Criminal Procedure - PE

Question 1

• District Court: - Felony; - Misdemeanors that are lesser included offenses of charged felonies; - Misdemeanors involving official misconduct;
• Justice Court: offenses punishable by only a fine
• Municipal Court: City ordinance punished by fine/state law punishable by fine
• County Courts: Misdemeanors over which exclusive jurisdiction is not given to justice courts [ the one that sends you to jail]
• Must know: Arrested person must be presented by officer before a magistrate without unnecessary delay, but in any case within 48 hours of arrest.
• Must know: Magistrate tells: 1. charges 2. right to remain silent, to counsel and examing trial; 3. counsel present during questioning, termination. 4. Bail 5. Probable cause

Answer 1

• Bail: Release on Bail: Felony 48 hours of arrest w/o warrant /Misdemeanor 24 hours; Any case, no later than 72 hours.
• Denial of Bail: Prosecutor submits motion within 7 days, to district court, the order must be issued within 7days.
• • Non Capital Case: 1. Non-Capital Felony and 2. Substantial evidence of guilty 3. One of a. Two prior felony conviction or b - commit this felony while on bail of other felony or c. one prior felony + present offense involves deadly weapon or d. offense was a violent or sexual offense committed while on felony probation or parole.
• • Appeal to court of criminal appeals. Denial of a non-capital felony can only last for 60 days. A motion challenging bail Amount: 1. File writ of habeas corpus in district court, 2. at the hearing: introduce evidence of: Bail was excessive; cannot meet Bail Set; Amount can be meet -> if not granted -> Court of Appeal before trial
• • Rules for fixing the amount of Bail: Look at L - Likelihood of D appearing for Trial, A: ability of D makes Bail. S: Services S: Future Safety of Victim and Community. O: not toe be opression.

Question 2

• Arrested better off with personal Bond?: Yes, Bail Bond requires a surety or a cash deposit personal bonds requires neither kind of security, a personal bond is the accused’s promise to pay the amount if the bond is forfeited.
• Jailed D must be released if state not ready for trial: within (1) felony cases: 90 days, 2. Class A misdemeanor: 30 days; 3. Class B misdemeanors: 15 days; 4. Class C misdemeanors: 5 days of arrested
• Examing Trial: Before any magistrate court, purpose; for state to show probable cause: D has the right to:1. present; 2. be represented by counsel; 3. Have the rules of evidence applied; 4. cross-examine state witness, and 5. subpoena and present defense witnesses.
• • Unsworn statement: must before any witness testify.
• • Available if charged with a felony and indictment has not been filed yet.

Answer 2

• Charging: state seeks an indictment, to get this, grand jury must vote to return a “true bill” [ Need Grand Jury to find probable cause ]. The D signs the indictment, and it will be filed in district court. -> Wavier of Grand Jury indictment permitted in a prosecution except ones for capital murder -> needs: representation, in written or in open court and voluntary -> state files information -> signed and approved only by prosecutor, must be supported by a valid and sworn complaint filed.
• Grand Jury Selection: District Court Judges direct 20 to 125 prospective grand jurors and summoned same manner as in civil case-> Test Qualification -> select 12 and 4 alternative.
• • Can be challenged by any person on the ground of: 1. insane 2. medically unfit 3. Nor witness or target of a grand jury investigation. 4. Jury Served in a former trial of same conduct. 5. biased or prejudiced in favor or against suspect 6. biased against suspect or accused about the guilt. 7. Related within 3 degree of relateness 8. Biased or prejudiced against any law applicable to the case 9. Proseuctor.

Question 3

• Grand Jury Proceeding: Can compel D to appear by a subpoena not to compel D to answer question if invokes self-incrimination
• • If voluntarily appeared: Must be warned: 1. offense 2. The country of committed crime 3. The time -> must be recorded.
• • If subpoenaed to appear: must be warned: 1. testimony will be under oath, 2. a false answer to a material question subjects him to prosecution for perjury; 3. he can refuse to answer incriminating questions, 4. has right to have counsel appointed if he is unable to employ a lawyer; 5. he has a right to have a lawyer present outside the room; and testimony can be used against him -> need to be written and opportunity to consalate and obtain lawyer. -> No right to examining

Answer 3

• Defense lawyer can appear and present evidence before a grand jury if 1. grand jury permit it and 2. The prosecutor consent it.
• Grand Jury may ask prosecutors and advice upon any matter of law.
• Grand Jury consist 12 people, Need 9 people to concur indictment. The prosecutor draft indictment.

