Criminal Procedure

Front 1

Pre-trial Hearing and Conference

Back 1

1) a trial judge may (but need not) set a case for pret-trial hearing and conference.

2) if a pretrial hearing and conference is set, the parties must do certain things 7 days before that hearing and conference:
a) enter any special plea;
b) make challenges to the indictment;
c) make motions for continuances;
d) make motions for change of venue;
e) make motions to suppress evidence;
f) make requests for discovery; and
g) raise claims of entrapment.

Front 2

Motion in Limine

Back 2

This is a pre-trial motion that asks for either (or both):
1) a pret-trial ruling on the merits of some question of evidence or procedure that will arise during trial; or
2) a pret-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury

Front 3

Motion to Supress Evidence

Back 3

a motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible. Most often, it is used to raise a contention that evidence has been illegally obtained or a confession is inadmissible.

A pre-trial ruling on a motion to suppress does preserve the issue for appeal.

A pret-trial ruling on a motion in limine does NOT preserve a matter for appeal

A defendant can testify at a pre-trial hearing only on issues related to that hearing.

ALSO: a party losing a motion to suppress is entitled to have the judge make findings of facts

Front 4

Pre-trial Discovery & Evidence Preservation-- Discovery Under Texas Law-- Witness lists:

Back 4

Witness Lists:
a) generally: Trial judge has discretion to order the State to provide the defense with a list of witnesses the State intends to call.
b) Expert Witness List: Trial judge has discretion to order either/both sides to provide the other with list (names and addresses) of expert witnesses it may call at trial (at least 20 days before trial date)

Front 5

Pre-trial Discovery & Evidence Preservation--Discovery Under Texas Law-- Deposition

Back 5

Deposition: either side may be permitted to depose a witness:
a) the trial judge must issue an order authorizing the deposition
b) to obtain this, the party must show "good reason" for the deposition
c) depositions may be used for 2 different purposes:
---1--- for discovery, obtaining information to prepare for trial; or
---2--- to preserve testimony for later use at trial

Front 6

Pre-trial Discovery and Evidence Preservation--Discovery Under Texas Law-- Inspection

Back 6

Inspection: the trial judge has authority to order the State to permit the defendant to inspect certain things.

a) inspection must be ordered if the thing:
1) is a tangible thing;
2) constitutes or contains material evidence;
3) is in the possession of the State; and
4) is not "work product" of the State

b) 2005 legislative change: no longer discretionary with judge!

c) inspection, if ordered, cannot require the STate to give up possession of the item

d) the inspection must be sufficient to give the accused the information necessary to prepare for trial

Front 7

Pre-Trial Discovery and Evidence Preservation--Discovery Under Texas Law-- Other "Discovery"

Back 7

Other "Discovery"--the defense may requrest the State to provide notice of:

1) Rule 404(b) extraneous offense evidence at guilt; and

2) Art. 37.07 Sec 3g extraneous offense evidence at punishment.

Front 8

What is work product?

Back 8

1) physical evidence is not protected work product
2) but work product covers reports of state employees, police reports, and witness statements

Front 9

Preservation of DNA Evidence

Back 9

Upon conviction, authorities in possession of evidence must preserve it if--

1. the evidence contains biological material that if subjected to scientific testing would establish the perpetrator's identity or exclude someone from those who could have committed the crime; and

2. the authorities know this

Front 10

Informant Disclosure

Back 10

The identity of an informer is generally privileged and can be withheld by the State. Disclosure may be required in 2 situations:

1. If the informant provided informaiton by which the State obtained evidence in a way the defendant claims was illegal, the court has discretion to require disclosure if necessary to establish the informer's reliability

2. Upon a showing the informant can provide testimony necessary to a fair determination of guilt-innocence, the court must order disclosure

Front 11

Federal Constitutional Duty to Disclose Exculpatory Evidence

Back 11

A defendant's due process rights under Brady v. Maryland are violated if both:

1) the prosecution fails to disclose exculpatory information that is in its possession; and

2) this information is "material" which means if it had been disclosed, there is a reasonable probability the outcome fo the case would have been different

Front 12

Exculpatory Evidence

Back 12

With regard to exculpatory evidence:

1) the prosecution has a due process duty to disclose such evidence.

2) evidence that impeaches a prosecution withness is exculpatory.

3) evidence must be disclosed if it is in the posses of:
-the trial prosecutor;
-another prosecutor; or
-the police.

