Criminal Procedure and Evidence (Part 1) - Texas Flashcards
District Court’s have jurisdiction over what type of cases?
- Felonies2. Misdemeanors that are lesser included offenses of charged felonies3. Misdemeanors involving official misconduct4. Transferred county court prosecutions for misdemeanors punishable by jail time
Justice Courts have jurisdiction over what type of cases?
Offenses punishable by only a fine.
Municipal Court’s have jurisdiction over what type of cases?
Exclusive jurisdiction over offenses created by a city ordinance and punishable by fine only.Concurrent jurisdiction over offenses created by State law and punishable by only a fine.
County Court’s have jurisdiction over what type of cases?
Misdemeanors over which exclusive jurisdiction is not given to justice courts.
Dale is arrested by Tarrant County officers when the officers see him running away from the home of Peter. The officers also heard Peter shouting, “Dale just threatened me with a gun!” What courts have jurisdiction to conduct trial of Dale for aggravated assault? What courts have jurisdiction to conduct a trial of him for criminal trespass, which is punishable by confinement in jail for up to one year and a fine not to exceed $4,000?
Only a district court has jurisdiction to conduct a trial for aggravated assault because it is a felony.A County court has jurisdiction to conduct a trial for the misdemeanor of criminal trespass, because it is a misdemeanor beyond the jurisdiction of the justice and municipal courts.
********What is a writ of habeas corpus? To whom is a writ directed? What remedy does a writ seek? By whom may it be granted?
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.A writ is directed to someone having another person in restraint. It should name the identity of the person to whom it is directThe writ seeks to have the custody of the person restrained temporarily.The writ may be granted by the Court of Criminal Appeals, the District Courts, the County Courts or a judge of any of these courts.
If Bob is arrested for a felony, when must Bob be taken before a magistrate?
The officers must present him before a magistrate without unnecessary delay, but in any case within 48 hours of arrest.
What are the duties of a magistrate?
- Tell the arrestee of the charges2. Tell the arrestee of his rights: retain counsel and examining trial3. Warn the arrestee that in regard to police questioning: - he has the right 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 police4. Set bail5. May determine whether probable cause exists
Steve is arrested for a felony without an arrest warrant. 48 hours after the arrest, no magistrate has determined that probable cause to believe him guilty exists. What right does Steve now have?
He has a right to be released on bond, and to have bond set so this can happen. Bond must be no more than $10,000 and personal bond if necessary to assure release.
Jack is arrested for a misdemeanor without an arrest warrant. How long can the cops keep him in custody if no magistrate has determined probable cause?
24 hours, then he must be released on bond.
What is the main type of case where bond will be denied?
Capital murder cases
The prosecution decides to prosecute CJ for aggravated assault and would like to have bail denied. Six years earlier CJ was convicted of felony theft. How must the prosecutor go about getting bail denied?
Prosecutor must file a motion for denial of bail in District Court. Any order denying bail must issue within 7 days of the defendant’s apprehension. Only a district judge can deny bail in a noncapital prosecution.
The prosecution decides to prosecute CJ for aggravated assault (used a deadly weapon) and would like to have bail denied. Six years earlier CJ was convicted of felony theft. Can bail be denied to CJ?
Probably yes. The State can show one prior felony conviction, and use of a deadly weapon in the present offense.
What must the prosecution show at a hearing in a noncapital case to deny bail?
- D is charged with a noncapital felony; and2. Substantive evidence of D’s guilt of that crime; and3. One of the following: - two prior felonies - present offense committed out on bail on felony - both: one prior felony conviction and present offense involved use of deadly weapon - present offense was a violent or sexual offense committed while on felony probation or parole
What is the general rule for denying bail if D is on bail on a felony charge?
If D violates a condition of bail related to the safety of the victim or the community
Harry is arrested on a noncapital felony charge and is denied bail. How does Harry challenge this ruling?
