Texas Criminal P&E Flashcards Part 1 of 3
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Does def have right to be personally present at trial? May trial proceed in def's absence if it is second day of trial?
Def has a right to be personally present and, in fact, can be compelled to be present. But in a felony trial, trial can continue without def it def was present through selection of jury and after voluntarily absents himself from trial.
On second day of trial, jury selection over and def voluntarily declining to come to court - trial may proceed in absence.
Does a spouse have any right to refuse to testify against def? Does Def have any right to prohibit prosecutor from calling a spouse as a witness?
Spouse of a criminal Def has privilege not to testify for the state.
But, Def has no right to prohibit prosecutor from calling spouse.
B/c privilege belongs to spouse and cannot be invoked by Def.
Can defense ask to question an expert witness of prosecution on his qualifications and the basis of opinion outside presence of jury and court denies requests, is court's ruling correct?
No, ruling not correct.
In criminal case, party against whom expert testimony is offered has a right on request to conduct a voir dire of the witness on underlying facts and data.
Different from civil, in which whether to permit is discretionary.
If a juror has a massive heart attack during trial and prosecutor requests a mistrial on the ground that no less than 12 jurors can return a verdict in a trial of a felony, must the court grant a mistrial?
Court doesn't have to grant a mistrial.
If in a felony case a juror becomes disabled during/after trial beings but before instructions are read to jury, remainder of jurors can reach a valid verdict.
All of jurors, however, must sign the verdict. 36.29(a).
Can Def exercise a challenge to exclude a retired firefighter from an arson trial from the jury? If so, what kind of challenge and how many such challenges are you entitled?
Cannot exercise a challenge for cause to this person because he maintains he can be fair and decide an evidence.
Can exercise a preemptory challenge.
B/c do not need to have any reason or justification for such a challenge.
B/c non capital district court felony prosecution entitled to 10 challenges.
What procedural step can you take to have court exclude the receptionist's testimony from evidence when Def told her he did something bad? On what basis can you take this step?
Could wait until prosecutor offers the testimony furing trial and then object, or could before trial file a motion in limine asking the court to address the admissibility of the testimony and hold it admissible.
There is however, no basis on which to take either of steps???
Out of court admissions by a criminal Def are admissible
Not hearsay because constitutes an admission by party opponent
At time Def made admissions, Def not in custody and not being interrogated, neither Miranda nor Art. 38.22 provides any basis for excluding testimony by receptionist.
What procedural step can Def take to have court exclude officer's testimony about Def's confession from evidence?
Can file a pretrial motion to suppress the testimony concerning the confession.
Can do this on the basis that under Art. 38.22 of Tex Crim Pro, evidence that Def orally confessed during custodial interrogation is inadmissible unless one of the exceptions applies.
What procedural step, can you take to ensure that prosecutor will disclose before trial whether he intends to introduce in the state's case at trial evidence of a previous incident?
To ensure prosecutor will disclose before trial that he intends to introduce evidence of this event on guilt-innocence as proof of a prior "bad act" under 404(b), should make a timely request for such notice.
To assure prosecutor will disclose he intends to introduce such evidence at punishment, should also request pretrial notice of state's intention to introduce at punishment evidence of extraneous crimes or bad acts under s3 of Art 37.07 of Tx. Crim. Pro.
If make requests timely state must prove defense with such notice prior to trial.
What procedural steps can defense take to obtain jury sentencing and to allow a jury to recommend community supervision? When should you take these steps?
To obtain a jury sentencing, defense should file a written election for jury sentencing.
Should be filed ebfore jury voir dire begins.
To allow jury to recommend community supervision, should file a sworn motion for community supervision stating that Def has never been convicted of felony in TX or elsewhere.
Should be filed before trial.
Must prosecutor produce a copy of officer's police report to defense as part of discovery before trial?
As soon as practicable, after reviewing a timely request from Def, the state must provide any written or recorded statement of any law enforcement officer, including officer's police report.
What procedural step, if any, can defense take to challenge an indictment defense believes is missing some elements? When should step be taken?
Can challenge indictment by filing an exception or what is often called a motion to quash.
Since ground would be filure to charge an offense, exception would be one to the substance of the indictment.
Should file a motion to quash before day on which trial on merits commences.
If Def believes that a nolo contendere plea does not have the same legal effect as a guilty plea, is Def's belief correct?
Yes, but only to a minor degree.
In criminal prosecution itself, nolo contendre plea has same legal effect as a guilty plea.
But if civil litigation were to arise out of the same incident as gave rise to criminal charges, a plea of guilty could be used against Def.
Plea of nolo contendre xxxx not be xxxxx
Will Def be allowed to withdraw guilty plea if the court rejects the plea agreement?
If trial court decides not to follow plea agreement, Def must be allowed to withdraw his plea and enter a not guilty plea if he wishes.
What is an indictment? Discuss two ways in which an indictment and an information differ.
Indictment - written statement of a grand jury accusing a named person of a criminal offense.
Ways differs from information:
1. Indictment must be approved by grand jury and signed by foreman, while an information need only be authorized and signed by prosecutor.
