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264 Cards in this Set

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  • Back

Crim Pro: When a defendant is arrested, before whom must he be presented?

The magistrate who issued the warrant or a magistrate of the jurisdiction in which he was arrested.
Crim Pro: Before whom must the examining trial be held?
A magistrate of the county with jurisdiction over the offense.
Crim Pro: Over what offenses do District Courts have jurisdiction?
1. Felonies
2. Misdemeanors involving official misconduct
3. Misdemeanors xferred from county court presided over by a non-attorney judge.
Crim Pro: Over what offenses do County Courts have jurisdiction?
1. Misdemeanors where penalties exceed $500 fine.
2. Misdemeanors where exclusive jurisdiction is not given to the justice courts.
3. Appellate jurisdiction over justice and municipal courts.
Crim Pro: Over what violations do Municipal Courts have jurisdiction?
1. Exclusive jurisdiction over city ordinance violations punishable by fine <$500
2. Concurrent jurisdiction over violations of law punishable only by fine or other non-jail penalty.
Crim Pro: Over what criminal cases do Justice Courts have jurisdiction?
Where punishment is only by fine or non-jail penalty.
Crim Pro: What sort of trial do appeals from justice and municipal courts receive in the county court?
Trial de novo.
Crim Pro: What are nine reasons why a magistrate may issue a search warrant?
1. Property acquired by theft or other crime.
2. Obscene materials.
3. Drugs illegally possessed or made.
4. Contraband & gambling devices.
5. Property used in the commission of crime.
6. Persons.
7. An abused child.
8. Property constituting evidence of offense or tending to show that a particular person committed an offense.
9. Contraband subject to seizure.
Crim Pro: What is required for a search warrant to be issued?
A sworn showing of facts constituting probable cause. All supporting information must be in "four corners" of affidavit.
Crim Pro: What must a search warrant state?
1. Name or description of person, place, or thing to be searched.
2. Identification of what is to be seized.
3. Dated and signed by the magistrate.
Crim Pro: What are evidentiary search warrants issued for?
Items containing evidence of an offense.
Crim Pro: Who can generally not issue an evidentiary search warrant?
Justice of Court of Appeals, Justices of the Peace, certain municipal court judges.
Crim Pro: May a person who has been searched pursuant to an evidentiary search wararnt be searched again?
Only if the warrant is issued by a judge of a district court, court of criminal appeals, or the supreme court.
Crim Pro: What are the requirements to issue an evidentiary seach warrant?
1. Must set forth sufficient facts to establish probable cause to believe tha a specific offense has been committed.
2. The items to search constitute evidence.
3. And are located at a particular place.
Crim Pro: What may officers seize pursuant to an evidentiary warrant? What is the exception?
1. Only that which is described.
2. Items subject to seizure for other reasons may be seized if discovered in plain view.
Crim Pro: When must a search warrant be executed?
Within three days of issuance. Does not include day of issuance and day of execution.
Crim Pro: What must an officer do before removing any seized property?
Prepare a written inventory, sign it, and present a copy to owner or possessor of copy. Must also execute a return on the warrant and deliver it with a copy of the inventory to the issuing magistrate.
Crim Pro: What is required for wiretapping and similar activity?
A special court order. May be issued only to secure evidence of a felony violation of certain crimes.
Crim Pro: What sort of notice is required to be giveen to a suspect whose communications are tapped?
90 days after order expired, judge must notify suspect that the order was issued and whether communicatiosn were intercepted. Notice must be received at least 10 days before trial for evidence obtained to be admissible.
Crim Pro: What property is subject to seizure and forfeiture?
1. Used or intended to be used in the commission of major criminal offenses or the CSA.
2. Proceeds from commission of above offenses.
3. Acquired with above proceeds.
Crim Pro: What must an affidavit for a search warrant to seize property establish?
Probable cause that:
1. A specific felony offense was committed.
2. Property constitutes forfeitable contraband.
3. Property is located where search will be made.
Crim Pro: What are the proceedings for forfeiture?
1. Prosecutor files notice of seizure and intended forfeiture within 30 days of seizure. Also files lis pendens if real property.
2. Hearing is held where state must prove by preponderance of evidence that property is contraband.
Crim Pro: Who may issue a warrant for seizable contraband?
A judge of a statutory county court, district court, court of criminal appeals, the supreme court, or a judge of a municipal court of record who is a licensed attorney.
Crim Pro: What are the requirements to protect an innocent person's interest in property?
1. Person did not know of the felony or that it was likely to occur, and
2. Persons interst was required before a lis pendens notice was filed or before or during the offense giving rise to forfeiture.
Crim Pro: What must an affidavit for an arrest warrant show?
Probable cause that the person named in the warrant has committed an offense.
Crim Pro: What are the requiremetns for an arrest warrant?
1. Specify the name or give rsbl definite description of person to be arrested.
2. State that the person is accused of a particular offense and give adequate notice of what the offense is.
3. Be signed by magistrate and give office of that magistrate.
Crim Pro: What are the circumstances under which a warrantless arrest is valid?
1. Committed offenses w/in officer's view or presence.
2. Probable cause to believe violated protective order.
3. Prob cause felony committed & about to escape.
4. Ofcr recovered stolen property, believes suspect stole it.
5. Prob cause suspect committed assault w/bodily injury & immediate danger of further bodily injury.
6. Found in suspicious place under circumstances that rsbl show suspect guilty of felony, disorderly conduct, or the like.
