Texas - Evidence in Criminal Action TCCP

Question 1

Where is the presumption of innocence located?

Answer 1

TCCP 38.03

Question 2

Explain provision against judge commenting on evidence during ruling?

Answer 2

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;

Question 3

Explain provision against judge commenting on evidence at any stage?

Answer 3

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.

Question 4

Explain sufficiency of evidence for corroboration of sexual offense victims?

Answer 4

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

Question 5

Constitutionality of video tape recorded child testimony?

Answer 5

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

Question 6

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

Answer 6

14 days before proceeding

TCCP 38.072

Question 7

What is the age cut off for outcry?

Answer 7

Younger than 14

TCCP 38.072

Question 8

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

Answer 8

30 days before trial - no request required

TCCP 38.37

Question 9

What is the notice requirement for extraneous offenses?

Answer 9

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

Question 10

What is the notice requirement for an outcry statement?

Answer 10

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

Question 11

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

Answer 11

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

Question 12

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

Answer 12

Yes. TCCP 38.072

Question 13

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

Answer 13

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)

Question 14

Unrelated: What is 28 USC 2254?

Answer 14

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

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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

Question 17

Is there a rule for inmate testimony?

Answer 17

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

Question 18

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

Answer 18

TCCP 38.074

Uses “Sexual Assault” definition - younger than 17

Question 19

What kind of oath should be administered to child?

Answer 19

TCCP 38.074

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

Question 20

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

Answer 20

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”

Question 21

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

Answer 21

TCCP 38.074

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

Question 22

When can a child have a “comfort item”?

Answer 22

TCCP 38.074

Question 23

What is the limit on support person for child testifying?

Answer 23

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.

Question 24

What discretion does court have in accommodating testifying child?

Answer 24

TCCP 38.074

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

Question 25

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

Answer 25

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

Question 26

Can statements made during drug treatment be used at trial?

Answer 26

TCCP 38.101 | If voluntarily being treated, not admissible.

Question 27

What must court consider when evaluating subpoena to journalist?

Answer 27

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

Question 28

Admissibility of news media recording?

Answer 28

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

Question 29

Admissibilty of news media recording?

Answer 29

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

Question 30

What two kinds of accomplices are there for testimony?

Answer 30

Matter of Law - indicted | Matter of Fact - could've been indicted - a question for the jury

Question 31

What two kinds of accomplices are there for testimony?

Answer 31

Matter of Law - indicted | Matter of Fact - could've been indicted - a question for the jury

Question 32

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

Answer 32

Smith v. State TCA 2011 | If "no doubt" that accomplice, then judge must charge as "matter of law"

Question 33

What constitutes an accomplice for accomplice witness rule?

Answer 33

``` 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!! ```

Question 34

Does accomplice witness rule apply to OUT of COURT statements?

Answer 34

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

Question 35

Does accomplice witness rule apply to OUT of COURT statements?

Answer 35

Archie v. State TCA 2011 | No. Only testimony. So, statement was admissible based on 803(24)

Question 36

Does accomplice witness rule extend to deadly weapon finding?

Answer 36

No.

Question 37

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

Answer 37

Yes. TCCP 38.141

Question 38

What is required for conviction of "treason"?

Answer 38

Two witnesses, or D in-court confession.

Question 39

What is the "Two Witness" rule?

Answer 39

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

Question 40

What is the witness rule regarding perjury?

Answer 40

1 witness not sufficient | Unless perjury for inconsistent statements

Question 41

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

Answer 41

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

Question 42

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

Answer 42

TCCP 38.22 | 20 days before proceeding - State must PROVIDE a true, complete, correct copy

Question 43

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

Answer 43

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

Question 44

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

Answer 44

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

Question 45

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

Answer 45

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

Question 46

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

Answer 46

Admissible if complies with those laws.

Question 47

Who can make comparison of hand writing?

Answer 47

expert or jury - unless D denies under oath | Then State must present other evidence that it's D's handwriting

Question 48

Who can make comparison of hand writing?

Answer 48

expter or jury - unless D denies under oath | Then State must present other evidence that it's D's handwriting

Question 49

Interpreters in Class C cases

Answer 49

can appear by phone

Question 50

Photographs of stolen property

Answer 50

Photos can be admitted as the stolen property | Photos can suffice as property required to be presented to magistrate under 18.16

Question 51

Admissibility of forensically analyzed evidence by crime lab.

Answer 51

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

Question 52

Comment by state or court of consulting or retainign an attorney

Answer 52

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

Question 53

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

Answer 53

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

Question 54

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

Answer 54

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

Question 55

Admissibility of electronically preserved document?

Answer 55

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

Question 56

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

Answer 56

circumstantial ok

Question 57

Type of evidence in tampering with witness by family violence:

Answer 57

May offer evidence of relationship of witness and accused

Question 58

Forfeiture by Wrongdoing:

Answer 58

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