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68 Cards in this Set

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Where does the arraignment take?

What functions does it serve?
It takes place in the trial court.

It serves multiple functions:
1) The accused enters a plea;
2) This is the point for fixing the accused's identitity;
3) (if not already done), the judge appoint counsel (indigent)
What pleas may an accused enter?
Not guilty, guilty, nolo contendere
What are some decisions that a criminal D must personally make?
1) What plea to enter

2) Whether to have a trial by jury

3) Whether to himself take the witness stand at trial
When must defense intent to introduce evidence that he was insane at time of crime be presented?
10 days before trial.
Is there any difference in pleading nolo contendere rather than guilty?
No difference in the criminal prosecution.

If civil litigation arises out of the same incident, a plea of guilty could be used as evidence again D. A plea of nolo contendere could not be so used.
What are some admonitions trial judge must give D. before accepting a felony plea of guilty or nolo contendere?

** frequently asked ** memorize at least 3
1) Inform D of range of punishment

2) Inform D that recommendations by State are not binding

3) Inform D of the limited right, after a guilty plea, to appeal

4) Inform D that plea may result in deportation, exclusion from US or denial or naturalization; and

5) Inquire as to whether there is a plea bargain
Can a plea of guilty be entered if D can't sign the written admonishments?
Yes, because they can be given in either writing or orally.
Can a guilty plea be withdrawn?
Yes, at any time before the trial court takes the matter under advisement.
Is a withdrawn guilty plea admissible as evidence?
Evidence Rule 410 makes inadmissible withdrawn pleas of guilty or nolo contendere
Does a trial judge have to set a case for pre-trial hearing and conference?
He may, but need not.
If a pretrial hearing and conference is set, parties must do what 7 days before hearing?
1) Enter any special plea;
2) Make challenges to indictment;
3) Make motions for continuances;
4) Make motions for change of venue;
5) Make motions to suppress evidence;
6) Make requests for discovery;
7) Raise claims of entrapment
What effect does scheduling a pre-trial hearing and conference have on how the defense challenges the indictment?
Motion to quash must be filed 7 days before the trial hearing, not just before the day on which trial begins. If not filed before then, it can't be raised later except by permission of the court on the basis of good cause.
Does the D have the right to be present at any pretrial proceeding?
Yes
What is a motion in limine?
Pre-trial motion that asks for:

1) Pre-trial ruling on merits of some question on evidence or procedure that will arise during trial; AND/OR

2) Pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury
Does a motion in limine preserve any error (ie, for appeal?
No. Even if granted, object as if it hadn't been.
Name the purpose of a motion to suppress.
A motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible.

Most often, used to raise a contention that evidence has been illegally obtained or a confession is inadmissible.
What are ways for defense to raise admissibility?
Counsel may

1) Make a pre-trial motion to suppress the evidence; or
2) Wait and object at trial

Generally, pre-trial motion to suppress is preferred method for exclusionary rule stuff
Does a pre-trial ruling on a motion to suppress preserve the issue for appeal? How about a pre-trial ruling on a motion in limine?
Yes to motion to suppress; no to motion in limine.
What issues may prosecutor inquire to at hearing on motion to suppress?
Only matters related to the hearing issues; cannot extend to guilt of charged crime.

If d. testifies at pre-trial hearing, he does not waive his right to remain silent at rest of trial.
What are witness lists?
Trial judge has discretion to order State to provide the defense with a list of witnesses that the State intends to call.

Discretion to order either/both sides to provide the other with a list (names and addresses) of expert witnesses it may call at trial (at least 20 days before trial date)
Who may order a deposition and how does this happen?
Either side may be permitted to depose a witness. Trial judge must issue an order authorizing the deposition. Party must show "good reason" for deposition

V. rare in criminal cases
Who has authority to order the State to permit the D. to inspect certain things (inspection/ "real discovery")
Trial judge
When must inspection be ordered? Does it require giving up possession?
Mandatory if:
1) thing is a tangible thing;
2) constitutes or contains material evidence;
3) is in possession of the State; and
4) is not "work product" of the State

Can't require State to give up possession
Inspection must be sufficient to __
Give accused the information necessary to prepare for trial
What other "discovery" requirements?
D. may request State to provide notice of

1) rules 404(b) extraneous offense evidence at guilty;
2) Art. 37.07, Sec. 3g extraneous offense evidence at punishment
How can defense obtain testimony of witnesses who testified before the grand jury?
Must show "particularized need"
What is main rule of inspection?
Work product.

