Spouse of a criminal defendant has a privilege not to be called as a witness to testify against the defendant or to not testify against the defendant
Exceptions: the defendant’s spouse may be called if either:
A. The prosecution is for an offense committed against
1. Any minor child
2. A household member of either spouse
3. The spouse
B. The spouse is called by the state to testify only about matters that occurred prior to the spouses marriage to the defendant
Spouse has to invoke privilege, not lawyer
The privilege is a privilege of the spouse-witness who decides whether to waive it. This it provides no basis for a defendant to object to testimony by a spouse who voluntarily testifies for the state
Whether the spousal privilege is available turns on whether the witness is married to the defendant at the time of trial
Privilege for Marital Communications
Any person (including a criminal defendant) has a privilege to refuse to disclose and to prevent others from disclosing a confidential communications made by the person to his or her spouse during marriage
Communication is confidential only if it was both:
A. Made privately and
B. Not intended for disclosure to any other person
Exceptions: no privilege exists if:
A. The communication was made to commit a crime or fraud or
B. The prosecution is for a crime committed against the person of
1. Any minor Child
2. A household member of either spouse or
3. The spouse
Statements made in plea bargaining discussions
Statements Made in Plea Bargaining Discussions
A statement made by defendant is inadmissible if it was made in the course of plea discussions with a prosecutor
Both sides on application the clerk are entitled to have subpoenas issued for
Both sides on application the clerk are entitled to have subpoenas issued for witnesses
Either side is entitled to have an attachment issued for a witness if both:
A. The witness has been properly subpoenaed and
B. The witness fails to appear
Before trial counsel can get a subpoena issued directing witness to appear on the day of trial
During trial counsel can get an attachment for witness directing an officer to bring her into court, if witness was property subpoenaed and she did not appear as directed
How do you apply for subpoena
Counsel must state:
- Name of Witness
- Location and Vocation of witness
- That Witnesses testimony is material
Child witness competency
Should be examined by the judge to determine whether the witness has sufficient intellect to relate transactions regarding which he will be asked to testify. If witness does not have this he will not be competent. This should be on the record to preserve any possible error for appeal
Is judge presiding over trial a competent witness?
Rules of evidence provide explicitly that the judge presiding over the trial is not a competent witness
Methods of Impeachment
- Bad conduct (prior convictions)
- Contradiction
- Showing character for untruthfulness
- Showing bias or interest
Impeachment with bad conduct
a witness may be impeached by showing prior bad or criminal conduct only if the cross-examining party establishes:
A. The conduct resulted in a final criminal conviction
B. The conviction is not stale (rule of thumb: no more than 10 years since conviction or release from confinement, whichever is later)
C. The conviction was for a misdemeanor that involved moral turpitude or a felony; and
D. The prejudicial risk of the inquiry is substantially outweighed byts probative value
Impeachment by Contradiction
A party can impeach a witness for the other side by introducing extrinsic evidence that contradicts what the witness said unless the witnesses assertion is on a collateral matter
A matter is collateral if the impeaching aprty would not be able to prove it as part of its own case
Other matters can be explored on cross-examination in order to correct a misleading impression left by the witness
Ex: Witness deal with state for reduced sentence, shows a motive for the witness to falsify and thus bias or interest. Inquiry into any such agreement is thus proper cross-examination
When is a conviction to remote?
General Rule is 10 years for conviction to be to remote
- A conviction can be used to impeach only if it is final and one on appeal is not.
What should a part use to impeach their own witness?
A party can impeach the credibility of the parties own witness
Can do this by using prior inconsistent statements: To do this counsel must-
1. Tell the witness the contents of the prior inconsistent statement
2. Tell the witness the time and place of that statement and the person to whom it was made
3. Afford the witness an opportunity to explain or deny the statement
If witness says they did not make statements, extrinsic evidence of that statement may not be admitted
When can misdemeanor conviction be used to impeach a witness?
A misdemeanor conviction can be used to impeach only if is for a crime involving moral turpitude
Moral Turpitude: theft, perjury, forgery, making false report to police, aggravated assault on a female, prostitution
Not Moral Turpitude: DWI, drunkenness, assault, possession of marijuana, liquor law violations, unlawfully carrying weapon
Can you use details of crime to impeach?
Can only submit conviction of crime not details of crime
Improper cross-examination is permitted when?
Improper cross-examination is permitted if necessary to correct a misleading impression created by a witnesses unresponsive answer
A party can contradict a witness’s testimony with extrinsic evidence but only if the matter is one the party would be able to prove as part of the party’s own case
Can you use a crime that resulted in probation to impeach?
A witness may be impeached by a conviction resulting in probation until and if the probation has been successfully completed.
In making trial rulings the judge must not:
In making trial rulings the judge must not:
- Comment on the weight of the evidence or
- Convey to the jury the judges opinion of the merits
The Rule
The Rule:
Upon request of either party witness must be excluded from the courtroom except during their own testimony
If a witness is found to have violated the rule the trial court may:
Hold the witness in contempt and/or exclude the testimony of that witness
If Rule is invoked to keep witness out of court room court should also admonish each witness as to:
1. Those persons with who the court determines the witness may talk to about the case before trial ends and
2. Those persons the court determines the witness may not talk to
If the admonishment is given and a witness violates it the witness may be held in contempt
When the rule has been invoked there are particular classes of witnesses excepted
Exclusion is not permitted of:
The defendant
If the defendant is a corporation, an officer or employee of the defendant
Any person whose presence is shown to be essential to the presentation of a party’s case (expert witness)
The victim, the victim’s guardian, or a close relative of a deceased victim unless the trial court finds that the testimony would be materially affected by hearing other testimony
- Spouse of defendant is not exempt from the rule
Factors court should consider in determining the admissibility of scientific evidence:
- Acceptance of the underlying scientific theory and technique as valid by the scientific community
- Whether scientific literature supports or rejects the theory and technique
- The potential error rate of the technique
- The qualifications of the expert offered to testify
- Availability of other experts to test and evaluate the technique
- The clarity with which the theory and technique can be explained in court
- Experience and skill of person who applied the technique in this case
Expert Witness Testimony
Generally an expert witness may testify to an opinion without fist disclosing the facts or data on which that opinion is based
In criminal cases, a party against who expert testimony is offered has a right, upon request, to voir dire the expert on the facts or data upon which the testimony will be based before the witness testifies to the opinion (discretionary in civil cases)
Party has a right to conduct a voir dire examination of an expert’s facts and basis for opinion before the witness testifies to an opinion
A party is entitled to a writing if witness for the other side used it:
- To refresh her memory before her testimony or
- To refresh her memory during her testimony
A party is entitled to the prior written or recorded statement of a witness for the other side (or a statement of the witness made to a grand jury) after that witness has finished direct examination (does not apply to defendant)
Use before the jury rule: A party is entitled to an item (such as a photograph) if it is used by opposing counsel in front of the jury in such a way that its contents become in issued
Disclosure During Trial/ Work Product Doctrine
Work Product Doctrine does not apply here as it does pre-trial
If party refuses to produce the statement
If party refuses to produce the statement the court shall order that the direct testimony of the witness be struck from the record. It may also dismiss that party if it determines that the interest of justice requires this
Photographs
A photograph is admissible if a witness would be permitted to give a verbal description of what the photo shows
Authentication of a photograph generally requires that a sponsoring witness testify that:
- The witness saw the matter shown in the photo and
- The photo accurately depicts what the witness knows the matter looked like
Trial judge has discretion to see if probative value of the evidence is substantially exceeded by the risk of unfair prejudice from its use.