4) a conviction is invalid for nondisclosure only if the nondisclosed exculpatory evidence is MATERIAL

Front 13

TEXAS LAW-- Competency to Stand Trial

Back 13

1) Under federal due process and Texas statute, criminal proceedings cannot continue if the defendant is incompetent to stand trial

2) a defendant is incompetent to stand trial if either:
a) she lacks the ability to consult with counsel with a reasonably degree of reational understanding; or
b) she lacks a rational and factual understanding of the proceedings

3) if after being found incompetent to stand trial the accused's condition improves:
a) the defendant can be determined to be competent; and
b) the prosecution can proceed

The trial judge must make a preliminary inquiry. If this shows significant evidence of incompetency, the judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury.

The legal presumption is that a defendant is competent. To rebut this, the defense must hsow by a preponderance of the evidence that Sims lacks the ability to consult with counsel or lacks an understanding of the proceedings

Front 14

list 3 ways in which incompetency differs from insanity under Texas law

Back 14

1. relevant time: insanity-- time of crime. competency-- time of trial

2. standard: insanity-- did not know conduct was wrong. competency-- could not consult with counsel or understand the proceedings

3. result: competency-- bar to proceed. insanity-- final verdict of not guilty by reason of insanity

Front 15

Venue and Change of Venue

Back 15

1) General Rule: Venue lies in the county where the crime was committed.

2) a defendant may seek a change of venue because:
a) prejudice in county would prevent fair trial; or
b) dangerous comination of influential persons against the D would prevent fair trial

3) The State may seek a change of venue because:
a) combinations or influences in favor of D would prevent fair trial; or
b) lawless conditions would prevent fair trial; or
c) life of D or a witness would be jeopardized by local trial

4) the trial court may change venue on its own motion because trial fair and impartial to D and State alike cannot be held

Front 16

Procedure for Defense to Change Venue

Back 16

1. a written motion for change of venue is filed; and

2. an affidavit that a fair trial cannot be held in the county by: (a) the defendant; and (b) two credible residents of the county

at the hearing, defense counsel must present evidence showing there is sufficient prejudice in the county to prevent a fair trial

Front 17

disqualification of the judge

Back 17

A judge is disqualified if:

1. judge was the victim of the crime;
2. judge was counsel for either side;
3. judge is related within three degrees (by blood or marriage) to either D or the victim; or
4. bias

#2 applies only where the judge has participated in the very case now before her as judge.

Front 18

presence of accused-- felony case

Back 18

in a felony case or a prosecution for a misdemeanor punishable by jail time, the defendant must be present at the beginning of trial.
(a) jury case: through swearing of the jury
(b) nonjury case: through D's plea to the indictment

and the D must be present at the end of trial for formal sentencing

but if D is voluntarily absent in the middle, the trial may nevertheless proceed in the D's absence

Front 19

presence of accused-- misdemeanor case

Back 19

in a prosecution for a fine-only misdemeanor, the defendant can be absent, because she may appear "by counsel," if the prosecutor consents

Front 20

joinder and severance of charges

Back 20

1) the general "one offense" rule governs joinder of offenses

a) an indictment may allege only one offense. If an indictment charges more than that, it is to be quashed.
b) a defendant may be tried on only one indictment per trial. If a defendant is scheduled for trial on several indictments, the defendant is entitled to have the trials separate

2) the "one offense" rule is subject to the "criminal episode" exception

a) the state may join in one indictment all offenses arising out of one "criminal episode", and the defendant will be tried for all of these in one trial unless there is a severance of the charges
b) if a defendant is chaged in different indictments with offenses arising out of one "criminal episode", the state may have those indictments consolidated for trial together
c) crimes are part of the same criminal episode if they are:
--1-- part of the same transaction
--2-- part of a common scheme or plan; or
--3-- the same or similar offenses
d) the state is not required to seek trial together of offenses arising out of one criminal episode
e) a defendant who is scheduled for trial toegther on multiple charges because those charges arose from the same criminal episode has an absolute right to have the charges severed for separate trials
f) but a defendant who invokes the right to severance incurs a potential disadvantage:

(1) if a defendant is convicted in one trial of several charges arising out of one criminal episode and sentenced to imprisonment, the prison terms must run concurrently

(2) if a defendant scheduled for one trial on such charges involkes her right to severance, at separate trials is convicted of several charges arising out of one criminal episode, and is sentenced to imprisonment, the trial judge has discretion to make the prison terms consecutive

Front 21

joinder and severance of defendants

Back 21

1) several defendants may be charged in one indictment and tried together if they are all charged with the same offense.

