Criminal Procedure: Guilt-Innocence

Front 1

Must a criminal defendant be tried to a jury?

Back 1

Yes, unless D. waives the right to a jury trial.

Front 2

What is jury size for a district court? County/municipal/justie court?

Back 2

12 for district; 6 for everything else.

Front 3

Once deliberations start, how must communications between judge and jury happen?

Back 3

Must communicate with judge in writing.

Judge's response must be in writing, and read to the jury in open court.

Front 4

*** asked multiple times***

What standard of proof much the State meet to obtain a guilty verdict?

How many jurors must concur in the guilty verdict?

What is the consequence if fewer than the requisite number vote guilty?

Back 4

1) Guilt beyond a reasonable doubt

2) Verdict must be unanimous, so all jurors must concur* (TX law, not fed)

3) If jurors can't agree on the required unanimous verdict (guilty or not guilty), judge must declare a mistrial

Front 5

If D wants to have a case tried to a judge, D. must ___. This must done when?

Back 5

Waive right to jury trial.

Must be done before trial.

Also, choice between judge/jury need not be same for both trial/punishment phase. Can elect to have jury assessment of punishment or let the judge decide.

Front 6

Jury trial on guilt can be waived except in prosecutions for capital murder where the State seeks the death penalty.

What does waiver of jury trial on guilt require?

Back 6

Requires consent and approval of the prosecutor and the trial court.

Front 7

When jury can't agree, it may be discharged and a mistrial declared if:

Back 7

1) Both parties agree; or

2) Court finds jury has been kept together long enough to render it altogether improbable that it could agree

Front 8

What are steps involved in jury selection?

Back 8

1) Swearing in the panel;
2) Qualification of the panel members by the judge
3) Possible jury "shuffle"
4) Voir dire of jury panel members
5) Challenges for cause
6) Peremptory challenges
7) Empaneling the actual jury

Front 9

What 3 matters must the court determine regarding a prospective juror's legal qualifications to serve?

Back 9

Judge asks and 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 10

*** Asked multiple times ***

Counsel can demand a jury reshuffle, which results in random reseating of venire members. This must be done before __.

Back 10

Voir dire of the venire members.

Front 11

There can only be one shuffle per trial.

Who can obtain a shuffle?

Back 11

Either D or the State.

Front 12

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 __.

Back 12

Justified under one of the statutory grounds:

1) Prior conviction for theft or felony;
2) Under formal charge for theft or 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 case
7) Served on indicting grand jury
8) Can't 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 State is entitled to rely

Front 13

Most challenges for cause must be made during jury selection.

If juror absolutely disqualified sat on jury, conviction must be set side if:

Back 13

1) D. raised this before the verdict was entered; or

2) D. shows "significant harm" as a result of the juror's service

Front 14

Either side may challenge a juror for cause on the ground that the juror has a bias or prejudice against__

Back 14

any law applicable to the case on which that side is entitled to rely.

Front 15

A juror who states he's formed an opinion that would influence his verdict is biased, and must be discharged for cause.

A juror who states he can render a verdict on the law and evidence despite his opinion...

Back 15

Doesn't need to be discharged if the court's satisfied the juror can be impartial.

Front 16

Each side in a criminal trial gets limited peremptory challenges (can be exercised with no explanation or justification):

Capital murder death penalty: 15
Other felony: 10
Misdemeanors in county, municipal or justice: 3
Misdemeanors in district court: 5

Neither side may exercise peremptory challenges based on __.

Back 16

Race or gender (Batson v. Kentucky)

Front 17

When should a Batson challenge be made?

Back 17

1) After each side submitted its list of jurors its challenges and

2) Before the trial court empanels the jury

Front 18

If Batson challenge made when all 8 peremptory strikes on blacks, how should Prosecutor respondand how should trial court rule?

Back 18

1) Court should rule that proof that State has used all its challenges to remove all blacks makes a prima facie case of racial motivation. Burden shifts to State to explain challenges on neutral grounds.

P. should attempt to explain each challenge on racially-neutral grounds.

D. bears ultimate burden of proving racial motivation.

Front 19

If D succeeds in proving that State exercised its peremptory challenges on racial grounds, trial judge must:

Back 19

1) Dismiss array and restart jury selection; or

2) Reinstate those jurors struck for racial reasons

Front 20

What's the order of proceeding in a Texas felony trial? List steps.

