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17 Cards in this Set
- Front
- Back
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What are three rules that a Court should follow when fixing the amount of bail?
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1. Threat to community and victim
2. Ability of D to pay bond 3. Bail sufficiently high to secure appearance 4. Seriousness of crime |
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Can the court consider whether D is capable of posting bail in determining whether D is indigent and still entitled to appointed counsel.
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No, the court cannot consider D posting of bail in determining whether D is entitled to appointed counsel (b/c a D is constitutionally entitled to counsel if he personally cannot afford one)
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If the Court denies your request to reduct D's bail to $10k, what procedural step, if any, can you take to seek a reduction in bail, and what argument, if any, can you make for such a reduction?
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File a writ of HC in DC. Argue that bail is excessive, not necessary to assure D's appearance or protect the community.
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Eager to get a great plea bargain, Roscoe meets with Officer and tells him that D. has purchased many illegal weapons from him n the past and that they are locked in a closet in D's apt.
In order for a search warrant to be issued authorized the search of D's apt for evidence what facts must Officer allege and in what document must he do this? Explain fully |
Officer must swear under oath in an affidavit, which must state with particularity facts which show probable cause to believe that evidence of a crime will be found in the location alleged. The affadavit must state with particularity the location to be searched and the items to be seized.
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FACTS: On Feb 5 the Court appointed Lawyer to represent D. Lawyer, who was working on an appellate brief at that time, made no effort to contact D until Feb 12, when he met with D at the jail. At D's examining trial, the Court found PC and set bail at 50k. Four months later, D, who could not afford 50k bail, was still sitting in jail and nothing had happened to her case (Agg Robbery). On June 18 Court replaced Lawyer with you as appoint counsel.
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SEE NEXT CARD for question
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Did Lawyer make a timely effort to contact D, and was the Court authorized to replace Lawyer based on his effort to contact D?
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No, Lawyer did not make a timely effort and Court was authorized to replace Lawyer.
Appointed counsel must make every reasonable effort to see D by end of following day after appointment. If counsel fails to do so, without cause, the Court may replace. |
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D would like to see if bond can be reduced. You call prosecutor who says "No way! Im not ready for trial and I don't intend to let D loose on the streets while I prepare."
What legal basis is there, if any, for the Court to reduce bail in this situation? |
If state is not ready for trial 90 days after first detained, D is entitled to have bail reduced to an amount D can meet, or be released on PR bond.
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D is released on bond. When you next meet D asks whether Officer's arrest was valid since Officer did not see her commit any crime. Was Officer's arrest valid?
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Yes, because considering the totality of the circumstances, Officer had PC to believe a crime had been committed.
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The prosecutor informs you that the Harris Cty Grand Jury will meet in a day or two to consider whether to indict D.
If D is subpoenaed to appear, what warnings must she receive, if any? |
She is a suspect witness; that she may have atty outside GJ room who she may consult with, if needed; she may refuse to answer incriminating questions; the crime of which she is accused; the time the offense occurred; the county the offense occurred in; the GJ testimony will be recorded; testimony can be used against her; and false answers subject her to perjury charges
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When you and D appear for D's arraignment, the Court calls D's name during the arraignment as "Annie L. David" as shown in the indictment. D's true name is Elizabeth K. Davis.
Can you wait until trial to challenge the error in the indictment regarding D's name and are there different consequences if you raise it now or wait until trial to raise? |
No, cannot wait. At arraignment inform court of real name. Court will correct. If wait until trial, cannot be raised, even if wrong. Correcting before trial is exclusive remedy.
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Prior to trial you decide it would be a good idea to take an oral depo of Clerk (robbery of store). What procedure must you follow before you will be allowed to take Clerk's oral pretrial depo?
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File a motion for order to take depo, accompanied by sworn affidavit showing "good reason." Give notice to state. Ct. will hold hearing at which I must show good reason, materiality, and Clerk's unavailability at trial.
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D decides to plead guilty. During plea hearing, Ct asks her to sign doc containing admonitions re: plea of guilt. When D says she cannot sign b/c has a broken arm, Court refuses to let D plead guilty and sets case for trial.
Does Court have to make admonitions in writing and have D sign them or can D plead guilty without having to sign? |
No, court does not have to make in writing and have D sign. The admonishments can be given orally, on record, in open court.
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D tells you that if she is convicted all she really wants is a sentence of community supervision.
Can the Court or a jury sentence D to community supervision if she is convicted of agg. robbery? |
The court cannot, but the jury can. If D is convicted, Jury can "recommend," and if this happens Court must sentence to comm. sup. Court cannot does so without jury rec however (unless she gets deferred instead of conviction.
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In search warrant affidavit, Officer makes the following statement, which he knows to be wholly false: "I have learned from a reliable informant that, w/in last 24 hours, the informant was in D's apt and observed D manufacturing drugs. Based on affidavit, a warrant is issued. Officer searched seven days later and finds a crack pipe.
What procedural step should you take to challenge the issuance of the search warrant, what must you show in support of your position, and what relief should you request? |
File a motion to suppress the pipe as fruit of unreasonable search arguing warrant invalid because based on affidavit of falsified facts. Also ask for Franks hearing--at hearing I must show (1) Officer misstated facts; (2) Officer did so intentionally, or with reckless disregard for truth; and (3) misstated facts are material and w/o them PC is lacking for warrant to issue.
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Is there any basis on which to challenge the execution of the warrant What procedural step, if any, can you take to challenge the execution of the search warrant?
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Challenge that warrant was stale. Must be executed within 3 days of issuance (Code gives 5 days total). 7 days is too long.
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Assume you did not (and will not) challenge the warrant in either manner. Pros. tells you that he intends to discuss, during his opening statement, the crack pipe found in D's apt.
What procedure should you employ to prevent this action by the prosecutor? What should you do to preserve this issue for appeal in the event Pros. refers to crack pipe during opening statement? |
Use motion in limine to request judge rule Pros must approach before discussing for final ruling. If pros does not approach, must timely object at trial to preserve for appeal. Must also make timely objection at trial if judge overrules your MIL and allows.
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Def. was treated at hospital for broken arm, but no med. personnel can appear to testify. You would like to introduce med records because they show D did not have the items she was accused of stealing among her belongings.
What must you do to ensure admissibility of these records without med. persons appearing? |
Sworn affidavit regarding business records, stating kept in ord. course of business, by someone w/knowledge, at or near time of event, kept by affiant as custodian. File records and affidavit 14 days min. before trial and give notice to State 14 days prior min.
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