Question 4

• Statue of Limitation: a. Misdemeanors 2 years; b. Felonies 3 years; c. Burglary, Theft, Roberry,Kidnapping 5 years
• • No period for Murder and manslaughter; sexual assault; offense involuntary learning the scene of an accident.

Answer 4

• Pleading: For indictment to be vliad ->need 1. charging offense (nneds 1. facts of elements 2. statutory language 3. Named victims) and 2. providing the accused with trial prep notice.
• • Indictment includes: 1. In the name and by authority of the state of Texas 2. Name accused 3. Set Forth (charge) all element of the offense 4. Specify enough details to give accused notice 5. Allege the date that is both: a. within Statute limitation b. and before indictment. 6. Within Jurisdiction 7. Conclude against the peace and dignity of the state 8. Be signed.
• • If the indictment does not list mental state (knowingly, purposefully), then it does not charge the offense listed with requirement on that.
• • The date on indictment does not binding on the State at trial
• • Lesser offense: when charged offense is not guilty and D is guilty of the lesser offense
• • D can challenge the indictment by appropriate motion: either on 1. an exception to the form of the indictment or 2. an exception on substance to substrate of the indictment -> motion to quashes before trials begin
• • Amendment: after amendment, the D can ask for additional time to prepare the trial, the rule requires at least 10 days.

Question 5

• Arraignment: 1. The accused enters a plead 2. For fixing accused’s identity 3. Appoint counsel
• • Plea - guilty, not guilty, or nolo contender (no different for crim, in civil, it cannot be used against him later)
• • D makes personal decision on: what plea; Jury Trial; to take witness stand. -> Plea: must give D before he plea guilty: 1. Range of punishment 2. Recommendation by State is not binding. 3. Inform D of the limited right, after a guilty plea to appeal. 4. Immigrational consequences - both written and orally, 5. Inquire whether there is plea bargain (D has the right to withdraw his plea, even before judges warn him something -> Plead guilty is inadmissible to trials

Answer 5

• For pretrial hearing and conference: The party must do certain things 7 days before that having and conference: 1. Enter plea 2. Challenge to indictment 3. motion for continuous. 4. Change of Venue; 5. Motion to suppress evidence; 6. Request for discovery; 7. Claim of entrapment.
• Motion in Limine: ask either or both 1. a pre-trial ruling on merits of some evidence or procedure or 2. a pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury, object question if motion in limine not granted.
• -Defendant can testify at a pre-trial hearing only on issues related to that hearing.
• • Deposition: Either side is permitted to depose a witness: a. The trial judge must issue an order authorizing the deposition; b. To obtain this, the party must show “good reason” for deposition.
• • Defendant counsels can get access to written confession (Possession, not work product), samples of physical evidence (possession, not work product), reports of the investigating officers (material evidence in possession of state) -> In general, physical evidence and police reports and witness statement.
• • Other: 1. State has no authority to order the defense to provide state list of expert witness (name, address) 2. The court has no authority to compel the defense to provide the state with a summary of anticipated testimony 3. No authority over facts witness
• -To take deposition: D counsel needs to obtain court order ->File motion (affidavit) with good cause, give state notice.

Question 6

• Competency v. Insanity: Insanity: Time of committing crime, do not know what is wrong, final verdict of not guilty. Competency: Time of trial starts, could not consult with counsel or understand proceeding, leadings to bars to proceeding.
• Venue: where crime committed -> change of venue: written motion + affidavits that fair trial cannot be held in the county by D and two reliable witness -> 7 days before pre-trial hearing.
• Disquifying Judge: 1. judge is victim 2. Judge is counsel for either side in this case 3. Bias 4. Relate within 3 degrees to either D or Victim

Answer 6

• Joinder and severance: Only 1 offense per indictment; Except subject to criminal Eposide;
• Crimes are part of the same criminal Episode if they are: 1. part of the same transaction; or 2. part of a common scheme or plan; or the same or similar offenses.
• • The judge has the discretion to make prison term consecutively if invoke the right to sever, otherwise the prison time is concurrent if tried in single trial.
• • A defendant who moves for severance and shows her co-defendant has a prior conviction admissible against that codefendant at trial must be granted a severance. ->Other: look at prejudice -> Discretion
• • Motion for continuance to obtain a missing witness must allege: 1. Name and residence of the missing witness; 2. Effort made by defense to find and get witness to court; and material facts expect to prove by witness -> not matter of law
• • 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’s financial circumstances as measured.

