Procedure set 2

Question 1

o How many days before the pre-trial hearing must you file a motion for discovery? What consequences are there if you fail to file the discovery motion by that time? [F15]

Answer 1

 A motion for discovery must be filed 7 days before the pretrial hearing
 Failure to meet this deadline will prevent filing the motion later, except by permission of the court for good cause shown

Question 2

o Following a timely request from D to review evidence, does the TX Code of Criminal Procedure require the Prosecutor to take any action in response to the request? [F15]

Answer 2

 Yes, under the Texas Code of Criminal Procedure the prosecutor must turn over material evidence in the possession of the state

Question 3

o What does the Texas Code of Criminal Procedure require for police reports? [F16]

Answer 3

 The TX Code of Criminal Procedure requires the state to allow inspection and copying of police reports (expressly provides the right to inspect and make a photocopy of the offense report written by an officer)

Question 4

o What procedural step can you try to take to obtain the testimony of a witness prior to trial and what must you show? [J15]

Answer 4

 Must apply to the court for authority to depose a witness
 Application must be accompanied by an affidavit setting out “good cause” for the deposition and notice of the depo must be given to the opposing party

Question 5

o What procedural step can you take to ensure that a witness is present at trial to testify? What are two things that you must state as part of that procedural step? [J15

Answer 5

]
 Compel appearance of a witness by use of subpoena process
 Must make application for subpoena to the clerk for each witness the side wishes to have subpoenaed; application should state the name of each witness, location and venue (fi known), and statement that testimony of witness is material

Question 6

o If you want to present the defense of insanity but D cannot afford one, must you forego hiring a psychiatrist?

Answer 6

 No, Counsel should file an Ake motion
 Due process entitles an indigent D to appointment of an expert
 To get the expert, counsel must show that the area of the expert’s expertise is likely to be a significant issue in the case
 The motion can be made ex parte (just to the judge) so the defense’s strategy is not revealed to the state

Question 7

o When can a D withdraw a guilty plea? [J15]

Answer 7

 Before court – may withdraw plea as a matter of right any time before the court takes the plea under advisement or pronounces judgment on the plea
 Before jury – may withdraw plea as a matter of right any time before the jury retires

Question 8

o In what ways is a plea of nolo contendere the same as or different from plea of guilty? [F16]

Answer 8

 (1) it has the same legal effect as a plea of guilty,

 (2) it cannot be used in a civil case to attach as liability

Question 9

o Is the sentence (or probation) provided for in a plea agreement guaranteed? [F15]

Answer 9

 No, a judge is not obligated to impose the sentencing agreement reached by the parties
 But, if the judge imposes a different sentence, D has the right to withdraw his plea

Question 10

o In what county or counties is venue proper for the prosecution of a crime? [J15]

Answer 10

 Venue lies in the county where the crime was committed

Question 11

Which of the following court haves jurisdiction over the arrestee’s offense – district court, county court, or municipal court? [J15]

Answer 11

o

 Only district courts have jurisdiction over felony offenses

Question 12

o Can a D charged with a felony waive the right to have the jury determine her guilt or innocent? If a D can waive that right, what procedural step, if any, must be taken by the D to do so? [F15]

Answer 12

 Yes, a D can waive her right to be tried by a jury in all cases except prosecutions for capital murder and where the State seeks the death penalty
 Waiver of jury trial requires the consent of the prosecutor and the judge

Question 13

o What procedural steps can you take, if any, to try to obtain separate trials on each of the different (i.e. 3) counts in the indictment? [F15]

Answer 13

 You can move to sever all three counts
 When a D is scheduled for trial on multiple charges arising from one criminal episode, she has an absolute right to have the charges severed for separate trials

Question 14

o What is a challenge for cause? How many challenges for cause are you allowed to make on D’s behalf? [F15; J15]

Answer 14

 A challenge to a member of the jury panel on the basis of one of the grounds specified in the Texas Code of Criminal Procedure
• Statutory grounds –Juror can be challenged because:
o A witness in the case;
o Served on grand jury in the case;
o Biased or prejudiced in favor of or against the defendant;
o Has reached a conclusion in the case which will influence his verdict;
o Cannot read or write; or
o Has a bias/prejudice against the law upon which one side or the other has a right to rely.

