Second Round Flashcards
1
Q
Trial Court Jurisdiction
District Court
A
- felony charges;
- misdemeanors as lesser included offenses;
- misdemeanor involving official misconduct
Only a district court has jurisdiction to conduct trial for aggravated assault because that is a felony
2
Q
Trial Court Jurisdiction - Justice Courts
A
Offenses only punishable by fine
I.e. traffic court
3
Q
Trial Court Jurisdiction - Municipal Court
A
Exclusive jurisdiction:
- offenses created by city ordinance; punishable only by fine
Concurrent jurisdiction:
- offenses created by state statute; punishable only by fine
4
Q
Trial Court Jurisdiction - County Courts
A
Misdemeanors over which exclusive jurisdiction is not given to justice courts
5
Q
Habeas Corpus
A
Court order commanding someone with a person in custody to produce that person before the court and show why the person is being held
A writ is directed to someone restraining another
Instructs the restrainer to produce the person
6
Q
When must df be taken before a magistrate?
A
Officers must present df to magistrate without unnecessary delay; but in any case within 48 hours of arrest
7
Q
What are a magistrates duties at a preliminary appearance?
A
The magistrate must:
1. Tell df the charges
2. Tell df of his rights to counsel; right to an examining trial*
3. Warn df that in regards to police question
- right to remain silent
- any statement can/will be used against him
- right to have attorney present during questions
- can request appointment of attorney
- can terminate interview with police at any time
4. Set bail
May also determine if probable cause exists
8
Q
What actions if magistrate determines no probable cause?
A
Release on bail
- felonies - after 48 hours of arrest without warrant
- misdemeanors - after 24 hours of arrest without warrant
Magistrate can delay release for not more than 72 hours total
9
Q
Can bail be denied to df?
A
Yes, if the state can show one prior felony conviction and the use of a deadly weapon in the present offense
10
Q
Can bail be denied in noncapital cases?
A
Yes, only if at a hearing the prosecution shows
1. Df is charged with noncapital felony
2. Subst evidence of df’s guild of crime; and
3. One of the following:
- two prior felony convictions
- present offense committed out on bail on felony; or
- both:
(A) one prior felony conviction; and
(B) present offense involved use of a deadly weapon; or
- present offense was a violent sexual offense committed while on felony probation or parol
11
Q
What can df do if bail is denied in noncapital case
A
If detention for noncapital case lasts 60 days or greater, order denying bail expires and df can demand bail be set.
Rule - 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
12
Q
What procedural steps can df take to reduce bail? E.g. bail set at $500k on charge of aggravated assault
A
- File application for writ of habeas corpus in dist ct
- Introduce evidence at hearing showing:
- bail set was excessive;
- df cannot meet the bail set; and
- amount of bail df can meet - The dist judge may order bail reduced
- If not, df can, before trial, appeal to Court of Appeals (not Criminal Court of Appeals, just the intermediate)
13
Q
Factors a court should considering what fixing bail
A
LASSO Likelihood of df appearing for trial Ability of df to make bail Seriousness of the crime charged Future SAFETY of the victims/community Required bail is not to be an instrument of OPPRESSION
14
Q
Personal Bond vs Bail Bond
A
Bail bond requires a surety or cash deposit (down payment)
Personal bond requires neither kind of security
- is the accused’s promise to pay the amount if bond is forfeited
15
Q
Examining Trial
A
Pretrial hearing before a magistrate. It’s purpose is to require the State to produce evidence showing probably cause to believe the df is guilty of the crime.
16
Q
Examining Trial Procedure
A
At an examining trial, df has the rights to
- Be present
- Be represented by counsel
- Have rules of evidence applied
- Cross-examine state witnesses; and
- Subpoena and present dfnse witnesses
17
Q
Who can demand an examining trial?
A
A df is entitled to an examining trial if
- She is charged with a felony; and
- An indictment has not yet been returned
18
Q
What requirements needed for person to waive indictment?
