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141 Cards in this Set

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Define arrest.
actual rstraint or custody
Will an attempted arrest or seizure constitute a seizure under the 4th Amendment?
No - must be an actual arrest or sizure
When do you need an arrest warrant?
*public place = NO - only probable cause
*at a residence = YES (unless consent OR exigent circumstances)
Depends on the place.
Consequences of unlawful arrest?
Will NOT require reversal of conviction BUT any evidence seized pursuant to an illegal arrest is generally subject to exclusion.
If a police officer lawfull searching a vehicle discovers drugs in car - is there probable cause to arrest all occupants for possession?
Yes - take them all down to the station and then sort it out (whose drugs were they?)
Will a Miranda warning save a confession that was the product of an illegal arrest?
What is a pretextual arrest? Are they ok?
Pretextual means the officer stopped a person for one reason but really had another reason in mind (just didn't have probable cause for that reason).
Yes, both federally and in Texas.
When is a warrantless arrest ok? (Texas law)
Probable Cause AND one of the following:
1. committed felony & about to escape
2. suspected committed offense w/i presence/view of arresting officer
3. suspicious place + Probable Cause - that committed felony or misdemeanor breach of the peace (= DWI; public intoxication; indecent exposure; disorderly conduct)
4. found in possession of stolen property
5. violates family order against family violence
6. suspect assaults another person and RB further injury likely
7.suspect assaults and injures a family/household member
There are 7 statutory circumstances.
When does an officer have probable cause for an arrest?
*Factual knowledge
*based on reasonable/trustworthy info
*that person has/is committing offense
Info can be from citizen; PK of officer or other officers; informant (including hearsay)
Is there probable cause based on anonymous tip?
Depends -
If solely = No;
If corroborated by other reliable info = Yes
T/F: Search valid when probable cause to arrest existss prior to search incident to arrest.
Can there be "transferred Probable Cause?
Yes - if arrested for crime A but probable cause exists to show that defendant committed crime B, the arrest for crime A is valid.
What must be included in an arrest warranty?
Probable cause exists + all of the following 5:
1. written order of magistrate
2. name of offender/reasonable description
3. nature of offense
4. signed/dated by magistrate
5. office of magistrate stated
5 things that must be contained in the arrest warrant?
Must a warrant bein the actual possession of the arresting officer?
What time of day can an arrest be made?
Any time - day or night.
What force is an arresting officer permitted to use?
Reasonable force
May the police break down a door?
Yes, after they give proper notice ("knock and announce")
When must a suspect be taken before a magistrate? (time)
Without unnecessary delay
What are the duties of a magistrate at their initial appearance?
1. Inform defendant of charages
2. Inform defendant of right to retain counsel or to appoint counsel if indigent
3. Miranda rights (including right to terminate at any time)
4. Right to an examining trial (limited to pre-indictment felonies!)
5. If authorized by law, set bail.
When does a suspect have a right to an examining trial?
Pre-indictment felonies
Define search.
Gov'tal activity that invades a person's reasonable expectation of privacy - key question: did the person have a reasonable expectation of privacy?
Define Seizure (person).
Detention of person where person is not "free to leave" based on reasonable-innocent person std. (note it's an obj. std, not a subj. std!)
Define Seizure (property).
Significant governmetnal intrusion into a person's right of possesion.
KEY: SIGNIFICANT intrusion & right of possession.
When does an arrest constitute a seizure of the person?
Trick question - always!
Are investigative detention stops (including traffic stops) seizures?
Are consensual encounters seizures?
Are searches by a private citizen w/i scope of 4th Amendment?
Are all searches or seizures violative of the 4th Amendment? If not - what is the std?
No! Std.: unreasonable searches/seizures.
What are the constitutional requisites that arise when search warrant issued?
1. probable cause set forth in it
2. sworn affidavit that:
3. particularly describes the place/things to be seized
4. is issued by a neutral and detached magistrate
5. "knock and announce rule followed unless reasonable grounds for believing evidence would be destroyed or dangerous to officers if notice is given.
There are 5.
Explain the Texas statutory good-faith exception.
Where (i) defective warrant has been issued by a magistrate & (ii) warrant based on probable cause -- if executing officer OBJECTIVELY believes IN GOOD FAITH that warrant is valid, evid. admissible.
How does the court determine whether a search or seizure is unreasonable?