Federal Constitutional Rule about illegally obtained evidence
Federal Constitutional Rule: Evidence obtained as a result of a violation of the defendants fourth, fifth or sixth amendment rights cannot be used to prove the defendants guilt
Texas Statutory Law about illegally obtained evidence
Texas statutory law: Evidence may not be admitted against the accuse at trial if it was obtained by an officer or other person in violation of: A. The constitution of the US or B. The laws of the US or C. The constitution of Texas or D. The laws of Texas
Good Faith exception to Texas rule: Illegally obtained evidence is admissible if it was obtained by an officer
A. Acting in objective good faith reliance upon a warrant and
B. This was issued by disinterest magistrate based on probable cause
Sometimes under Texas law whether evidence was illegally obtained is a question for the trial jury
- Jury should be told to consider whether the evidence was illegally obtained. It should be further told that it should disregard the evidence unless it finds the state proves beyond a reasonable doubt that the evidence was legally obtained
Who develops a proposed jury charge ?
The trial judge develops a proposed jury charge (instruction) and submits it to both sides
In the charge, the judge is not to either:
A. Summarize the evidence or
B. Comment on the evidence
Giving the Jury Charge
A. The just must read the charge to the jury in court
B. This is done before the lawyers make final arguments
C. The jury is also given a written copy of the charge
Error in the jury charge can be preserved by either:
A. An objection or
B. A request for a special charge containing correct law
To make requested special charges and objections orally:
An oral objection or request is sufficient if:
- It is dictated to the court reporter
- In the presence of the judge and the prosecutor and
- This is done before the final charge is read to the jury
If these requirements are met: You are no longer required to reduce them to writing
Objections and requests for charges must be in writing BUT this can be accomplished by dictation to the court reporter
There are abstract portions of the charge and application portion of the charge
Error in jury charges is subject to special harmless error criteria, under which a conviction may be reserved for fundamental error despite the lack of a trial objection:
- Preserved error requires reversal if it results in some harm
- Unpreserved error requires reversal but only if it results in egregious harm and thus prevents a fair trial (Almanza Rule)
Reasonable Doubt should not be defined in the jury charge because definitions are not likely to be helpful
Instruction can tell jury that a defendant has a right to not testify and his failure to testify should not be taken as a circumstance against him. It should be made clear to the jury that it should draw no adverse inference against the defendant from his failure to testify
Charging Instrument
A. Exception: “It is an exception to the application”
B. Defense: “ It is a defense to prosecution”
C. Affirmative Defenses: “It is an affirmative defense to prosecution that”
Some defenses and affirmative defenses are set out generally in the penal code
A. Defenses: mistake of fact, entrapment, necessity, self-defense, defense of others, defense of property
B. Affirmative Defenses: insanity, mistake of law, duress
Exceptions, some defenses, and some affirmative defenses are provided for by the specific statute creating and defining the specific crimes
Elements of crime must be pleaded, always in the jury instruction, burden of proof on state, beyond a reasonable doubt
Exceptions must be negated, always in the jury instruction, burden of proof on state beyond a reasonable doubt
Defenses do not need to be pleaded in the indictment, Jury is instructed if evidence supporting defense is producesed burden of proof is on state, beyond a reasonable doubt
Affirmative defenses doe not need to be pleaded in the indictment, jury instructed if evidence supporting affirmative defense is produced burden of proof on defendant by preponderance of the evidence
Exceptions but not defenses or affirmative defenses must be negated in the charging instrument
Need to have evidence if you want instruction on defenses or affirmative defenses
A jury charge should refer to a defense or an affirmative defense only if evidence supporting the matter has been introduced
In making final arguments the lawyers are limited to four subjects:
A. Summation of the evidence
B. Making reasonable deductions fro the evidence
C. Answering arguments of opposing counsel and
D. Making pleas for law enforcement (that jurors should “do their duty”)
- Counsel allowed to point out that judge often sustained objections. Judges rulings are not evidence
Order of arguments is regulated by the judge. In a felony case the arguments may never be restricted to a number of addresses less than 2 on each side BUT the state must have the right to argue last
Commenting on Defendants Rights of compelled self-incrimination
- Cant comment on defendant not taking witness stand, keeping quiet after arrested and given Miranda warnings, having the opportunity to tell officers that you are innocent and you didn’t
- Ok: When the police arrived at the scene before they arrested anyone, they talked to anyone who volunteered information and defendant said nothing
The prosecution cannot prove or comment on:
1. The defendants failure to testify at trial
2. The defendants silence after arrest and Miranda warnings or
3. Under Texas law, the defendants silence after arrest
BUT the prosecution can comment on silence before arrest
Accomplice testimony (accomplice witness rule)
Accomplice witness: a witness who could be convicted of the crime charged
A defendant cannot be convicted on the testimony of an accomplice unless there is corroborating evidence that tends to connect the defendant to the crime
Defendants out-of-court confession (corpus delictic rule)
A defendant cannot be convicted on an out-of-court confession unless there is corroborating evidence of the corpus delicit that is evidence tending to show that a crime was in fact committed
Sexual assault victim’s testimony
A defendant cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the defendant to the offense unless:
A. The victim told someone other that defendant about the offense within 1 year of its commission
B. The victim was under 18 years of age at the time of the crime
C. The victim was impaired, that is, unable to satisfy her need for food, shelter, care and protection or
D. The victim was 65 years of age or older
- If one of these then can be convicted on testimony alone
Some testimony by an undercover informer
In a prosecution for a drug offense, conviction cannot rest on the uncorroborated testimony of a person not a law enforcement officer, who acted covertly for or under color of law enforcement
Jailhouse Snitch Testimony
A conviction cannot rest on the testimony of a person to whom the defendant made a confession while that person was confined in jail with the defendant. The testimony of such a person must be corroborated by testimony tending to connect the defendant to the offense
Jury Deliberations
If a jury disagrees about a witnesses statement during deliberations the jury may request of the judge that the court reporter read the relevant portions to them for his or her notes. If the court reporter is not able to read his or her notes the jury can request that the witness be brought back to the stand to repeat the relevant portion of her testimony
Sentencing: Assessment of Punishment
Defendants have a right to have the trial jury (that determined guilt) also assess the punishment (federal court: judge does this)
The state cannot have the jury assess punishment if the defendant fails to elect jury sentencing
Jury sentencing must be invoked by the defendant by a timely election for jury sentencing
Capital murder cases: jury required if the state seeks the death penalty
Election for jury sentencing: Filed before voir dire begins
At a punishment hearing before the jury, the general rules of evidence apply.