A
- Df must be represented by counsel
- Waiver must be by written instrument or in open court; and
- Waiver must be voluntary
- Waiver is not permitted for capital murder indictment
19
Q
What grounds permit challenging grand juror
A
- Juror is insane
- Juror has medical condition rendering them unfit to serve
- Juror is witness or target of a grand jury investigation
- Juror served on petit jury of former trial for same conduct
- Juror is biased/prejudiced
- Juror is biased about guilt/innocence of person accused/suspected
- Juror is related within 3 degrees of cosanguinity with suspect
- Juror is biased/prejudiced against law applicable in the case
- Juror is the prosecutor of an accusation against the person making the challenge
20
Q
Voluntary Appearance Before grand jury
What must occur before and as a suspect is questioned in grand jury proceedings
A
Df is deemed a suspect witness. Must be warned of the following before questioning
- The offense of which he is suspected;
- The county in which it was committed; and
- The time of its occurrence
Questions asked and answered must be recorded
This is notice pleading - letting df know what he’s charged with.
21
Q
Subpoenaed appearance before a grand jury to testify
What must occur before suspect appears and is questioned?
A
Subpoenaed as a suspect witness, must be warned of the following:
- Testimony given under oath
- False answer to material question subjects df to prosecution for perjury
- May refuse to answer incriminating questions
- Has right to have counsel appointed
- Has right for counsel to be present outside the room; and
- His testimony can be used against him
22
Q
Challenges to grand jury indictment
A
While the grand jury is conducting proceedings, prior to deliberation and voting, the prosecutor, stenographer, bailiff, and an interpreter may be present.
An indictment may be set aside if an unauthorized person was present while the grand jury was hearing evidence.
An indictment must be dismissed if an unauthorized person was present while grand jury was deliberating and voting.
23
Q
General Periods of Limitation
A
Misdemeanors - 2 years
Felonies - 3 years
Theft, burglary, robbery, kidnapping - 5 years
No period of limitations for:
- Murder/manslaughter
- Offense involving leaving the scene of an accident
- Sexual assault, where DNA testing indicates the perp is not a person whose identity is readily ascertained (if the v didn’t know the df)
24
Q
What is a charging instrument, generally?
A
Provides information and alleges only fact. It does not identify the charged crime by name, nor does it specify the statute creating the crime.
It charges the offense and provides the accused with trial preparation notice. To charge an offense:
- Facts constituting all elements must be alleged
- Statutory langue is usually sufficient
- Any victim must be named
More detail and specificity may be required to provide notice
25
What are the formal requisites of an indictment or information?
The following are required per the Coder of Crim Proc.
1. Commence: “In the name and by the authority of the State of Texas”
2. Name the accused (or describe him)
3. Set forth (charge) all elements of the offense
4. Specify enough details to give accused notice
5. Allege the crime was committed on a date that is both:
- within period of limitations; and
- before presentment of indictment*
6. Allege crime occurred in county under court’s Juris
7. Conclude: “Against the peace and dignity of the State”
8. Be signed by foreperson (indictment) or prosecutor (information
* Bar tricked test-takers one year - the alleged commission occurred on later date, after the charging instrument was issued (minority report bull shit).
26
Jury instruction on an uncharged offense
A jury should be instructed on an uncharged offense if:
1. The other offense is a lesser included offense of the crime charged; and
2. The evid before the jury supports finding both that:
- d is not guilty of the charged offense; and
- d is guilty of the lesser included offense
27
What procedure available to challenge indictment?
Motion to quash:
1. An exception to the form of the indictment; or
2. An exception to the substance of the indictment.
Motion must be filed before the day trial begins
28
What personal decisions is df entitled to make during prosecution
1. What plea to enter
2. Jury or bench trial
3. Take the stand
29
What effect does pleading nolo contendere have compared to guilty
In the criminal prosecution, no difference.