7. Prob cause suspect committed assault w/bodily injury to family/hhold member.
8. Prob cause suspect prevented/interfered w/ability to call in an emergency.
9. Voluntary statement to officer that establishes prob cause that suspect committed felony.
Crim Pro: When may an officer making an arrest without a warrant enter a residence to make an arrest?
1. The person who resides in the residence consents.
2. Exigent circumstances require that the officer enter without consent or a warrant.
Crim Pro: When may an officer break down the door of an house to make a felony arrest?
If the officer first gives notice of his authority and purpose and is refused admittance.
Crim Pro: May an officer engage in racial profiling?
Crim Pro: When must law enforcement officers present an arrested person before a magistrate?
1. Without unnecessary delay;
2. No later than 48 hours after arrest.
Crim Pro: Crim Pro: After setting bail, what must the magistrate inform a suspect of?
1. The charges against him.
2. His right to remain silent
3. Right to retain counsel
4. Right to appointed counsel and the procedure
5. The right to an examining trial.
Crim Pro: What is a writ of habeas corpus?
A court order to a custodial person directing him to produce a person in custody and show why they are being held.
Crim Pro: For what purposes may a writ of habeas corpus be used?
1. Challenge the amount of or denial of bail.
2. Obtain appellate review of pretrial ruling of no double jeopardy.
3. Attack a conviction after an appeal has failed or time has expired.
Crim Pro: What must a petition for a writ of habeas corpus state?
1. Person is being unlawfully confined
2. Name of who is confining him.
3. Be attached to the writ or order under which the person is detained.
4. Contain a prayer for the writ.
5. Be sworn to that the allegations are true.
Crim Pro: If a judge does not determine from the petition for a writ of habeas corpus that no relief is denied, what happens next?
1. Party on whom writ is served makes sworn return to the court stating if person is in custody and why.
2. Detained person brought before judge to determine propriety of detention.
Crim Pro: What factors are considered when setting bail?
1. Must be sufficiently high enough to give assurance.
2. Nature of offense and circumstances under which it was committed.
3. Future safety of the victim and the community.
Crim Pro: What is a bail bond?
A written undertaking by a defendant to appear in order to answer a criminal charge. Security must be deposited with the court.
Crim Pro: What is a personal bond?
An amount is set and defendant must pay it if he fails to appear. No security is required.
Crim Pro: When may a person be released without bond?
When charged with a misdemeanor punishable by fine only and has no convictions punishable by jail time.
Crim Pro: What are five situtions where bail may be denied?
1. Capital murder & state establishes likelihood of conviction & death penalty.
2. Felony charge & 2 prior felonies.
3. Felony charge while on bail for previous felony.
4. Noncapital felony involving use of deadly weapon & has prior felony.
5. Violent or sexual felony while on community supervision or parole for felony, OR violated condition on bail related to victim or community safety.
Crim Pro: When may a peace officer set bail? (must be reasonable)
Felony: Court not in session and no bail set by judicial officer.
Misdemeanor: Magistrate not available.
Crim Pro: If bail is denied, how long is detention authorized?
Sixty days.
Crim Pro: What conditions of release on bail are specifically authorized?
1. Not to go near child victim
2. Remain at home
3. Abide by home curfew.
4. Have breathalyzer ignition lock installed.
5. Not communicate with or go near victim.
Crim Pro: How long may release be delayed for defendants arrested in the prevention of family violence?
1. Four hours if police have probable cause that violence will continue.
2. 48 hours if magistrate makes such a finding.
Crim Pro: What is the purpose of an examining trial? (A right, unless an indictment has been returned)
To determine whether there is probable cause to believe the defendant duilty.
Crim Pro: What are the three possible results of an examining trial?
1. Discharge if no probable cause established.
2. May be admitted to bail.
3. Committment may be entered.
Crim Pro: When does the period of limitations for criminal offenses start?
Date of the offense.
Crim Pro: When may prosecution be brought for sexual assault on a child or indecency with a child?
Within 10 years of the victim's 18th birth day.
Crim Pro: Is time during which the accused was absent from the state counted for the period of limitations?
Crim Pro: Is the period during which a charge is pending against a defendant count?
Crim Pro: Does the filing of a complaint for a felony case toll the period of limitations?
No. (Meaning that time is counted)
Crim Pro: What is the limitations period for murder, manslaughter, leaving the scene of an accident resulted in death, or sexual assault where DNA evidence does not readily ascertain the identity?
No limitations period.
Crim Pro: What is the limitations period for sexual performance of a child younger than 17, aggravated kidnapping < 17 with intent to abuse, or burglary w/ intent to abuse <17?
20 years from victims 18th birthday.
Crim Pro: What is the limitations period for injury to a child?
10 years from victim's 18th birthday.
Crim Pro: For which crimes is the limitations period 10 years?
1. Theft by fiduciaries.
2. Sexual assault.
3. 1st degree felony injury to elderly or disabled.
4. Indecency with or sexual assault of a child.
Crim Pro: For which criems is the limitations period 7 years?
1. Misapplication of fid. prop. or prop. of finan. institution.
2. Securing exec. of docs by deception.
3. Money laundering.
4. Credit card abuse.
5. False statement to obtain property or credit.
6. Fraudulent use or possession of an ID.
Crim Pro: For which crimes is the limitations period 5 years?
