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Texas Criminal Law Specialization Exam > Texas - Evidence in Criminal Action TCCP > Flashcards

Texas - Evidence in Criminal Action TCCP Flashcards

1
Q

Where is the presumption of innocence located?

A

TCCP 38.03

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2
Q

Explain provision against judge commenting on evidence during ruling?

A

TCCP 38.05
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible;

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3
Q

Explain provision against judge commenting on evidence at any stage?

A

TCCP 38.05
nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

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4
Q

Explain sufficiency of evidence for corroboration of sexual offense victims?

A 
No, not if:
1. "Sexual Offense" under Chapter 21, Sexual Human Trafficking, Sex Assault, Agg. Sex. Assault;
2. Vic. told someone within 1 year;
3. Vic was: 
  17 years or younger; 
  65 or older;
  Physical or mental defect
TCCP 38.07
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5
Q

Constitutionality of video tape recorded child testimony?

A

Coronado v. State TCA 2011 - held 38.071 Sec. 2 unconstitutional as to submission of interrogatories to satisfy 6th Amendment Confrontation Clause

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6
Q

What is the notice requirement for an “Outcry Statement”?

A

14 days before proceeding

TCCP 38.072

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7
Q

What is the age cut off for outcry?

A

Younger than 14

TCCP 38.072

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8
Q

What is the notice requirement for extraneous sexual acts in child sex case?

A

30 days before trial - no request required

TCCP 38.37

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9
Q

What is the notice requirement for extraneous offenses?

A

30 days prior to trial - no request required
This is a change from prior notice requirement - like 404
TCCP 38.37

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10
Q

What is the notice requirement for an outcry statement?

A

14 days notice:
a. the name of the witness through whom it intends to offer the statement; and
b. provides the adverse party with a written summary of the statement;
TCCP 38.072

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11
Q

What must the court find about the STATEMENT before allowing into evidence?

A 
Court must have hearing outside jury's presence, and find that the statement is reliable based on:
time;
content;
and circumstances of the statement.
TCCP 38.072
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12
Q

Does the child have to be available to testify for an outcry statement to be use?

A

Yes. TCCP 38.072

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13
Q

To what crimes does the “Outcry Statement” law apply to?

A

Victim younger than 14:

(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
(2) Section 25.02 (Prohibited Sexual Conduct);
(3) Section 43.25 (Sexual Performance by a Child);(4) Section 43.05(a)(2) (Compelling Prostitution);
(5) Section 20A.02(a)(7) or (8) (Trafficking of Persons); or
(6) Section 15.01 (Criminal Attempt), if the offense attempted is described by Subdivision (1), (2), (3), (4), or (5) of this section.

Tex. Crim. Proc. Code Ann. art. 38.072 (West)

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14
Q

Unrelated: What is 28 USC 2254?

A

State custody; remedies in Federal courts - writ of habeas corpus

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15
Q

What is a “person with a disability” with regard to “outcry” statements?

A

TCCP 39.072
13 years or older, because of age or physical or mental disease, disability, or injury is substantially unable to protect the person’s self from harm or provide food, shelter, or medical care for the person’s self

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16
Q

What is a “person with a disability” with regard to “outcry” statements?

A

TCCP 39.072
13 years or older, because of age or physical or mental disease, disability, or injury is substantially unable to protect the person’s self from harm or provide food, shelter, or medical care for the person’s self

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17
Q

Is there a rule for inmate testimony?

A

TCCP 38.073
any deposition or testimony may be taken by video teleconference system in manner described by 27.18
Cody NOTE: Probable 6th A. issues considering Coronado

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18
Q

What is a “child” concerning special rules of “child” testimony?

A

TCCP 38.074

Uses “Sexual Assault” definition - younger than 17

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19
Q

What kind of oath should be administered to child?

A

TCCP 38.074

“a manner that allows the child to fully understand the child’s duty to tell the truth”

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20
Q

What is the court’s duty for questions of a child witness?

A

TCCP 38.074
“language appropriate to child’s age”
“explain to child that child has the right to have the court notified if the child is unable to understand any questions and to have a question restated in a form that the child does understand”

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21
Q

When can a testifying child have a “comfort item” or “support person”?

A

TCCP 38.074

  1. child cannot reasonably testify without it;
  2. not going to prejudice evaluation of testimony.
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22
Q

When can a child have a “comfort item”?

A

TCCP 38.074

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23
Q

What is the limit on support person for child testifying?

A

TCCP 38.074

  1. Cannot obscure view of child from defendant or trier of fact;
  2. provide answers to child;
  3. assist or influence the testimony.
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24
Q

What discretion does court have in accommodating testifying child?

A

TCCP 38.074

  1. Comfort Item;
  2. Support Person;
  3. Conditions and limitations that are “just and appropriate”
25
Q

What is the limit on sufficiency based on “jail-house snitch”?

A

TCCP 38.075
Corroborated by some other evidence connecting D with offense
Corroboration not sufficient by just showing offense committed

26
Q

Can statements made during drug treatment be used at trial?

A

TCCP 38.101

If voluntarily being treated, not admissible.

27
Q

What must court consider when evaluating subpoena to journalist?