But all matters may be proved that the trial court deems relevant to punishment including:
A. Defendants prior criminal record
B. Defendants general reputation
C. Defendants character (and opinion testimony)
D. Circumstances of the offense for which defendant has been found guilty
E. A juvenile court conviction (adjudication of delinquency) based on felony conduct
F. Evidence of an extraneous crime or bad act by defendant whether or not defendant has been convicted of that
Is the court required to follow a plea agreement?
The court is not required to follow a plea agreement. If the court refuses to impose the sentence recommended by the prosecutor, the court must allow defendant to withdraw guilty plea
The judge is not required to direct a presentence report if:
- The punishment is assessed by a jury
- The only available punishment is imprisonment
- The judge is informed that a plea bargain exists under which the defendant agrees to imprisonment and the judge follows the agreement
- The defendant is convicted of capital murder
If defendant is considered that prosecutor is going to bring up bad acts doesn’t want to be surprised what can defendant do?
Defendant can make a pretrial request for notice of intent to offer bad act evidence at punishment. IF the defense makes the request the state must provide notice of intent to introduce evidence of prior crimes or bad acts, even if those did not result in convictions. Notice must specify with regard to each crime or bad act:
- The date on which it occurred
- The county in which it occurred and
- The name of the victim
Defense can request two kinds of evidence:
- extraneous offense notice (at guilt-innocence) and
2. Notice of extraneous offenses (at punishment)
Can Defendant change an election regarding assessment of punishment?
Defendant gets jury to asses punishment if he invokes it or elects it
A defendant may change an election regarding assessment of punishment after the finding of guilt but the prosecutor must consent. So if prosecutors object defendant cannot change his election
Can jury consider existence of parole or good time?
If the defendant is sentences to imprisonment the time served may be reduced by goodtime and he may be released on parole
IF he is sentenced to imprisonment the defendant will be eligible for parole when actual time served plus good time equals one-fourth of the sentence imposed
Jury may consider the existence of parole law and good conduct time. But they are not to consider-
A. The extent to which good time may be awarded to this defendant or
B. How parole law may be applied in this case
Defendant and Punishment Stage
The privilege against self-incrimination applies at the punishment stage
At the penalty stage of the trial the defendants character is automatically at issue and prosecutor can put on witnesses to testify to it
A judicial confession at punishment does not automatically waive any errors committed during the guilt stage of the trial
When a jury cannot reach a unanimous verdict on punishment, Legislature has not authorized a mistrial on punishment only.
Jury will be given two or three special issues?
- Is there a probability that the defendant will commit criminal acts of violence constituting a continuing threat?
- Did the defendant
A. Actually personally cause the death of the victim or
B. Intend to kill the victim
C. Anticipate that a human life would be taken
Question 1 and 3 are always submitted. Question 2 is submitted only if at the guilt stage of the trial the judge instructed the jury that it could convict the defendant as a party to a killing actually committed by someone else
IF the jury unanimously votes yes on questions 1 and 2 and No on question 3 the judge msut impose death. Otherwise life imprisonment is imposed
Community Supervision
Sometimes after a sentence of imprisonment is assessed its execution is suspended and the defendant is placed on community supervision
A defendant is eligible for community supervision if the punishment assessed does not exceed 10 years imprisonment
When can Community Supervision been revoked?
A. Violation of condition of community supervision must be shown, but only by proof by a preponderance of the evidence
B. No jury trial is held
C. Defendant is required to serve the prison sentence previously assessed (or as reduced by the trial judge)
What happens if community supervision is completed?
If a defendant successfully completes community supervision, the trial court has discretion to dismiss the charges
When can jury consider recommending community supervision?
Jury can be asked to consider recommending community supervision if after it assess the punishment the defendant is eligible that is the sentence assessed does not exceed 10 years. To have the jury consider such a recommendation defendant must have filed pretrial an application for probation
- No prior felonies
Neither the judge not the jury can give a defendant community supervision in certain situations, primarily if convictions is for:
A. Murder or
B. Sex offense with child under 14
Jury (but not judge) can give community supervision if:
A. Conviction is for offense for which community supervision is not totally barred or deadly weapon finding is made
- Serious Offense: Murder, capital murder…
Shock Community Supervision
Procedure under which a sentence of imprisonment is imposed and the defendant begins to serve it. During the first 180 days of the term of imprisonment the defendant is brought back to court. Sentence is then subpoena and the defendant is placed on community supervision
Deferred Adjudication
Deferred adjudication is a procedure under which the trial court places the defendant on community supervision without actually finding defendant guilty because it defers a finding of guilt
A defendant is eligible for deferred adjudication if:
1. DWI, FWI, BWI
2. Intoxicated assault
2. Intoxication manslaughter and
The defendant enters a plead of guilty or nolo contender
Procedure for deferring adjudication: trial court must:
A. Receive defendants plea of guilty or nolo contendere
B. Hear evidence
C. Find that evidence substantiaties defendants guilt and
D. Inform defendant of the consequences of violating community supervision- defendant could get any sentence in the statutory range
Violating community supervision /successfully completing community supervision
If defendant is proved to have violated conditions of community supervision the trial court can proceed to adjudication and finds defendant guilty
If defendant successfully completes community supervision the charges are dismissed
If deferred adjudication community supervision is revoked the defendants sentence is not limited to a sentence previously assessed as is the case when regular community supervision is revoked
Ways in which deferred adjudication differs from probation
- Defendant must be found guilty before probation can be imposed, deferred adjudication involves no such finding
- Defendant can get regular probation after a plea of not guilty, deferred adjudication requires a plea of guilty or nolo contender
- If deferred adjudication probation is revoked, defendant can be given any sentence in statutory rage if regular probation is revoked defendant gets sentence previously assessed
Only reasons why an assessed sentence is not to be pronounced are:
- The defendant has received a pardon
- The defendant has become incompetent to continue the proceedings or
- The defendant is not the person convicted of the crime
Pronouncing the assess sentence (formal sentencing) is done by
Pronouncing the assess sentence (formal sentencing) is done by the trial judge
Before pronouncing the sentence the judge is to ask the defendant whether he has anything to say as to why sentence should not be imposed
A victim (or relative of a deceased victim) has a right to make a statement to the court and the defendant. It must be permitted only after the sentenced has been pronounced
- The victim may not direct questions to the defendant during the statement
- The court reporter may not transcribe the statement
When a case is resolved by a plea bargain what does the victim need to know?