If civil litigation arises out of the same incident (i.e. wrongful death following murder case):
- guilty plea can be used as evidence
- nolo contendere cannot be used
30
What admonition must a judge give before accepting a felony plea of guilty/nc
1. Inform df range of punishment
2. Inform df that recommendations by state are not binding
3. Inform df of limited right to appeal following guilty plea
4. Inform df plea may result in deportation, exclusion from US, denial of naturalization; and
5. Inquire into whether there is a plea bargain
31
Plea bargain calls for probation; judge ordered 20 years’ imprisonment
Df has right to withdraw his plea
32
Pre-trial hearing and conference
```
Up to the judge’s discretion
If set, parties must within 7 days before the conference
1. Enter any special plea;
2. Challenge indictment
3. Ask for continuances;
4. Change of venue motion;
5. Motion to suppress evidence;
6. Request for discovery;
7. raise claims of entrapment
```
33
Motion in limine
A Pre-trial motion asking for either (or both):
1. Pre-trial ruling on the merits of some question of evidence or procedure that will arise during trial; or
2. Pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury
Essentially a motion in limine is asking the judge to tell someone they can’t do something.
A JUDGE’S RULING ON A MOTION IN LIMINE PRESERVES NOTHING FOR APPELLATE REVIEW. MUST OBJECT TO PRESERVE ERROR IN THE RECORD.
34
What ways are available for df counsel to raise admissibility of evidence
Make a pre-trial motion to suppress; or
| Wait and object to the admission when State offers at trial
35
What effect is court denies motion to suppress?
A pre-trial motion to suppress evidence preserves the issue for appeal
- counsel doesn’t have to object during the case in chief (but would be wise to do so anyway)
Denied motions in limine do not preserve the issue for appeal
36
What is the scope of questioning allowed on cross-examination of df at a hearing to suppress evidence (pre-trial)?
The state may only inquire into matters related to the hearing issue - the validity and facts behind the motion to suppress. Cross-examination cannot extend to guilt of the charged crime.
Nor does df waive his right to remain silent at the rest of the trial.
37
What is the scope of evidence a df can obtain from the state?
1. Physical evidence not protected by work product.
- e.g. police reports, crime lab reports, samples of physical evidence such as blood or drugs, copy of written confessions.
- After showing particularized need, df can obtain testimony of witnesses who testified at grand jury
2. Police reports and witness statements are no longer covered by work product
- but, assistant DA memo to prosecutor discussing cross-examination strategy is protected
38
When can a court order the identity of a state informant be revealed?
In general, informant identity can be withheld by the state. Two exceptions:
1. If the informant provided info by which the state obtained evidence in a way the df claims was illegal, the court has DISCRETION to require disclosure if necessary to show informant’s reliability.
2. Upon a showing the informant can provide testimony necessary to a fair determination of guilt/innocence, the court must order disclosure (e.g., informant is witness to the crime).
39
What obligation does a prosecutor have regarding exculpatory evidence?
1. Prosecution has a due process duty to disclose such evidence
2. Evidence that impeached a prosecution witness is material
3. Evidence must be disclosed if it is in the possession of:
- the trial prosecutor
- another prosecutor; or
- the police
4. A conviction is INVALID for nondisclosure only if the nondisclosed exculpatory evidence is material.
40
Df is incompetent to stand trial
A df is incompetent to stand trial if either:
A. She lacks ability to consult with counsel with reasonable degree of rational understanding; or
B. She lacks a rational and factual understanding of the proceedings.
An incompetent df cannot stand trial or continue in trial under federal due process and texas statute provisions.
However if condition improves:
A. Df can be determined to be competent; and
B. Prosecution can proceed
41
Who can raise issue of df incompetency?
The defense or state may by motion suggest the df may be incompetent; or
The trial court may on its own motion suggest the df be incompetent
However the trial judge MUST, on the court’s own motion suggest the df may be incompetent if evidence suggesting incompetency comes to the attention of the court. SIGNIFICANT evidence of incompetency requires a full hearing. A jury may decide the outcome (based on fact-intensive consideration).
42
Where is Venue proper?