Back 20

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 evidence

6) Defense counsel makes defense's opening statement

7) Defense presents defense evidence

8) Rebuttal evidence is presented

9) Judge reads the charge or instructions to the jury

10) Counsel makes final argument to jury

* Exception: Upon request, D. counsel has option to make D. opening statement immediately after State's opening statement

Front 21

Hypo: State presents case in chief, rests. D. 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 21

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

Since this presents an issue for judge not jury, the motion shouldn't be made within hearing of jury.

Front 22

Basic trial motion for qcuittal without going to the jury is a motion for a directed verdict of not guilty. This should be made both:

Back 22

1) At end of State's case-in-chief;
2) At the close of all the evidence.

If made because evidence of venue is lacking, specify this.

Front 23

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.

A hearsay statement is admissible as against penal interest if:

Back 23

1) Statement is shown to have been incriminating regarding the declarant;

2) Reasonable person would not have made it unless she believe it to be true; and

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

Front 24

A hearsay statement against interest is admissible...

Back 24

Whether or not the out-of-court declarant is unavailable.

Front 25

In crimina litigation, a statement against penal interest is admissible only if corroborating circumstances indicate:

Back 25

it is trustworthy

Front 26

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

Back 26

1) Records were kept in regular course of business;

2) 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) Witness is the custodian of the records

Front 27

How can a business record be alternatively authenticated by Prosecutor?

Back 27

1) Obtain an affidavit of the custodian of the records cotaining all the elements identified in last answer;

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

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

Front 28

Generally, State can't intro evidence that D has a "bad character" to prove the D's guilt.

State can prove D's bad character:
1) If accused "puts his character in issue" by exercising his right to introduce evidence of good character; and
2) At punishment stage of the trial

What kinds of witnesses can character witnesses give?

Back 28

1) Witness's personal opinion as to the person's character (opinion character witness); or

2) What the witness believes is the person's reputation for the character trait (reputation character witness)

Character cannot be proved by evidence of specific instances of conduct

Front 29

Is reputation testimony admissible?

Back 29

It is hearsay, admissible under an exception.

Front 30

What are 2 bases for character testimony?

Back 30

1) Opinion testimony: witness is personally familiar with the person;

2) Reputation testimony: witness participated in discussions with others of person's reputation or overheard others discussing that reputation

Front 31

During cross-examination of character witnesses, inquiry into specific instances of conduct is permissible.

"Have you heard" questions is okay for--
"Did you know" questions is okay for --

Back 31

"Have you heard" -- reputation witnesses

"Did you know" -- opinion witnesses

Front 32

A reputation character witness must be shown to have participated in or overheard...

Back 32

... conversations regarding the reputation.

Front 33

At the guilt stage of a criminal trial, a character witness is qualified to testify as to D's character only if...

Back 33

1) On reputation, witness was substantially familiar with D's reputation prior to day of the offense; or

2) On personal opinion, witness was substantially familiar with the facts on which that opinion is based prior to the day of offense

Front 34

An extraneous offense is a crime of which the accused cannot be convicted in this trial.

Evidence of such offense is generally inadmisslbe. Only shows that accused is "bad person" and 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.

When might it be admissible?

Back 34

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

Front 35

Extraneous offense evidence may be admissible as relevant to (MIMIC)

Back 35

Motive
Intent or knowledge (where it's an issue)
Mistake or accident (to rebut)
Identity (when D has put that in issue)
Common scheme or plan

Front 36

A D puts his identity into issue (and triggers the State's ability to use evidence that he committed similar extraneous offense) by either:

Back 36

1) Introducing evidence that he was not the perpetrator, such as alibi testimony; or

2) Impeaching all the State's eyewitnesses

Front 37

Upon timely request by D., State must give Evidence Rule 404 (b) notice:

Back 37

1) Of intent to introduce evidence of other crimes, wrongs or "bad" acts;

2) Not arising in same transaction as charged crime

3) To be introduced in the State's case-in-chief

4) The notice must be given in advance of trial

Front 38

If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce

1) Any other part of that writing or recorded statement; or
2) Any other writing or recorded statement;

which should in fairness be considered by the jury at the same time. [Evid Rule 106]

When is the other party entitled t introduce this?

Back 38

Immediately

Front 39

If one party introduces part of an act, conversation or statement, other party is entitled to prove..