1. Theft.
2. Burglary
3. Robbery
4. Arson
5. Kidnapping
6. Injury to child, elderly person, disabled person (if not 1st degree felony)
7. Abandoning or endangering a child.
Crim Pro: For which crimes is the limitations period 3 years?
Any felony not otherwise listed.
Crim Pro: What is the limitations period for misdemeanors?
2 years.
Crim Pro: What is the proper venue for offenses committed outside the state?
County where offender is found or an element of the offense occurred.
Crim Pro: What is the proper venue for theft?
Cty from which property was taken or cty though or into whihc property was moved.
Crim Pro: What is the proper venue for crimes where the victim was injured in on cty but died in another?
Either county.
Crim Pro: What is the proper venue for kidnapping and false imprisonment?
Cty where offense took place or cty through or into which victim was taken.
Crim Pro: What is the proper venue for conspiracy?
County where agreement was made or carrie dout, or cty where any conspirator performed any act to implement the agreement.
Crim Pro: Where is the proper venue for sexual assault?
Cty where assault occurred, where victim was abducted, or through or into which victim was taken.
Crim Pro: What is the proper venue for possession or delivery of marijuana?
Cty where offense wascommitted, or if defendant consents, in adjacent county within same judicial district.
Crim Pro: What is the proper venue for unauthorized use of motor vehicle?
County in which vehicle was originally reported stolen or where unauthorized use occurred.
Crim Pro: What is the proper venue for organized criminal activity?
County in which any act to effect the objective of the combination was committed.
Crim Pro: What is the proper venue for bigamy?
County in which bigamous marriage occurred; where parties lived as husband and wife; or where party to the marriage not charged resides.
Crim Pro: What is the proper venue for escape?
County in which escape occurred or where the defendant was originally placed in custody.
Crim Pro: What is the proper venue for fraudulent use of identifying information?
County in which the offense was committed or where the victim resides.
Crim Pro: For which grounds can challenges be made for grand jury selection?
1. Improper selection.
2. Lack opf qualifications.
Crim Pro: What is the number of grand jurors necessary to indict?
At least 9 out of twelve.
Crim Pro: What is a capias?
The equivalent of an arrest warrant issued on the filing of an indictment or information.
Crim Pro: Except for capital murder prosecutions, what are the requirements for a felony defendant to waive indictment and be charged by an information?
1. Represented by counsel.
2. Waiver is written or took place in open court.
3. Waiver is voluntary.
Crim Pro: What document is used in misdemeanor cases before a justice of the peace or municipal court? Otherwise?
A complaint. An information.
Crim Pro: Do defendants in a felony prosection have a constitutional right to be charged only by a grand jury indictment? Is this waivable?
Yes and yes.
Crim Pro: What may serve as a charging instrument in traffic cases where the maximum penalty is a fine only?
A traffic ticket.
Crim Pro: When must defendants in a felony case in custody be served with the charge? Out on bail? Misdemeanor cases?
1. Immediately.
2. Only if requested.
3. Only upon demand.
Crim Pro: How many offenses may be charged in one indictment? Exceptions?
1. Only one offense.
2. State may allege alternate ways of committing the same offense; offenses part of same criminal episode.
Crim Pro: How many defendants may be charged together in the same charging instrument?
Multiple, if part of the same criminal episode.
Crim Pro: When must defects in an indictment be raised?
Pretrial, waived otherwise.
Crim Pro: What defects in the charging instrument will not affect its validity?
Misspelling and bad grammar, unless denies defendant adequate notice.
Crim Pro: What may the prosecution do if an indictment contains a defect of form or substance?
May be cure by amendment at any time before the day the trial on the merits commences.
Crim Pro: What are the requirements for an amendment to a charging document?
1. Leave of court
2. Under court's direction.
3. Notice must be given to defendant. (Defendant may request delay to respond)
Crim Pro: When may a charging document not be amended over the objections of the defendant?
1. The amended information or indictment charges defendant with additional or different offense OR
2. Substantial rights of defendant are prejudiced by the amendment.
Crim Pro: What is required to amend an indictment after trial commences?
Lack of objection from the defendant.
Crim Pro: What are some specific defects that arise in charging instruments?
1, Failure to include "magic words" required by the Code
2. Failure to allege venue.
3. Failure to allege facts constituting all elements of the offense.
4. Failure to identify the victim.
5. Failure to allege facts showing recklessness or negligence if defendant is charged with either.
Crim Pro: What does the state have the burden of proving when an allegation is made that details are unknown at trial?
Must show that the details were, in fact, unknown to the grand jury and the grand jury could not, with rsbl effort, have ascertained the unknown information.
Crim Pro: What does an instrument also charge beside the included charge?
Lesser included offenses.
Crim Pro: For what grounds may a motion to set aside indictment or information be made?
1. Indictment not found by at least 9 grand jurors.
2. Prosecution barred by passage of time.
3. Some person not authorized was present before grand jury while deliberating or voting.
4. Grand jury was illegally impaneled.
5. Any other ground authorized by law.
Crim Pro: For what reasons may an exception to substance of indictment or information be made?
1. It does not charge an offense.
2. Prosecution barred by passage of time.
3. Offense was committed after finding of the indictment.
4. Contains matter that is legal defense or bar to the prosecution.
5. Shows on its face that court does not have jurisdiction.
Crim Pro: When may an exception be taken to form of indictment or information?
