Criminal Procedure And Evidence: Introduction, Pre-Trial Proceedings, Limitations

Front 1

What does district court have jurisdiction over?

Back 1

Felonies; misdemeanors involving official conduct; transferred county court prosecutions for misdemeanors punishable by jail time

Front 2

What do justice courts have jurisdiction over?

Back 2

Offenses punishable by only a fine

Front 3

What does municipal courts have jurisdiction over?

Back 3

Exclusive jurisdiction: offenses created by city ordinance and punishable by only a fine

Concurrent jurisdiction: offenses created by state law and punishable by only a fine

Front 4

What do county courts have jurisdiction over?

Back 4

Misdemeanors over which exclusive jurisdiction is not given to justice courts (usually serious misdemeanors)

Front 5

Which steps of felony prosecution can take place before any magistrate versus district court?

Back 5

Before any magistrate: arrest; presentment before magistrate; examining trial; consideration by grand jury.

Front 6

A felony prosecution can be appealed to which courts?

Back 6

Court of Appeals first, then Court of Criminal Appeals second (discretionary).

Front 7

What is a writ of habeas corpus?

Back 7

A court order commanding someone with a person in custody to produce that person before the court and show why the person is being held.

Front 8

What is a writ? To whom is a writ directly?

Back 8

A writ seeks to have the custody of the person restrained examined (validity of the custody).

A writ is directed to someone having another person in restraint. It should name the office of the person to whom it is directed.

Front 9

Who may grant a writ?

Back 9

Court of Criminal Appeals, District Courts, County Courts, or a judge of any of these courts.

Front 10

Under TX law, when must accused be taken before a magistrate?

Back 10

Without unnecessary delay, but in any case within 48 hours of arrest.

Front 11

What are the duties of a magistrate when accused is presented after arrest?

Back 11

1) Tell accused the charges;

2) Tell him of his rights to retain counsel and an examining trial;

3) Warn him that in regards to police questioning: he has the right to remain silent; any statement he makes can be used against him; he has a right to have an attorney present during questioning; he can request an appointed attorney; at any time he can terminate an interview with the police [Miranda rights];

4) set bail

Magistrate also determines whether probable cause exists

Front 12

If someone's arrested without an arrest warrant and 48 hours after, no magistrate determination that probable cause to believe him guilty exists. What then?

Back 12

Right to be released on bond, and to have bond set so this can happen. Bond limited at $10k and personal bond if necessary to assure release.

Front 13

When is release on bail required if no probable cause determination by magistrate (felonies v. misdemeanors)?

How long can magistrates delay release for?

Back 13

1) Felonies: 48 hours of arrest without warrant; Misdemeanors: 24 hours of arrest

2) 72 hours

Front 14

In which 2 types of cases is denial of bail possible?

Back 14

1) Capital murder prosecutions

2) Certain prosecutions for noncapital felonies

Front 15

How can a prosecutor go about getting bail denied?

Who can deny bail (in a noncapital proseuction)?

Back 15

File a motion for denial of bail in district court. Any order denying bail must issue within 10 days of D's apprehension.

Only a district judge.

Front 16

When can bail be denied in a noncapital case?

Back 16

Only if at a hearing, the prosecution shows:

1) D is charged with a noncapital felony; and
2) Substantial evidence of D's guilt of that crime; and

3) One of the following:
- two prior felony convictions; or
- present offense committed out on bail on felony; or
-BOTH: one felony felony conviction and present offense involved use of a deadly weapon;
- present ofense was a violent or sexual offense committed while on felony probation or parole


** Bail can be denied if while on bail on a felony charge, D violates a condition of bail related to the safety of the victim or the community

Front 17

If bail is denied, how does accused challenge this?

Back 17

Immediately appeal the order denying bail to the Court of Criminal Appeals

Front 18

What is the limits on denial of bail in a noncapital prosecution?

Back 18

Denial of bail in a noncapital prosecution lasts only 60 days, we long as the defense does not move for a continuance of the trial proceedings.

At that point, order denying bail is automatically vacated and D. is entitled to have bail set. So, after 60 days have passed, counsel should make a motion to have bail set.

Front 19

What procedural steps can you take to seek bail reduction?

Back 19

1) File application for writ of habeas corpus in district court.

2) At hearing, introduce evidence showing:
- bail set was excessive;
- he cannot meet bail set; and
- amount of bail he can meet

3) District judge may order bail reduced
4) If not, D. can before trial appeal to Court of Appeals

Front 20

What are factors to be considered in setting bail and deciding whether bail set is excessive?

Back 20

LASSO:

Liklihood of D appearing for trial
Ability fo D to make bail
Seriousness of the crime charged
Future safety of victim/community
Required bail is not to be an instrument of oppression

Front 21

Compare bail bond to personal bond.

Back 21

A bail bond requires s urety or a cash deposit.

Personal bond requires neither kind of security. It's the accused's promise to pay the amount if the bond is forfeited.

Front 22

May a magistrate impose conditions on setting of bail?

Back 22

A magistrate may impose any reasonable condition on bail related to safety of victim or community.

Front 23

A jailed D. must be released (on personal or reduced bond) if the State is not ready for trial within how many days of arrest:

1) Felony
2) Class A misdemeanors
3) Class B misdemeanors
4) Class C misdemeanors

Back 23

1) 90 days of arrest

2) 30 days of arrest

3) 15 days of arrest

4) 5 days of arrest

Front 24

Who can hold an examining trial? What is an examining trial?

