Study Guide Flashcards
Study guide
When is an arrest valid without a warrant?
PC + FEE COSTS
1) Officer has probable cause and;
Family violence
Exigency
Escape
Citizens arrest Offense in view Suspicious place Traffic or theft Statement
When is an officer permitted to break down the door to arrest someone?
1) Probable cause
2) Officer gives notice of authority and purpose
3) Officer is refused admittance
What is the Statute of Limitations period for certain crimes?
Murder, Indecency with a child, Sexual assault with a child: No SoL
Most felonies: 3 years
Misdemeanors: 2 Years
Rape & Arson: 10 Years
Kidnapping, endangering, & property crime: 5 years
Where is venue proper?
Any county the crime was committed
What is needed to establish incompetency?
Unable to consult w/ attorney
Does not understand proceedings and/ players
Burden of proof: preponderance of evidence
Within what amount of time does a magistrate have to determine probable cause exists for a felony and consequences if Magistrate fails to make PC determination w/in that time.
Magistrate has 48 hours. If they fail, right to be released on bail, may be a personal bond.
What is probable cause?
Facts in which a reasonable person would conclude a crime may have been committed (arrest) or the evidence is present (search).
What are the rules for fixing the amount of bail?
VANISH
1) Victim safety
2) Ability to make bail
3) Nature of offense
4) Instrument of oppression
5) Sufficiently High for compliance
What is an indictment?
1) Written statement of a Grand Jury accusing a named person of an offense
Indictment vs. Information
Indictment - felony, signed by foreman of GJ
Information- misdemeanor , signed by prosecutor, county attorney or district attorney
***Can a defendant waive indictment?
Yes except for capital.
If waived, it will be charged by information.
Requirements: Rep by Counsel, written or open court waiver, voluntary.
Does the Defendant have a right to address the GJ?
No right. State may consent, statement is recorded, defense counsel not permitted.
What is the purpose of examining trial
Produce evidence, determine PC, sets bail, preserves witness testimony, and informal discovery.
once indicted defendant loses right to Examining trial
When must an election for jury punishment be filed?
Before the beginning of voir dire. Default for sentencing is the judge.
Deferred adjudication vs Probation (community supervision)
Deferred - can be imposed w/o conviction or finding of guilt
Probation- only if found guilty
D- revocation of Deferred permits sentence of imprisonment to entire statutory range.
P- revocation of Probation limits term of imprisonment to the one assessed.
Can a jury place a defendant on deferred adjudication?
No, only a judge
What procedural step can be taken if defendant can’t obtain a fair trial?
Allowed for bias or prejudice, burden on movant
If defendant is the movant:
Written Motion for a change of venue
Supported by affidavit and
2 county residents
States motion: Show existing combination favors defendant or
a lawless condition prevents a fair trial or
life of the defendant/witness is in jeopardy.
Does a defendant have to be present at trial?
They have the right to be present but in a felony trial, if the defendant voluntary absents himself after entering a plea and voir dire, then it can continue without him
Can a defense counsel be ordered to produce witness list to state?
State required
Defense is not: unless its an expert witness
Is Prosecutor required to provide exculpatory information to defendant?
Yes. Under Brady and Michael Morton Act
Who decides what plea to enter and what three admonishments that the court must give before accepting a plea of guilty
Defendant decides the plea to enter
1) Range of punishment
2) Recommendation on punishment is not binding on court
3) Limited right of appeal
Qualification of a perspective juror
Qualified voter in county and state
Never been convicted of or currently under indictment for a theft or felony
What challenges for a perspective juror can you make for cause?
1) bias or prejudiced for or against the accused
2) against any law applicable
3) prior conviction or pending indictment for theft or felony
4) insane
5) not qualified to be a voter
6) cannot read or write
7) witness in the case
8) served on indicting grand jury
Can you strike a juror based on race/gender?
No Batson violation
Procedure continuing without a missing witness
Defense motion
1st motion: facts the witness will show, diligence used, absence is not the fault of the defendant, motion not for delay
2nd motion: that there is no other source of the testimony, expect them at the next setting
States motion
1st motion: Must show that testimony is material, diligence used
2nd motion: facts established by witness, expect witness at the next setting, testimony comes from no other source
What must a jury charge contain?
Abstract portion- law
Application portion- how to apply the law to the facts in rendering the verdict
What happens when a juror becomes disabled after trial begins but before the instructions are read to the jury?
Seat an alternate, remainder of the jurors can reach a verdict but all must sign a verdict.
Does the code confine a jury to reaching a verdict only of the felonies charged on the indictment?
