Criminal Procedure - TX

Question 1

What kind of statements are admissible in Texas?

Answer 1

oral

Question 2

Can a private citizen conduct a search of a person or place?

Answer 2

Not if the police also would have been violating the privacy of the person by conducting an unreasonable search.

Question 3

How many days do the police have to execute a search warrant?

Answer 3

3 days, not including the day it is issued or delivered (5 total)

Question 4

How is a grand jury pool summoned by the district judge?

Answer 4

In the same manner as a civil petit jury. By summoning a fair cross section of the community.

Question 5

May the grand jury invite prosecutor to participate in its deliberations to resolve dispute about whether to indict a suspect(s)?

Answer 5

No one is allowed to be in the room and participate in the deliberations except for the grand jurors.

Question 6

Can a lawyer use evidence of a suspect’s meeting with his lawyer as evidence of guilt?

Answer 6

No. The suspect has a right to counsel and this would interfere with that.

Question 7

When is prosecutor permitted to depose witness to preserve his testimony?

Answer 7

When the prosecutor would be unable to subpoena the witness or otherwise preserve the testimony (e.g. elderly person who might die)

Question 8

What procedural rules control the conduct of depositions?

Answer 8

The Texas Rules of Civil Procedure as long as they do not conflict with the Texas Rules of Criminal Procedure or constitutional rights

Question 9

If there are multiple defendants, what pleading must one of the defendant’s lawyer file if a defendant wants to have separate trials?

Answer 9

Motion to sever trials.

Suspect has absolute right to separate trial.

Question 10

How many jury challenges does each side have?

Answer 10

Unlimited on both sides for challenges for cause (bias or prejudice).

10 on each side for peremptory challenges in felony cases.

Question 11

Can a member of the grand jury also serve on the regular jury?

Answer 11

No. A lawyer may use a challenge for cause to strike him from the jury pool.

Question 12

What are the first two steps in a criminal trial after the jury is sworn?

Answer 12

1. Prosecutor reads the indictment

2. Defendant enters not guilty plea

Question 13

In a criminal trial, what are the fewest arguments a judge can limit the prosecutor and defense lawyer to?

Answer 13

In a felony trial:

• opening statement
• closing statement

Question 14

What is the rule of sequestration (“invoking the rule”)?

Answer 14

Requires all witnesses to leave the courtroom while the other witnesses are testifying.

Judge swears the witnesses in, instructs them not to speak to anyone else (but their own lawyer), and then excuses them.

Question 15

Are alleged victims subject to the rule of sequestration?

Answer 15

Yes, if they are going to testify and their testimony may be materially affected by the testimonies of other witnesses.

Question 16

Can the court comment on the credibility of a witness?

Answer 16

No, the credibility of a witness is for a jury to decide.

Question 17

If a court comments on the credibility of a witness, what should the lawyer do?

If a party objects to the jury charge (e.g. because court comments on the credibility of a witness), what must it do to preserve error on appeal?

Answer 17

Object with specific reason as to why the court’s comment was improper .

Ask for an instruction for the jury to disregard the comment.

Move for a mistrial.

Question 18

What must be contained within a search warrant?

Answer 18

It must state with peculiarity the person or thing to be seized, where it is located, and sufficient probability that the item will be in that location

Question 19

What must the police do after arresting someone before they interview the person?

Answer 19

Give Miranda warnings or else the statements are thrown out.

• statements are still admissible for impeachment purposes though

Question 20

How soon after arrest must a suspect be taken before a magistrate judge?

Answer 20

Within 48 hours after arrest, with no unreasonable delay

Question 21

Must a court provide a suspect with representation if the suspect is indigent?

Answer 21

Yes, if the charge can result in punishment by incarceration.

Question 22

When do multiple suspects require separate lawyers?

Answer 22

If there is a risk of suspects’ interests being adverse to each other.

Question 23

What is the proceeding called where suspect(s) are asked whether they plead to the indictment guilty or not guilty?

Answer 23

arraignment

Question 24

If a suspect doesn’t plead guilty or not guilty, what plea will the court enter?

Answer 24

Plea of not guilty. Suspect is presumed to be innocent.

e.g. the defendant does not answer the judge

Question 25

During a proceeding, can a prosecutor ask the suspect what he talked with his lawyer about?

Answer 25

No, that would violate attorney-client privilege since it was a statement made between lawyer and client for the purpose of seeking legal advice.