Back 39

"the rest of the subject." [Evidence Rule 107; Rule of Optional Completeness]

Front 40

Physician-patient privilege

Back 40

.. does not apply in criminal litigation

Front 41

Can prosecutor ask witness a question that reveals a statement by a person being voluntarily treated (or examined for admission) for drug or alcohol abuse to a person involved in the treatment or examination?

Back 41

No

Front 42

Describe the lawyer-client privilege

Back 42

An attorney's client has a privilege to have kept confidential a private community to the attorney (or attorney's rep, i.e. paralegal)

Front 43

Spouse of a criminal D. has a privilege not to be called as a witness to testify against D or to not testify against the D. What are exceptions when spouse may be called?

Back 43

1) Prosecution is for offense committed against
- any minor child;
- a household member of either spouse; or
- the pouse; or

2) The spouse is called by the State to testify about only matters that occurred PRIOR to spouse's marraige to D

* Privilege belongs to spouse-witness, who decides whether to waive it. Thus, no basis for D. to object to testimony if spouse voluntarily testifies for State

Front 44

Whether spousal privilege is available turns on whether witness is married to D...

Back 44

at time of trial.

Front 45

Any person (including a criminal D) 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.

Communication is "confidential" only if it was both...

Back 45

1) Made privately; and
2) Not intended for disclosure to any other person

Front 46

What are exceptions to privilege for marital communications?

Back 46

No privilege exists if:

1) Communication was made to commit a crime or fraud; or

2) Prosecution is for a crime committed against the person of
- any minor child;
- household member of either spouse; or
- the spouse

Front 47

Statements made in plea bargaining discussions with a prosecutor. Admissible?

Back 47

Inadmissible.

Front 48

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

Either side is entitled to have an attachment issued for a witness if both: __

Back 48

1) Witness has been properly subpoenaed; and

2) Witness fails to appears

Front 49

If D. properly subpoenaed and didn't appear as directed...

Back 49

counsel can get an attachment for D. to bring her into court.

Front 50

If prosecutor calls a 5 year old boy, what inquiry must the court make to ensure that boy is competent? Should inquiry occur on or off the record.

Back 50

Child witness should be examined by judge to determine whether witness has sufficient intellect to relate transactions regarding which hew ill be asked to testify.

If he does not have this, he is not competent; otherwise he is.

This should be on the record, to preserve any possible error for appeal.What

Front 51

List 4 methods of impeachment

Back 51

1) Bad conduct (prior convictions)

2) Contradiction

3) Showing character for untruthfulness

4) showing bias or interest

Front 52

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

Back 52

1) Conduct resulted in a final criminal conviction;

2) Conviction is not "stale" (gen: not more than 10 years since conviction or release from confinement, whichever is later)

3) Conviction was for a misdemeanor that involved moral turpitude or a felony; and

4) Prejudicial risk of injury is substantially outweighed by its probative value

Front 53

A party can impeach a witness for the other side by introducing extrinsic evidence that contradicts what the witness said, unless the witness's assertion is on a collateral matter.

When is a matter collateral?

Back 53

If impeaching party would not be able to prove it as a part of its own case.

Front 54

Matters can be explored on cross-examination in order to correct...

Back 54

A misleading impression left by the witness

Front 55

If witness given immunity from prosecution, is questioning him about this relevant?

Back 55

If there is an immunity agreement, this shows a motive for the witness to falsify and thus bias or interest. Inquiry into any such agreement is proper cross-examination

Front 56

If a witness's conviction is still on appeal, can conviction be used to impeach?

Back 56

No, conviction must be final to be used to impeach.

Front 57

Can a party impeach the credibility of the party's own witness?

Back 57

Impeachment would be done by asking the witness about the prior inconsistent statement made by the witness to defense counsel. In doing this, defense counsel must:

1) Tell witness the contents of the prior inconsistent statement;
2) Tell witness the time and place of that statement and the person who 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 admitted.

Front 58

A misdemeanor conviction can be used to impeach only if it is for a crime involving moral turpitude.

Back 58

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

Crime that does not involve moral turpitude: DWI, drunkenness, assault, possession of marijuana, liquor law violations, unlawfully carrying weapon.

Front 59

Details of a prior conviction used for an impeachment can/cannot be developed.

Back 59

Cannot

Front 60

A witness may be impeached by a conviction resulting in probation until and if...

Back 60

the probation has been successfully completed.