1. Does not appear to have been presented in the proper court.
2. Lacks one or more of the requisites of the Code.
3. Was not returend by lawfully chosen or impaneled grand jury.
Crim Pro: What are the procedures for a motion challenging indictment? (Motion to quash)
1. In writing.
2. Filed before the date of tiral.
3. Specify the particular aspect of the charing instrument that defendant regards as defective.
Crim Pro: May arraignment be waived?
Crim Pro: What are the three functions of arraignment?
1. Fixes defendant's identity.
2. Counsel is appointed for indigent defendants.
3. Defendant's plea is heard.
Crim Pro: Under what circumstances is a second trial on same or related charges permitted? (Former jeopardy)
1. If first trial was to jury and jury was sworn.
2. At bench trial, parties announced ready and plea entered.
3. Mistrial declared for manifest necessity, or by request of defendant, or declared by appellate court b/c error of law.
3. When EACH crime requires proof of something the other does not.
4. First prosecution federal.
Crim Pro: How long does an attorney appointed to represent an indigent defendant have to prepare?
10 days, but may be waived in writing signed by defendant and attorney.
Crim Pro: For what reasons may a continuance be granted after trial begins?
1. Showing of an unexpected occurance at trial that took moving party by such surprise that fair trial coul dnot be had.
2. Showing of good cause if parties agree.
3. Missing witnesses, but there are special requirements.
Crim Pro: What is the standard for determining a defendant's competancy?
If because of some impairment existing at time of trial, D lacks either:
1. Sufficient present ability to rationally consult with his lawyer.
2. An understanding, rational or factual, of the proceedings against him.
Crim Pro: What is the presumption and burden of proof for competency?
1. Presumed competent.
2. Incompetency must be proved by a preponderance of the evidence.
Crim Pro: What must the court do if there is a suggestion and some evidence of a defendant's incompetency?
1. Have the defendant examined.
2. Hold a hearing
3. Make a determination of competency.

Note: Jury may be held by request of court or either party.
Crim Pro: What happens when a defendant is found incompetent?
1. Released on bail for treatment or confined to mental health facility for up to 120 days, extendable another 60 days.
2. After treatment or the period expires, prosecution proceeds if competent.
3. IF not competent, defendant may be committed for longer period.
Crim Pro: What are two reasons why the court must order separate trials of defendants charged with the same offense?
1. One defendant has a prior conviction admissible against him.
2. Joint trial would be prejudicial to one or more defendants.
Crim Pro: What is the exception to the "one indictment, one offense, one conviction" rule dealing with several counts of intoxication manslaughter, sexual assault, or certain sexual offenses involving children?
Charges may be tried together and defendant does not have an automatic right to severance. May still obtain severence if shows that joint trial would be prejudicial.
Crim Pro: What motions must be made before trial?
1. Motions to quash or set aside the charging instrument.
2. Motions and elections relating to the assessment of penalty, including election for jury sentiencing.
3. Motion to have jury consider recommendation for probation.
Crim Pro: Crim Pro: Who may the court authorize to take a deposition? Why?
1. Defendant or prosecution.
2. Finding of good cause.
Crim Pro: Wht are the rights of a criminal defendant in pretrial discovery?
1. Right to the witness list. (Unless found on indictment)
2. Right to inspect prosecution's evidence except written statements of witnesses and work product.
3. Right to know informant's identity if informant a material witness.
Crim Pro: What is required to dismiss the trial upon state's motion?
Filing of a written statemetn setting out reasons for dismissal and consent of presiding judge.
Crim Pro: Who may raise the issue of venue?
Either side or the court.
Crim Pro: What is the standard for determing whether venue should be changed?
Whether a fair and impartial trial to the moving party cannot be held in the location?
Crim Pro: Where may venue be moved if changed?
Another county in the same judicial district or an adjoining district.
Crim Pro: For what reasons may a judge be disqualified from hearing a case?
1. Judge is party injured.
2. Judge has been counsel for state or accused.
3. Judge is related in 3rd degree.
4. Bias, if would deny due process of law.
Crim Pro: What is a traditional motion in limine? Nontraditional?
1. Asks opposing party to approach and notify judge prior to developing specified matters before jury.
2. Asks court to address & rule on matters before trial.
Crim Pro: What are the special requirements in insanity cases?
1. Must give prosecution and court notice.
2. Court may appoint disinterested experts to examine defendant and give evidence concerning insanity.
Crim Pro: What does an attorney or pro se defendant certify by the required signature to a pleading?
That he has read the pleadings and reasonably believes after inquiry tha the document is not groundless, brought in bad faith, or brought for harassment, delay, or other improper purpose.
Crim Pro: When does a defendant have the right to go to the jury on suppression issues? What is the burden of proof?
1. When the evidence is challenged on grounds that it was obtained in violation of the Constitution or the laws of the U.S. or TX. or alleged involuntary confession.
2. State must prove beyond rsbl doubt evidence obtained legally.
Crim Pro: What are the two parts of Texas criminal trials?
1. Trial on the guilt or innocence.
2. Penalty trial.

Both may have jury.
Crim Pro: What sort of verdict is required in a criminal trial?
Crim Pro: When may a verdict be returned by less than 12 jurors?
Felony - if one juror dies before charge is read to jury, remaining 11 may render, or after charge read if both parties agree, otherwise jury discharged.
Crim Pro: What challenges for cause are available during voir dire?