Immediately appeal the order denying bail to the Court of Criminal Appeals.
Jerry is arrested on a noncapital felony charge and is denied bail. Things then just drag on and on. What can Jerry’s counsel do?
Denial of bail for a noncapital felony can last only until 60 days from the defendant’s initial detention. At that point, the order denying bail is automatically vacated and the defendant is entitled to have bail set. So, after 60 days have passed, counsel should make a motion to have bail set.
The prosecution does not seek to have bail denied, and the magistrate sets bail for Matt at $500,000 bail bond on the charge of aggravated assault. Matt unsuccessfully requests the magistrate to lower bail to $25,000. What procedural steps, if any, can he take to seek a reduction of bail?
- File an application for writ of habeas corpus in district court.2. At hearing, introduce evidence showing - bail set was excessive - he cannot meet bail set; and - amount of bail he can meet3. The district judge may order bail to be reduced4. If not, Matt can, before trial, appeal to Court of Appeals
What factors should be considered in setting bail and deciding whether bail is set is excessive?
- Likelihood of D appearing for trial2. Ability of the defendant to make bail3. Seriousness of the crime charged4. Future safety of the victim and of the community5. Required bail is not to be an instrument of oppression
Which is better for a defendant, personal bond or bail bond?
Personal bond because a 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.
Zack is arrested for DWI. Bail is set but the magistrate imposes a condition that Zack not have any contact with children under the age of 12. What valid basis, if any, is there for challenging this condition?
A magistrate may impose any reasonable condition on bail related to the safety of the victim or the community. Nothing in the facts suggests Zack is a danger to children. So this condition is not reasonably related to the safety of the victim or community.
Matt is arrested for a felony. 5 months after bail is set, defense counsel telephones the prosecutor to discuss reduction of bail. The prosecutor responds, “No way! I’m not ready for trial, and I’m not going to Matt loose on the street while I get ready.” Is there any legal basis for trial court to reduce Matt’s bail in these circumstances?
No. Matt must be released, either on personal bond or on reduced bail, since the State is not ready for trial and 90 days have passed since Matt’s arrest.
If the State is not ready for trial, a defendant charged with a felony must be released when?
After 90 days of arrest
If the State is not ready for trial, a defendant charged with a Class A misdemeanor must be released when?
After 30 days of arrest
If the State is not ready for trial, a defendant charged with a Class B misdemeanor must be released when?
After 15 days of arrest
If the State is not ready for trial, a defendant charged with a Class C misdemeanor must be released when?
After 5 days of arrest.
You are defense counsel for Kim who was arrested for a felony. Prior to the grand jury considering the felony allegation against Kim, you wonder about an examining trial for him. What court(s) have jurisdiction to hold examining trials?
Any magistrate can hold an examining trial. Therefore, it may be held in any court.
What magistrate can hold an examining trial?
Any magistrate
What is the purpose of an 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.
If an examining trial is held, what rights does the defendant have at it?
The defendant has the rights to:1. present2. be represented by counsel3. have the rules of evidence applied4. cross-examine State witnesses5. Subpoena and present defense witnesses
Under what conditions, if any, is a defendant permitted to make an unsworn statement at an examining trial?
A defendant can make an unsworn voluntary statement, but this must be done before any witnesses testify.
When is a defendant entitled to an examining trial?
- She is charged with a felonyAND2. An indictment has not yet been returned
D is arrested and been charged with a felony, but an indictment has not yet been returned. Is D entitled to an examining trial?
Yes
D is arrested and been charged with a felony and an indictment has been returned. Is D entitled to an examining trial?
No
Suppose an examining trial is held and D “wins” it, that is, the magistrate finds that the State failed to show probable cause. What will be the result?
This “win” will not prevent prosecution and conviction. But D will be entitled to go free until and if he is indicted.
If the prosecution decides to charge D with a crime, what instrument must be used? How does the State go about getting this instrument?