2) several defendants may be joined for trial if (a) they are charged with the same offense; or (b) they are charged with different offenses arising out of the same transaction

3) mandatory severance: a defendant who moves for severance and shows her co-defendant has a prior conviction admissible against that codefendant at trial must be granted a severance

4) discretionary severance: in other situations, a trial judge has discretion to grant a motion for severance of trials, and should grant such a motion if a joint trial would be prejudicial to the defendant who has moved for severance

Front 22

continuances and postponements

Back 22

1) generally, a motion for "continuance" must:
a) be in writing; and
b) be supported by a showing of "good cause"; and
c) be sworn

2) a motion made after trial has begun must, in addition be:
a) based on an occurrence that happened after trial began; and
b) that occurrence could not have been anticipated; and
c) surprise must be such as to prevent a fair trial

Front 23

Defendant's motion for a continuance to obtain a missing witness must allege:

Back 23

1) name and residence of the missing witness;
2) efforts made by defense to find and get witness to court; and
3) material facts defense expects to prove by witness

Front 24

rights to counsel, self-representation, and expert assistance

Back 24

1) an indigent defendant sometimes has a 6th amendment right to an appointed attorney

a) a defendant charged with a felony always has such a right
b) a defendant charged with a misdemeanor need not be provided an attorney if no jail time is imposed upon conviction

2) a defendant has a 6th amendment right to represent herself

An appointed attorney must make every reasonable effort to contact the defendant not later than the first working day after the date of appointment. An attorney is to interview the defendant as soon as practicable.

A judge has discretion to replace an attorney who fails to timely contact or interview the defendant

Front 25

right to effective representation

Back 25

A defendant's 6th amendment right to effective representation is violated if:

1) the lawyer's actions were beyond the bounds of professional competence, and not simly tactical decisions

2) there is a reasonable probability that had cousel been effective, the results of the proceeding would have been different

counself has a duty to convey a plea offer to the client. Failure to do so constitutes ineffective representation.

Representation is not effective if counsel:
a) fails to conduct adequate investigation; or
b) fails to convey to the client an offer of a plea bargain

Front 26

appointment of an expert

Back 26

Ake Motion-- Ake v. Oklahoma holding that due process entitles an indigent defendant to appointment of an expert.

to get the expert, defense must show that the area of the expert's expertise is likely to be a significant issue in the case

the motion and showing can be made ex parte.

The state must pay for an expert to assist appointed defense cousel if the expert's area is likely to be a significant issue in the trial of the case

Front 27

dismissal by the state

Back 27

1) the state may dismiss some or all charges brought
a) it must file a written statemtn of the reasons; and
b) trial judge must consent

2) no further prosecution may occur if a dismissal occurs after jeopardy attached

Front 28

Jury Trial on Guilt-Innocence: basic structure

Back 28

1) a criminal defendant must be tried to a jury unless the defendant waives the right to jury trial

2) jury size
a) district court: 12
b) county, municipal, justice court: 6

3) verdict is usually "general", except:
a) special plea is submitted to the jury; and
b) jury finds D "not guilty by reason of insanity"

4) communications during trial between judge and jury once deliberations start:
a) jury must communicate with judge in writing
b) judge's response must be:
(1) in writing; and
(2) read to the jury in open court

State must prove guilt beyond a reasonable doubt

the verdict must be unanimous, so all jurors must concur

if the jurors cannot agree on an unanimous verdict, the judge must declare a mistrial

Front 29

waiving a jury trial

Back 29

whether to have a case tried by a jury or not is a decision that must be made personally by the defendant

if a defendant wants to have the case tried to a judge, the defendant must waive jury trial before trial begins

the choice need not be the same as to both phases. Whether or not the defendant waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment

waiver of jury trial on guilt:
1. jury trial on guilt can be waived except in prosecution for capital murder where the state seeks death penalty

2. waiver of jury tiral on guilt requires consent and approval of: (a) the prosecutor (b) the trial court

Front 30

when if ever can the jury have the court reporter read from the reporter's notes the substance of testimony taken during trial?