If a case is resolved by plea bargain the victim has to be notified about existence of plea bargain and its terms
A motion for new trial must be
Filed within 30 days of pronouncement of sentence and
Presented to the court within 10 days of filing (but court can permit presentation within 75 days from sentencing)
- Must be ruled on within 75 days of sentencing (or overruled by operation of law)
Grounds for granting a new trial include:
- Continuing trial when defendant required to be present and was not
- Verdict was decided by lot (flipping of coin)
- Defendants right to counsel was violated
- A juror was bribed or engaged in other corrupt conduct
- The jurors received evidence after retiring to deliberate
- A juror converses about the case with someone not on the jury
- New evidence has been discovered
If new evidence is brought to light, new trial should be granted if newly discovered evidence is material which means that-
- It was unknown to defendant before trial
- Failure to discover the evidence earlier was not due to defendants lack of diligence
- The evidence is competent and not merely collateral or impeaching and
- The evidence is so persuasive that it would probably cause a different result in a new trial
Defense counsel must file the motion within 30 days of sentencing and then present it to the court within 10 days of filing
Personal information about the jurors is
Personal information about the jurors is confidential and may not be disclosed. The defense as a party to the case may apply to the court for disclosure. Disclosure is to be ordered only on a showing of good cause. Good cause requires a firm foundation for believing that misconduct occurred
Motion in arrest of judgment can be made on the grounds that:
The indictment has a defect of substance
The verdict varies from the indictment or
The judgment is invalid
When can a defendant appeal?
A defendant can appeal only after conviction and sentencing
Defendant convicted of capital murder and sentenced to death in district court: appeal is mandatory and to court of criminal appeals
Defendant convicted in district or county court
Appeal as of right to court of appeals
Seek review from court of criminal appeals
Defendant convicted in a justice court or municipal court not a court of record
Appeal is to county court for trial de novo
Appeal to court of appeals only if:
Fine imposed exceeds $100 or sole issue is constitutionality of statute or ordinance
A convicted defendant is not eligible for bail pending appeal if
A convicted defendant is not eligible for bail pending appeal if the punishment assessed is 10 years imprisonment or more
Bail may be denied to a defendant eligible for bail pending appeal if the trial court finds either that the defendant
1. Will not appear if the conviction is affirmed or
2. Is likely to commit an additional offense while on bail
An appeal is perfect by filing notice of appeal which must be:
A. In writing
B. Filed with the trial court and
C. Generally filed within 30 days of formal sentencing
If motion for new trial filed, notice of appeal must be filed within
If motion for new trial filed, notice of appeal must be filed within 90 days of formal sentencing
Notice of appeal is required in all cases except those in which
Notice of appeal is required in all cases except those in which the death penalty was imposed
A defendant who pleads guilty pursuant to a plea bargain and receives a sentence within the bargain can appeal only if:
A. The trial judge grants permission or
B. The appeal is based on matters raised by pretrial written motion and ruled on before trial
Esaping defendant and appeal-
Esaping defendant and appeal-
When prosecutor learns of escape should move to dismiss the appeal and the court of appeals should dismiss it.
The motion to dismiss must be denied or a dismissed appeal reinstated only of the defendant returns to custody:
- Voluntarily and
2. Within 10 days of the escape
When defendant appeals and court of appeals affirms conviction:
Defendant can file a petition for discretionary review (PDR) by the court of criminal appeals. He has not right to review by that court of the decision of the court of appeals. Whether to grant review is discretionary with the high court.
PDR should be filed in the court of appeals which will send the PDR and other documents in the case to the court of criminal appeals
Defendant has not way to seek review from Texas Supreme Court
Discretionary Review can occur
On PDR by the defendant
On PDR by the state or
On CCA’s own motion
The state may appeal in six pre-trial and post-trial situations
Pretrial: state may appeal if trial court:
- Dismisses the indictment
- Grants a defense motion to suppress evidence before jeopardy attaches
- Sustains a defendants claim of double jeopardy
PostTrial: State may appeal if trial court
- Grants a defense motion for new trial
- Grants a defense motion to arrest judgment or
- Imposes an illegal sentence
If a convicted defendant appeals the state may cross appeal on
If a convicted defendant appeals the state may cross appeal on a question of law decided against the state
Ex: Granting of motion to suppress before jury selected
State can appeal. Requirements:
- Show jeopardy had not yet attached when order was entered
- The appeal must be taken within 20 days of the order and
- The state must certify that
A. The evidence is of substantial importance in the case and
B. The appeal is not taken for purposes of delay
What happens regarding the trial proceedings?