Balancing Test:
(i) degree of gov'tal intrusion into person's privacy
(ii) gov't's legitimate reasons for the intrusion
Balancing Test
What types of seizures require a search warrant, no exception?
houses, electronic surveillance
When can police enter a residence w/o first giving notice and knocking? (not violate "knock & announce")
Reasonable, articulable suspicion that either:
1. evidence will be destroy
2. dangerous for police to first knock & announce
3. futile to first knock & announce
4. waiting 15-20 secs after announcement, before forced entry, is reasonable while executing drug warrant
Use common sense
Is there a search where a trained police dog sniffs luggage at airport? What about the exterior of vehicle lawfully stopped?
No and No.
Is there a search where the police attach electronic beeper to suspect's car for surveillance purposes on public roads?
What is the first question to ask yourself when dealing w/ search and seizure?
Is there a reasonable expectation of privacy?
Is there a search where police use pen register to record telephone numbers dialed by suspect but not the conversation?
Is there a search where police officer uses a flashlight to look into interior of car?
Is there a search where border patrol agent enters a commercial bus and squeezes luggage to determine whether drugs are present?
Is there a seizure under the 4th Amend.: police approach suspect on street who flees?
Is there a seizure under the 4th Amend.: police stop suspect in high drug area who flees at sight of approaching officers?
Is there a seizure under the 4th Amend.: police approach suspect and order him to "stop" which suspect does?
Is there a seizure under the 4th Amend.: suspect flees from police and is physically subdued?
Is there a seizure under the 4th Amend.: random drug testing of high school athletes?
Is there a seizure under the 4th Amend.: police refuse to permit owner to enter his residence for 2 hrs while search warrant is sought?
Who has standing to challenge legality of search and seizure?
5 elements:
1. defendant assert his 4th Amend. rights were violated
2. evid. obtained is intended to be used against him in a criminal trial
3. defendant be victim of an alleged illegal search or seizure
4. defendant assert that his & not some other person's rights were violated (personal and may not be vicariously asserted!)
5. test: whether defendant has a legitimate or reasonable expectation of privacy in place searched or property seized
5 elements - remember personal nature of the 4th Amend.
Do passengers have standing to challenge search of glove compartment, underneath passenger's seats, trunk?
No - they don't own/aren't driving the car - so no expectation of privacy.

But remember - if ON passenger then will have standing.
Would a defendant that hid drugs in girlfriend's purse have standing to challenge search?
No - didn't have a reasonable expectation of privacy in his g/f's purse.
T/F. A statement does not have to be voluntary.
False - all statements/confessions by an accused must be voluntary to be admissible in a crim trial.
Can Congress overrule Miranda?
No! Constitutional - would take a constitutional amendment.
By what std. does the court review the voluntariness of a statement?
"totality of the circumstances" - so case by case basis looking at age of accused; length of interrogation; whether force, threat, or deception was used to elicit the confession/statement.
When can a statement by a mentally ill person be voluntary?
if no police coercion was involved.
When is an accused's statement/confession to jail plant admissible?
If made voluntarily before formal charges have occurred (indictment, arraignment, prelim hearing)
Are there any purposes for which an involuntary statement is admissible?
NO, neither substantively, nor for impeachment purposes.
What is the std. on appeal if involuntary statement erroneously admitted at trial?
Harmless error analysis - P must prove BRD that error didn't affect verdict.
What are six reasons that a statement may be inadmissible?
1. involuntary
2. direct product of Miranda violation
3. 6th Amend. right to counsel violated
4. direct product of illegal arrest
5. unnecessary delay in bringing defendant before magistrate following arrest
6. violation of TX confession statute
When are Miranda warnings required?
prior to custodial interrogation
Define custody
arrest or any significant restraint on freedom of movement of person
Define interrogation
(a) express questions designed to elicit a statement OR
(b) functional equivalent (know/should know reasonably likely to produce statement by accused.
Give examples of when Miranda does not apply -
routine traffic stop; routine investigatory questions; booking questions; voluntarily appears, free to leave, but submits to questioning
What are the procedures required when accused challenges voluntariness of statement?
7 steps:
1. motion to suppress
2. trial court holds hearing (Jackson-Denno hearing):
a. outside presence of jury
b. makes independent finding of whether voluntary
3. court enters order stating its conclusions w/ specific findings of fact
4. don't tell jury how judge ruled
5. if statement held voluntary - then jury charge must inform jury that confession isn't admissible for any purpose unless jury believes BRD = voluntary
7. Texas law - defense may challenge voluntariness even after trial court found it voluntary
What are the two aspects of Jackson-Denno hearing?
Hearing outside presence of jury where judge makes independent finding whether statement voluntary or not
What must be on the face of a written statement - when result of custodial interrogation?