1. Where the crime was committed
43
When may a df seek a change of venue?
Prejudice in county would prevent a fair trial;
- submit affidavits indicating a fair trial cannot be held in county by:
- df; and
- two credible residents of the county
Dangerous combination of influential persons against the df would prevent fair trial
44
When may state seek change of venue?
Combination of influences in favor of Df would prevent fair trial; or
Lawless conditions would prevent fair trial; or
Life of df or witness in jeopardy by local trial
45
When may the trial court change venue?
On its own motion because trial fair and impartial to df and state alike cannot be held.
46
On what grounds is a judge disqualified in a criminal case?
1. Judge was a victim of the crime;
2. Judge was counsel for either side;
3. Judge is related within three degrees to either D or the victim; or
4. Bias
47
One Offense Rule vs. the Criminal Episode Exception
a. The state can join all offenses arising out of one criminal episode
b. can contain several offenses in one charging instrument - separate counts
c. state can consolidate charges in separate indictments if all stem from same criminal episode
d. state is not required to try all offenses from one criminal episode together
e. df has absolute right to sever
f. if df does sever, and is convicted at separate trials, judge has discretion to order consecutive (in lieu of concurrent) sentences
48
How are crimes part of the same criminal episode?
1. part of the same transaction;
2. part of a common scheme or plan;
3. the same or similar offenses
49
Mandatory Severance
df who moves for severance and shows codefendant has prior conviction admissible against that codefendant at trial must be granted severance
50
Discretionary Severance
trial judge has discretion to grant motion for severance of trials, and should grant such motion if joint trial would be prejudicial to df who has moved for severance
51
Defense counsel for Sims discovers before trial that Lemke was previously convicted of felony. What procedural steps, if any, can defense counsel take to protect Sims from prejudice he'll suffer from introduction of Lemke's prior conviction if Sims and Lemke are tried together?
Df counsel can move for a severance of Sim's trial from Lemkes. The trial judge will have to grant the motion for severance if Lemke's prior conviction would be admissible at a joint trial.
52
Motion for Continuance
1. must be in writing
2. supported by a showing of "good cause"
3. be sworn
53
Trial judge appoints Lou Lawyer to represent Sims. Lawyer makes no effort to contact sims until one week later when lawyer visits Sims in jail. Judge replaces lawyer later on with Attorney. Did lawyer make timely contact with Sims? Was court authorized to replace Lawyer based on efforts to make contact?
1. no, lawyer did not make timely contact. Appointed attorney must make contact as soon as possible, no later than the first working day after date of appointment.
2. Court is authorized to replace lawyer. Judge has discretion to replace attorney who fails to timely contact/interview df.
54
Judge reduces Sims's bail to $10k. Sims has no money, grand pappy says he'll post bail. Judge says if Sims posts bail, court will no longer appoint counsel. Can judge consider Sims posting bail in determining whether Sims is indigent? Any exceptions to this rule?
1. The judge may not consider whether df has posted or is capable of posting bail.
2. The exception is that this may be considered as it reflects on df's financial circumstances as measured by proper considerations, such as income, property owned, dependents, etc.
55
6th A Right to Counsel Violation
The right to counsel if violated if
1. lawyers actions were beyond bounds of professional competence, and not simply tactical decisions; and
2. there is reasonable probability that had counsel been effective, result of proceeding would have been different
56
Ake motion
Due process entitles an indigent defendant to appointment of an expert
1. if the expert's expertise is in an area likely to be significant issue in the case
2. motion can be made ex parte to conceal thoughts from the state
57
Waiver of Jury Trial on Guilt
1. jury trial on guilt can be waived except in capital murder prosecutions where death penalty is sought.
2. waiver of jury trial requires consent/approval from
- prosecutor, and
- trial court
58
3 questions verifying qualifications for jury service
1. Are you qualified voter in this county/state?
2. Have you ever been convicted of theft or felony?
3. Are you under indictment or accusation of theft/felony?
59
Jury Shuffle
Df or state may obtain a jury shuffle; only 1 per trial
| request for shuffle must be made before voir dire of jury panel begins
60
Challenge for Cause
challenge to member of jury panel on the basis of one of the grounds specified in Code of Crim Proc. No limit on number of for cause challenges. But each must be justified under one of statutory grounds.
