Lecture

Question 1

T/F: Every arrest must be based on probable cause.

Answer 1

True, so write it somewhere.

Question 2

Three types of contact between peace officers and citizens. What are they?

Answer 2

1. voluntary encounter (just walking up)
2. temporary detention (Terry stop; reasonable suspicion)
3. arrest (probable cause - 4th Amend)

Question 3

T/F: If the officer has probable cause, his subjective intent is irrelevant:

Answer 3

True. Pretext irrelevant.

Question 4

T/F: An unlawful arrest does not require the reversal of a conviction, but any evidence seized pursuant to an illegal arrest is generally subject to exclusion.

Answer 4

True.

Question 5

What happens if D is arrested without probable cause, is given Miranda warnings, and voluntarily confesses?

Answer 5

The confession will be held inadmissible as a product of the illegal arrest. Miranda warnings do not themselves cure an illegal arrest.

Question 6

What are requirements for TX arrest warrants?

Answer 6

a. Written order by magistrate, issued in name of “The State of Texas”;
b. Name of offender or a reasonable description;
c. Nature of offense, e.g., “murder”;
d. Signed and dated by magistrate; and
e. Office of magistrate stated, e.g., “Judge, Criminal District Court Number One, Tarrant County, Texas.”

Question 7

T/F: The warrant is not required to be in actual possession of arresting officer.

Answer 7

True.

Question 8

A magistrate in Harris County issued an arrest warrant for D. Fort Bend County officers received a copy of the warrant and arrested D in that county.

Was Officer authorized to arrest D under these circumstances? Explain fully.

Answer 8

Yes. TX warrant extends to entire state and can be executed in any TX county at any time.

Question 9

What must probable cause in a search warrant show?

Answer 9

a. What specific offense was committed;
b. Property sought constitutes evidence of that offense; and
c. That property sought is at the location to be searched

Question 10

Explain TX’s good-faith exception for warrants.

Answer 10

When a magistrate has issued a defective warrant and the warrant is based on probable cause, if the executing officer objectively believes in good faith that the warrant is valid, the evidence is admissible.

*Still need probable cause

Question 11

Detective obtains a warrant, authorizing the search of D’s apartment and his felony arrest. Upon arrival, Detective knocks on D’s door, announcing that he has a warrant. D yells, “Go away, I ain’t opening the door.” Detective breaks down the door, arrests D and conducts the search. Does Detective have the authority to break down D’s door in order to enter the apartment? Explain fully

Answer 11

Yes. Felony cases break-down door to arrest, if refused admittance, if refused authority and admittance.

Question 12

T/F: Burden on State to prove voluntariness of a confession.

Answer 12

True.

Question 13

T/F: Involuntary statements are always inadmissible, even for impeachment.

Answer 13

True.

Question 14

T/F: Once suspect has clearly and unambiguously requested counsel, 5th Amendment prohibits further interrogation until lawyer has been made available to him.

Answer 14

True, unless the suspect initiates discussion.

Question 15

Once the 5th Amendment right is invoked (silence), what happens?

Answer 15

Once 5th Amendment right is invoked, it applies to interrogations about all other crimes of which suspect may be suspected.

Question 16

T/F: Mere violations of Miranda rules not grounds for suppression of physical evidence.

Answer 16

True.

Question 17

If the court finds the statement to be voluntary, and the defense raises the issue by positive evidenced adduced before the jury, the guilt/innocence charge must inform the jury that the confession is not admissible for any purpose unless the jury believes beyond a reasonable doubt that the statement was voluntarily made,

Answer 17

x

Question 18

Before his arrest for arson, D goes to the police station and tells the receptionist that he is feeling guilty and wants to talk to any officer about the crime. But D then leaves without doing so. Prosecutor intends to call the
receptionist as a witness. What procedural step, if any, can you take to exclude the testimony from evidence? On what basis, if any, can you take this step? Explain
fully.

Answer 18

File a motion to suppress but won’t succeed. It is voluntary, spontaneous, non-custodial, and a statement against interest.

Question 19

What is venue?

Answer 19

The county in which a criminal offense occurred. It is in that county that the courts will try the case, and the county from which the jurors will be summoned.

Question 20

What is an indictment?

Answer 20

written statement of grand jury accusing a person of an offense, either by act or omission

Question 21

What is an information?

Answer 21

written statement filed in behalf of State by the prosecution, charging an offense. (from examining trial)

Question 22

T/F: A transcript of grand jury testimony is only available to a defendant prior to trial if a “particularized need” is shown.

Answer 22

True.

Question 23

The grand jurors sent for Prosecutor and asked for his legal advice concerning their investigation of the robbery. Prosecutor appears before the grand jurors and gives them legal advice. Did the grand jurors violate the law by asking Prosecutor for his legal advice? Explain fully.

Answer 23

No. Prosecutor can appear and provide legal advice, only excluded during deliberations or votes.

Question 24

If D appears before a grand jury, he is entitled to what warnings?

Answer 24

a. the right not to answer questions that may incriminate him;
b. notice of what offense he is suspected of committing;

c. the right to have counsel outside of jury room and to
consult with counsel before answering any questions;

d. right to have questions and answers recorded

Question 25

T/F: During deliberations, only grand jury members may be present.