1. defendant given proper Miranda warnings
2. defendant, prior to & during, knowingly, intelligently, and voluntarily waived his rights
3. confession is handwritten by the defendant or signed by defendant
When is an oral statement - that is result of custodial interrogation - admissible?
6 Elements:
1. electronic recording made
2. received proper Mrianda warnings, including right to terminate at any time
3. knowingly, intelligently, & voluntarily waived his Miranda wrights
4. recording device was accurate, operator was competent, recording accurate & not altered
5. all voice identified
6. defense atty given accurate & complete copy of all recordings at least 20 days prior to trial
6 element (think normal pre-reqs to entry of evidence)
Besides the general rule, what are the other times that an oral statement is admissible?
1. confesses in open court; before GJ; or at examining trial
2. spontaneous statements by defendant
3. oral confession is corroborated by other reliable evidence
4. statement not a produce of custodial interrogation
5. to impeach credibility of defendant's testimony
Explain differences b/w (i) pre-arrest silence; (ii) post-arrest, pre-Miranda silence; (iii) post-Miranda silence
(i) admissible to impeach credibility
(ii) TEXAS only - inadmissible to impeach a testifying defendant
(iii) not admissible to impeach a testifying defendant
What pre-trial discovery rights does a defendant have?
None - zero, zip, nada. Trial court has discretion to permit some discovery.
What is generally discoverable upon a request and showing of good cause?
documents; papers; written statements (including confessions) by defendant; books; letters; photos/video recordings; tangible objects
What is generally not discoverable even upon motion/good cause?
police reports; reports of expert witnesses (results should be disclosed); GJ testimony; autopsy reports; original tape recordings; fingerprints of accused; blood/urine/breath tests for cases under Motor Vehicle Act; list of prosecution witnesses
What does the defense have a right to in pretrial discovery?
Right to have independent expert examine & test drugs/conduct independent ballistic exam (+ anything subj. to Brady)
Brady rule - what does the P have to share?
Affirmative duty to know of/learn of, any exculpatory material evid. in custody of police and then disclose it to the defendant.
What does material mean in the Brady context?
material if there is a reasonable probability that had the evid. been disclosed to defense - result would have been different. But not result determinative - rather question of fair trial or not.
What must the defense show to require dismissal of charges when prosecution failed to preserve potentially useful evid. of the defense?
That the evid. was destroyed in bad faith on part of police.
Must the P disclose an unsigned statement that conflicts with a witness's prior damaging statement?
Yes! Affirmative duty to disclose material, culpable evidence (could use for impeachment purposes).
What is the primary function of the grand jury?
determine if probable cause exists to formally charge person (= reasonable good faith belief defendant committed crime)
What rights does a defendant have at a grand jury proceeding?
None - not right to appear before GJ; no right to present evid.; no right to cross examine GJ witnesses
Key word: ex parte
How many people serve on a GJ? How many necessary to indict? If they find pc - what is the indictment called? If they don't find pc - what is the indictment called?
12 serve; 9 necessary to indict; if indict = true bill; if don't = no bill
Who may be present during GJ proceeding?
1. P & staff
2. Witnesses being examined
3. Grand Jurors
4. Court reporter
5. Interpreter if necessary
When is an examining trial available? What is the purpose? Who is it held before? What is the consequence?
Available = pre-indictment + charged w/ felony
Purpose = is there probable cause to hold defendant?
Held before = Magistrate
Consequence = defendant goes free (no bail required) but can still be indicted; not a finding of innocence (also a way for defendant to get discovery)
When may a defendant make a statement at an examining trial?
must be before any witnesses testify (unsworn/voluntary)
When may a defendant waive the right to be indicted for a felony offense?
1. represented by counsel
2. waiver is in open court or by written instrument
3. is voluntary
4. state is not seeking death penalty
Do the rules of evidence apply at GJ proceedings? at an examining trial?
GJ = no & no exclusionary rule either
Examining trial = yes
Is the State obligated to present exculpatory evid. at GJ proceeding?
No - but juror's will probably ask for it.
Who may be present during GJ deliberations?
Only grand juror members - if anyone else is present = invalid!
Who is subject to the grand jury "secret" rule? IF violated = what punishment?
1. grand jurors
2. bailiffs
3. court reporters
4. prosecutors
disclosure = fine and imprisonment (why? protecting the innocent from tarnished reputation)
Who is exempt from grand jury "secret" rule?
witnesses are exempt
What is the term of the Texas GJ?
90 days, subj. to one 90 day extension
What warnings is a defendant appearing before a GJ entitled to?