Back 30

the jury may apply to the court for such a reading of testimony if the jury disagrees as to what the testimony was. The judge may have the court reporter read only those notes relating to the testimony in dispute

Front 31

declaring a mistrial

Back 31

when the jury cannot agree, it may be discharged and a mistrial declared if:

1) both parties agree; or
2) the court finds the jury has been kept together long enough to render it altogether improbable that it could agree

Front 32

jury selection: generally

Back 32

jury selection involves several steps
1) swearing in the panel
2) qualification of the panel members by the judge
3) possible jury shuffle
4) voir dire of the jury panel members
5) challenges for cause
6) peremptory challenges
7) empanelling the actual jury

Front 33

What three matters must the court determine regarding a prospective juror's legal qualifications to serve?

Back 33

The judge asks & determines-

1) Are you a qualified voter in this county and state?

2) Have you ever been convicted of theft or any felony?

3) Are you under indictment or accusation of theft or any felony?

Front 34

What action, if any, can counsel take to change the seating order of the venire members? At what stage of the proceeding should she take this action?

Back 34

Counsel can demand a jury shuffle, which will result in the random reseating of the venire members.

She must do this before voir dire of the venire members begins.

There can only be 1 shuffle per trial.

Front 35

What is a challenge for cause? How many such challenges is each side allotted?

Back 35

A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the Code of Criminal Procedure. There is no limit on the number each side may make, but each one made must be justified under one of the statutory grounds.

Front 36

List the challenges for cause that may be made by either the State or the defense.

Back 36

1) prior conviction for theft or a felony

2) under formal charge for theft or a felony

3) insane

4) not qualified to be a voter

5) is a witness in the case

6) served on jury in prior trial of the case

7) served on indicting grand jury

8) cannot read and write

9) biased or prejudiced for or against the accused

10) bias or prejudice against any law applicable to the case on which the defense or the State is entitled to rely

Front 37

What are "absolute disqualifications?" Can the verdict be set aside if a juror absolutely disqualified sat on the jury?

Back 37

a) Most challenges must be made during jury selection

b) prior conviction for theft or a felony; under formal charge for theft or a felony; and insane are "absolute disqualifications"

c) effect: if a juror absolutely disqualified sat on the jury, the conviction must be set aside if the defendant either:

1) raised this before the verdict was entered; or
2) shows "significant harm" as a result of the juror's service

Front 38

juror bias-- formed opinion of guilt or innocence

Back 38

1) a juror who states he has formed an opinion that would influence his verdict is biased and must be discharged for cause

2) a juror who states he can render a verdict on the law and evidence despite his opinion need not be discharged if the court is satisfied the juror can be impartial

Front 39

Jury Selection: Peremptory Challenges

Back 39

1) each side in a criminal trial gets a limited number of peremptory challenges-- challenges which can be exercised with no explanation or justification.

a) capital murder death penalty cases-- 15

b) other felony cases-- 10

c) misdemeanors in county, municipal or justice court-- 3

d) misdemeanors tried in district court-- 5

2) Neither side may exercise peremptory challenges on the basis of race or gender (Batson v. Kentucky)

Front 40

If the State uses their peremptory challenges to remove all African American venire members, what procedure if any, should defense counsel employ to contest this action by the Prosecutor, and at what stage of the proceeding should counsel employ it?

Back 40

Counsel should make a Batson challenge on the ground that the State has exercised its peremptory challenges on racial grounds. She should move to dismiss the array of prospective jurors.

The motion should be made:
(a) after each side submitted its list of jurors its challenges and
(b) before the trial court empanels the jury

The court should rule that proof that the state has used its challenges to remove all African Americans persons make a prima facie case of racial motivation. The burden therefore shifts to the state to explain its challenges on racially neutral grounds.

If the defense succeeds in proving that the state exercised its challenges on racial grounds, the trial judge must do one of two things:

(a) dimiss the array and start jury selection over; or
(b) reinstate those jurors struck for racial reasons

Front 41

Following the seating of the jury, what is the order of proceeding in a Texas felony trial?

Back 41

1. judge calls for and parties give announcements of "ready"

2. prosecutor reads the indictment

3. defense counsel enters a plea for the defendant

4. prosecutor makes State's opening statement

5. prosecution presents State's case in chief

6. defense cousel makes defense opening statement

7. defense presents defense case in chief

8. rebuttal evidence is presented

9. the judge reads the charge/instructions to the jury

10. counsel make final arguments to the jury

Exception: upon request, defense counsel may make the defense opening statement immediately after the State's opening statement

Front 42

The state presents its case-in-chief and rests. Defense counsel thinks the State has failed to show D's guilt beyond a reasonable doubt. What procedural steps, if any, should counsel take before beginning presentation of the defense case, and should counsel do this within the hearing of the jury?