Question 7

• Ineffective right to counsel: 1. Action were beyond the bounds of professional competence, and not simply tactical decision 2. Would the result of proceeding by any different. -> Usually not effective if: a. No adequate investigation; b. fail to convey an offer of plea bargain; c. incorrect legal advice caused the defendant to gorego a plea bargain offer. d. Incorrect immigration advice.
• Trial Results: 1. The state must prove guilt beyond a reasonable doubt; 2. Verdict must be unanimous, so all jurors must concur 3. Mistrial if no unanimous verdict
• D must actively wavie jury trial if he wants, needs to be done before trial starts, D can elect jury assessment of punishment or let judge decides.
• Jury seat order can be charged by demand a jury shuffle before voir dire
• 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 statutory grounds.
• • Statutory ground: 1. Prior conviction of theft or a felony 2. Under formal charges for theft or a felony 3. Insane; 4. Not qualified to be a voter 5. Witness, 6. Served on a jury in prior trial of the case, 7. Served on indicting grand jury. 8. Cannot read and write 9. Bias or prejudice against accused or law.

Answer 7

• Preemptory challenges: Limited number of preemptory challenge: a. Capital murder death penalty cases: 15. b. other felony cases: 10. c. misdemeanors in county, municipal or justice court: 3. d) misdemeanors tried in district court: 5.
• Counsel cannot make a Batson challenge (racial /gender), then move to dismiss the array of prospective jurors. The motion should be made: a. each side submit its list of juror it challenges and before empanel the jury.
• Trial Procedure remember order (pg. 45-46).

Question 8

• Conviction can only be used to impeach if it is final, within 10 years -> If on Appeal, can’t use.
• Can impeach own witness, to get them explaining prior inconsistent statement.
• Misdemeanor conviction to impeach need to involve moral turpitude, DWI does not involve
• Judge cannot comment the evidence and merit of the case

Answer 8

• Exclusion: witness can be exclude from court room except their own testimony -> Admonish on what they may talk to what the case, the persons those the witness may not talk to. -> violation contempt.
• • Exception on above: Defendant: Expert witness, the victim; victim’s guardian (Not defendant’s spouse, or a close relative of a decreased victim unless testimony will be materially affect by other testimony)

Question 9

• Expert Testimony: Evaluation - 1. Acceptance of underlying theory and technique as valid by the scientific community: 2. literature support 3. Potential error rate 4. Qualifications 5. other erperts 6. Clarity with the theory and technique can be explained in court 7. Experience and skill of person
• Defination of reasonable doubt is not helpful and should not be defined. -> Number of argument: At least 2 on each side, but state must argue last
• • Accomplice witness, without corroboration cannot be used to convict defendant.
• • For informant’s testimony, need corroboration evidence.
• • Presentencing report not required: 1. Punishment assessed by jury; 2. The only punishment is imprisonment 3. Judge is informed that plea bargain exists 4. conviction of capital murder
• • Plead guilty can still let jury access punishment -> can only change election to judge if proscuetor constent
• • On the pending stage, bad character evidence is always admissible because the character is at issue.

Answer 9

• Hersay: 1. From out of court declarants, and not a party opponent -> therefore hersay (Exception: Admissible if shown to have been made against the declarant’s penal interests)
• • a. If the statement is shown to have ben incriminating regarding the declarant. b. a reasonable person would not have made it unless she believe it to be true and c. corroborating circumstances that clearly indicate the trust worthy of the statement. (Exception: the record were kept in the regular course of business, for a person with knowledge of the matter to make such records or transfer information for inclusion in the records; and the entry is made at or near the time of event, and witness is custodian)
• • State can only prove D’s bad character if accused “put his character in issue” by exercising his right to introduce evidence of good character and at punishment stage of trial.
• • • Either personal opinion or reputation -> cannot be conducted. -> Needs personal familiarity for opinion and discussion with others for reputation -> Before offense

Question 10

• Extraneous offense evidence: Motive; intent; mistake; identity; common-> when D introduce alibi, his identity is at issue, then State can use extraneous offense evidence to impeach if similar offense happened before.

Answer 10

• Privilges: Physican - Patient privilege does not apply in criminal litigation
• • Communication inadmissible -> treat voluntarily for alcohol or drug abuse or made to a person involved in treatment or examination
• • Confidential communication between spouse; plea bargain with prosecutor.

Question 11

• Subpoena ->Get witness to appear during trial, needs name, location and vocation, testimony is material to defense’s case. -> Good statewide
• • For child, judge examine whether he has sufficient intellect to relate transaction regarding what he will testified -> on the record for possible error for Appeal.