A
  1. overboard, unreasonable, oppressive;
  2. balance party interest to public interest of press;
  3. how essential is info.
    must NOT consider only one factor
    Order compelling must be very specific with appropriate findings
28
Q

Admissibility of news media recording?

A

TCCP 38.111
No extrinsic evidence of authenticity needed if broadcast purports to be made by entity with FCC license - court may take judicial notice of license under TRE 201

29
Q

Admissibilty of news media recording?

A

TCCP 38.111
No extrinsic evidence of authenticity needed if broadcast purports to be made by entity with FCC license - court may take judicial notice of license under TRE 201

30
Q

What two kinds of accomplices are there for testimony?

A

Matter of Law - indicted

Matter of Fact - could’ve been indicted - a question for the jury

31
Q

What two kinds of accomplices are there for testimony?

A

Matter of Law - indicted

Matter of Fact - could’ve been indicted - a question for the jury

32
Q

What’s the exception for submitting a jury question on an un-indicted accomplice?

A

Smith v. State TCA 2011

If “no doubt” that accomplice, then judge must charge as “matter of law”

33
Q

What constitutes an accomplice for accomplice witness rule?

A 
Smith v. State TCA 2011
Engaged in affirmative act to promote commission of offense.
NOT:
1. mere presence; 
2. failed to report; 
3. helped to CONCEAL!!
34
Q

Does accomplice witness rule apply to OUT of COURT statements?

A

Archie v. State TCA 2011
No. Only testimony. So, statement was admissible based on 803(24)
NOTE: also doesn’t apply to extra-judicial confessions

35
Q

Does accomplice witness rule apply to OUT of COURT statements?

A

Archie v. State TCA 2011

No. Only testimony. So, statement was admissible based on 803(24)

36
Q

Does accomplice witness rule extend to deadly weapon finding?

37
Q

Does accomplice witness rule apply to non-peace officer working for cops?

A

Yes. TCCP 38.141

38
Q

What is required for conviction of “treason”?

A

Two witnesses, or D in-court confession.

39
Q

What is the “Two Witness” rule?

A

Instructed Verdict of Acquittal unless:
2 witnesses; or
1 witness + corroboration
TCCP 38.17

40
Q

What is the witness rule regarding perjury?

A

1 witness not sufficient

Unless perjury for inconsistent statements

41
Q

What is the notice requirement for using a recorded statement of accused?

A

TCCP 38.22
20 days before proceeding - State must PROVIDE a true, complete, correct copy
NOTE: Applies to pretrial hearings

42
Q

What is the notice requirement for using a recorded statement of accused?

A

TCCP 38.22

20 days before proceeding - State must PROVIDE a true, complete, correct copy

43
Q

What’s the rule for false statements made to lay predicate for 38.22?

A

38.22
Presumption of “intent to deceive” for agg. perjury
Not probation eligible

44
Q

What should happen if judge finds a statement was voluntarily given under 38.22?

A

Judge should make order with findings of fact and conclusions of law;
Jury should be charged on voluntariness - no consider unless voluntary beyond a reasonable doubt

45
Q

What should happen if judge finds a statement was voluntarily given under 38.22?

A

Judge should make order with findings of fact and conclusions of law;
Jury should be charged on voluntariness - no consider unless voluntary beyond a reasonable doubt

46
Q

What does 38.22 say about statements obtained by out-of-state or Federal law enforcement?

A

Admissible if complies with those laws.

47
Q

Who can make comparison of hand writing?

A

expert or jury - unless D denies under oath

Then State must present other evidence that it’s D’s handwriting

48
Q

Who can make comparison of hand writing?

A

expter or jury - unless D denies under oath

Then State must present other evidence that it’s D’s handwriting

49
Q

Interpreters in Class C cases

A

can appear by phone

50
Q

Photographs of stolen property

A

Photos can be admitted as the stolen property

Photos can suffice as property required to be presented to magistrate under 18.16

51
Q

Admissibility of forensically analyzed evidence by crime lab.

A

Lab must be accredited by DPS for testing;
UNLESS eligible at time of testing AND is accredited at time of testimony
Doesn’t apply to autopsy by physician

52
Q

Comment by state or court of consulting or retainign an attorney

A

Cannot do it as to whether D committed offense
38.38
Use this objection when comments on invocation of right

53
Q

What kind of evidence is allowable to prove lack of consent in large scale fraud?

A

Numerous victims - State may use circumstantial evidence to show lack of consent i fraud case
38.39

54
Q

What is the D remedy if court fails to order proper testing of biological material in capital case?

A

D’s exclusive right is mandamus - can only file one, before habeas
After habeas, D can file one motion for testing under Chapter 64

55
Q

Admissibility of electronically preserved document?

A

Same as document, unless other party alleges “materially altered” then proponent must disprove allegation by preponderance of evidence

56
Q

Type of evidence allowed in continuing scheme of fraud of Medicaid or Medicare:

A

circumstantial ok

57
Q

Type of evidence in tampering with witness by family violence:

A

May offer evidence of relationship of witness and accused

58
Q

Forfeiture by Wrongdoing:

A

Codified in 38.49
Judge has hearing - Should try to have 28.01 pretrial hearing
Conviction of witness tampering creates presumption of forfeiture by wrongdoing
403 and TRE character evidence still apply
Rule is also in TRE 804

Texas Criminal Law Specialization Exam (36 decks)

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