Question 15

What is a preemptory challenge? How many preemptory challenges are you allowed to make on D’s behalf? [F16, F15, J15]

Answer 15

 A mechanism for attorneys to strike prospective jurors without having to specify a rationale
 D charged with non-capital felony – allowed 10 preemptory challenges
• If two or more Ds are tried together:
o Each D gets 6 challenges; and
o Prosecution is entitled to 6 challenges per D
 D charged with misdemeanor – allowed 3 preemptory challenges

Question 16

o Prosecutor choses not to make an opening statement and defense requests to make an opening statement before the Prosecution calls his first witness to testify – court denies the request. Does the court’s ruling violate the law? [J15]

Answer 16

 Yes, the State’s decision not to make an opening statement before it calls its first witness gives the D the right right to make an opening statement at that time

Question 17

o What procedural step should you take to allow the jury to recommend probation (the option of imposing probation if the jury finds D guilty), and when should you take this step? [F16; F15]

Answer 17

 You should file an application for probation before trial (pre-trial motion)
 The application should be in writing, be sworn, and must verify that D has not previously been convicted of a felony (thus eligible for probation)

Question 18

o What are the two ways in which deferred adjudication differs from probation? [J15]

Answer 18

 Deferred adjudication:
• No conviction/no finding of guilt or innocence (if successfully completed)
• Can only be imposed prior to trial

Question 19

o How should the court rule following an objection to evidence of D’s prior bad acts? [F15]

Answer 19

 The court should probably overrule the objection
 Ordinarily, evidence of prior crimes, wrongs or bad acts is not admissible to show that a D has a propensity to commit the same conduct
 However, prior conduct may be admissible if offered for a different purpose (MIMIC)
 Under Texas law, the fact that prior misconduct does not end in a criminal conviction does not prevent it from being admitted
 The Texas Rule of Evidence recognize that intent can be shown by crimes, wrongs, or bad acts, regardless of whether they resulted in a criminal conviction

Question 20

o If you object to the competency of a witness, how should the court rule on your objection? [F15]

Answer 20

 In considering whether to sustain or overruling your objection  the judge should examine the witness on the record to determine whether he has sufficient intellect to relate transactions regarding which he will be asked to testify
• Example: Just because a witness is 5 years old does not mean that, per se, he cannot be a competent witness

Question 21

o When can a witness be impeached by introducing evidence of their prior criminal convictions/bad acts? [J15, F15]

Answer 21

 A witness can be impeached with a prior conviction that was a felony or misdemeanor that involved moral turpitude (i.e. theft)
 A conviction that is less than 10 years old is not stale and can be the basis of impeachment
 The effect that the witness’s satisfactory completion of probation had on the use of the conviction for impeachment

Question 22

o For the statement of account/business record to be admissible under the Texas Rules of Evidence, what must the testimony of the custodian of records show? [F15]

Answer 22

 The custodian must testify that:
• The records were kept in the regular course of business,
• It was the regular course of business for a person with knowledge of the matter to make the records,
• The entries were made at or near the time of events, and
• The witness is the custodian of the records

Question 23

o Defense objects to the admission of a videotape on the grounds that it has not been properly authenticated. How should the Court rule on the objections? [F16]

Answer 23

 Depends on whether the videotape has been properly authenticated
 If the video referenced in the question was properly authenticated under the rules of evidence, the objection should be overruled and the video should be admitted.
 Personal knowledge is not required.

Question 24

• How should the Court of Appeals rule on the Prosecution’s Appeal? [F15]

Answer 24

o The court should dismiss the prosecutor’s appeal

o The constitutional protection against double jeopardy prohibits the State from appealing a jury verdict of acquittal

Question 25

• Requirements for claims of ineffective assistance of counsel: [F16]

Answer 25

o To show ineffective assistance D must show:
 (1) Lawyer’s actions were unreasonable (beyond the bounds of professional competence; and
 (2) D was prejudiced by the deficient performance of counsel (but-for counsel’s deficient performance, results of the proceeding would have been different)
o If D was not harmed (because, for example she was acquitted) she cannot make out a claim of ineffective assistance of counsel (cannot show prejudice)