The State must seek an indictment. To get this, a grand jury must vote to return a “true bill” against him. This requires the grand jury to find that probable cause exists to believe D is guilty. The foreperson will then sign the indictment, and it will be filed in District Court.
Suppose D wants to waive his right to grand jury indictment. Can he do so?
Yes, if it not one of those offenses for which indictment is not absolutely required.
When can a defendant waive an indictment?
In all prosecutions except ones for capital murder.
What requriements must be met in order for a person to waive indictment?
- The defendant must be represented by counsel2. Waiver must be by written instrument or in open court3. The waiver must be voluntary
If D waives indictment, how will he be charged?
The State will file an information
Suppose the prosecutor tells defense counsel D will only be charged with a Class A misdemeanor in county court by an information. What is an information? Name one in which an information differs from an indictment.
An information is a pleading filed by the State charging the person named with a criminal offense. It differs from an indictment in that it need only be approved and signed by the prosecutor. An indictment must be approved by a grand jury and signed by the foreperson.Also, an information (but not an indictment) must be supported by a valid and sworn complaint, which must also be filed.
If the prosecution decides to charge D with a Class C misdemeanor (punishable only by fine) in municipal or justice of the peace court, how does the State go about getting this done?
The State filed a sworn complaint, which itself is the charging instrument.
How are prospective grand jurors selected?
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.
Defense counsel learns that a grand jury that will consider D’s possible indictment is about to be impaneled. She also learns this grand jury was hand-picked by the victim’s father, a grand jury commissioner, to include only the victim’s close family members. When and on what basis should defense counsel challenge the composition of the grand jury?
Counsel should challenge the composition of the grand jury on the ground that the Code of Criminal Procedure requires 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.Since counsel has this information before the grand jury is impaneled, she should raise the matter during the grand jury selection process by a challenge to the array. She can raise it later by a motion to set aside the indictment, only if at that time she makes showing that she did not have an opportunity to raise this by a challenge to the array.
The prosecution decides to present D’s situation to a grand jury for possible indictment. Can the grand jury compel D to appear and give testimony regarding his possible involvement in the case?
The grand jury can compel D to appear by having a subpoena issued. But it cannot compel D to answer questions if D invokes his privilege against self-incrimination.
If D appears voluntarily before a grand jury, what must occur before and as he is questioned?
He will be a suspect witness. Therefore before questioning he must be warned:1. the offense of which is suspected2. the county in which it was committed; and3. the time of its occurrenceAlso, the questions asked and his testimony must be recorded
If D is subpoenaed to appear before a grand jury, what warning must he receive, if any?What other rights does D have if subpoenaed to appear?
As a subpoenaed suspect witness, he must be given the following warnings before being questioned:1. Testimony will be under oath2. A false answer to a material question subjects him to prosecution for perjury3. He can refuse to answer incriminating questions4. He has a right to have counsel appointed if he is unable to employ a lawyer5. He has a right to have a lawyer present outside the room; and6. His testimony can be used against himRights1. He must be given a written copy of the warnings; and2. He must have a reasonable opportunity before appearing to obtain and consult with counsel
The prosecution calls Victim to testify. What rights, if any, does D have to cross-examine Victim before the grand jury so as to present his version of the events?
D has no right to participate. He may appear as a witness. With the grand jury’s permission, he may be allowed to address the grand jury.BUT he may not cross-examine Victim. Only the prosecutor and grand jurors may examine witnesses.
Are there circumstances under which defense counsel can appear and present evidence before a grand jury on behalf of a client?
Yes. A lawyer representing a suspect may address the grand jury if (1) the grand jury permits this, and (2) the prosecutor consents to it.
After the grand jury is empaneled, the grand jurors send for the Prosecutor and ask her for legal advice about the governing law. Prosecutor appears before the grand jurors and gives them legal advice. Did the grand jurors violate the law by asking Prosecutor for her advice?