Answer 25

True. If unauthorized people are present, then the indictment is invalid.

Question 26

The crime occurred in 2014. In 2016 B and CJ are charged with 3rd degree felony for sale of counterfeit handbags. Is this fine with statute of limitations?

Answer 26

Yes; prosecution was initiated within statute of limitations, which is 3 years for general felonies.

Question 27

Can a magistrate have issued a summons instead of an arrest warrant?

Answer 27

magistrate may, in his discretion, issue a summons rather than an arrest warrant. The summons directs the person to appear but does not authorize the taking of the person into custody.

Question 28

T/F: Criminal defendants have a right to bail.

Answer 28

True.

Question 29

What’s the difference between a personal bond and a bail bond?

Answer 29

Under a personal bond, an amount is set and defendant must pay it if he fails to appear. It differs from a bail bond because no security is needed. A bail bond requires security in form of a surety or cash deposit.

Question 30

Prosecutor calls officer as witness at B’s examining trial and officer testifies as follows: “S told me that she paid $150 for each of the three handbags and that she handed the money for them to B.”

You object on grounds that it is hearsay. What should the magistrate do?

Answer 30

Magistrate should sustain the objection. S’s statement is hearsay because it was made out of court and is being offered for its truth – that she purchased the handbags from B – and the statement does not fall into a hearsay exception. The same rules of evidence applicable at trial also apply during the examining trial, so the answer would not be different if the proceeding were a jury trial.

Question 31

B, a defendant, wants to testify during the grand jury. Can B?

Answer 31

No, B does not have the right to address the grand jury. An accused person (and even if the prosecution approves), the accused’s lawyer may be permitted to address the grand jury, but neither has a right to do so.

Question 32

During its deliberations, the grand jury calls for prosecutor to come to the grand jury room to mediate a dispute they are having. Is this permissible?

Answer 32

No, law does not authorize compliance because no one other than grand jurors may be present when they are deliberating.

Question 33

Can multiple Ds be charged in the same indictment?

Answer 33

Yes, it is proper to charge both in the same indictment because multiple Ds can be charged together in the same charging instrument as long as they are all charged with the same offense.

Question 34

What happens if I think the indictment fails to charge any violation of law?

Answer 34

I should file a pretrial exception to the substance of the indictment, called a “motion to quash,” for failure to charge an offense. The motion must be in writing and filed before the date on which trial on the merits begins.

Question 35

The state might use a witness who knew your client B as a teenager and who would testify about B’s illegal acts as a teenager. How do I prevent this?

Answer 35

I can file a motion in limine requesting that the court address and rule on the admissibility of the evidence of B’s actions as a teenager. The motion does not preserve the issue on appeal. Therefore, if the court rules in favor of prosecutor and she mentions B’s past behavior at trial, I should object to preserve the issue for appeal.

Question 36

B allegedly sold counterfeit handbags. What can B do to prevent these handbags in question to be admitted into evidence?

Answer 36

There is no procedural step B can take to attempt to prohibit prosecution from introducing the three handbags. B has no standing to file a motion to suppress because the bags were taken without warrant from another, not B. He had no reasonable expectation of privacy in the bags.

Question 37

If your client B pleads guilty, but court rejects the plea agreement, will B be bound by his guilty plea and have given up his right to trial?

Answer 37

No, B will not be bound by his guilty plea. If the court rejects a plea bargain, the defendant may withdraw his guilty plea.

Question 38

Seven jurors will likely be not favorable for my client. What can I do?

Answer 38

I can request a jury shuffle, which will reseat the prospective jurors in a random manner. The request must be made before voir dire begins.

Question 39

If there are two defendants, how many peremptory challenges do I have if I am the attorney for one defendant?

Answer 39

Each defendant’s attorney gets 6 peremptory charges and prosecution gets 12.

Question 40

After jury is impaneled, what do I do as a defense attorney?

Answer 40

The first two steps are: (1) the reading of the indictment or information to the jury by the prosecutor; and (2) the entering of a plea by the defense. Failure to take these steps can be fixed later during trial. Upon learning of the error, the indictment should be read to the jury and the defendant should enter a plea. Thereafter, the state should reintroduce the evidence or the parties may stipulate to the evidence already presented.

Question 41

Is prosecutor required to tell the defense attorney prior to trial about what a witness will testify about?

Answer 41

The prosecutor only required to tell defense attorney about the testimony before trial if I requested notice of such evidence. Pre-trial notice of other-acts evidence is only mandatory if the defendant requests it.

Question 42

At sentencing, prosecutor starts to introduce evidence of your client B’s past bad behavior. Can I object because, despite proper and timely notice, B has not been charged or convicted of the crime?

Answer 42

Admissible at sentencing if prosecutor can prove that B stole the check beyond a reasonable doubt. At the sentencing hearing, the state and defense may offer evidence as to any matter the court deems relevant to sentencing, which includes extraneous crimes or bad acts regardless of whether defendant has been charged with or convicted of those crimes or acts. But if the state seeks to prove other crimes or bad acts of which the defendant has not been convicted, the state must prove the crimes or bad acts beyond a reasonable doubt.