1. Not qualified voter
2. Has been convicted or charged with theft/felony.
3. Insane
4. Witness in case.
5. Bodily defect rendering unfit for service.
6. Related w/in 3d degree.
7. Served on grand jury or jury in previous case.
8. Has bias or prejudice.
9. Formed opinon re guilt that would influence verdict.
10. Illiterate.
Crim Pro: Which jurors are absolutely disqualified, whether or not a challenge is raised?
1. Insane.
2. Convicted or charged with theft or felony.
Crim Pro: When must a conviction from a jury that included an absolutely disqualifited juror be reversed?
1. If the defendant raised the matter before the verdict was entered.
2. Defendant shows significant harm resulting from the disqualified juror.
Crim Pro: When may a defendant waive a jury trial?
In any case except a capital case where state notifies court that it will seek the death penalty.
Crim Pro: How many challenges does each side have in a capital murder case where the death penalty is being sought? Multiple defendants?
1. 15
2. 8 per defendant.
Crim Pro: How many preemptory challenges in a capital murder case where death penalty is not being sought or other felonies? Multiple defendants?
1. 10
2. 6 per defendant.
Crim Pro: How many preemptory challenges are allowed for misdemeanors in district court? County court? Justice/Municipal courts?
1. 5, multiple 3 per.
2. 3, multiple 3 per.
5. 3
Crim Pro: May peremptory challenges be based upon race? Who has the burden?
1. No.
2. Defendant.
Crim Pro: When may alternate jurors be substituted for regular jurors?
1. Regular juros are unable to serve or become disqualified.
2. Parties agree and the court finds that a regular juror has good cause for not performing.
Crim Pro: How many peremptories does each side get if three or four alternate jurors are to be impaneled? One or two?
Crim Pro: How many alternate jurors may be impaneled in criminal trials in district courts? County courts?
Crim Pro: What is the special procedure for jury selection in capital cases? How many alternates may be selected in cpaital cases?
1. Juror dq if cannot state under oath that mandatory penalty of death or life imprisonment will not affect the juror's deliberations on any question of fact.
2. 2.
Crim Pro: May confidential information about a juror be disclosed?
Either party or a member of the media may apply for an order permitting disclosure, which may be granted for good cause.
Crim Pro: When may defendant not be present at trial?
1. W/prosecutor consent, at proceedings for fine-only misdemeanors.
2. If voluntarily absents self after being present for jury selection, trial may proceed but punishment cannot be imposed.
Crim Pro: May a judge make remarks that convey her opinion of the case to the jury?
Crim Pro: Who may move for a mistrial?
Either side or can be declared by the court (as when a jury cannot agree)
Crim Pro: When may a motion for directed verdict be made? What is the standard?
1. At end of prosecution's case and again at end of all the evidence.
2. Evidence does not sustain a jury verdict of guilty.
Crim Pro: What matters are jury arguments limited to?
1. Summation of the evidence.
2. Reasonable deductions from the evidence.
3. Answers to arguments of opposing counsel.
4. Pleas for law enforcement.
Crim Pro: What arguments are improper for jury arguments?
1. Juror's personal view of counsel.
2. Attacks upon defense counsel.
3. Argument that the community demands conviction.
Crim Pro: Who makes the last argument?
The state. They generally make the first argument and the last argument.
Crim Pro: When a defendant offers new evidence, after resting but before the charge is read to the jury, when is he NOT allowed to reopen?
1. Will impede the trial.
2. Interfere with administration of justice.
Crim Pro: What does the jury charge contain?
An abstract of law and application to the facts of the case.
Crim Pro: When should the jury be instructed on a lesser included offense?
When the evidence introduced could reasonably be construed as showing that the defendant was not guilty of the charged offense but guilty of the lesser included offense.
Crim Pro: When should the jury be told to return a verdict of not guilty by reason of insanity?
1. When prosecution has proved beyond a reasonable doubt that defendent would be guilty.
2. Defendant has established by preponderance of the evidence that he was insane at the time of conduct.
Crim Pro: What must the court do when the jury returns a verdict of not guilty by reason of insanity where the conduct involved serious bodily injury or attemnt or threat to cause same?
Must commit to mental hospital; but cannot be confined longer than 30 days without hearing. Jury may not be told of this consequence.
Crim Pro: What document is used to compel a witness to produce a document?
A subpoena duces tecum.
Crim Pro: What is the effect of a grant of immunity to a witness?
Removes the privilege against self-incrimination.
Crim Pro: To what criminal proceedings are the Texas Rules of Evidence fully applicable?
1. Criminal trials in TX courts.
2. Bail hearings.
3. Examining trials.
Crim Pro: Where must hearings on the admissibilty of evidence be conducted?
Outside the presence of the jury.
Crim Pro: When is relevant evidence inadmissible?
Where its probative value is substantially outweighed by the danger of undue prejudice, confusion of issues, danger of undue delay, or needless presentation of cumulative evidence.
Crim Pro: When is character evidence inadmissible to prove conduct? Admissible?
1. Not admissible to prove person acted in conformity with character on particular occasion.
2. To substantiate claim of self-defense, D may introduce evidence that victim had violent character.
Crim Pro: In a homicide prosecution, what evidence may the state introduce after the defense introduces evidence that the deceased was the aggressor?
Evidence that the deceased had a peaceful character.
Crim Pro: May the state prove the defendant's guilt by introducing evidence of bad character? Exceptions?
