TX P&E - Criminal Flashcards
What rights does a defendant have before a grand jury?
The prosecutor can compel a defendant to appear at the grand jury, but cannot compel him to answer incriminating questions.
Defendant must be advised of his right to remain silent, given a reasonable opportunity to retain or be appointed counsel, and advised of his right to have counsel present outside chambers for advice before he answers any questions.
When must pre-trail motions be made?
At least seven days before the pre-trial hearing.
A court cannot compel a defendant to make motions in a shorter time-frame.
Can the State appeal the granting of a motion to suppress evidence?
Yes. The State may pursue an interlocutory appeal filed within 20 days of date the trial court entered the order to be appealed. The prosecuting attorney must certify to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.
Can a court order the defense to provide names of lay witnesses?
No, the prosecution is only entitled to get the information of expert witnesses.
A court may order one or more of the other parties to disclose the names and addresses of the expert witnesses that the other party may use at trial. Disclosure must be made not later than 20 days before trial begins.
Requirements of a felony probation application
A proper application for probation must be:
- in writing
- sworn, and
- it must state that the defendant has never before been convicted of a felony.
When the defendant elects jury sentencing, it must be filed prior to the commencement of voir dire.
Admonishments
(i) the range of the punishment attached to the offense,
(ii) that a plea agreement is a recommendation for penalty by the prosecution, and the court is not bound by any plea agreement,
(iii) that deportation is possible if the defendant is not a U.S. citizen, and
(iv) that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.
Jury shuffle
the re-seating, in random order, of the prospective jurors in the venire panel.
On request of either party, the judge MUST order the clerk to randomly shuffle the jurors’ names and place them on a new list, but ONLY ONE shuffle is permitted and must be conducted BEFORE voir dire.
Challenges for Cause
(i) The juror is not a qualified voter in the state and county; provided, however, the failure to register to vote shall not be a disqualification;
(ii) The juror has been convicted of misdemeanor theft or any felony;
(iii) The juror is under indictment or other legal accusation for misdemeanor theft or a felony;
(iv) The juror is insane;
(v) The juror has a bodily or mental defect or disease (such as legal blindness) as to render her unfit for jury service, and the court is not satisfied that she is fit for jury service in that particular case;
(vi) The juror is a witness in the case;
(vii) The juror served on the grand jury that found the indictment;
(viii) The juror served on a petit jury in a former trial of the same case;
(ix) The juror has a bias or prejudice in favor of or against the defendant;
(x) The juror has established a conclusion as to the guilt or innocence of the defendant such as would influence the juror in finding a verdict; or
(xi) The juror cannot read or write.
The State’s first witness is Officer, who executed the search warrant. After he has testified on direct examination, the following exchange occurs:
COURT: Counsel, you may proceed.
DEFENSE LAWYER: Your Honor, the defense now moves for the production of Officer’s report for use during cross-examination.
PROSECUTOR: We object. The request is untimely. Counsel should have asked for the report at pre-trial. We refuse to produce the report.
How should the Court rule on Prosecutor’s objection? What sanctions may the Court impose if Prosecutor refuses to produce the statement? Explain fully.
The Court should overrule Prosecutor’s objection. After a non-defendant witness testifies on direct examination, the party not calling the witness can move to demand any statement of the witness in the possession of the other party. If Prosecutor refuses to deliver the report, the judge will either strike the testimony or declare a mistrial.
When can evidence of a prior felony conviction come in?
- If less than 10 years have elapsed since the conviction or release from confinement
- if the “interests of justice” require it
- if the conviction is not on appeal
Voir dire of an expert witness
- judge MUST permit a defendant to voir dire the prosecution’s experts.
- must be conducted outside of the jury’s presence.
What happens when a properly subpoenaed witness does not appear to testify?
When a properly subpoenaed witness in a criminal action fails to appear, the State or the defendant is entitled to have an attachment issued against the witness. Because a witness who refuses to obey a subpoena is also subject to contempt or a fine, I should request that a writ of attachment be issued and that Associate be held in contempt and fined.