2. Information must be supported by a sworn complaint filed with the court, while an indictment does not require such support.
What is bail? What is bail bond? In what major way does a personal bond differ from a bail bond?
Bail - a security given by a Def to assure that he will appear in court to answer the accusations against him.
Bail bond - a written undertaking by Def and one or more sureties they will pay amount of bail if Def does not make required appearances.
Personal bond differs from bail bond in that a bail bond requires either an adequate surety or a cash deposit in the amount of bond.
A personal bond requires neither. Def's promise to pay amount if Def fails to make appearances.
What would defense counsel need to establish to prove Def is incompetent to stand trial, and what burden of proof would counsel need to meet?
To prove Def incompetent to stand trial, would have to prove:
-Def lacks sufficient presentability to consult w/ his lawyer w/ a reasonable degree of taional understanding, or
-Def lacks a rational as well as factual understanding of the proceedings
-Prove one of above by preponderance of evidence.
If officers did not arrest Def until two year and one month since the crime, is the prosecution barred b/c the state waited too long to filed this felony charge against Def?
No, prosecution not barred.
Period of limitation for arson is 10 years, so an indictment can be filed at anytime until 10 years from commission of offense.
In any case, general rule for felonies is three years and no felony has a period of limitations of less than 3 years.
Apart from the special 10 year rule for arson, state would have 3 years to file any felony charge.
What procedural step can defense take to bring information that prosecutors bribed jurors to convict Def to the court and attack the conviction? How long does defense have to take this procedural step?
Bring this to the attention of the court by making a motion for new trial.
- A juror has been bribed or is otherwise guilty of correct copnduct.
Must file for new trial within 30 days of sentencing and then present it to the court within 10 days of filing.
The court can permit attorney to present it within 75 days of sentencing.
What standard of proof was the state required to meet to obtain a verdict of gulity? How many jurors had to concur in the verdict? What would have been the consequences if fewer than minimum number of jurors voted for a verdict of guilty?
State must prove guilty beyond a reasonable doubt.
All members of the jury had to concur in the verdict of guilty.
Texas law requires this although federal law does not.
If all jurors cannot agree on guilty verdict and they cannot unanimously agree on a verdict of not guilty, then the court judge must grant a mistrial.
In that event, Def can be retried.
If prosecutor makes statements in closing argument making references to how honest a witness is and how Def is guilty because remainder silent after arrest, on what grounds can defense object to?
First, defense can object that prosecutor is not arguing the evidence but rather is improperly asserting his personal opinion as to witness's credibility.
Second, can object that prosecutor is improperly commenting on Def's exercise of 5th right to avoid compelled self-incrimination by asking jurors to give effect to Def's silence.
If defense wants a jury charge to include circumstances under which Def can be convicted or acquitted, and the court denies the request stating it does not want to confuse the jury, is this ruling correct?
A jury charge should contain both abstract portions and an application portion.
Application portion should incorporate the specific allegations of the indictment and instruct the jury on what specifically it must find to convict the Def.
Def request was for an application portion and should have been granted.
If prosecutors try to put a witness on the stand to show a specific instance that is similar to what Def is on trial for to show Def is likely to commit the current crime, what objection should defense make to this testimony and how should the court rule?
Defense should object that this testimony shows an extraneous offense and this is inadmissible to prove guilt by showing Def is a bad person and therefore committed the charged offense.
Could be admitted if it was relevant to guilty in some other way other than by proof of Def's bad character, but prosecutor has not argued any relevance (other relevance). Therefore, objection should be sustained.
Should the court allow a defense counsel cross-examination of a possible co-Def as a previous burglary conviction?
No. A witness may be impeached by a conviction for which the witness received a probated sentenced in the probation has not expired. Of course, the conviction must be for a felony or a misdemeanor involving moral turpitude.
Can defense ask the prosecutor to produce grand jury testimony?
Court should grant motion for production.
Under Tex. R. Evid. 615, a party is entitled to the statement of an opponent's witness after that witness has finished direct examination.
"Statement" includes a transcript of testimony by the witness to a grand jury.
Is it true that the defense must make opening statement right after the prosecutor of waived it?
No. Defense counsel is entitled, by statute, to make the defense opening statement immediately after the state's opening statement.
This right has been extended to permit the defense opening statement to be made after the state rests its case-in-chief.
If a prospective juror states a Def is already guilty b/c he was indicted, do those statements provide you w/ any basis to challenge this juror? If so, what is your legal basis of your challenge and what kind of challenge should you make?
Can challenge jurors on the basis that the juror as bias against Def and has bias against a part of the law on which Def is entitled to rely.
Law provides that the fact that a Def has been indicted gives rise to no inference of guilt.
This juror is biased against this law.
List three prerequisites for Def to be eligible for a sentence of probation.
1. The punishment assessed must not exceed 10 years imprisonment.
2. (to get probation from the jury) Def must have filed a pretrial sworn motion for probation, and
3. (and to get probation from the jury) Def must show he has not previously been convicted of a felony.
List three admonitions that the court must give Def before accepting Def's felony plea of guilty.
