Trial on Punishment and Sentencing Flashcards
What is deferred adjudication?
A trial court places defendant on community supervision without actually finding the defendant guilty - basically, it defers a finding of guilt (no conviction!).
When is a D ineligible for deferred adjudication?
Deferred adjudication is not available for:
(a) trafficking of persons
(b) intoxicated assault
(c) intoxication manslaughter; and
(d) FWI (flying while intoxicated)
Is the defendant permitted to change an election of whether a judge or jury will assess punishment?
Yes, but only after a guilty verdict and if the prosecutor consents to the change.
When must the defendant make a written election for jury sentencing?
A written election for jury sentencing must be made before the commencement of the voir dire examination of the jury panel.
T/F: As a general rule, oral confessions or statements are inadmissible simply because of their oral nature.
True.
The defense is negotiating a plea with the prosecutor. During the negotiations, the defendant makes certain statements to the prosecutor. Are these statements admissible?
Statements made to a prosecutor during plea negotiations that do not result in a plea of guilty or nolo contendere are inadmissible - even if negotiations result in plea of guilty or nolo contendere but is later withdrawn.
When may a party make a proper motion for an order directing the production of a witness’s prior statement?
At the end of witness’s direct examination
A prior conviction can be used to impeach the credibility of the witness if:
(i) there has been a final conviction for the crime;
(ii) conviction is not stale;
(iii) crime involved moral turpitude or was a felony; and
(iv) court determines that the probative value of admitting the evidence outweighs the prejudicial effect.
When the testimony of an expert witness is offered, the party against whom it is offered has what rights?
When the testimony of an expert witness is offered, the party against whom it is offered is entitled, on request, to conduct a voir dire examination of the witness concerning the underlying facts or data on which the witness’s opinion is based. This examination must be conducted out of the hearing of the jury.
T/F: The privilege of a spouse to not testify for the state does not extend to one who was previously a spouse of the defendant where the marriage is dissolved at the time of trial.
True.
What is the consequence when a properly subpoenaed witness fails to appear at trial?
If a witness fails to appear, the party who caused the subpoena to issue is entitled to have an attachment issued for the witness. An attachment is a writ commanding a peace office to take the witness into custody and bring him before the court.
When may a judge declare a mistrial due to a deadlocked jury?
If the jury cannot agree and becomes deadlocked, the judge may declare a mistrial in either:
(i) where both sides agree, or
(ii) when judge determines that the jury has been kept together for deliberation for a sufficiently long time to make it altogether improbable that it will reach a verdict.
How is a trial ordered?
(i) the indictment or information is read to the jury;
(ii) a plea is entered by the defense;
(iii) the state makes its opening statement; *defense can demand that their opening statement comes in (iv)
(iv) the state’s testimony is taken;
(v) the defense makes its opening statement;
(vi) the defense testimony is taken;
(vii) the rebuttal evidence is taken;
(viii) trial judge reads charge or instructions to jury; and
(ix) the counsel make final arguments to the jury.