1. right not to answer questions that may incriminate
2. offense he is suspected of committing
3. right to have counsel outside jury room - may consult w/ before answering any question
4. right to have questions & answers recorded
When is a transcript available to a defendant?
particularized need shown - ie witness dies before trial and wants to preserve testimony for trial
Can a grand jury/prosecutor compel a defendant to appear?
Yes but cannot compel defendant to testify - call in, swear in, ask questions; defendant must invoke 5th Amend. right on a question by question basis
When must a defendant object to any defect/error/irregularity in form/substance of an indictment?
day before trial or else waived.
What is the motion defense brings to object to indictment?
Motion to Quash
What are the two defects in an indictment that render it invalid even if not raised before trial?
1. Failure to allege name of defendant (if name was incorrect, needed to correct it at the arraignment (can't sit back and wait).
2. Failure to allege a crime (looking for a lack of mens rea specified)
Is the indictment if grad juror foreman fails to sign?
Yes - foreman must sign but if doesn't, not invalid.
Can an indictment be challenged on basis of insufficient evidence?
No - nothing in crimpro similar to SJ motion in civpro.
What is the procedure for P to amend indictment? Before trial begins? After trial begun?
If before trial -can't amend over D's objection if: causes to allege different offense or additional offense; violates substantial rights of defendant
After - if defendant objects, prohibited (regardless of why D objecting)
What must appear on the face of the indictment?
1. commence "in the name and by authority of the State of Texas
2. that indictment was presented in d.c. of county where GJ indicted
3. indictment acted upon by GJ in proper county
4. name of person indicted (or if name unknown - reasonable description)
5. place of offense (venue)
6. offense charged is in clear & plain language (got essential elements of crime - look out for mens rea!)
7. indictment must conclude: "against the peace & dignity of the State", and
8. be signed by the foreperson of the GJ
When can bail be denied?
1. capital murder (if substantial evid. of guilt)
2. D charged w/ felony + 2 prior consecutive felony convictions
3. D presently on bail for felony offense & charged w/ committing another felony while on bail
4. D charged w/ a felony involving use of a deadly weapon & has prior felony conviction
5. D is charged w/ violent/sexual felony while D was on probation or parole for prior felony
What are the bail factors?
1. large enough to reasonably assure D will show
2. not excessive/instrument of oppression
3. type of crime charged
4. D's financial resources
5. Safety of vic & community
What conditions may be imposed on the release on bail?
Key word: reasonable conditions
1. stay away from child vic of offense/specific locations
2. submit to electronic monitoring & stay home
3. submit to home curfew
4. submit to breath analysis device attached to car
5. not communicate w/ victim, or go near vic's residence/workplace
What is the competency std?
(i) whether D has present ability to consult w/ his lawyer w/ reasonable degree of rational understanding
(ii) whether D has a rational as well as factual understanding of proceedings against him
What is the evidentiary std. for incompetency?
shown by preponderance of evidence - burden on movant (remember judge can raise it, P can raise it, defense counsel can raise it)
Does D have a right to effective assistance of counsel during plea bargaining process?
Yes - Sixth Amend. right.
What is an Alford plea?
fed ct may accept guilty plea where D claims factual innocence but record reflects an otherwise voluntary guilty plea
What conlaw rights does D waive by pleading guilty?
1. privilege against self-incrimination
2. right to jury trial
3. right to confront adverse witnesses
4. right to call witnesses on his own behalf
5. right to be convicted by proof BRD
What are pre-reqs of guilty plea?
voluntary and knowing waiver
that D must have when makes it
What must a Texas court determine before accepting a guilty plea to a felony charge?
1. competent
2. voluntary
3. knowlingly waiving certain rights
4. any rec. by P is not binding on court
5. D's right to appeal may be restricted
6. whether court intends to follow plea agreement
7 punishment range to offense plead
8. if D not American citizen then may be subj. to deportation or denial of citizenship
Who decides what plea D will enter?
What is the evidentiary std for venue?
proved by a preponderance of the evidence
What are the steps in crim trial?
1. charge read
2. plea by D
3. P makes opening statement
4. D can choose to make opening statement or wait.
5. P presents case in chief
6. P rests
7. D motion to instructed verdict
8. D makes opening statement unless already did or waived it
9. D's evidence
10. D rests
11. Rebuttal & Sub-rebuttal
13. P closes
14. D closes
15. Objs to court's charge
16. Charge read to jury
17. Final arguments (State opens and closes here)
18. Jury deliberations
19. Verdict
What is a unique aspect of a Texas criminal trial?