1. No.
2. Sentencing proceedings or where the defense puts the defendant's character in issue.
Crim Pro: When is reputation testimony admissible?
When character is in issue.
Crim Pro: Can the state introduce evidence of extraneous offenses or bad acts? Exceptions?
1. No.
2. If relevant to other issues than "bad character", such as motive, opportunity, or common plan. Also in prosecutions for certain crimes against children.
Crim Pro: May habit and routine practice evidence be introduced?
Yes, to prove that a person's conduct on a particular occasion was in conformity with that habit.
Crim Pro: In the special situation of homicide cases, what testimony may either side introduce?
Testimony as to all relevant facts and circumstances re the killing, and the previous relationship betweent the accused and deceased. Includes condition of mind of accused at time of offense.
Crim Pro: When is evidence of previous sexual conduct of a victim admissible?
Probative value of evidence outweighs the danger of unfair prejudice and the evidence is:
1. Necessary to rebut state's medical evidence.
2. Offered on issue of consent.
3. Relative to victim's motive or bias.
4. Evidence of victim's conviction of crime admissible as impeachment.
5. Evidence that must, as a matter of constitutional law, be admitted.
Crim Pro: What pleas are inadmissible?
1. Withdrawn guilty or nolo contendere plea.
2. Any in-court statements regarding the plea.
Crim Pro: What instruction must the court give to the jury regarding judicial notice?
The jury may, but is not required, to accept as conclusive any fact judicially noticed.
Crim Pro: What may the other side introduce when one side introduces all or part of a writing? Writings include deposition.
1. Any other part of that writing.
2. Any other writing that out in fairness to be considered.
May do at same time of original writing.
Crim Pro: What may the other side do when one party introduces part or an act, declaration, conversation, writing, or recorded statement? (Rule of Optional Completeness)
"Prove the whole" by introducing the rest necessary to fully understand the admitted evidence. Must wait turn.
Crim Pro: What privileges are treated the same as in civil litigation?
1. Clergy privilege.
2. Privilege to disclose political vote.
3. Trade secret privilege.
4. Privilege for required reports.
Crim Pro: Who may waive a privilege?
The person who holds them.
Crim Pro: When is a privilege waived?
When a person calls as a witness a person to whom privileged communications have been made, and that person is called to testify as to the party's character.
Crim Pro: What is covered by the attorney-client privilege?
1. Any communications.
2. Any fact the lawyer learned by reason of the attorney-client relationship.
Crim Pro: Does a defendant's spouse have the privilege not to be called as a witness? Exceptions?
1. Yes.
2. Crime committed against spouse or minor child; matters occurring prior to marriage to defendant.
Crim Pro: Does a spouse have a privilege to refuse to testify for the defense?
Crim Pro: May the defendant's failure to call the spouse be commented upon?
Yes. (Unlike all other privileges.)
Crim Pro: Who may assert the spousal privilege? The privilege for marital communications?
1. Only the testifying spouse.
2. Either spouse.
Crim Pro: What are the requirements for the spousal privilege? The privilege for marital communications?
1. Presently married to defendant.
2. Communication confidential and made when married.
Crim Pro: What is the nature of the spousal privilege? The privilege for marital communications?
1. In criminal trial only, privilege not to be called as witness.
2. Any trial, privilege to prevent disclosure of communications from one spouse to another.
Crim Pro: What are the exceptions for the privilege for marital communications?
1. Communications used to aid or enable commission of a crime or fraud.
2. Crime against spouse or household member or any child.
Crim Pro: Who may claim the privilege for identiry of an informer? Who may object and disallow the privilege?
1. A representative of the public entity to which the information was provided.
2. The state.
Crim Pro: When is there no privilege for identity of informer?
1. Voluntary disclosuer.
2. Informer has information on guilt or innocence.
3. Informer has information on legality of obtaining evidence.
Crim Pro: What is the general requirement of first-hand knowledge?
A witness may not testify to a particular matter without showing that the witness has first-hand knowledge of the matter.
Crim Pro: Who are incompetent to testify?
Insane persons, children, and others of limited intellectual ability.
Crim Pro: What may an expert witness testify about?
In opinion form or otherwise as to scientific, technical, or other specialized knowledge.
Crim Pro: Upon what may an expert's opinion be based?
Facts perceived by the witness personally or information otherwise obtained.
Crim Pro: What is the standard of proof for a proponent of scientific evidence?
Clear and convincing evidence.
Crim Pro: Who may impeach a witness?
Any party, including the party calling the witness.
Crim Pro: What is the scope of cross-examination?
Any matter relevant to any issue in the case. NOT limited to matters inquired into on direct.
Crim Pro: When may leading questions be used on direct examination?
Only if neccesary to develop the witness's testimony, or if witness is hostile, an adverse party, or identified with an adverse party.
Crim Pro: How may evidence of a character of a witness be attacked? After? What is not allowed?
1. Testimony that character for truthfulness is bad.
2. Credibility may then be bolstered by evidence of truthful character.
3. Credibility may not be attacked by inquiry into specific instances of conduct.
Crim Pro: What must a party do who is intending to impeach a witness by showing a final conviction of crime?
Give other party advance written notice; may do so by witness's admission or proving public records of the conviction.
Crim Pro: When may a prior conviction be used for impeachment?
