Pre-Trial

Question 1

Under TX law, when must an arrestee be taken before a magistrate?

Answer 1

Arrestee must be presented to magistrate without unnecessary delay, aka within 48 hours of arrest.

Question 2

What are the duties of the magistrate at the initial appearance?

Answer 2

Within 48 hours of arrest, magistrate must set bail and inform suspect of:

(i) charges against them
(ii) right to remain silent
(iii) right to retain counsel
(iv) right to appointed counsel
(v) right to an examining trial

Question 3

It has been 48 hours after an arrest and no magistrate has determined that there is probable cause to believe arrestee guilty. What rights does arrestee have?

Answer 3

Arrestee has right to be released on bond and to have bond set.

Question 4

Release on bail if no probable cause determination by magistrate for:

Answer 4

a) felonies - after 48 hours of arrest w/o warrant
b) misdemeanors - after 24 hours of arrest w/o warrant
c) cannot delay release for more than 72 hours

Question 5

How does a prosecutor get bail denied?

Answer 5

Prosecutor must file a motion for denial of bail in district court within 7 days of arresting D.

*Only a district judge can deny bail in a noncapital prosecution.

Question 6

Bail can be denied in a noncapital case only if at a hearing, the prosecution shows:

Answer 6

1. D is charged w/ a noncapital felony; and
2. substantial evidence of D’s guilt of that crime; and
3. one of the following:
   (a) one prior felony conviction; or
   (b) present offense committed on bail on felony; or
   (c) one prior felony conviction + present offense involved use of a deadly weapon; or
   (d) present offense was a violent or sexual offense committed while on felony probation or parole

Question 7

What’s the general rule for denying bail?

Answer 7

Bail can be denied if while on bail on a felony charge, D violates a condition of bail related to the safety of the victim or the community

Question 8

How does D challenge if bail is denied?

Answer 8

D can challenge bail by immediately appealing the order denying bail to the Court of Criminal Appeals.

Question 9

What can defense do for D if things just drag on and on regarding bail?

Answer 9

Denial of bail in a noncapital prosecution lasts only 60 days, as long as defense does not move for a continuance of the trial proceedings.

Question 10

How can D seek a reduction in the bail amount?

Answer 10

To request the magistrate to lower bail, D must:

(i) file an application for writ of habeas corpus in district court
(ii) at hearing, introduce evidence showing: bail was excessive, he cannot pay the bail; and the amount of bail he can pay
(iii) the district judge may order bail reduced
(iv) If not, before trial D can appeal to Court of Appeals

Question 11

What are the 3 rules a trial court should follow when fixing the amount of bail? (LASSO)

Answer 11

To consider in setting bail and whether it is excessive, a trial court considers:

L: likelihood of D appearing for trial
A: ability of D to make bail
S: seriousness of the crime charged
S: safety of victim and community
O: oppression (let's not be oppressive)

Question 12

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

Answer 12

A bail bond requires a surety or cash deposit whereas a personal bond requires the accused’s promise to pay the amount if the bond is forfeited.

Question 13

A jailed D may be released (either on personal bond or reduced bond) if State not ready for trial within:

Answer 13

1. felony cases: 90 days

Misdemeanors, ranked (A-C): 30, 15, or 5 days

Question 14

What is the purpose of an examining trial?

Answer 14

Any magistrate can hold an examining trial (held at any court). The examining trial is a pretrial hearing that requires the State to produce evidence showing probable cause to believe the defendant guilty of the crime.

Question 15

If an examining trial is held, what rights does a defendant have?

Answer 15

Defendant has a rights to be present, be represented by counsel, have the rules of Evidence applied, cross-examine State witnesses; and subpoena and present defense witnesses.

Question 16

T/F: Defendant can make an unsworn voluntary statement at an examining trial, but it must be done before any witnesses testify.

Answer 16

True.

Question 17

T/F: Indictment shuts off right to examining trial.

Answer 17

True.

Question 18

A defendant is entitled to an examining trial if:

Answer 18

(i) charged with a felony; and

(ii) an indictment has not yet been returned

Question 19

What is the consequence of a defendant “winning” at an examining trial?

Answer 19

The purpose of the examining trial (a pretrial hearing) is that the State has to produce evidence showing probable cause to believe the defendant guilty of a crime when the defendant has been charged with a felony and no indictment has yet been returned.

Winning at the examining trial entitles defendant to go free until and if indicted. It does not prevent prosecution and conviction.

Question 20

How does a district court indict a defendant?

Answer 20

The State must seek an indictment from the grand jury returning a “true bill” against the defendant. This means that the grand jury has found probable cause exists to believe defendant is guilty. Then the indictment will be signed and filed in District Court.

Question 21

Can a defendant waive his/her right to a grand jury indictment? If so, what is the result?

Answer 21

Yes, a defendant can waive their right to a grand jury indictment UNLESS it’s a capital murder charge.

Consequence: State will file an information to charge the defendant.