The state is entitled to a stay of the trial court proceedings pending resolution of appeal
Defendant who is in jail on appeall: Defense counsel should move
Defendant who is in jail: Defense counsel should move to have bail reduced to an mount that defendant is actually able to meet
- Trial court should grant personal bond if they ruled to dismiss indictment and state appealed
If the state takes an appeal from a pretrial order favoring the defendant
- Defendant in custody is entitled to released on reasonable bail
- If the order is one that ends the prosecution (dismissal) defendant is entitled to personal bond
Appellant has responsibility to preserve error
Preserving error does not require raising a matter in a motion for new trial
What is required depends on the type of error
To preserve error in excluding evidence counsel must make an offer of proof showing the substance of the evidence. Can be done by either:
- Counsel’s oral summary of the excluded evidence or
- Question and answer form (informal bill or exception)
AND get a ruling excluding the evidence
To preserve error in admitting evidence
- Make a timely objection and
- State specifically the ground to be relied upon on appeal and
- Secure from the trial judge a ruling
To preserve error in improper argument or comment by another lawyer or the judge or the asking of an improper question counsel must
- Immediately object and
- Seek instruction to disregard and
- Move for mistrial
AND get rulings on each of these
Sufficiency of the evidence is measured against
Evidence is subject to review for legal sufficiency
Sufficiency of the evidence is measured against a hypothetical jury charge correct for the case
The standard for legal sufficiency is whether viewing the evidence in the light most favorable to the state could a rational jury have found all elements of the crime to be proved beyond a reasonable doubt
Variance between pleading and proof occurs if both:
A. The state proves the defendant guilty of the offense charged
B. But the states proof shows guilt in a way that differs “varies” from an unnecessarily included detail in the pleading
Variance requires acquittal only if the variance between the allegation and the proof was material that is whether under the circumstances of the case it rendered the indictment insufficient to enable defendant to preserve a defense
A conviction can be affirmed on appeal despite error if the error is
A conviction can be affirmed on appeal despite error if the error is harmless
Whether error in the jury charge is harmless or not is determined by special rules
Nonconstitutional error is harmless if
Nonconstitutional error is harmless if it does not affect the appellants substantial rights. This means error will be harmless if the error did not effect the outcome of the case
Constitutional error is harmless only if
Constitutional error is harmless only if the appellate court is convicted beyond a reasonable doubt that the error did not contribute to either:
- The conviction or
- The punishment
Post- Conviction attacks on convictions are brought by
Post- Conviction attacks on convictions are brought by application for the writ of habeas corpus
An applicant seeking post-conviction habeas corpus relief is entitled to such relief only upon proof of:
A. An error rendering the conviction void
B. A jurisdictional error
C. Violation of a constitutional right or
D. Actual innocence which requires:
1. New evidence showing innocence that is now available and
2. By clear and convincing evidence that no reasonable jury hearing this new evidence would convict
Only defendant has sought post-conviction habeas corpus relief, defendant can bring another habeas corpus action only if:
The subsequent action is based on a ground not available when the first action was brought or
Defendant establishes both:
A. The defendants federal constitutional rights were violated and
B. But for that violation no rational juror could have found defendant guilty
Can A convicted defendant make a motion in the convicting court for DNA testing of evidence?
A convicted defendant may make a motion in the convicting court for DNA testing of evidence
To Attack matters on other grounds after conviction:
Counsel should file an application for the writ of habeas corpus in the conviction district court
If there are factual matters that need to be established counsel should seek a hearing in that court and at that hearing be prepared to prove the facts necessary to get relief
The district court will then compile a record which may include findings and conclusions
The record will be transmitted to the court of criminal appeals which will determine if defendant gets relief or not
Once Defendant placed in jeopardy for the offense
Once Defendant placed in jeopardy for the offense, defendant can never again be trie for that same offense
Second prosecution not barred if first ended before jeopardy attached
Acquittals are always final: no second trial permitted:
Acquittals are always final: no second trial permitted:
A. Any finding that evidence is insufficient made by trial or appellate court is an acquittal
B. Conviction of a lesser included offense is an implied acuittal of charged crim
Exceptions: Second trial permitted if:
Exceptions: Second trial permitted if:
- The proceeding ended in mistrial declared for “manifest necessity” (hung jury)
- The first proceeding ended in mistrial declared on motion of defendant
- First trial ended in conviction reversed on appeal because of procedural error
- First trial ended in conviction reverse on appeal because verdict was against weight of sufficient evidence
- Second prosecution is by a different sovereign jurisdiction
Attachment of jeopardy for federal (MBE)
Jury Trial: When Jury is sworn in
Bench Trial: when first witness is sworn in
Attachment of jeopardy for Texas (essays)
Jury Trial: When jury is sworn in
Bench Trial: when both 1. The parties have announced ready and 2. The defendant pleads to the indictment
Successive prosecutions for different offense are barred only if
Successive prosecutions for different offense are barred only if one offense is a lesser included offense of the other, because only then are two offenses the “same”
Blockburger test for determining lesser included nature of different offenses:
Blockburger test for determining lesser included nature of different offenses:
- If each offense contains at least one element not contained in the other, then neither is a lesser included offense of the other and successive prosecutions are permitted
- Otherwise one is a lesser included offense of the other and successive prosecutions are barred
Collateral Estoppel Rule: Acquittal of one offense bars second prosecution for different but related offense if defendant shows both:
A. The precise factual basis for acquittal in first proceeding and
B. That fact also controls in second prosecution
Convictions for several related offenses in one proceeding are barred only if
Convictions for several related offenses in one proceeding are barred only if the legislature did not intend to authorize convictions for all
If one offense is a lesser included offense of another, it is presumed (rebuttably) that the legislature did not intend conviction for both
Multiple prosecutions and/or convictions permitted if done by
Multiple prosecutions and/or convictions permitted if done by separate sovereign governments
State and Federal governments: Separate Sovereigns
Different States: Separate Sovereigns
State and city or county? NOT Separate Sovereigns
How to raise double jeopardy:
A. File a pre-trial application for the writ of habeas corpus
- Judge (not jury) would decide the issue
- Issue would be resolved before trial
- If she loses, she can immediately appeal
OR
B. File a special plea of former jeopardy
- Jury would resolve contested issues of fact
- She would raise it during trial
- If convicted, she could appeal at the time
Can authorities compel someone to engage in self-incriminating testimony?
Authorities cannot compel a person to engage in self-incriminating testimonial behavior
Immunity
Use Immunity: gives the person no protection from prosecution. But if she is prosecuted the government cannot use against her as evidence her testimony.
Transactional Immunity: gives the person immunity from prosecution for any offense arising out of the transaction about which she testifies under the grant of immunity
- If you are given use immunity you can be compelled to testify, cant refuse to give testimony because you want transactional immunity
Can a person be compelled to engage in nontestimonial self-incrimination?