Front 61

Otherwise improper cross-examination is permitted if necessary to correct a misleading impression created by...

Back 61

a witness's unresponsive answer.

Front 62

A party can contradict a witness's testimony with extrinsic evidence only if ...

Back 62

the matter is one the party would be able to prove as part of the party's own case.

Front 63

In making trial rulings, the judge must not:

Back 63

1) Comment on the weight of the evidence; or

2) Convey to the jury the judge's opinion of the merits

Front 64

Upon request of either party ("invoking the Rule") witnesses must be excluded from the courtroom except during their own testimony.

If a witness is found to have violated the rule, the trial court may...

Back 64

1) Hold the witness in contempt; and/or

2) Exclude the testimony of that witness

Front 65

If counsel invokes "the Rule" re excluding witnesses from the courtroom, court should also admonish each witness as to:

Back 65

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

2) Those persons the court determines the witness may not talk to.

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

Front 66

When "The Rule" for witnesses is invoked, exclusion is not permitted of:

Back 66

1) The defendant;
2) 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; 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 D. is not exempt from the "Rule" in criminal trials.

Front 67

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

In criminal cases, a party against whom expert testimony is offered has a right, upon request...

Back 67

To voir dire the expert on the facts or data upon which the testimony will be based before the witness testifies to the opinion (Discretionary in civil cases)

Front 68

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

Back 68

1) Acceptance of underlying scientific theory and technique as valid by the scientific community;

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

3) Potential error rate of the technique;

4) Qualifications of the expert offered to testify;

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

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

7) Experience and skill of person who applied the technique in this case

Front 69

In a criminal case, a party has a right to conduct a voir dire examination of an expert's facts and basis for opinion before the witness

Back 69

...testifies to an opinion

Front 70

A party is entitled to a writing if witness for other side used it:

Back 70

1) To refresh her memory before her testimony; or

2) To refresh her memory during her testimony.

Front 71

A party is entitled to the prior written or recorded statement of a witness for the other side (or a statement of the witness made to a grand jury) after...

Back 71

that witness has finished direct examination (does not apply to defendant)

Front 72

What is the "Use Before the Jury" Rule?

Back 72

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 contests become an issue.

Front 73

Does the 'work product' doctrine apply for disclosure during trial?

Back 73

No. Just applicable pre-trial.

Front 74

What sanctions may the court impose if Prosecutor refuses to produce the statement?

Back 74

The court shall order that the direct testimony of the witness be struck from the record. It may also dismiss the prosecution if it determines that the interests of justice require this.

Front 75

A photograph is admissible if a witness would be permitted to give a verbal description of what the photo shows. Authentication of a photograph generally requires that a "sponsoring" witness testify that--

Back 75

1) Witness saw the matter shown in the photo; and

2) Photo accurately depicts what the witness knows the matter looked like

Front 76

Federal Constitutional Rule:
Evidence obtained as a result of a violation of the D's Fourth, Fifth, or Sixth Amendment rights can't be used to prove the D's guilt.

Compare with TX Statutory law.

Back 76

TX's exclusionary rule is broader than that of any other jurisdiction. Evidence may not be admitted against the accused at trial if it was obtained by an officer or other person in violation of:

1) Constitution of the US;
2) Laws of the US;
3) Constitution of TX;
4) Laws of TX

Front 77

"Good Faith" Exception to Texas Rules states that illegally obtained evidence is admissible if it was obtained by an officer...

Back 77

1) Acting in objective good faith reliance upon a warrant; and

2) This was issued by disinterested magistrate based on probable cause

*Sometimes under TX law whether evidence was illegally obtained is a question for the trial jury

Front 78

To get to jury on motion to suppress evidence...

Back 78

Raise a contested question of fact before the jury concerning the legality of manner in which the evidence was obtained.

Front 79

If can get to jury on question of illegally obtained evidence, what should jury be told by judge in instructions?

Back 79

Jury should be told to consider whether the evidence was illegally obtained. It should be further told that it should disregard the evidence unless it finds the State proves beyond a reasonable doubt that the evidence was legally obtained.

Front 80

The trial judge develops a proposed jury charge (instructions) and submits it to both sides.

In the charge, the judge is not to:

Back 80

Summarize the evidence; or

comment on the evidence.

Front 81

Giving the jury charge,

1) Judge must read the charge to the jury in court;
2) Done before the lawyers make final arguments;
3) Jury is also given a written copy of the charge.