No. The grand jury may send for the prosecutor and ask her advice upon any matter of law.
How many jurors serve on a grand jury, how many must concur for a person to be indicted, and who drafts the indictment?
A grand jury consists of 12 people. At least 9 must concur for a person to be indicted. The prosecutor drafts the indictment.
D is indicted by the grand jury. He wants to move to set aside the indictment based on irregularities in the grand jury procedure. May he have the indictment set aside if an unauthorized person was present while the grand jury was hearing evidence?
No. Only authorize persons should be present, but dismissal is not required.
D is indicted by the grand jury. He wants to move to set aside the indictment based on irregularities in the grand jury procedure. May he have the indictment set aside if an authorized person was present while the grand jury was deliberating or voting?
Yes. Once the grand jury begins deliberating, the only persons who may be present are grand jurors. Violation of this rule requires dismissal of the indictment.
D is indicted by the grand jury. He wants to move to set aside the indictment based on irregularities in the grand jury procedure. May he have the indictment set aside if the information on which the grand jury acted was not sufficient to establish probable cause to believe him guilty of aggravated assault?
No. An indictment may not be challenged for evidentiary insufficiency.
The running of the period of limitations is “tolled”, and the time elapsing is not counted in what two situations?
- while the defendant is out state2. while a charging instrument charging the same offense is pending against the accused and later dismissed
What is the general period of limitation for misdemeanors?
2 years
What is the general period of limitations for felonies?
3 years
What is the general period of limitations for theft, burglary, robbery, or kidnapping?
5 years
The DA develops information suggesting that the defendant committed a felony on May 1, 2009. Unfortunately the DA does not decide to act on this until June, 2012. Can the prosecutor get a valid indictment charging the defendant with the felony?
The period of limitations for felony assault is 3 years. This means an indictment for an assault committed on May 1, 2009 must be presented by May 1, 2012. It is now June of 2012. Therefore, the prosecution is fucked.
The Code of Criminal Procedure imposes a list of “requisites” that must be met on the face of an indictment or an information. What are they?Hint: there’s 8 of them
- Commence: “In the name and by the authority of the State of Texas”2. Name of the accused (or describe him)3. Set forth all elements of the offense4. Specify enough details to give accused notice 5. Allege the crime was committed on a date that is both (a) within the period of limitations and (b) before the presentment of indictment6. Allege commission of the crime in a county within court’s jurisdiction7. Conclude: “Against the peace and dignity of the State”8. Be signed
The State proves that D committed the crime exactly as alleged in the indictment except that instead of proving that it was done on May 1, 2009, it was actually done on April 2, 2009. D moves for a directed verdict on the ground of a variance between the pleading and the proof. How should the trial judge rule?
Overrule the motion because the date alleged is not binding on the State at trial.
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 that are required to prove the more serious offense; or2. it requires only a less serious injury to the same person, property or interest as the more serious offense; or3. it requires only a less culpable mental state than the more serious offense4. it consists of an attempt to commit the more serious offense
When should a jury be instructed on an uncharged offense?
- The other offense is a lesser included offense of the crime charged; and2. The evidence before the jury is such that the jury could find both: (a) D is not guilty of the charged offense and (b) D is guilty of the lesser included offense.
State witnesses testified that D threatened V with a gun. Defense witnesses testified that D threatened V but did not have a gun. What procedural step could defense counsel take to give the jury the option of convicting D of simple assault rather than aggravated assault? When and how should counsel take that step? How should the court rule?
Counsel should ask that the jury be given a charge on simple assault. This should be done after the evidence has been closed and the parties have rested.This request poses the question of whether a jury should be instructed on an uncharged offense. Therefore, the judge needs to ask:1. Is simple assault a lesser included offense of aggravated assault? - Yes2. Does the evidence permit a conclusion that D is guilty only of simple assault? - YesConsequently, request for an instruction on simple assault should be granted.