No the jury can convict defendant of a less serious offense provided that there is a lesser included offense of the charged offense, and the evidence before the jury finds that the defendant is not guilty of the charged offense but is guilty of the less serious one
State failed to show defendant is guilty beyond a reasonable doubt. Defense should:
Defense counsel should Move for an instructed verdict of not guilty or a motion to dismiss
Not in the presence of jury
Can court ignore jury recommendation for community supervision?
No - but the terms and length of time are not binding on the judge
Can you get information of the jurors if you suspect juror misconduct?
Information collected is confidential however, a party can apply for an order permitting disclosure if good cause is shown.
Grounds for ineffective assistance of counsel
1) counsels failure was below an objective standard of reasonableness
2) That the defendant was prejudiced by the performance
3) and but for counsel’s conduct, outcome would have been different
When should a motion for new trial be filed?
Within 30 days of sentencing presented to the trial court within 10 days of filing
*Court has 75 days after imposing sentence to rule on the motion for a new trial.
How must appeal be perfected?
Defendant must file written notice of appeal within 30 days
If also file a motion for new trial -> extended to 90 days
When does double jeopardy arise?
1) Charged with same offense after acquittal or following conviction
2) Multiple punishments for the same offense
3) Convicted of lesser included then charged with greater
4) Charged following mistrial due to prosecutorial misconduct
Double jeopardy does not arise when?
1) Federal & state prosecution for same offense
2) Hung jury or mistrial not due to prosecutorial misconduct
When does double jeopardy attach?
1) Jury trial: when impaneled and sworn
2) Judge trial: both sides announce ready and defendant enters plea
Parts of a search warrant
WAR
1) Affidavit
2) Warrant
3) Return of service
Parts of an affidavit
1) Probable cause
2) list place to be searched
3) person
4) thing to be seized
* Subject to four corners rule
Exceptions to search warrants
SPACES
Search incident to arrest Plain view Automobile Consent Exigent Circumstance Special needs
Grounds to challenge a search warrant
R-MINUTE
Remoteness Misleading to magistrate (Frank's hearing) Insufficient description No Probable cause Unreliable witness Technically defective Exceeding the scope
Methods to appeal a search warrant?
Motion to suppress
Frank's hearing
Appeal
Defendant: Following plea or conviction
State: InterlocutoryRequirements of complaint
“Name, the crime, time to sign”
1) name of the accused
2) crime and belief the defendant committed it
3) time and place of the crime
4) signed by the affiant
Can you arrest for open container in a traffic stop?
No. you cannot be arrested for speeding or open container without a warrant.
What offenses can a citizen arrest?
Only for offenses against public peace
Citizen can break the traffic laws if a cop would
Correct amount of time for a magistrate warning and purpose of the warning
Felony - 48 hours
Mis - 24 hours
Purpose is to verify probable cause, notice of charges, set bail and issue miranda warnings
What types of immunity can be granted in exchange for a GJ testimony?
Transactional immunity - based on crime from same criminal transaction
Use immunity - can’t use own testimony against you but can use other statements or evidence against you
Can a judge give probation on all offenses?
No a judge can not give probation on 3g offenses. ie. murder, aggravated offenses
How many days notice is required for Insanity?
20 days notice to state before trial, preponderance of the evidence burden on defendant
What are some grounds for an involuntary plea
“State threat to punish counsel with parole immigration”
State breached agreement or promise induced by threat or misrepresentation, defendant was forced to proceed with ineffective counsel, defense gives bad info on punishment, parole eligibility or immigration.
Number of jurors
GJ: 12 & 2
Petit Jurors: 6 & 2 (24 Venire)
Felony: 12 & 4 (40 Venire)
Prosecutor has how many days to file notice of Joinder?
30 days before trial
Sentences are concurrent if joined
Sentences can be consecutive on concurrent if severred
How does severance become a right?
1) When one defendant has an admissible conviction, one does not
2) Defenses are mutually exclusive (belief in one excludes the other)
3) joint trial would prejudice the defendant
When can a jury give probation?
Only if probation sentence is 10 years or less, can give probation in aggravated offenses, can never give deferred.
What is a motion to adjudicate guilt.
Deferred probation, turns non conviction deferred to finding of guilt. Becomes convicted.
What is a Pre-sentence Investigation?
Background check (PSI) comprehensive report of defendant's history - used by judge for sentencing if probation is on the table. (Jury never sees the PSI report)
The judge shall order unless:
1) Felony
2) Jury is sentencing
3) Prison is the only option
4) Capital murder death case
5) Negotiated Plea and judge intends to follow the recommendation.