1) Physical evidence not covered work product;

2) Work product covers reports of state employees, policy reports, and witness statements
What result if State seeks to offer testimony of witnesses whose names were not on list provided to defense?
Discretionary with trial judge. Relevant considerations include:

1) Whether omission was intentional;
2) Whether defense received actual notice that witness would testify
Regarding witnesses, what does trial court have authority to order?

** Asked multiple times
1) Has authority to order D to furnish a list of expert witnesses, names, addresses.

2) Lacks authority to compel D's summary of anticipated testimony (expert)

3) In regards to non-expert witnesses (fact witnesses), no authority to compel D. to provide the state with any information at all.
Is identity of an informer privileged?
Yes, can be withheld by the State.

Disclosure may be required in 2 situations:

1) Informant provided information by which the State obtained evidence in a way the D. 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
Describe the federal constitutional duty to disclose exculpatory evidence?
D's due process under Brady v. Maryland are violated if:

1) Possession fails to disclose exculpatory info that is in its possession; and

2) Info that is "material" which means if it had been disclosed, there is a reasonable probability the outcome of the case would have been different
When must exculpatory evidence must be disclosed?
1) if it's material

2) If it's in possession of trial prosecutor; another prosecutor; or police
When is a conviction invalid for nondisclosure?
Only when nondisclosed exculpatory evidence is material
Under federal due process and TX statute, criminal proceedings cannot continue if D is incompetent to stand trial.

When is a D. incompetent to stand trial?
1) She lacks the ability to consult with counsel with a reasonable degree of rational understanding; or

2) She lacks a rational and factual understanding of the proceedings
If after being found incompetent to stand trial, D's condition improves, what result?
D. can be determined competent and prosecution can proceed.
How can competency be raised?
1) Defense of State may by motion suggest the D may be incometent; or

2) Trial court may on its own motion suggest the D. may be incompetent. Trial judge MUST suggest on its own motion if evidence sugesting this comes to attention of court.
How is competency issue determined?
1) Trial judge makes a preliminary inquiry;

2) If it shows significant evidence of incompetency, judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury.
What is the legal presumptiona bout competency?
That a D is competent.

To rebut, defense must show by a preponderance of the evidence that he lacks the ability to consult with counsel or lacks an understanding of the proceedings.
** Multiple exams**

How does incompetency differ form insanity under TX law?
Relevant time:
Insanity is time of offense; incompetency is at time of trial

Standard applied:
Insanity is "didn't know conduct was wrong,"; Incompetency: could not consult with counsel or understand proceedings

Result:
Insanity: final verdict of not guilty by reason of insanity;
Incompetency: bar to continuing proceedings
Generally where does venue lie?
In county where crime was committed
When may a D. seek a change of venue?
1) Prejudice in county would prevent fair trial; or

2) Dangerous combination of influential persons against the D would prevent a fair trial
When may the State seek a change of venue?
1) Combinations or influences in favor of D would prevent fair trial;

2) Lawless conditions would prevent fair trial;

3) Life of D or a witness would be jeopardized by local trial
Trial court may change venue on its own motion because?
Trial fair and impartial to D and state alike can't be held.
What procedural steps must D. follow to change venue?
Must file

1) Written motion for change of venue;

2) Affidavits that a fair trial cannot be held in the county by the D and 2 credible residents of the county.

At hearing, must present evidence showing there is sufficient prejudice to prevent a fair trial
When is a judge disqualified?
1) Was victim of crime

2) Was counsel for each side (participated in very case now before her as judge)

3) Judge is related within 3 degrees (blood or marriage) to either D or victim; or

4) Bias
Regarding the accused's presence, what are the rules in a felony case?
In a felony case or prosecution for misdemeanor punishable by jail time, the D. must be present at beginning of trial.