Back 42

Counsel should make a motion for a directed verdict of not guilty. This asks the judge to hold that no reasonable jury could find, on the basis of the State's case in chief, that all elements of the crime have been proved beyond a reasonable doubt.

Since this presents an issue for the judge rather than the jury, the motion should not be made within the hearing of the jury.

The basic trial motion for acquittal without going to the jury is a motion for a directed verdict of not guilty. This should be made both--

1) at the end of the State's case in chief; and

2) at the close of all the evidence.

Front 43

State rests. Defense counsel believes the State has failed to prove that the offense occured in this county. What procedural steps should counsel take to challenge that omission of proof and at what stage of the proceeding whould counsel take them?

Back 43

Counself should move for a directed (or instructed) verdict of not guilty, specifying that the evidence is insufficient because it fails to prove venue, by the required preponderance of the evidence.

The motion should be made:
(a) at the close of the state's case-in-chief
(b) at the close of all the evidence.

Venue need only be proved by a preponderance of the evidence

Front 44

Hearsay-- Statements Against Penal Interest

Back 44

1) the hearsay exception for statements against interest means (among other things) a statement is admissible if it is shown to have been made against the declarant's penal interest

2) a hearsay statement is admissible as against "penal" interest if:
a) the statement is shown to have been incriminating regarding the declarant:

b) a reasonable person would not have made it unless she believed it to be true; and

c) [in criminal trials] there are corroborating circumstances that clearly indicate the trustworthiness of the statement

3) a hearsay statement against interest is admissible whether or not the out-of-court declarant is unavailable

Front 45

Records of Regularly Conducted Activity

Back 45

The hearsay exception for records of regularly conducted activity (business records) applies in criminal litigation as it does in other litigation.

The predicate that must be laid by the testimony of the custodian to make records of regularly conducted activity admissible over a hearsay objection includes testimony by the custodian that:

1) the records were kept in the regular couse of business;

2) it was the regular course of the business for a person with knowledge of the matter to make such records or transfer information for inclusion in the records;

3) entries in the records were made at or near the time of the events; and

4) the witness is the custodian of the records

Front 46

What must Prosecutor do to ensure that the hospital's records are admissible at trial without the presence of any witness from the hospital?

Back 46

This business record can alternatively be authenticated if Prosecutor:

1) obtains an affidavit of the custodian of the records proving up all the necessary elements

2) files the affidavit with the records attached with the court at least 14 days before trial starts; and

3) gives the defense notice of the filing at least 14 days before trial

Front 47

Character Evidence

Back 47

1) Generally, the State cannot introduce evidence that the defendant has a "bad character" to prove the defendant's guilt

2) State can prove the defendant's bad character:
a) if accused "puts his character in issue" by exercising his right to introduce evidence of good character; and
b) at punishment stage of the trial

3) Character witness may give 2 kinds of testimony:
a) the witness's personal opinion as to the person's character; or
b) what the witness knows is the person's reputation for the character trait.

4) Character cannot be proved by evidence of specific instances of conduct

5) Reputation testimony is hearsay but admissible under exception.

6) Foundation for character testimony:
a) opinion testimony: the witness is personally familiar with the person
b) reputation testimony: the witness participated in discussions with others of person's reputation, or overheard others discussing that reputation

7) Cross-examination of character witnesses:
a) inquiry into specific instances of conduct is permissible
b) "Have you heard" questions: OK if reputation witness
c) "Did you know" questions: OK if opinion witness

Front 48

Extraneous Offense Evidence

Back 48

1) Extraneous Offense: crime of which the accused cannot be convicted in this trial

2) General Rule: evidence of an extraneous offense is inadmissible. Such evidence shows only that the accused is a "bad person." The prosecution cannot prove guilt by proving that the accused is a bad person, has a bad character, and thus must have committed the charged crime

3) If evidence showing an extraneous offense is relevant to some issue other than the accused's character, it is admissible unless the trial judge is convinced that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice

4) extraneous offense evidence may be admissible as relevant to [MIMIC Rule]:
[M] MOTIVE
[I] INTENT
[M] MISTAKE
[I] IDENTITY
[C] COMMON SCHEME/PLAN

Front 49

One month prior to trial, defense counsel makes a written request upon the State to provide the defense with any "404(b) crimes, wrongs, or acts" which they intend to introduce. The State refuses the request. What obligation, if any, does the State have to provide the defense with such notice?