61
For Cause Challenges (Jury selection)
1. prior conviction for theft/felony (Wynonna Rider)
2. under formal charge for theft/felony
3. insane
4. not qualified to vote
5. witness in the case
6. served on a jury in prior trial of the case
7. served on indicting grand jury
8. cannot read and write
9. biased or prejudiced for or against accused
10. bias or prejudice against applicable law
62
Bias (jury selection)
1. juror who states ha has formed opinion that would influence his verdict is biased, must be discharged for cause
2. a juror who states he can render verdict on law and evidence despite his opinion need not be discharged IF COURT IS SATISFIED JUROR CAN BE IMPARTIAL
63
Peremptory Challenges
a. Capital murder death penalty cases: 15
b. other felony cases: 10
c. misdemeanors in county/municipal/justice court: 3
d. misdemeanors in dist ct: 5
Neither side may exercise peremptory challenges on basis of race or gender
64
Trial Procedure - steps
1. judge calls for and parties give announcements of ready
2. prosecutor reads indictment
3. df counsel enters plea for df
4. pros makes state's opening stmnts*
5. pros makes state's case in chief
6. df counsel makes df opening stmnts
7. df presents evidence
8. rebuttal evidence is presented
9. judge reads charge to jury
10. counsel makes final arguments to jury
*on request, df cnsl can make dfs opening statement immediately following state's opening.
65
Party opponent out-of-court declaration
Not hearsay, admissible
66
Statement against penal interest
a statement is admissible if it is shown to have been made against the declarant's penal interest
1. statement is incriminating
2. reasonable person would not have made it unless she believed it to be true
3. criminal trial, there are corroborating circum clearly indicating trustworthiness of the statement.
Does not depend on whether declarant is available.
67
Records of Regularly Conducted Activity (Business Records)
Admissible when:
1. the records are kept in regular course of business
2. regular course of business for person with knowledge of such matters to make such records;
3. entries in the records were made at or near the time of events;
4. witness is the custodian of the records
All four factors must be met.
Can also be authenticated in an affidavit from the custodian certifying all of the factors
68
Character Evidence
State cannot introduce evidence that df has bad character to prove df's guilt
69
Character Evidence - opening the door
The state can prove df's bad character
- if accused puts his character in issue by introducing good character evidence; and
- at punishment stage of trial (can always introduce bad character evidence here)
70
Character Witness Limitations
Only two types of testimony
1. Opinion witness - Did you know
- witness's personal opinion as to the person's character;
- witness must know the person
2. Reputation witness - have you heard
- what the witness believes is the person't reputation for character trait
- does not require witness actually know the person, only their reputation
Inquiry into specific instances of conduct is permissible on cross-examination of character witnesses.
71
Character Witness Limitations - Guilt State
A character witness can only testify on df's character if:
a. on reputation, witness was substantially familiar with df's reputation prior to the day of offense; or
b. on personal opinion, witness was substantially familiar with facts on which that opinion is based prior to day of offense
72
Extraneous Offense Limitations
Extraneous Offense evidence is inadmissible. Unless:
- the evidence is offered in relevance to another issue other than accused's character.
- unless risk of unfair prejudice substantially outweighs probative value (judge decides)
73
Extraneous offense Admissibility
MIMIC
- motive
- intent or knowledge
- mistake or accident (to rebut)
- identity (when df has put that in issue)
- common scheme or plan
74
Extraneous Offense and Identity
A df puts his identity into issue and triggers state's ability to use extraneous offense evidence by either:
a. intro evid that he was not the perpetrator, such as alibi testimony; or
b. impeaching all state's eyewitnesses.