A person can be compelled to engage in nontestimonial self-incriminating behavior
Testimonial behavior: an intentional communication of one’s thoughts
Testimonial: directing the defendant to answer after asking “did you do it” or “where is the murder weapon”
Not Testimonial: Blood samples, Breath Samples, Walking the line, Compelling person to stand in line-up, making person in line-up speak to see if voice is recognized, making defendant walk to see their limp
Civil Trial: Same rules apply
Evidence obtained as result of unreasonable search and seizure
Evidence obtained as result of unreasonable search and seizure cannot be used to prove a criminal defendants guilt
A search is
A search is any official action that intrudes upon a person’s reasonable expectation of privacy
Not a Search:
- Aerial surveillance of fenced yard
- Examination of trash left in yard
- Determining numbers dial from residential home (pen registry)
- Having a dog sniff luggage in an airport
Search:
- Rigorous squeezing of luggage in bus overhead rack
- Thermal imaging scan of residence
- Attaching a tracking device to a vehicle and using it for long term monitoring
- Dog sniffing on porch
Plain View
Officers merely exercise their right to engage in plain view and do not search if they:
A. Reach a location without violating the fourth amendment and
B. Simply look at something in open view
- Plain view seizure rule does not apply if when officers come upon an item in plain view they are searching improperly
Open Fields:
Officers who go upon any unoccupied or undeveloped area of land not part of the curtilage of a dwelling do not “search”
Curtilage: area surrounding and used in connection with residence
- Going onto curtilage is a search
2 general requirements of reasonableness:
- Must be pursuant to valid search warrant (but exceptions) and
- Must be based on probable cause
Probable Cause
Facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises
Items subject to seizure:
A. Contraband (something illegal to possess)
B. Fruits of crime
C. Instruments of Crime
D. Evidence that a crime was committed or that a particular person committed it (mere evidence in Texas)
Racial Profiling Texas
Texas statute: A peace officer may not engage in racial profiling
Definition: Action based on an individuals race, ethnicity or national origin rather than the individuals behavior or on information identifying the individual has having engaged in criminal activity
Search Warrant
judicial order authorizing search and seizure
Warrant must be issued on information constituting probable cause: affidavit must set out facts from which issuing magistrate can make independent judgment that probable cause exists
Search Warrant must specify both
A. Place to be searched and
B. Items to be searched for and seized
Before entering premises officers must
Before entering premises officers must knock and announce and give occupants opportunity to admit the officers
- Fourth Amendment Exclusionary Rule does not apply to no knock violations
No knock entry permitted if officers have reasonable suspicion that occupants would:
- Resist the officers by using force or
- Remove or destroy items for which warrant issued
Search must be limited to both:
Search must be limited to both:
A. Place described and
B. Within that place those locations where described items might reasonably be expected to be located
Officer can seize:
- Items reasonably believed to be those described and
- Other items found in plain view during search if probable cause exists to believe they are seizable
Officers executing a warrant can seize some undescribed items they discover plain view during search
Warrants based on tips:
Warrant affidavit relying on information tip helped by specific facts indicating:
- Informant was in general sense reliable and
- Informant had reliable source for this specific information
To successfully challenge a search warrant based on inaccurate facts in the affidavit a defendant must who:
- The affiant misstated certain facts
- The affiant did this intentionally or at least with reckless disregard for whether the stated fact was accurate and
- The misstated fact was material, which mean that without that fact the affidavit was not sufficient to support the search warrant
Texas Search Warrant Law Essay
Texas Statutes impose requirements for search warrants beyond what fourth amendment requires
- Remember to distinguish evidentiary search warrants
A Texas search warrant must contain:
- A statement that it runs in the name of “The state of Texas”
- A specification of the person, place or thing to be searched
- Specification of the items to be seized
- An endorsement of the date and hour it was issued and
- The signature of the issuing magistrate
A regular search warrant may be issued by an magistrate
If search warrant is because of informant must state that, officer cant say its based on their own knowledge. IF they do it is insufficient and invalid
In Texas only a written affidavit can be considered by magistrate
In Texas only a written affidavit can be considered by magistrate (in federal it can be based on oral explanation)
- In deciding whether a warrant was validly issued a court may consider only the information within the four corners of the written affidavit (Four Corners Rule)
A search warrant must be executed within
A search warrant must be executed within three days, exclusive of the day of the issuance of the warrant and the day of the execution of the warrant
- So really 5 days. 3 to look, 1 day to issue, 1 day to execute
Evidentiary search warrant:
Evidentiary search warrant: warrant that issues for an item that is seizable only because it is evidence that a crime was committed or a particular person committed it
Evidentiary warrants may be issued only by:
A district judge, County judge, court judge, court of criminal appeals judge, supreme court justice or
Municipal court of record or county judge who is a licenses attorney
Except: Any magistrate may issue in county without a statutory county court or municipal or county judge who is attorney
No evidentiary warrant may be issued for writing of accused
Ex: Defendant says he wrote about it in diary and you want to seize it
Evidentiary warrants may be issued only by
A district judge, County judge, court judge, court of criminal appeals judge, supreme court justice or
Municipal court of record or county judge who is a licenses attorney
Except: Any magistrate may issue in county without a statutory county court or municipal or county judge who is attorney
No evidentiary warrant may be issued for writing of accused
Ex: Defendant says he wrote about it in diary and you want to seize it
While executing an evidentiary search warrant officers may seize:
A. The items described in the warrant and
B. Items come upon in plain view for which a regular search warrant could issue
BUT they many not seize items of mere evidence that are not described in evidence
Can get another warrant for these items, but only if they go to a judge with authority to issue a subsequent evidentiary warrant
- An additionally evidentiary search warrant may be issued for the same person, place or thing previously searched under an evidentiary search warrant only by a district or appellate judge
Warrantless Searches: Fourth Amendment Law
Requirements of search warrant has a number of exceptions under which warrantless searches are reasonable
- Some are also exceptions to requirement of probable cause
Consent searches require
Consent searches require neither warrant nor probable cause
Effectiveness of Consent:
- Consent must be voluntary
- Consent must be from either:
A. Someone with a general right of access to premises (actual authority to give consent) OR
B. Someone reasonably believed by officers to have such access (apparent authority)
Joint Occupants and Consent
Officers need consent from only one of several joint occupants
If joint occupant at whom search is directed is present and actively objecting consent from other joint occupants is not effective
Scope of Consent
Consent covers what reasonable person in the situation would understand the words to mean
Do police have to tell you that you have the right to refuse consent?
No
Vehicle Exception to Warrant Requirement:
Vehicle Exception to Warrant Requirement: Moving vehicles and those parked in public places can be searched without a warrant
But probable cause is necessary
Search can extend to any place where the items might be found
Search incident to arrest Automobiles
Custodial arrest of person in a vehicle (or immediately after getting out) permits as an incident of that arrest:
A. If there is reason to believe evidence related to the crime of arrest is located in the vehicle or the arrestee is unsecured
B. Search of the passenger compartment (including the glvoe box/ glove department)
BUT not the trunk
Inventory Inspection cars
Properly impounded vehicle may be inventoried pursuant to standardized procedure
Is officer motive relevant for pulling over a car?
If officers have probable cause to believe a traffic violation was committed, their actual motive for making the stop is irrelevant
When can you search contents of containers in a car?
Contents of containers in car can be examined if car can be searched
A warrantless search is permitted if officers have both:
- Reason to believe delaying the search to get a warrant would result in removal or destruction of the items and
- Probable cause to believe seizable items will be found
- “Gut Feeling” not sufficient for probable cause
Does an invalid arrest have effect upon trial courts jurisdiction?
Invalid arrest has no effect upon trial courts jurisdiction
- Illegal arrest doesn’t mean you can claim that you shouldn’t be charged for the offense
If valid custodial arrest made, automatic right to search two places:
- Person of the arrestee (which includes pockets and items found on the person of the arrestee) and
- Area of possible reach
If arrest is made inside premises:
- Officers automatically can look in immediately adjoining places where persons might be concealed
- Protective sweep of entire premises can be made but only if officers have reasonable suspicion that dangerous persons are present
Warrant is required only if premises are entered for suspect;
Warrant is required only if premises are entered for suspect;
A. Suspect’s own residence: arrest warrant is sufficient
B. Other premises: search warrant is needed
If valid arrest is made then can officers automatically search?