Back 49

since the defense has made timely request, the State must provide reasonable notice in advance of trial of its intent to introduce such evidence during the State's case-in-chief. But no such notice is required concerning crimes, wrongs, or acts arising in the same transaction as the charged offense

Front 50

Writings or Recorded Statements

Back 50

1) if one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce:

a) any other part of the writing or recorded statement; or
b) any other writing or recorded statement; which should in fairness be considered by the jury at the same time

2) The other party is entitled to introduce this immediately

Front 51

Rule of Optional Completeness

Back 51

If one party introduces part of an act, conversation, or statement, the other party is entitled to prove "the rest of the subject"

Front 52

physician-patient privilege and related matters

Back 52

The physician-patient privilege does not apply in criminal litigation

Front 53

Privileges-- Client's Communication to Attorney

Back 53

The client of an attorney has a privilege to have kept confidential a private communication to the attorney

Front 54

Privilege of Defendant's Spouse

Back 54

1) Spouse of a criminal defendant has a privilege not to be called as a witness to testify against the defendant or to not testify against the defendant.

2) Exceptions: the defendant's spouse may be called if either:

a) the prosecution is for an offense committed against
(1) any minor child;
(2) a household member of either spouse; or
(3) the spouse; or

b) the spouse is called by the state to testify only about matters that occurred prior to the spouse's marriage to the defendant

The privilege is a privilege of the spouse-witness, who decides whether to waive it. Thus is provides no basis for a defendant to object to testimony by a spouse who voluntarily testifies for the State

Whether the spousal privilege is available turns on whether the witness is married to the defendant at the time of trial

Front 55

Privilege for Marital Communications

Back 55

1) Any person (including a criminal defendant) has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication made by the person to his or her spouse during marriage.

2) Communication is "confidential" only if it was both:
a) made private; and
b) not intended for disclosure to any other person

3) exceptions: no privilege exists if:
a) the communication was made to commit a crime orfraud; or
b) the prosecution is for a crime committed against the person of
(1) any minor child;
(2) a household member of either spouse; or
(3) the spouse

Front 56

Statements made in plea bargaining discussions

Back 56

A statement made by the defendant is inadmissible if it was made in the course of plea discussions with a prosecutor

Front 57

Presenting testimony calling and examining witnesses

Back 57

1) Both sides on application to the clerk are entitled to have subpoenas issued for witnesses

2) either side is entitled to have an attachment issued for a witness if both:
a) the witness has been properly subpoenaed; and
b) the witness fails to appear

Front 58

What inquiry must the court make to ensure that a child witness is competent, and should the inquiry occur on or off the record?

Back 58

The child witness should be examined by the judge, to determine whether the witness has sufficient intellect to relate transactions regarding which he will be asked to testify. If he does not have this, he is not competent. This should be on ethe record to preserve any possible error for appeal.

Front 59

Defense counsel has obtained a subpoena for a witness who lives 740 miles away from the trial location. Although properly served, the witness refuses to honor the subpoena, claiming she is exempt by virtue of the fact that she resides more than 150 miles from the county of prosecution. Is the summoned witness obligated to honor the subpoena and appear as directed?

Back 59

Yes, because in a criminal case a subpoena is good state-wide

Front 60

What recourse does defense counsel have if the witness refuses to obey the subpoena?

Back 60

The defense may seek an attachment for the witness. This is directed to a peace officer and directs the officer to find the witness and bring the witness before the court.

An attachment may issue only if:

1) the witness has been properly subpoenaed; and

2) the witness fails to appear

Front 61

Methods of Impeachment

Back 61

1) bad conduct (prior convictions)
2) contradiction
3) showing character for untruthfulness
4) showing bias or interest

Front 62

Impeachment with "Bad Conduct"

Back 62

A witness may be impeached by showing prior "bad" or criminal conduct only if the cross-examining party establishes:

a) the conduct resulted in a final criminal conviction;
b) the conviction is not "stale" (rule of thumb: not more than 10 years since conviction or release form confinement, whichever is later);
c) the conviction was for a misdemeanor that involved moral turpitude or a felony; and
d) the prejudicial risk of the inquiry is substantially outweighed by its probative value

Front 63

Impeachment by Contradiction

Back 63

a) General Rule: a party can impeach a wintess for the other side by introducing extrinsic evidence that contradicts what the witness said, unless the witness's assertion is on a collateral matter

b) a matter is collateral if the impeaching party would not be able to prove it as part of its own case

Front 64

Can defense counsel impeach the credibility of her own witness? If she can do so, describe the means of impeachment

Back 64

A party can impeach the creditbility of the party's own witness.