1. If there has been a final conviction,
2. The conviction is not stale,
3. The crime involved moral turpitude or was a felony.
4. The probative value of the evidence outweighs any prejudicial effect.
Crim Pro: When is a conviction stale?
10 years.
Crim Pro: When may a conviction otherwise usable, may not be used?
When there has been a pardon or a certificate of rehabilitation.
Crim Pro: When may extrinsic proof of a prior inconsistent statement be admitted?
Only after a witness has been told of that statement, given an opportunity to explain or deny, and then denied.
Crim Pro: What must be done to impeach a witness by inquiry into circumstances showing bias or interest?
After said circumstances have been made known to the witness, and given an opportunity to explain or deny. Rebuttal evidence is permitted.
Crim Pro: When is evidence of a witness's religous beliefs inadmissible?
To show that such beliefs impair or enhance the credibility of the witness.
Crim Pro: When are prior consistent statements of a witness admissibile?
1. Declarant testifies at trial and is subject to cross-examination concerning the prior statement, and
2. The prior statment is offered to rebut a charge against the witness of recent fabrication or improper motive.
Crim Pro: Crim Pro: To whom does the rule of exclusion of witnesses NOT apply?
1. Defendant who is a natural person.
2. Officer or employee of corporate defendant.
3. Person whose presence is shown by a party to be essential to presentation of that party's case.
4. The victim, unless the court finds the victim's testimony would be materially affected by hearing other testimony.
Crim Pro: To what is the other side entitled if a witness uses a writing to refresh their memory?
1. Have the writing produced for inspection.
2. Cross-examine the witness on the writing.
3. Introduce into evidence those portions of the writing that relate to the testimony of the witness. (Court may excise irrelevant portions)
Crim Pro: What is the "Use before the jury" rule?
Allows counsel for either side to inspect any doucment, statement, photograph, etc, that has been used by the other side before the jury in such a way that its contents become an issue.
Crim Pro: If inadmissible hearsay is admitted without objection, may it still be denied probative value?
Crim Pro: What is the exception to the exception for public records and reports?
Such records are barred insofar as they concern matters observed by law enforcement personnel.
Crim Pro: When is a dying declaration admissible?
1. Made while declarant believed death imminent,
2. Concenrs the cause or circumstances of what declarant believed was his impending death; and
3. Declarant unavailable as a witness.
Crim Pro: What is the exception for statements against interest at time of makin?
Admissible, if rsbl person in the declarant's position would not have made the statement unless she believed was untrue. Unavailability of the declarant not required. If against penal interest, must be corroborating circumstances.
Crim Pro: When are out-of-court statements identifying a person upon perceiving him admissible?
If the declarant testifies at trial and is subject to crossX.
Crim Pro: What is the requirement for prior inconsistent statements to be admissible at trial?
1. Declarant must testify at trial and be subject to crossX concerning the statement;
2. Statement must be inconsistent with testimony;
3. Statement must have been made under oath subject to perjury at trial or in a deposition, but not before a grand jury.
Crim Pro: When may evidence unlawfully obtained be admitted?
If the evidence is obtained by a law enforcement officer acting in objective good faith reliance on a warrant issued by a neutral magistrate based upon probable cause.
Crim Pro: Who is a "child" for purposes of the child testimony statute?
12 years of age.
Crim Pro: What are the general requirements for the child testimony statute?
1. Child must not be available to testify at trial.
2. No in-court testimony except on showing of good cause.
3. In-person identification of accused by child required.
Crim Pro: When are depositions admissible in criminal cases?
Only upon proof of unavailability of the witnesses.
Crim Pro: When are photographs admissible? When may the court exclude otherwise admissible photographs?
1. If a verbal description of the crime scene, victim, or body of the deceased would be admissible, a properly authenticated photograph of the same is also admissible.
2. If the probative value is outweighed by inflammatory potential.
Crim Pro: Is lie detector evidence admissible? May parties stipulate as to its admissibility?
Crim Pro: To which statements does the confession statute apply?
ALL statements of the accused that result from official custodial interrogation.
Crim Pro: What are the requirements for a written confession?
1. Must be signed by the defendant.
2. Show that Miranda warnings given.
3. Show that rights waived before and during confession, knowingly, intelligently, and voluntarily.
Crim Pro: Are oral confessions admissible?
Generally, no.
Crim Pro: When can a defendant's oral statement be used to prove their guilt?
1. Judicial statement
2. Res gestae of the offense or arrest.
3. Partially corroborated.
4. Electronically recorded.
Crim Pro: What is the two-witness rule for conviction of perjury?
1. Testimony required of more than one witness, other than the defendant, unless state can show that defendant made inconsistent statemetns under oath.
Crim Pro: Against what is the question of whether evidence is sufficient to prove guild measure?
A hypothetical jury charge. Does not include matters mistakenly included in the actual jury charge.
Crim Pro: What is the accomplice witness rule?
Conviction cannot rest on uncorroborated testimony of an accomplice. Corroborating evidence must tend to connect defendant with commission of the offense. Not needed in prostitution and gambling offenses.
Crim Pro: What are the circumstances under which a conviction for a sexual offense can rest on the uncorroborated testimony of the victim?
Where the victim:
1. Informed any person, other than the devendant, within one year;
2. Was 17 or younger at time of offense;
3. Was 65 or older at time of the offense;
4. Was unable to satisfy her own need for good shelter, medical care, or protection from harm at the time of the offense.
Crim Pro: What is the "corpus delecti" rule?