If valid arrest is made then officers can automatically search
Reasonable arrest requires probable cause to believe
Reasonable arrest requires probable cause to believe person committed offense
Inventory Search of Person
Following arrest police may inventory all of the arrestee’s personal belongings
Police may also inventory the contents of an automobile
In conducting the inventory police must follow an existing department policy
Police can seize any contraband found during the inventory
- If police go through wallet and find evidence (ex: stolen card), As long as police department’s inventory policy specified that officers should search through the contents of wallets
Texas Arrest Law
An arrest must be made pursuant to a valid arrest warrant (or combination arrest and search warrant)
Arrests without warrant: Permissible if-
- Offense committed in officers presence or view
- Probable cause to believe suspect committed a felony and reason to believe suspect is “about to escape”
- Suspect is found in a “suspicious place” and has committed a felony or breach of the peace
- Suspect committed violation of protective order
- suspect injured another and danger of further injury to victim
- Suspect found with stolen property
- Suspect injured member of family or household or
- Probably cause to believe suspect committed a felony is based on admissible statement to officer
Items which Texas law requires be present in an arrest warrant:
Items which Texas law requires be present in an arrest warrant:
- The name of the person to be arrested or a physical description
- The name of the offense the person is accused of committing
- The signature of the issuing magistrate and
- The judicial office of the issuing magistrate
Where does a valid warrant reach?
A valid warrant issued by a magistrate extends to every part of the state
Ex: issued in one county, another county can go look for person
When does officer have authority to break down door of the residence to make arrest when they have a warrant for suspects arrest?
- The arrest is for a felony and
- The officer gives notice of the officers authority and purpose and
- The officer is refused admittance
Capias:
A capias is a writ issued by a judge directed to a peace officer to arrest a person accused of an offense and to bring the arrested person before the court immediately or on a day specified in the writ
Terry Stop
Detention not valid arrest can often be justified as Terry Stop
Terry Stop: for investigation may be made on reasonable suspicion some objective bass for officers suspicion that suspect has committed, is committing, or is about to commit a crime
BUT an anonymous tip not enough if not adequately corroborated
Limits on Field Stops:
Cannot be too lengthy
Suspect cannot be extensively moved (not to station house) and
Not automatic right to search
If probable cause develops during field stop detention becomes a valid arrest
Weapons Search can be made if officer has reasonable fear for safety:
Weapons Search can be made if officer has reasonable fear for safety:
A. Must initially be limited to pat down of outer clothing and
B. Permissible only to determine if suspect has a weapon
- Can’t use terry stop to search for evidence
A suspect is seized only if either:
- The officer physically restrains him or
2. The officer makes a show of authority AND the suspect admits to show of authority
Can you make an arrest for a traffic stop?
Yes
A traffic stop does not automatically permit a full search as does an arrest
If arrestee is secured and there is no reason to believe evidence of crime is in car
If arrestee is secured and there is no reason to believe evidence of crime is in car (because they ran a stop sign) can’t search the car
Defendant has sixth amendment right to lawyer present at
Defendant has sixth amendment right to lawyer present at lineup or showup if it is conducted after judicial proceedings have begun
Not triggered by defendants arrest
No right to lawyer at showing or photographs
Can be waived by defendant
Defendant has due process right to have procedure not be extremely suggestive / Lineup
- This applies even where right to counsel does not
- Standard: was procedure so suggestive that it creates high likelihood that witness will erroneously identify defendant as perpetrator?
If witness identifies defendant at procedure conducted in violation of either rule:
A. Prosecution cannot prove that identification but
B. Witness an still make “in court identification” of defendant if prosecution establishes that this would have an independent source ie source independent of the procedure (can identify him in court while testifying)
Confession involuntary (and constitutionally inadmissible) if:
A. Result of coercion or threats or
B. On totality of circumstances officers
- Misconduct over came defendants willDefendants undisclosed mental impairment alone will not create involuntariness
Some matters are only factors to consider in the totality of the circumstances analysis:
- Deception of the suspect by officers (lying to suspect)
- Delay in presenting the suspect before a magistrate
- Promise of a specific benefit made by person in authority
Texas involuntary and inadmissible confessions
A. Given by someone in authority
B. Definite and
C. Likely to cause an innocent suspect to make a false confession
Confession given during improper delay
Confession given during improper delay in bringing defendant before magistrate inadmissible if defendant shows a casual connection between delay and making of confession
When do Miranda fifth amendment rights apply? Only if Both:
- Suspect is in custody, that is arrested or its equivalent
A. Look for things like handcuffs or weapons drawn
B. Miranda not applicable during traffic stop, nonarrest Terry stop and - Suspect is subjected to interrogation
What does Miranda require?
Suspect has right to have counsel present during questioning
Suspect must be given warnings:
- There is a right to remain silent,
- Anything said may be used against the suspect
- The suspect has a right to have an attorney present
- The suspect has a right to an appointed attorney if unable to provide own
When can interrogation begin in absence of an attorney?
Interrogation can begin in absence of attorney only if suspect first waives right to counsel
Can interrogation happen if suspect indicates he wants to remain silent?
No interrogation must occur if suspect indicates a desire to remain silent
Confession to which Miranda applies admissible only if prosecution proves;
- Warnings were given and
- Suspect made voluntary and knowing waiver of
A. The right to attorney during questioning (unless one was present) and
B. The right to remain silent
Is Miranda required if suspect volunteers information?
Under Miranda no warnings or counsel are required if the confession is volunteered by the defendant without interrogation
Is a person in custody just because they are detained?
Under Miranda a person is not in custody just because the person is detained
Ex: pulled over and officer starts asking you questions
Invoking right to counsel
If suspect invokes the right to counsel officers may not reappraoch the suspect unless attorney is present
IF a suspect who has invoked the right to counsel spontaneously seeks to discuss the crime with officers, officers may seek a waived of counsel and interrogate the suspect
If suspect invokes only the right to remain silent the suspect may be reproached if this is done very carefully (scrupulously honor right to remain silent)
If during middle of interrogation and suspect invokes right to counsel interrogation must stop. Suspect can rescind waiver by indicating desire for attorney
Questioning after right to counsel waived must cease only if suspect makes an unambiguous request for counsel
Ex: “Maybe I should talk to my lawyer” not enough
Interrogation
Any action which officer should reasonably know is likely to result in incriminating response is equivalent of interrogation
- Interrogation can be asking question or asking something you know is likely to result in incriminating response
True accident of not giving Miranda
If police officers make a true accident (forget to give Miranda until middle of interrogation) it may be considered into evidence (not automatic)
Does miranda apply to undercover informant?