Bifurcated - first guilt determined then punishment determined (w/ punishment stage follows the steps in the guilt stage)
How is voir dire conducted?
GR: entire panel
Death penalty case: individually
Exception for death penalty case
How many jurors in a:
felony case?
misdemeanor case?
Felony = 12
Misdemeanor = 6
What are the absolute disqualifications (can't be waived)?
conviction for felony/theft; pending charge for felony/theft OR
presently insane
List six reasons why a juror may be dismissed for cause.
1. can't read/write
2. witness in trial
3. juror in grand jury proceedings
4. biased/prejudiced in favor of/against D
5. bias/prejudice against law
6. reached conclusion in case which will influence his verdict
What are the two ways to disqualify potential jurors?
1. challenge for cause
2. peremptory challenge
How many challenges for cause does each side get?
How many peremptory challenges does each side get?
Capital = 15
Non-capital felony = 12
Misdemeanor = 3
Define peremptory challenge.
Remove juror for any reason except gender (JEB) or race (Batson)
Who does Batson/JEB apply to?
Prosecutor, Defendant, & in civil cases
Describe Batson procedures
Bring a Batson challenge:
1. Before jury sworn/emplaneled
2. make prime facie case of purposeful discrimination
3. once prima facie case shown, burden shifts to other party to show racial-neutral reasons for peremptory challenge
4. burden shifts back to objecting party to rebut the other party's explanantions
Remedies for Batson/JEB violation
1. start over = call a new array
2. disallow challenges and seat improperly challenged jurors
What is a motion in limine?
Allows parties to obtain an advance ruling from trial court on whether evid. will be admissible at trial - basically means that the party wishing to present evid. must go to the bench before introducing to get a final ruling
What is the important procedural diff. b/w motion in limine and written pretrial motion to suppress?
Motion in limine ruling doesn't preserve error because final judgment isn't until trial; Written pretrial motion to suppress will preserve error for appeal
Who is the exclusive judge of facts?
When is the charge read in Texas? in Federal case?
Texas = prior to closing arguments
Federal = after final arguments
How much time does each side get with the proposed charge before it is read?
reasonable time to examine and make objections
What must the charge include/do?
1. set out applicable law
2. apply the law to the facts
3. not express any opinion on the weight of the evid.
4. not summarize testimony/facts
5. make no statement calculated to arouse sympathy or passions of jury
Better question - what can't the charge do?
5 things total
May the defendant select judge for one portion of bifurcated trial and the jury for another?
Yes - must be made pre-trial; default is judge. D can plead guilty and still elect jury for punishment phase.
May D change election of judge or jury after makes first election?
Yes - BUT must get consent of the State.
If D wants the option of probation - what must D do?
File pre-trial application for probation that verifies D never before been convicted of felony in this state, any other state, or a court of the U.S. (verified = sworn)
How long can a sentence for probation be?
no longer than 10 years
How does deferred adjudication defer from community supervision?
Deferred adjudication - no finding of guilt unless D violates then guilty charge entered & subjected to any potential punishment for crime; not limited to the time specified for deferred adjudication
Community Supervision - guilty verdict entered but if violates terms of community supervision then can only be sentence to jail for as long as community supervision was for (although discretion to dismiss charges)
When may the judge order probation?
Can't give if =
(a) conviction for a 3(g) offense OR
(b) deadly weapon finding is made
Can't recommend it if (but jury may):
(a) murder OR
(b) sex offense w/ child under 14
May the D get a jury trial to determine if community supervision should be revoked?
What is the evidentiary std for revoking community supervision?
by preponderance of the evidence
Does the failure of the jury to reach a unanimous verdict at the punishment stage result in a mistrial?
Yes but jeopardy doesn't attach at that point.
What evidence may the jury consider during punishment deliberations?
All evidence it heard at punishment stage as well as all evidence heard in guilty/innocence stage.
What must be included in an affidavit for a search warrant to est. PC?
1. offense has been committed
2. specifically describe property/items that are to be searched for or seized constitute evid. of that offense, evd. that a particular person committed the offense, contraband, or are otherwise subj. to seizure
3. proper. or items to be searched for or seized are located at or on particular person/place/thing to be searched
What can either side do to secure the appearance of a witness?
subpeona them
What can either side do after a witness has failed to appear?
ask for ATTACHMENT = directs a peace officer to locate Associate and bring him before the court to testify; available only if
(i) had subpoena and
(ii) witness actually fails to show up at court in compliance w/ subpoena