Suppose D is charged with aggravated assault, but is only convicted on simple assault. What effect does this have on the charged offense of aggravated assault?
D is acquitted of that offense.
If D believes that the name of the accused in the indictment is not D’s “true” name, what must happen?
- D must raise this at arraignment2. D must specify his true name3. The judge is then to correct the indictment so it accuses D by his true name
When D and defense counsel appear for the arraignment, the court calls D’s name during the arraignment as “Dez Bryant” exactly as it is shown in the indictment. D’s true name is “Dezmond Bryant” rather than Dez Bryant. What may defense counsel do? What will the judge do in response?
Counsel may raise this at the arraignment and inform the judge that the accused’s name is Dezmond Bryant rather than Dez Bryant. The judge will then cause the indictment to accuse Dezmond Bryant.
Suppose the name on the indictment is wrong, but D waits to raise this issue until trial. Then, when a variance develops between his name as alleged and as the proof shows it is, he demands acquittal on variance grounds. What will be the result?
No relief because raising the matter at arraignment is the only remedy available.
Generally, when must defects in charging instruments be raised?
Before trial
What procedure is available to D to challenge the indictment and at what stage of the proceedings must he assert such a challenge?
D can challenge the indictment by the appropriate motion, either (1) an exception to the form of the indictment; or (2) an exception to the substance of the indictment. These motions are informally called “motions to quash” the indictment. The motion must be filed before the day on which trial begins.
The arraignment takes place where? What are the functions of the arraignment?
In the trial courtFunctions: 1. The accused enters a plea2. This is the point for fixing the accused’s identity3. The judge appoints counsel if that hasn’t already been done
What decisions must a criminal defendant make?
What plea to enterWhether to have a trial by juryWhether to himself take the witness stand at trial
Suppose CJ wants at trial to introduce evidence that he was insane at the time he threatened Victim. What, if anything, must he do before trial?
Notice of the defendant’s intent to introduce such evidence must be filed 20 days before trial.
What difference or advantage would there be for D in pleading nolo contendere rather than guilty?
There is no difference in the criminal prosecution. If civil litigation were to arise out of the same incident, a plea of guilty could be sued as evidence against D. A plea of nolo contendere could not be so used.
CJ decides not to contest his guilt of a felony assault charge. What five admonitions the trial judge must give him before accepting a felony plea of guilty or nolo contendere?
- Inform him of the range of punishment2. Inform him that recommendations by the State are not binding3. Inform him of the limited right, after a guilty plea, to appeal4. Inform him that plea may result in deportation5. Inquire as to whether there is a plea bargain
Pending arraignment, right-handed D breaks his right arm and it is placed in a cast. When he seeks to plead guilty, the court asks him to sign a document containing admonishments regarding the plea. D cannot sign it because of his broken arm. Does the court have to make the plea admonishments in writing and have D sign them, or can D plead guilty even if he cannot sign?
D can plead guilty even if he cannot sign the admonishments, because they can be given either in writing or orally.
At arraignment, the judge asks D how he pleads and D says “Guilty.” A moment later D says “Actually, I’ve changed my mind and want to take back my guilty plea and go to trial.” May D withdraw his guilty plea at this point in the proceeding?
Yes, because a guilty plea can be withdrawn at any time before the trial court takes the matter under advisement.
At arraignment, the judge asks D how he pleads and D says “Guilty.” A moment later D says “Actually, I’ve changed my mind and want to take back my guilty plea and go to trial.” If D is permitted to withdraw his guilty plea, can the State introduce evidence at trial that he first pleaded guilty?
No, because Evidence Rule 410 makes inadmissible withdrawn pleas of guilty or nolo contendere
If a pretrial hearing and conference is set, the parties must do certain things 7 days before that hearing and conference. What are they?