Back 24

Any magistrate, any court.

It's a pretrial hearing before a magistrate to require the State to produce evidence showing probable cause to believe the defendant guilty of the crime.

Front 25

What rights does an accused have at an examining trial?

Back 25

1) Present;

2) Be represented by counsel;

3) Have the rules of evidence applied;

4) Cross-examine State witnesses; and

5) Subpoena and present defense witnesses.

Front 26

Can D. make an unsworn statement at an examining trial?

Back 26

Yes, can make unsworn voluntary statement if it's before any witnesses testify.

Essentially meaningless proceedure, no practical use.

Front 27

When is a D. entitled to an examining trial?

Back 27

1) D is charge with felony; and
2) An indictment has not yet been returned

Front 28

If D. "wins" an examining trial, what result?

Back 28

"Win" doesn't prevent prosecution and conviction. But entitles D. to go free until and if he is indicted.

Front 29

To charge D. with a crime, what instrument? How does State get this instrument?

Back 29

An indictment.

To get this, grand jury must vote to return a "true bill" against him. Requires grand jury to find that probable cause exists to believe he is guilty. Foreperson then signs indictment, and it will be filed in District Court.

Front 30

When is waiver of indictment permitted?

Back 30

All prosecutions except ones for capital murder.

Front 31

What requirements must be met to waive an indictment?

Back 31

1) D. must be represented by counsel;

2) Waiver must be by written instrument or in open court;

3) Waiver must be voluntary.

Front 32

If D. waives indictment, then how is he charged?

Back 32

State will file an information

Front 33

What is an information? How does it differ from an indictment?

Back 33

An information is a pleading filed by the State charging the person named with a criminal offense.

It differs from an indictment in that it need only be approved and signed by the proseuctor. Indictment must be approved by a grand jury and signed by the foreperson.

Also, an information (but not an indictment) must be supported by a valid and sworn complaint, which must also be filed.

Front 34

How is a Class C misdemeanors (punishable only by fine) charged to a D in municipal or justice of the peace court?

Back 34

State files a sworn complaint, which itself is the charging instrument.

Front 35

How are prospective grand jurors selected?

Back 35

1) By grand jury commissioners appointed by the district judge; or

2) In the same manner as trial jurors are selected for civil cases.

Prospective jurors are summoned to district court which tests their qualifications and then impanels 12 as a grand jury.

Front 36

What should the grand jury composition be like?

Back 36

Code of Criminal Procedure requires grand jury commissioners, to the extent possible, to select grand jurors who represent a broad cross section of the population considering race, sex and age.

Front 37

Can a grand jury compel D appearance?

Back 37

Yes, by having a subpoena issued.

Cannot compel D. to answer questions if he invokes his privilege against self-incrimination.

Front 38

If D. appears voluntarily before grand jury, what must occur before and as he is questioned?

Back 38

He will be a suspect witness. Before questioning, he must be warned:

1) The offense of which he is suspected;

2) The county in which it was committed; and

3) The time of its occurrence

* Questions and his testimony must be recorded

Front 39

As a subpoenaed suspect witness, what warnings must D. be given before questioning?

Back 39

1) Testimony will be under oath

2) False answer to a material question subjects him to prosecution for perjury

3) Can refuse to answer incriminating questions;

4) Right to have counsel appointed if he is unable to employ a lawyer;

5) Has a right to have a lawyer present outside the room (no right to lawyer to accompany into chambers);

6) His testimony can be used against him

Front 40

What other rights does D. have if subpoenaed to appear?

Back 40

Must be given a written copy of warnings; and must have reasonable opportunity before appearing to obtain and consult with counsel.

Front 41

Does D. have right to cross-examine prosecution witness before grand jury?

Back 41

No such right to cross-examine witnesses. May appear as a witness (voluntarily or under subpoena). With grand jury's permission, may address the grand jury.

Front 42

Who can examine witnesses before grand jury?

Back 42

Only prosecutor and grand jurors.

Front 43

Are there circumstances when defense counsel can appear and present evidence before a grand jury on behalf of a client?

Back 43

A lawyer representing a suspect may address the grand jury if

1) grand jury permits this, and
2) prosecutor consents

Front 44

If unauthorized persons are present when grand jury was hearing evidence, what result?

Back 44

Dismissal not required.

Front 45

During grand jury deliberations, unauthorized person present. What result?

Back 45

Requires dismissal of indictment (no prosecutors, no court recorder)

Front 46

Can an indictment be challenged for evidentiary insufficiency?

Back 46

Yes

Front 47

What is the limitation of prosecution (when indictment must be presented)?

When is time elapsing not counted?

Back 47

Criminal prosecutions must be brought within particular periods of time from the commission of the offenses.

Running of limitations is "tolled" (run) and time elapsing is not counted when:
1) D. is out of state; and
2) While charging instrument charging the same offense is pending against the accused and later dismissed

Front 48

For what offenses is there no period of limitations?

Back 48

1) Murder and manslaughter

2) Offense involving leaving the scene of an accident

3) Sexual assault, where DNA testing indicates perpetrator is not a person whose identity is readily ascertained;

4) Sexual assault, contiuous sexual abuse, indecency with a child

Front 49

What is the general periods of limitation for:

1) Misdemeanors?
2) Felonies?
3) Theft, burglary, robbery, kidnapping?

Back 49

1) 2 years
2) 3 years
3) 5 years