Question 22

What are the requirements for a defendant to waive his/her right to a grand jury indictment?

Answer 22

To waive their right to a grand jury indictment (fine, as long as not capital murder), defendant must be represented by counsel; waiver must be written or in open court; and waiver must be voluntary.

Question 23

What is an information? How does it differ from an indictment?

Answer 23

An information is a pleading filed by the State charging the defendant. It only needs to be approved and signed by the prosecutor. It must be supported by valid and sworn complaint, which is filed.

An indictment needs to be approved by the grand jury (“true bill” against defendant that probable cause exists) and is signed by the foreperson.

Question 24

Explain the grand jury selection process:

Answer 24

District court judge directs 20-125 prospective grand jurors to be selected and summoned for civil cases. The prospective grand jurors are summoned to the district court, which tests their qualifications. The district court will then impanel 12 grand jurors and 4 alternates.

Question 25

Before the grand jury is impaneled, anyone can challenge a grand juror on the bases of:

Answer 25

1. Juror is insane
2. Juror served on petit jury in a former trial of the same conduct
3. Juror has a medical condition that makes them unfit
4. Juror is a witness or a target of grand jury investigation
5. Juror is biased or prejudiced in favor/against the accused
6. Juror is biased about guilt/innocence of the accused
7. Juror is within 3 degrees of consanguinity to accused
8. Juror is biased or prejudiced against applicable law to this case
9. Juror is the prosecutor

Question 26

Can a grand jury compel a defendant to appear and give testimony regarding his charged offense?

Answer 26

The grand jury can compel defendant by issuing a subpoena. But it cannot compel defendant to answer questions if defendant invokes his privilege against self-incrimination.

Question 27

If a defendant appears voluntarily to a grand jury proceeding, what must occur before and after they are questioned?

Answer 27

They will be a suspect witness and before questioning, they will be warned of:
(i) the offense of which they are suspected;

(ii) the county in which the crime was committed; and
(iii) the time of its occurrence
* All recorded

Question 28

If a defendant is subpoenaed to a grand jury, what warning must they receive, if any?

Answer 28

If a defendant is subpoenaed to their grand jury proceeding, before questioning they must be warned of:

(i) testimony will be under oath
(ii) a false answer to a material question = might be prosecuted for perjury
(iii) can refuse to answer
(iv) has a right to have counsel appointed if unable to employ a lawyer
(v) has a right to have a lawyer present outside the room; and
(vi) testimony can be used against them

Question 29

If a defendant is subpoenaed to a grand jury, what rights do they have?

Answer 29

Defendant must be given a written copy of the warnings (testimony under oath, watch out for perjury, can refuse to answer, right to counsel, right to lawyer outside the room, testimony can be used against them); and

must have a reasonable opportunity before appearing to obtain and consult with counsel

Question 30

During a grand jury proceeding, can the defendant cross-examine prosecution’s witness?

Answer 30

No. Only the prosecutor and grand jurors can examine witnesses.

Also, defendant has no right to participate but they can request the grand jury for the ability to address the grand jury.

Question 31

Can defense counsel appear and present evidence before a grand jury on behalf of a defendant?

Answer 31

Yes, a lawyer representing the suspect may address the grand jury if (1) grand jury permits and (2) prosecutor consents to it.

Question 32

T/F: The grand jury may send for the prosecutor and ask them for advice upon any matter of law.

Answer 32

True.

Question 33

How is an indictment reached by the grand jury?

Answer 33

A grand jury consists of 12 people (4 alternates). At least 9 must concur for a person to be indicted and the prosecutor drafts it.

Question 34

An unauthorized person was present while the grand jury was hearing evidence. Can the defendant have the indictment set aside?

Answer 34

No. Only authorized people should be present, but dismissal is not required.

Question 35

An unauthorized person was present while the grand jury was deliberating or voting. Can the defendant have the indictment set aside?

Answer 35

Yes. Once the grand jury begins deliberating, only the grand jurors may be present. Violating of this requires dismissal of the indictment.

Question 36

Who may be present when the grand jury is conducting proceedings (prior to deliberation and voting)?

Answer 36

The prosecutor, stenographer, bailiff, and an interpreter.

Question 37

T/F: An indictment may be challenged for evidentiary insufficiency.

Answer 37

False. An indictment may not be challenged for evidentiary insufficiency.

Question 38

T/F: Criminal prosecutions must be brought (indictment must be presented) within particular periods of time from the commission of the offenses.

Answer 38

True. This period can be tolled when D is out of state or while being charged with the same offense is pending against the accused and is later dismissed.

No period of limitations for murder + manslaughter, leaving scene of accident, sexual assault (unknown identity).

Question 39

What are the general periods of limitations for crimes?

Answer 39

Misdemeanors = 2 years
Felonies = 3 years
Theft, burglary, robbery, kidnapping = 5 years

Question 40

T/F: After an indictment is returned, neither felony nor misdemeanor Ds have a right to an examining trial.

Answer 40

True.