Admonitions should include:
1. The range of penalties for the offense.
2. That any recommendation by the state as to the penality is not binding on the court, and
3. That Def has a limited ability to appeal if convicted pursuant to t a guilty plea.
A decision on a search warrant for an apartment states, "the apartment is located in a white building in a residential neighbor road on a street on the west-side of Houston, Texas." Is this description legally sufficient? Assuming it is not sufficient, what procedural step can attorney take to challenge the warrant, and what relief should attorney request?
Description not sufficient.
Description must be sufficient to enable officers to identify both the building in which the apartment is located and the specific apartment to be searched within the building. To challenge the warrant, atty should file a motion to suppress the evidence found by the execution of the warrant.
Atty should ask court to hold the search warrant and the search of the apartment unreasonable and to bar the prosecution from introducing item into evidence.
If prosecutor filed a motion requesting that defense disclose the names and addresses of all lay and expert witnesses who will testify at trial, does Tex. Crim. Pro. provide any basis for prosecutor's request?
Yes, in part. Trial judge does have the authority to order a Def to disclose to the prosecution the names and addresses of expert witnesses the defense may use at trial.
There is no basis in Tex. Crim. Pro. for the trial judge to order a Def to disclose any information regarding lay witnesses to the prosecution.
If prosecutors have a report that states someone else is responsible for the crime, are the prosecutors required to disclose the contents of the report? Does it depend on whether discovery motion requested disclosure of any reports in prosecutor's possession?
The information in report is exculpatory b/c it indicates Def's innocence.
Under Brady, prosecutor is required to disclose the info.
This duty to disclose does not depend on a request by the Def, so the answer does not depend on whether my discovery motion requested disclosure of reports in prosecution's possession.
When should an atty file a motion for discovery? What consequences is there if you do not file your motion for discovery on time?
When a pretrial hearing has been set, motion for discovery must be filed 7 days before the hearing.
If not filed by the deadline, it cannot be filed unless the court, for good cause shown, permits it to be filed.
Who selects the people who will serve on the grand jury?
1. A district judge may appoint jury commissioners, who selects pers to serve.
2. The district judge may direct grand jurors to be selected in the same manner as jurors are selected in civil cases.
After this, person selected are examined and 12 are impaneled by the judge as the grand jury.
What courts have jurisdiction over a felony? What courts have jurisdiction over a misdemeanor?
The only court without jurisdiction to conduct a felony trial is a district court.
A misdemeanor trial falls under the jurisdiction of a county court.
What is a writ of habeas corpus? To whom is it directed? By whom may it be granted?
A court order directing someone to produce an individual before the court and to show why that individual is being held.
It is directed to a person having the individual is custody or under restraint.
Writ may be granted by the court of criminal appeals, a district court, a county court, or a judge of any of these courts.
Does an officer have authority to break down Def's door in order to enter the habitation when the officer knocked and announced and Def refused to open door?
Yes. An officer can break down the door of a habitation to make an arrest if the arrest is for a felony, the officer gives notice of the officer's authority and purpose, and the officer is then refused admittance.
If prosecutor agrees to recommend a specific prison sentence as part of the plea agreement w/ Def, is the court required to impose that sentence?
No. Court is not obligated to follow the plea agreement reached by prosecutor's and def.
However, if ct. refuses to impose the sentence recommended by prosecutor and agreed to by Def, the ct. must allow Def. to withdraw his guilty plea.
If Def. has a jury trial and is tried alone, how many peremptory challenges to prospective jurors may Def and prosecutors each make? If Def and co-Def are tried together, how many peremptory challenged may Def, co-Def, and prosecutor each make?
In felony cases where state does not seek the death penalty, the prosecutor and Def each may make 10 peremptory challenges.
If Def. and co-Def are tried together, they are each entitled to 6 peremptory challenges and prosecutor is entitled to 12 (6 for each Def).
What are the three challenges for cause that may be made by the state or the Def to prospective jurors?
1. Juror is not a qualified voter.
2. Juror has been convicted or is presently under indictment for misdemeanor theft or felony.
3. Biased or prejudicial.
Co-Def testifies to Def's involvement in the crime. Can def be convicted on the basis of this evidence?
No. Co Def is an accomplice. Def can be convicted on co-Def's testimony only if there is sufficient corroboration evidence linking Def to crime.
Have to link Def to the crime.
What evidentiary predicate must the custodian of records provide in order for a receipt showing purchase of items used in the crime, to be admitted into evidence?
Evidence predicate must show that the receipt was kept in the regular course of business, that it was the regular course of business for a person w/ knowledge to make that record, and that the receipt was made at or near the time of the event and that the witness is the custodian of records.
If prosecutor calls a witness to testify who talks about what someone else says who is not a witness, and Def objects, how should the ct. rule?
Ct. should sustain objection.
Because person is not testifying in person under oath, his comments are hearsay because they are out-of-court statements being offered for the truth of the matter asserted.
Because person is not a Def in the case, his statements are not admissible under the hearsay exception for party opponents.
Because person's statements have not been corroborated they are not admissible as statements against interest.
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