Miranda does not apply when you don’t know you are dealing with cops (undercover informant)
6th amendment right to counsel and interrogation
In interrogation situations, the accused also has a sixth amendment right to counsel if judicial proceedings have begun and this provides more protection than Miranda does
Sixth Amendment can be violated if defendant is charged and undercover police officer is put in cell.
If a suspect is already represented by counsel officers interference with counsels access to client-suspect will not invalidate Miranda waiver but it will render invalid waiver of sixth amendment right to counsel
Ex: lawyer trying to get into interrogation and being blocked
When the sixth amendment becomes applicable:
- Defendant has a right to counsel at questioning by undercover officer
- Defendant has a right to counsel at questioning even if not in custody and
- Police violate the right to counsel if they interfere with counsel contacting a client undergoing questioning
Texas Confession Statute
Applies only to statements:
Made while in custody and resulting from official interrogation
Impeachment exception to all requirements: statement inadmissible to prove guilt can be used to impeach testifying defendant if it is voluntary
Determining voluntariness of challenged confession
Initial Determination must be made by judge at hearing out of presence of jury
If this is resolved for the state, defendant sometimes has right to have issue submitted to the jury
Written Statement Requirements
Must be signed by defendant unless it is in the accuseds own handwriting
Certain things must be shown on the fact of a statement
What warnings must written statement show on its face to be admissible:
- The person has the right to remain silent and not make any statement at all
- Any statement the person makes may be used against that person at trial
- The person has the right to have a lawyer present to advise that person prior to and during questioning
- If unable to employ a lawyer the person ahs the right to have a lawyer appointed to provide advice
- The person ahs the right to terminate the interview at any time
Warnings must be given by either: A magistrate or the person to whom the statement was given AND that prior to and during the making of the statement the person intelligently and voluntarily waived the rights
- Can’t tell you that statement will be used “for or against you” people get confused by that. This warning is insufficient under the statute
Oral statements made during custodial interrogation are inadmissible because they
Whether warnings are required is determined by Miranda
Oral statements made during custodial interrogation are inadmissible because they are oral and thus unreliable
Exceptions: Oral statements admissible if JRRC rule
J: The statement was judicial
- Made in open court or made before a grand jury
R: The statement was res gestae of either:
- The offense or the arrest
Res Gesta: Defendants impulsive and spontaneous reaction to the excitement
R: The statement was electronically recorded
C: The statement was corroborated, meaning:
- It contained at least one assertion of fact or circumstances, which was incriminating and this was found to be true by reliable information developed after the statement was given
Electronically recorded statement admissible only of prosecution shows:
- Recording is accurate and has not been altered
- Recording reflects that accused was warned of the rights
- During the recording the accused knowingly and voluntarily waived those rights
- All material voices on the recording are identified and
- Defense counsel was provided with copies of all recordings made of defendant under the statute (must be provided at least 20 days before trial)
Defendant need not be told that the statement will be recorded
Confessions statute (and oral confession rule) applies only if there was
- Custody and
- Official interrogation
IF either is lacking, the statute does not apply and oral statements made are admissible
Statements obtained out-of-state or by federal officers
Statement obtained in another state is admissible in Texas prosecution if it was obtained in compliance with the laws of that state
Statement obtained by federal officer is admissible if obtained in compliance with the laws of the united states
Texas Procedures for Litigating Confession Issues
What should counsel do to challenge confession and Duties of trial court where a question is raised pretrial as to voluntariness of a statement
Counsel should file pre-trial a motion to suppress the statement on the grounds that it was not voluntary
Where such a motion raises the issued of the voluntariness of a statement the trial court must hold a hearing (a Jackson v. Denno hearing) take evidence and determine whether the statement is voluntary
The judge must also make findings of fact
What if judge finds statements voluntary and admissible? Can defendant take issue of voluntariness to jury?
Counsel may have the issue submitted to the jury if the evidence before the jury raises an issue regarding the voluntariness of the statement
Counsel must introduce before the jury evidence indicating the confession was not voluntary
If voluntariness of statement submitted to the jury what is the jury told?
The jury is told that a statement must be voluntary, what warnings are required and when those warnings are necessary.
It is also told that the prosecution has the burden of proving beyond a reasonable doubt that any necessary warnings were given and that the statement was voluntary
It is further instructed that if it has reasonable doubt as to whether required warnings were given or whether the statement was voluntary, it should disregard the statement and not consider it in deciding whether the prosecution has proved the defendant guilty
Scope of the federal constitution and Texas statutory Exclusionary Rules
A defendant must have standing under both rules.
Defendants objection must be based upon a violation of her underlying rights
Standing as applied in Search Situations
Search Situations: This means that the search must have intruded upon the defendants privacy
Standing as applied to vehicles
Person only a passenger in a vehicle when it is searched does not have standing to challenge search
BUT passenger in car is seized if car is stopped and therefore passenger can challenge that seizure
Fruit of Poisonous Tree
Fruit of Poisonous Tree Rule: IF a search is unreasonable all fruit (evidence obtained as result of that search) must be excluded under both rules
Exceptions to federal constitutional requirement of exclusion
Attenuation of taint, Good Faith, Inevitable discovery
Attenuation of Taint
the number and nature of the links between the illegality and police acquisition of the evidence may be such that the taint becomes attenuated (also applies under the Texas rule)
Good Faith
Good Faith: Reasonable officer would believe that the actions taken were reasonable because of:
A. A warrant or
B. A statute later held invalid
Texas Good Faith: requires that warrant have been issued on actual probable cause
- Remember: good faith exception does not extend to most warrantless searches and arrest
Inevitable Discovery
the evidence would inevitably have been obtained legally (Texas: does NOT have this)
Impeachment Exception to Federal Rule
A defendant who takes the witness stand can be impeached by some otherwise inadmissible evidence
A. Evidence obtained in violation of Miranda or in an unreasonable search can be used to impeach
B. Involuntary Confession cannot be used to impeach (because unreliable)
Texas: exclusionary rule has no impeachment exception
Rules for Standing in Residence
Mere authorized presence in premises searched is not enough
Presence pursuant to a short and commercial stay is not enough
Ex: Drug Deals
Presence as party of overnight personal visit is enough
-Social guest: if you are there long enough you might get standing
Unconstitutionally obtained evidence becomes admissible if both:
- Officers would inevitably have obtained that evidence if they had not illegally searched and
- They would have obtained the evidence in a constitutional manner