Here, impeachment would be done by asking the witness about the prior inconsistent statement made by the witness. In doing this, defense counsel must-

1) tell the witness the contents of the prior inconsistent statement;
2) tell the wintess the time and place of that statement and the pwerson to whom it was made; and
3) afford the witness an opportunity to explain or deny the statement.

If the witness unequivocally admits having made the statement, extrinsic evidence of that statement may not be admitted

Front 65

Which crimes are considered to involve "moral turpitude" and therefore can be used to impeach witnesses?

Back 65

1) Moral turpitude crimes: theft, perjury, forgery, making false report to police, aggravated assault on a female, prostitution

2) crimes not involving moral turpitude: DWI, drunkenness, assault, possession of marijuana, liquor law violations, unlawfully carrying weapon

Front 66

Comments made by the judge

Back 66

In making trial rulings, the judge must not:

1) comment on the weight of the evidence; or
2) convey to the jury the judge's opinion of the merits

If judge makes an inappropriate comment, counsel should object that the judge has commented on the evidence or the merits of the case. Counsel should ask that the jury be removed from the courtroom while she argues the matter. She should seek, first, an instruction to the jury to disregard the comment. Next, she should seek a mistrial on the ground that the trial has been tainted.

Front 67

Invoking "the Rule": excluding witnesses from the courtroom

Back 67

1) "The Rule": upon request of either party witnesses must be excluded from the courtroon except during their own testimony

2) if a witness is found to have violated the rule, the trial court may:
a) hold the witness in contempts; and/or
b) exclude the testimony of that witness

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When The Rule is invoked, are any particular classes of witnesses excepted from the effect of "The Rule"?

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Yes. When The Rule is invoked, exclusion is not permitted of:

1) the defendant; or
2) if the defendant is a corporation, an officer or employee of the defendant; or
3) any person whose presence is shown to be essential to the presentation of a party's case [expert]; or
4) the victim, the victim's guardian, or a close relative of a deceased victim unless the trial court finds that the testimony would be "materially affected" by hearing other testimony

The spouse of the defendant is not exempt from The Rule in criminal trials.

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If The Rule is invoked, what should the judge tell witnesses about talking to other people?

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If "The Rule" is invoked, the judge must at the beginning of trial, admonish each witness as to:

1) those persons with whom the court determines the witness may talk to about the case before trial ends; and
2) those persons the court determines the witness may not talk to

If the admonishment is given and a witness violates it,the witness may be held in contempt

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Expert Testimony and Scientific Evidence

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1) Generally, an expert witness may testify to an opinion without first disclosing the facts or data on which that opinion is based.

2) in criminal cases, a party against whom expert testimony is offered has a right, upon request, to voir dire the expert on the facts or data upon which the testimony will be based before the wintess testifies to the opinion (This is discretionary in civil cases)

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List 5 factors the court should consider in determining the admissibility of this scientific evidence

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1) acceptance of the underlying scientific theory and techniques as valid by the scientific community;

2) whether scientific literature supports or rejects the theory and technique;

3) the potential error rate of the technique;

4) the qualifications of the expert offered to testify;

5) availability of other experts to test and evaluate the technique;

6) the clarity with which the theory and technique can be explained in court;

7) experience and skill of person who applies the technique in this case

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Disclosure During Trial

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1) A party is entitled to a writing is witness for the other side used it:
a) to refresh her memory before her testimony; or
b) to refresh her memory during her testimony.

2) a party is entitled to the prior written or recorded statement of a witness for the other side (or a statment of the witness made to a grand jury) after that witness has finished direct examination. (does not apply to defendant)

3) "Use Before the Jury" Rule: A party is entitled to an item (such as a photograph) if it is used by opposing counsel in front of the jury in such a way that its contents become an issue.

4) "Work Product" Doctrine does not apply here as ti does pre-trial