Answer 11

• Probation -> Community Supervision.
• • Not exceeds 10 years -> File pretrial application for probation (In writing, sworn, not convicted felony previously
• • Deferred adjudication v. Probation: 1. D must be found guilty before probation, not for defferd 2. D can get regular probation after a plea of not guilty: Deferred A requires a plea of guilty or nolo contendere

Question 12

• Newly discovered evidence: Within 30 days of sentencing and present within 10 days of filing. 1. Unknown to D before trial 2. Failure to discover not due to lack of diligence 3. Competent and not merely collateral or impeaching 4. Persuasive to cause different result

Answer 12

• Appeal: appeal can go from Justice court or municipal court to county court -> Motion must be within 30 days
• For plea deal -> if accepted -> the D can only appeal if trial judge grants permission; or the appeal is based on matters raised by pretrial written motion and ruled on before trial.
• Preserve error in admitting evidence: 1. make timely objection 2. Specify the ground 3. secure a ruling

Question 13

• Double Jeopardy: Federal attachment: Jury: when jury sworn in: Bench: when first witness sworn in; 2. To Texas jury: same; Bench: when party announced ready and defendant plead to the indictment
• • Cannot have retrial if in sufficient evidence
• -Test: Does 1st crime requires at least one element that 2nd Crime does not -> Does 2nd crime requires a least one element that the 1st crime does not -> Clerk Collateral Estoppel (1st trial in aquittal) ->What is P fail to prove in 1st case -> Is that same fact controlling in second case?

Answer 13

• Informant: needs 1. Reliable 2. Have information for specific item.
• In Texas, regular warrant can be issued by justice of peace
• Search warrant must be executed within 3 days (Not counting the day it start and the day it executed)

Question 14

• Warrantless: Consent, need to have general right of access to premises (owns the premise)
• • Texas arrest Warrant Exception: 1. Offense in view 2. probable cause to belive commit felony and escape 3. Susipicous place 4. Violation of protective order 5. Further injuring another 6. Injured member of family or household 7. With Stolen Property 8. Probable Cuase to believe committed felony based on felony statement of officer.

Answer 14

• Arrest warrant requires: person or physical description; Name of offense; signature of issuing magistrate; Judiccial office of the issuing magistrate
• • Traffic Stop is not permit a full search -> Threw contraband away before seizure -> Admissible
• • D has 6th amendment right to counsel when judicial proceeding begun
• • Miranda right does not apply to traffic stop
• • If revoked the right to counsel, you may not reapproach the D without counsel presenting
• • Wavier of counsel can be resciended
• • 4th Amendment exclusionary rule does not apply to “no knowck” violation
• • In Texas, “good faith” exception still needs probable cause (Higher Standard)
• • Texas doesn’t have “ inveitable discovery” exception.

Question 15

• The Police Exceuting can arrest warrant may not search for subject of the warrant in home of a third party without search warrant.
• After arresting occupant of a vehicle, the police may search the interior of the vehicle incident to the arrest if 1. still have access to interior and unsecured 2. Police reasonably believed that evidence of the offense for which the person was arrested may be found in vechicle
• • Search needs probable cause + Valid warrant or consent (from any occupant on premise)
• • Search warrant does not authorize the police to search people found on premise who are not named in the warrant
• • Interrogation: any question or action that will trigger an incriminating response
• Statement taken in violation of Miranda warning can be admissible for impeachment
• 5th does not include the right to protect others from incriminating
• Prosecutor is not allowed to comment on the defendant’s failure to testify at trial. 5th

Answer 15

• Conduct is sufficent to infer general intent
• Mens Reas of malice generally do not require proof of intent, it is sufficient if the defendant recklessly disregarded an obvious high risk.
• Knowingly -> with conscious intent to cause the result or knowingly (with knowledge that his conduct will necessarily or very likely cause the injury)
• Ordinary goods at ordinary price is insufficient for accomplice, even though seller may have knowledges that crime may be committed
• Duress is a valid defense except to murder
• Motions based on exclusionary rule does not apply to grand jury proceeding
• Passenger in the car does not have legitimate privicay of the search of the car.
• Having a dog with the police violate the physical intrusion rule, plus if the dog smell something in one’s home, it is still a violation if seized.
• You can’t raise a 4th Amendment violation to violation of some other people’s right, for example, the search of a friends’ house
• Person does not have reasonable exception of privacy in any land or field not a part of the curtilage
• Miranda requires custody + interogation, spontaneous response is not C+I.