Criminal Procedure Notes - WIP

Question 1

Deferred adjudication means that:

Answer 1

The D is placed on community supervision without a conviction for the crime charged.

Question 2

Is the defendant permitted to change an election of whether a judge or jury will assess punishment?

Answer 2

Yes, after a guilty verdict, if the prosecutor consents.

Question 3

When must the defendant make a written election for jury sentencing?

Answer 3

Before commencement of the voire dire examination of the jury panel.

Question 4

Regarding admissibility, oral confessions are:

Answer 4

Generally inadmissible, because they were spoken and not written.

Question 5

The defense is negotiating a plea with the prosecutor. During the negotiations, the defendant makes certain statements to the prosecutor. These statements:

Answer 5

Are not admissible if they result in a plea of nolo contendere, but that plea is later withdrawn.

Question 6

The hearsay rule, as applied to civil litigation, is applied to criminal litigation:

Answer 6

In the same way.

Question 7

When may a party make a proper motion for an order directing the production of a witness’s prior statement?

Answer 7

At the end of the witness’s direct examination.

Question 8

When attempting to impeach a witness, a prior conviction is considered stale and inadmissible if:

Answer 8

The conviction is more than 10 years old, unless the court determines that the probative value substantially outweighs the prejudicial effect.

Question 9

Which of the following is one of the essential criteria which must be met in order to use a prior conviction to impeach the credibility of a witness?

Answer 9

The crime involved was a felony

Question 10

When the testimony of an expert witness is offered, the party against whom it is offered:

Answer 10

May question the witness regarding the underlying facts or data on which the witness’s opinion is based.

When the testimony of an expert witness is offered, the party against whom it is offered is entitled, on request, to conduct a voire dire examination of the witness concerning the underlying facts or data on which the witness’s opinion is based. This examination must be conducted out of the hearing of the jury.

Question 11

The defendant’s former spouse claims she has a privilege not to be called as a witness for the state. Does she have a valid claim?

Answer 11

No, because the marriage was dissolved prior to the time of trial.

The privilege of a spouse to not testify for the state does not extend to one who was previously a spouse of the defendant where the marriage is dissolved at the time of trial. However, a person who is, at the time of trial, the spouse of the defendant has a privilege not to be called as a witness for the state.

Question 12

In a criminal trial, the spouse of the defendant:

Answer 12

Sometimes has a privilege not to be called as witness.

In a criminal trial, the spouse of the defendant sometimes has a privilege not to be called as a witness. No similar privilege applies in civil litigation.

Question 13

The defendant is on trial for murder. Is the state permitted to introduce evidence that the defendant previously committed an unrelated burglary?

Answer 13

No, the state cannot introduce evidence tending only to show that the defendant committed extraneous offenses.

Question 14

When a properly subpoenaed witness fails to appear at trial:

Answer 14

The party who subpoenaed the witness is entitled to have an attachment issued for the witness, which commands a peace officer to take the witness into custody and bring him before the court.

Question 15

When may a judge declare a mistrial due to a deadlocked jury?

Answer 15

If the jury cannot agree and becomes deadlocked, the judge may declare a mistrial in either of two situations:

(i) where both sides agree, or
(ii) when the judge determines that the jury has been kept together for deliberation for a sufficiently long time to make it altogether improbable that it will reach a verdict.

Question 16

According to Texas law, the defense counsel’s opening statement:

Answer 16

May follow immediately after the state’s opening statement if the defense counsel so demands.

Question 17

What is the standard trial order?

Answer 17

(i) the indictment or information is read to the jury;
(ii) a plea is entered by the defense;
(iii) the state makes its opening statement;
(iv) the state’s testimony is taken;
(v) the defense makes its opening statement;
(vi) the defense testimony is taken;
(vii) the rebuttal evidence is taken;
(viii) the trial judge read the charge or instructions to the jury; and
(ix) the counsel make final arguments to the jury.

Defense counsel may demand that the order be changed, so that defense counsel’s opening statement comes next after the state’s opening statement. If this occurs, the testimony on the part of the defense is taken immediately after the taking of testimony on behalf of the state.

Question 18

What is an absolute prohibition when using peremptory challenges?

Answer 18

You are never permitted to exercise peremptory challenges on the basis of race.

Question 19

When selecting the jury, peremptory challenges:

Answer 19

May be used without reason or justification given.

Question 20

What determines the number of peremptory challenges available?

Answer 20

Depends on both the charges offense and the number of defendants being tried together.

Question 21

When may a prospective juror be challenged for cause?

Answer 21

The person is:

(i) is not a qualified voter in the state and county;
(ii) has been convicted or is charged with theft or any felony;
(iii) is insane;
(iv) is a witness in the case;
(v) has a bodily defect (such as legal blindness) that renders him unfit for service in this case;
(vi) is related within the third degree to the defendant, the victim or any prosecutor;
(vii) served on the grand jury that indicted the defendant or on a petit jury in a previous trial of the same case;
(viii) has a bias or prejudice in favor or against the defendant;
(ix) has formed an opinion as to the defendant’s guilt or innocence; or (x) cannot read or write.

Question 22

When must a jury shuffle be conducted, if ever?

Answer 22

Must be made before voir dire begins.

A jury shuffle must be made before voir dire begins. A jury shuffle occurs when prospective jurors are reseated in a random manner. Either side may request a jury shuffle; however the jurors should only be shuffled once. If a shuffle is requested and made, the other side is not entitled to shuffle the jury again.

Question 23

A motion to suppress evidence may be made to either party to:

Answer 23

Claim that evidence should not be admitted at trial for a constitutional reason.