- Enter any special plea2. Make challenges to the indictment3. Make motions for continuance4. Make motion for change of venue5. Make motion to suppress evidence6. Make requests for discovery7. Raise claims of entrapment
In Matt’s felony prosecution, the trial judge schedules a pre-trial hearing and conference. How, if at all, does this affect how defense counsel needs to go about challenging the indictment? What consequence, if any, is there if counsel does not file the motion by that date?
Now the motion to “quash” must be filed 7 days before the pretrial hearing, not just before the day on which trial begins. If it is not filed then, it cannot be raised later except by permission of the court on the basis of good cause.
The trial court schedules a pretrial hearing at 9:45am on a specific date. On that day, the court begins the hearing 30 minutes early, although D has not yet arrived and defense counsel objects. The judge overrules. Did the court correctly overrule the defense? Does D have a right to be present at a pretrial proceeding?
The trial judge erred, because defendant has a right to be present at any pretrial proceeding.
What is a motion in limine?
A pretrial motion that asks for either1. a pretrial ruling on the merits of some question of evidence or procedure that will arise during trial2. a pretrial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury
Defense counsel makes a motion in limine, asking the court to order the prosecutor to make no reference during jury selection to any attacks by Jack on persons other than Victim. The trial court grants the motion. During examination of a prospective juror, the prosecutor asks whether the juror would be affected by hearing that Jack has attacked 50 other people. What, if anything, does defense counsel need to do to preserve any error?
Nothing, because the pretrial ruling on the motion in limine mean action taken in violation of it is preserved error.
Defense counsel makes a motion in limine, asking the court to order the prosecutor to make no reference during jury selection to any attacks by Jack on persons other than Victim. The trial court denies the motion. What, if anything, does defense counsel need to do to preserve error in admitting the evidence?
Object to any reference during jury selection and to the evidence itself when it is offered at trial.
Matt’s attorney believes that the search by which the police obtained evidence the State will offer at trial was illegal. The evidence was obtained in a search of Matt incident to an arrest. What are ways available for defense counsel to raise the admissibility of the evidence?
Counsel may either:1. Make a pretrial motion to suppress the evidence; or2. Wait and object to the evidence when the State offers it at trial
Does a pretrial ruling on a motion to suppress preserve the issue for appeal?
Yes
Does a pretrial ruling on a motion in limine preserve the issue for appeal?
No
Defense counsel has moved to suppress the gun seized during a search of Scott’s apartment. The trial judge schedules a hearing on this motion. Scott informs defense counsel that he wishes to testify at the hearing. If he does, what issues may the prosecutor inquire into on cross-examination and does Scott waive his right to remain silent at the remainder of his trial?
The prosecutor may only inquire as to matters related to the hearing issues - the validity of the search. Cross-examination cannot extend to guilt of the charged crime. Scott does not waive his right to remain silent at the rest of the trial. He may thus decline to testify at trial and his right to so do remains fully effective.
When must the State provide the defense with a list of expert witnesses it may call at trial?
On the defendant’s request and at least 20 days before jury selection
Prior to trial, defense counsel for D decides it would be a good idea to take the oral deposition of his alibi witness, Jones, before Jones begins scheduled sky-diving lessons. What procedure must counsel follow before counsel will be allowed to take Jone’s deposition?
Counsel must obtain a court order. To get the order, counsel must file a motion supported by an affidavit stating “good reason” for taking the deposition. Notice must be given to the State. A hearing will be held. Counsel must be prepared to show “good reason”. This should include a showing that the witness’s testimony will be necessary for trial and that the witness is likely to become unavailable before trial.
Counsel for Scott files a pretrial motion requesting that the State reveal the name of any informant from whom it acquired information about the case. The prosecutor acknowledges that an informant provided the State with information but refuses to divulge his identity. Defense counsel files a motion to compel the State to reveal the identity of its informant.
The court should overrule the motion to compel. The identity of an informer is generally privileged and can be withheld by the State.
What two situations may require the State to divulge the identity of an informant?