Question 26

Must the prosecutor give the witness statements he has available to the suspect?

Answer 26

Yes, lawyer must turn over, upon request, all non-privileged information in possession regardless of whether it is exculpatory or not.

Question 27

Does the requirement of the prosecutor to turn over non-privileged information upon request apply to the defendant?

Answer 27

It is not reciprocal. Lawyer only has to provide names of testifying expert witness and whether the insanity defense will be pled.

Question 28

Does prosecutor have the right to have names of the expert witnesses?

Answer 28

Upon request, prosecution has the right to the names of all testifying experts.

Question 29

Must defense lawyer give an opening statement immediately after prosecutor’s opening statement?

Answer 29

No. Defense lawyer may give opening statement immediately after prosecutor’s opening statement or after prosecutor’s case in chief.

Question 30

May a juror communicate with another person (including a lawyer in the case) before the verdict is reached?

Answer 30

No, jurors may not converse with anyone before the verdict is reached.

Grounds for mistrial.

Question 31

Where can someone be indicted for a crime?

Answer 31

Venue is proper in the county(s) where a significant portion or events associated with the offense occurred.

Question 32

What matters must a magistrate judge explain to a suspect?

Answer 32

• right to an attorney
• right to remain silent
• right to plea
• inform them of charges

Question 33

When can a police officer arrest a suspect without a warrant?

Answer 33

If the offense is committed within the officer’s view or within his presence, and the offense is a felony or breach of peace

*also, look for exigent circumstances

Question 34

Who, beside a court, may take the defendant’s bail bond in an amount set by the court?

Answer 34

Any peace officer, sheriff, or jailer may take the bail bond.

Question 35

What procedure must defense lawyer follow to obtain discovery of the evidence against his client?

Answer 35

Lawyer must file a motion for discovery/discovery request and request the information he wants and prosecution has obligation to turn over this discoverable information.

Question 36

What discovery must the prosecutor turn over to the defense attorney?

Answer 36

• offense reports
• statements by D
• witness statements
• LEO statements

Question 37

Is there reciprocal discovery obligations on the defense lawyer?

Answer 37

No. D need only turn over names of testifying expert witnesses.

Question 38

If requested, must D turn over the names of testifying expert witnesses?

Answer 38

Yes

Question 39

What is a main reason for a severed trial?

Answer 39

If one D would be unfairly prejudiced by the prior acts of another D (e.g. the other D was convicted of a prior crime)

Question 40

Can a complainant (victim) be excluded from the courtroom during trial?

Answer 40

Yes, if the judge believes that their testimony will be materially affected by what she hears from the trial.

Question 41

May a prosecutor comment on the defendant’s right to remain silent as evidence of guilt?

Answer 41

No, a prosecutor may never comment on a defendant’s right to remain silent as evidence of guilt.

Question 42

Are misdemeanor offenses heard in District or County courts?

Answer 42

Misdemeanor offenses are heard in county courts.

Question 43

Is a lawyer representing an indigent client entitled to reimbursement for expenses occurred that are necessary to be an effective counsel (e.g. mental health report, physical exam, etc.)?

Answer 43

Yes, lawyer is entitled to reimbursement for expenses necessary to properly represent client.

Question 44

What is the formal charging document in a misdemeanor called?

Answer 44

Information.

Written statement filed by prosecutor with an attached affidavit, charging the accused with a criminal act.

Question 45

In response to a Request for Notice of Intent to Use Expert Witnesses, what must the defense lawyer provide prosecution?

Answer 45

Names and addresses of testifying (not consulting) expert witnesses, but not anything else (e.g. no summary, etc.)

Question 46

If a potential juror claims she is unable to follow the appropriate law, what must the lawyer do?

Answer 46

Challenge for cause based on bias or prejudice.

Question 47

What is the burden of proof in a criminal trial?

Answer 47

State must prove every element of the claim beyond a reasonable doubt.

Question 48

When does jeopardy attach?

Answer 48

If it arises out of the same criminal transaction

(e.g. person found not guilty of stealing bread cannot be tried for stealing water if it was part of the same criminal transaction)

Question 49

Can the state appeal a not guilty verdict?

Answer 49

No. If the defendant is acquitted, the state cannot appeal.

Question 50

Is the jury charge given before or after the lawyers give their closing statements?

Answer 50

Before