Error in the jury charge can be preserved by either...

Back 81

1) Injunction or

2) Request for a special charge containing correct law

Front 82

After both sides have rested and closed, the court directs that any requested special charges and objections to the charge be heard. Defense counsel decides to make her requests and objections orally. List 2 of 3 objections tha tmust be met in order for counsel to make these requests and objections orally, and state whether counsel must later reduce them to writing.

Back 82

An oral objection or request is sufficient if:
1) It's dictated to the court reporter;
2) In the presence of the judge and the prosecutor; and
3) This is done before the final charge is read to the jury

If these requirements are met, counsel is no longer reduce them to writing.

Front 83

Objections and requests for charges must be in writing, BUT this can be accomplished by...

Back 83

...dictation to the court reporter

Front 84

Error in the jury charge is subject to special harmless error criteria, under which a conviction may be reversed for "fundamental" error despite the lack of a trial objection...

Back 84

1) Preserved error requires reversal of it results in "some harm"

2) Unpreserved error requires reversal, but only if it results in "egregious harm" and thus prevents a "fair trial." [Almanza rule]

Front 85

Reasonable doubt generally should not be defined in the jury charge because...

Back 85

definitions are not likely to be helpful.

Front 86

Is D. entitled to a jury instruction on the D's failure to testify?

Back 86

Instruction should tell the jury that a D. has a right to not testify and his failure to testify should not be taken as a circumstance against him. It should make clear to the jury that it should draw no adverse inference against the D. from his failure to testify.

Front 87

Name some defenses.

Name some affirmative defenses.

* chart on p. 72*

Back 87

1) Mistake of fact, entrapment, necessity, self-defense, defense of others, defense of property.

2) Insanity, mistake of law, duress

Front 88

Exceptions, but not defenses or affirmative defenses must be negated...

Back 88

in the charging instrument.

Front 89

A jury charge should refer to a D. or an affirmative defense only if...

Back 89

evidence supporting the matter has been introduced.

Front 90

In making final arguments, the lawyers are limited to 4 subjects:

1) Summation of the evidence;
2) Making reasonable deductions from evidence;
3) Answering arguments of opposing counsel; and
4) Making pleas for law enforcement.

What's counsel NOT permitted to do?

Back 90

1) Comment on D's invocation of self-incrimination rights

2) Express personal opinions

3) Argue what the community demands;

4) Strike at D. over the shoulder of the defense counsel

Front 91

Order of arguments is regulated by the judge. In a felony case, the arguments may never be restricted to a number of addresses less than 2 on each side. BUT, state must have right

Back 91

... to argue last.

Front 92

Prosecution cannot prove or comment on

1) D's failure to testify at trial;
2) D's silence after arrest and Miranda warnings; or
3) Under TX law, the D's silence after arrest

BUT, prosecution can comment on...

Back 92

silence before arrest.

Front 93

Some kinds of evidence require corroboration. Name them.

Back 93

- accomplice testimony ("accomplice witness" rule)
- D's out of court confession ("Corpus Delicti" Rule)
- Sexual assault victim's testimony
- Some testimony by an undercover informer
- "Jailhouse Snitch" testimony

Front 94

Describe the Accomplice Witness Rule

Back 94

Accomplice witness: Witness who could be convicted of the crime charged

A D can't be convicted on the testimony of an accomplice unless there is corroborating evidence that tends to connect the D to the crime

Front 95

Describe the corpus delicti rule?

Back 95

Confession corroboration. A D can't be convicted on an out-of-court confession unless there is corroborating evidence of the "corpus delicti," that is, evidence tending to show that a crime was in fact committed.

Front 96

Describe the sexual assault victim rule.

Back 96

A D cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the D to the offense unless:

- victim told someone other than D about offense within 1 year of commission;
- victim was under 18 years of age at time of crime;
- victim was impaired, unable to satisfy need for food, shelter, care, protection; or
- victim was 65 years of age or older

Front 97

Describe the "Jailhouse Snitch" Rule

Back 97

A conviction cannot rest on the testimony of a person to whom the D made a confession while that person was confined in jail with the D. Testimony of such a person must be corroborated by testimony tending to connect the D to the offense.

Front 98

In a prosecution for a drug offense, conviction can't rest on the uncorroborated testimony of a person not a law enforcement officer, who acted...

Back 98

covertly for or under color of law enforcement.