- 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 informer’s reliability.2. Upon showing the informant can provide testimony necessary to a fair determination of guilt-innocence, the court must order disclosure.
A defendant in incompetent to stand trial if what?
Either:1. lacks the ability to consult with counsel with a reasonable degree of rational understanding2. she lacks a rational and factual understanding of the proceeding
What happens if after being found incompetent, the accused’s condition improves?
The defendant can be determined to be competent and the prosecution can then proceed.
If an issue of incompetence is raised, how will it be resolved?
Trial judge will make a preliminary inquiry. If this shows significant evidence of incompetency, the judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury.
What is the standard to overcome the presumption of competence?
Preponderance of the evidence
What are three ways in which incompetency differs from insanity under Texas law?
- Relevant time - insanity: time of offense - incomp: time of trial2. Standard applied - insanity: did not know conduct was wrong - incomp: could not consult with counsel or understand proceeding3. Result - insanity: final verdict of not guilty by reason of insanity - incomp: (perhaps termporary) bar to proceeding
Generally, venue lies where?
In the county where the crime was committed
What are the two reasons a defendant may seek to change venues?
- Prejudice in county would prevent fair trial2. Dangerous combination of influential persons against D would prevent fair trial
What are the three reasons the State may seek to change venue?
- Combinations or influences in favor of D would prevent fair trial2. Lawless conditions would prevent fair trial3. Life of D or a witness would be jeopardized by local trial
When must defense counsel file the motion to change venue? What consequences are there if you do not by that date?
A motion to transfer 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 is shown.
The local newspaper gives extensive coverage to the case after it is revealed that Victim is the son of the police chief. Defense counsel begins to be concerned that it may be difficult for D to get a fair trial in that county. What procedural steps should defense counsel take to protect D’s right to a fair trial?
The procedure is a change in venue. To obtain, this defense counsel must file:1. a written motion for change of venue2. affidavits that a fair trial cannot be held in the county by the defendant and two credible residents of the county.At the hearing, he must present evidence showing there is sufficient prejudice in that county to prevent a fair trial.
When must a defense counsel file a motion to change venue by? What consequences are there if you do not file by that date?
7 days before trialFailure 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 what?4 instances
- Judge was VICTIM2. Judge was lawyer for either side in this case3. Judge is related within 3 degrees 4. Bias
In what two types of cases does the defendant have to be present at the beginning and end of the trial?
Felony or misdemeanor punishable by jail time
Will a case proceed if the defendant is voluntarily absent in the middle of it?
Yes
What is the rule for the presence of the accused in a misdemeanor case not punishable by jail time?
The defendant can be absent because he may appear “by counsel”, if the prosecution consents.
Blake is at his trial where he charged with a felony, he appears and sits the counsel table while the jury is selected and sworn. After the first State witness testifies, the trial judge calls a recess. Blake goes out for a smoke. In fact, he gets in his car and goes to Colorado, because he senses things are not going well with the trial. When the court reconvenes, of course, Blake is not there. What can the trial judge do?
Since Blake’s absence is after selection of the jury and voluntary, trial may proceed. But it cannot proceed further than assessment of punishment. The formal sentencing cannot occur until Blake is recaptured and brought into court. - even if it takes 20 years or longer
How many offenses may an indictment allege? What happens if there is more than the allowed number of offenses?
1, if more it must be quashed
A defendant may be tried on how many indictments per trial? What happens if the defendant is being tried on more than the number of indictments allowed?
1 per trialIf more than one, the defendant is entitled to have the trials severed
What is the exception to the “One Offense” rule?
The “Criminal Episode” exception
What is the “Criminal Episode” exception?
The exception to the “One Offense” rule. 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.
What if the defendant is charged with different indictments with offenses arising out of one “criminal episode,” the state may do what?
The state may have those indictments consolidated for trial together
What are the three ways crimes can be part of the same criminal episode?
- Part of the same transaction2. Part of a common scheme or plan3. The same or similar offenses