Jury case: through swearing of jury
Nonjury case: through D's plea to the indictment

And, D must be present at end of trial for formal sentencing; but if D is voluntarily absent in middle, trial may proceed
Regarding the accused's presence, what are the rules in a misdemeanor case?
For a fine-only misdemanor, D can be absent and appear "by counsel" if prosecutor consents.
The general "One Offense" rule governs joinder of offenses. What are its parameters?
1) An indictment may allege only one offense. If an indictment charges more than that, it is to be quashed.

2) A defendant may be tried on only one indictment per trial. If a D. is scheduled for trial on several indictments, the D. is entitled to have the trial severed.
"One Offense Rule" is subject to the "Criminal Episode Exception." What consequence?
State may join in one indictment all offense arising out of one "criminal episode," and D. will be tride for all of these in one trial unless there is a severance of charges.

If several offenses charged in one instrument, each must be in a separate count.
If a D. is charged in different indictments with offenses arising ouft of one "criminal episode," State may have these indictments __.
Consolidated for trial together.
What are the major functions of the following receptor type: M2
Decrease heart rate and contractility of atria
Is the state required to seek trial together of offenses arising out of one criminal episode?
No
A defendant who is schedule for trial together on multiple charges because those charges arose from the same criminal episode has an absolute right to have the charges severed for separate trials.

BUT a defendant who invokes the right to severance incurs who potential disadvantage?
1) If a D. 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 D. schedule for one trial on such charges invokes right to severance and is sentenced to imprisonment, trial judge has discretion to make prison terms consecutive.
Several defendants may be charged in one indictment and tried together if they are all charged with the same ___.
Offense; or

They are charged with different offenses arising out of one transaction
What is mandatory severance?
D who moves for severance and shows her co-D has a prior conviction admissible against that co-D must be granted a severance.
What is discretionary severance?
In other situations, 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.
Generally, how is a motion for continuance made?

What if it's made after trial has begun?
A motion for continuance must:
1) Be in writing;
2) Be supported by a showing of 'good cause' and
3) Be sworn

If made after trial has begun, it must also be
1) Based on an occurrence that happened after trial started; and
2) That occurrence could not have been anticipated; and
3) Surprise must be such as to prevent a fair trial
A defendant's motion for continuance to obtain a missing witness must alleged __?
1) Name and residence of missing witness;

2) Efforts made by defense to find and get witness to court;

3) Material facts defense expects to prove by witness
Is it mandatory to grant a D's first motion for continuance?
No. All continuance motions are discretionary by the judge.
Does an indigent D. have a 6th Amendment right to an appointed attorney?
Sometimes.

1) If charged with felony, always has such a right.

2) If charged with misdemeanor, need not be provided an attorney if no jail time is imposed on conviction.
Describe the 6th Amendment right to self-representation.
Judge must make sufficient inquiries of D on the record to assure he's competent to do so. comptency requires only that he understands the disadvantages and risks of that course.
What is timely effort required of an attorney?
Must make every reasonable effort to contact the defendant not later than the first working day after the date of appointment. Must interview D as soon as practicable.
What result if attorney fails to timely contac tor interview the defendant?
Judge has discretion to replace.
Can judge consider whether D has posted /is capable of posting bail in determining indigence for attorney representation?
General rule is that judge may not consider this. Exception is that this may be considered as it reflects the D's financial circumstnaces as measured by proper considerations, such as income, property owned, dependents, etc.
A D's 6th Amendment righ tto effective representation is violated if __.
1) Lawyer's actions were beyond the bounds of professional competence, and were not simply tactical decisions; and

2) There's a reasonable probability that had counsel been effective, the results of the proceeding would have been different
Representation is ineffective if counsel:
1) Fails to conduct an adequate investigation; or

2) Fails to convey to the client an offer of a plea bargain
To obtain expert appointment for indigent defendant, what pleading should you file?
Ake motion invoking Ake v. Oklahmoa (due process entitles indigent to appointment of expert). Must show that area of expertise is likely to be a significant issue in the case. If so, mandatory.

Can make motion and showing ex parte. (just w/judge)
When may state dismiss some or all of charges brought?
1) Must file writen statement of reasons for seeking to dismiss;

2) Trial judge must consent.

No further prosecution may occur if dismissal occurs after jeopardy attached.