75
Privileges - Physician-Patient
In criminal proceeding, there is no privilege unless:
1. statement is made by person being treated voluntarily for alcohol or drug abuse; and
2. it was made to person involved in the treatment or examination.
76
Privileges - Df-Spouse
The privilege belongs to the spouse-witness who decides whether to waive it. No basis for df to object to testimony offered by spouse who voluntarily testifies for the state.
77
Privileges - Marital Communications
Any person, including df has privilege to refuse to disclose and to prevent others from disclosing confidential communication made by the person to his/her spouse during marriage. Exceptions
- communications dealing with committing crime/fraud
- when df is being tried for assault on minor child; household family member; or the spouse
78
Plea Bargain Communications
Statements are inadmissible if made in the course of plea discussion with a prosecutor
79
Subpoena Witness
1. Requires witness to appear on day of trial
2. To obtain subpoena, df must state
- name of witness
- location/vocation of witness, and
- withness's testimony is material to df's case
80
Child Witness
Should be examined by the judge, determine whether witness has sufficient intellect to relate transactions regarding which he will be asked to testify. If he does not have sufficient intellect, deemed incompetent.
81
Witness Impeachment
A witness may be impeached on cross-examination by
1. bad conduct (prior convictions less than 10 years old involving question of moral terpitude, or while witness is on probation)
2. contradiction
3. showing character for untruthfulness
4. showing bias or interest
82
Limitations on Judge
1. May not comment on the weight of the evidence; or
| 2. Convey to the jury the judge's opinion of the merits.
83
Scientific evidence admissibility
1. acceptance of the underlying scientific theory and technique as validated by the scientific community
2. scientific literature supports/rejects the theory/technique
3. potential error rate of the technique
4. qualifications of the expert offered to testify
5. availability of other experts to test/evaluate the technique;
6. Clarity which the theory/technique can be explained in court;
7. experience and skill of person who applied the technique
84
Scientific evidence expert witness
in a criminal case, a party has a right to conduct a voir dire examination of an expert's facts and basis for opinion before the witness testifies to an opinion
85
Good Faith Exception to illegally obtained evidence
Illegally obtained evidence is admissible if it was obtained by an officer
1. acting in objective good faith reliance upon a warrant; and
2. warrant was issued by a disinterested magistrate based on a finding of probable cause
In some instances a jury may decide if evidence was obtained illegally.
86
Objection
Sufficient if:
1. dictated to the court reporter
2. in the presence of the judge and prosecutor; and
3. done before the final charge is read to the jury
87
Error in Jury Charge
Subject to special harmless error criteria.
1. Fundamental error - conviction may be reversed
- if preserved, requires reversal if results in "some harm."
- if unpreserved, requires reversal only if results in egregious harm and thus prevents a fair trial.
88
Limitation of State's final arguments
Prosecution cannot prove or comment on:
1. df's failure to testify at trial
2. df's silence after Miranda warnings; or
3. df's silence after arrest (Texas specific law)
- but prosecution can comment on silence before arrest.
89
Due Order of Pleading
1. special appearance
2. transfers of venue
3. any other pleading
An out-of-order pleading is waived.
90
Discovery Control Plans - Level 1
1. Expedited actions - all claimants seek no more than 100k in monetary relief
2. Any suit for divorce not involving children; marital estate is not more than 50k
- 180 day discovery period
- 6 hours of depo, consent up to 10
- 15 requests for production
- 15 requests for admission
- unlimited request for disclosure
91
Discovery Control Plans - Level 2
1. All suits outside of Level 1 or Level 3 (the catch-all level)
- discovery period open until 30 days before trial; 9 months after first due date
- 50 hours of depo;
- if more than 1 expert, opposing party has 6 additional hours per additional expert.
- 25 interrogatories
92
Discovery Control Plans - Level 3
When a court orders a control plan tailored to the circumstances of a particular suit.
- date for trial and setting conference
- discovery period
- scope of discovery, including limits
- deadlines for joining additional parties, amending/supplementing pleadings/designating experts