Motions to suppress evidence may be made by either party to raise a claim that evidence should not be admitted for a constitutional, statutory, evidentiary or procedural reason. Motions to suppress may be made at pretrial motions, and are not limited to challenges to the legality with which the evidence was obtained (i.e., the exclusionary rule). The most common motion to suppress is made on exclusionary grounds.

Question 24

In response to a motion in limine, the trial judge rules that the state may ask a witness for the defense about specified prior misdemeanor convictions. Following the trial:

Answer 24

The defense may appeal on this issue only if the defense objects at trial when the state asks about the specified prior convictions.

When a trial judge rules that the state may ask a defense witness about specified prior misdemeanor convictions, the defense must object when, during trial, the state asks about these specific convictions in order to preserve the matter for consideration on appeal. A ruling on a motion in limine does not preserve the matter involved for consideration on appeal.

Question 25

Which of the following is a characteristic of a nontraditional motion in limine?

Answer 25

It asks the court to address and rule on matters before trial.

A nontraditional motion in limine asks that the court address and rule on matters before trial. Motions in limine can be categorized as traditional and nontraditional. A traditional motion in limine asks only that the opposing party approach and notify the trial judge before developing specified matters before the jury.

Question 26

What items are subject to pretrial inspection?

Answer 26

Written statements of witnesses and police offense reports are subject to pretrial inspection. The defendant’s right of inspection, however, is limited by the state’s “work product” protection. The defendant may not inspect any material that falls within that protection, including notes, work product of counsel and matters otherwise privileged.

Question 27

Following the defendant’s timely request, the state must produce certain items for inspection and copying. The order for production of these items:

Answer 27

May not authorize removal of the evidence from the prosecution’s possession.

Additionally, any inspection must be in the presence of a representative of the state.

Question 28

In a criminal trial, the state inadvertently left off the name of the sole eyewitness to the crime from the witness list. The trial court should:

Answer 28

Permit the witness to testify, because the defendant should have anticipated the state would have the eyewitness testify.

If the trial court finds that (i) the state’s omission was not in bad faith, or (ii) the defense should have anticipated the witness’s testimony anyway, then the trial court should, in its discretion, permit the witness to testify.

Question 29

What is the timeline for ordering the disclosure of the names and addresses of expert witnesses?

Answer 29

No later than 20 days before the jury selection is to begin.

Question 30

The defendant wants to have the jury consider a recommendation that the sentence be probated. What must be included in the pretrial motion?

Answer 30

A statement that the defendant has not previously been convicted of a felony.

Question 31

What is the burden of proof regarding the competency of the defendant to stand trial?

Answer 31

The defendant is presumed to be competent, and incompetency must be proved by a preponderance of the evidence.

Question 32

What are the potential factors for determining whether a defendant is competent to stand trial in a criminal case?

Answer 32

When determining whether a defendant is competent to stand trial, the court must take into account the defendant’s state of mind at the time of trial, and not at the time of the offense. Pursuant to this evaluation, the court must determine whether, because of some impairment present at the time of trial, the defendant lacks either: (i) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or (ii) a rational as well as factual understanding of the proceedings against him.

Question 33

What must a defendant’s first motion for a continuance because of a witness contain?

Answer 33

(i) the name and residence of the witness;
(ii) the diligence which has been used to procure the attendance of the witness;
(iii) the material facts which the defense expects to prove by the witness;
(iv) that the witness is not absent by the procurement or consent of the defendant;
(v) that the motion is not being made for delay; and
(vi) that there is no reasonable expectation that the witness can be presented during the present term of the trial court.

Question 34

What must be included in the admonishments given to the defendant by the judge?

Answer 34

(i) admonish the defendant as to the range of penalties attached to the offense;
(ii) inform the defendant that any recommendation by the prosecution as to the penalty will not be binding on the court;
(iii) inform the defendant of the limited right to appeal following a guilty plea;
(iv) inquire as to the existence of a plea bargain between the state and defense;
(v) inform the defendant, if she is not a citizen of the Unites States, that a plea of guilty may result in deportation; and
(vi) request from the prosecutor the victim impact statement.

Question 35

Under the Penal Code, aggravated assault may be committed, among other ways, by compelling submission of the victim by means of “threats of serious bodily injury to be imminently inflicted.” A proper aggravated assault indictment should include:

Answer 35

In order to be properly charged with aggravated assault, the indictment must show (i) that the defendant threatened the victim with serious bodily injury, and (ii) that the infliction of the injury was imminent.

Question 36

A witness appearing before the grand jury may refuse to answer questions on the ground that:

Answer 36

The answer to the question may potentially incriminate the witness.

Question 37

What is the purpose of the examining trial?

Answer 37

To determine whether there is probable cause of the defendant’s guilt.

Question 38

After an indictment is returned, who has the right to an examining trial?

Answer 38

Neither felony nor misdemeanor defendants have the right to an examining trial after indictment, regardless of the nature of the crime committed.

Question 39

What are the required considerations when setting a bail amount?

Answer 39

(i) whether the bail is sufficiently high to give reasonable assurances that the defendant will appear,
(ii) the nature of the offense and the circumstances under which it was committed,
(iii) the defendant’s ability to make bail, and
(iv) the future safety of the victim of the alleged offense and the safety of the community.

Question 40

A warrant is unnecessary if a person has been found in a suspicious place and:

Answer 40

under circumstances that reasonably show that the person is guilty of a felony, disorderly conduct, a breach of the peace, or public intoxication, or is about to commit some offense

Question 41

What must a valid search warrant describe?

Answer 41

the person, place, or thing to be searched, must identify, as nearly as may be possible, the object of the search, i.e., that which is to be seized, and must be signed and dated by magistrate