Conviction cannot rest on a confession alone, there must be corroboration. Corroborating evidence must tend to show someone committed a criminal act; need not connect the defendant.
Crim Pro: Does the state need to disprove exculpatory provisions of a defendant's confesion introduced into evidence by the state?
Crim Pro: If there is a material variance between the detailed allegations in the indictment and the proof of trial, what was traditionally required? What is a material variance?
1. Acquittal.
2. Variance is material only if operated to defendant's surprise or otherwise prejudiced defendant's rights.
Crim Pro: What is the revised variance rule?
Whether the evidence is sufficient to support a conviction in a variance situation is to be determined by the hypothetical jury charge analysis. Critical question is whether an unproved allegation must be incorporated into that hypothetically correct charge.
Crim Pro: What is a material variance for purposes of the revised variance law?
A variance is material only if the indictment with the incorrect allegation failed to inform the defendant of the charges sufficiently to allow the defendant to present a defense.
Crim Pro: What are the two posttrial stages?
1. Assessment of punishment proceeding (right to have jury determine guilt or innocent)
2. Imposition of punishment proceeding (begins time running for purposes of determining timeliness of other actions)
Crim Pro: If the defendant does not want to have the judge determine the sentence, what must he do?
1. Make a written election for jury sentencing before voir dire. After guilty verdict, may change election only with consent of prosecutor.
Crim Pro: What is the requirement to be eligible for community supervision?
Sentence assessed does not exceed 10 years imprisonment.
Crim Pro: Crim Pro: What must the defendant do in order to be eligible for community supevision? What must the jury find?
1. A sworn motion for community supervision.
2. A finding that there was no prior felony conviction.
Crim Pro: What two elements, found together, disallow a jury from recommending commmunity supervision?
1. Defendant was convicted of the sale of a controlled substance to a minor.
2. and defendant was 21 or older at the time.
Crim Pro: Who may recommend an eligible defendant for community supervision? What basis is disallowed for denail of community supervision? May conditions be imposed?
1. The trial judge.
2. Lack of fluency in English.
3. Yes.
Crim Pro: For what reasons may community supervision be revoked after a hearing?
A showing that the defendant violated the terms of the community supervision.
Crim Pro: What is the effect of successful completion of community supervision? What if the defendant commits another crime?
1. Court may set aside the verdict of guilty and dismiss the charge. The charge may not be used as witness impeachment or sentence enhancement later.
2. Fact of conviction shall be made known to the court; precludes finding of no prior felony conviction.
Crim Pro: What is "shock" community supervision?
Allows a judge to suspend the execution of the remainder of a sentence of imprisonmnet after defendant has served no more than 180 days, and put defendent on comm. supervision.
Crim Pro: When can a judge place a defendant on deferred adjudication?
When this serves the best interests of the defendant and society.
Crim Pro: What is deferred adjudication?
Judge places defendant on community supervision without determining guilt.
Crim Pro: What happens if a defendant successfully completes deferred adjudication? Fails to complete?
1. Judge dismisses defendant.
2. Judge may adjudicate guilt and sentence defendant on finding of guilt.
Crim Pro: What are the requirements for a defendant to be eligible for deferred adjudication?
1. D has offered to plead guilty or nolo contendre, and
2. The crime is not an intoxication offense, continuous sexual abuse of a child, or aggravated sexual abuse of a child.
Crim Pro: What is the procedure to impose deferred adjudication?
1. Judge must recieve D's plea and hear evidence that substantiates guilt.
2. Inform D that violating conditions will allow the judge to adjudicate and impose whatever sentence originally could have been imposed.
Crim Pro: For what convictions would a defendant be ineligible for judge-ordered community supervision?
1. Murder
2. Indecency w/child by sexual contact.
3. Aggravated kidnapping
4. Sexual assault
5. Robbery
6. Drug offenses in school area
7. Sexual performance by a child
8. Intentional injury to child resulting in serous bodily injury.
Crim Pro: For which convictions would a defendant be ineligible for jury-recommended community supervision?
1. Murder
2. Indecency with a child under 14 by contact
3. Aggravated sexual assault of child under 14
4. Aggravated kidnapping of child under 14 w/intent to sexually abuse
5. Sexual performance by a child.
Crim Pro: What is the maximum length of community supervision in a felony case? Misdemeanor?
1. 10 years (some situations, 5 years)
2. 2 years.
Crim Pro: What evidecne may be offered at the jury sentencing hearing?
Any matter court deems relevant to sentencing, including prior criminal record and character, circumstances of offense, and extraneous crimes or bad acts.
Crim Pro: What notice must the state give upon timely request to the prosecutor regarding evidence at the sentencing hearing?
1. Date of any bad act or crime alleged.
2. County wherein the act or crime occurred.
3. Name of victim of act or crime.
Crim Pro: What is the state's burden of proof for bad acts and crimes of which the defendant has not been convicted?
Beyond a reasonable doubt.
Crim Pro: What rules of evidence apply at a sentencing hearing? Exception?
1. TRE.
2. General prohibition against state proving bad character does not apply at sentencing.
Crim Pro: What verdict is required on the penalty?
Unanimous, otherwise a mistrial must be declared.
Crim Pro: If a mistrial is declared on the punishment, what may happen?
A retrial limited to punishment may be held.
Crim Pro: What is the special instruction required on life imprisonment?
If the defendant is sentence to life imprisonment rather than death, defendant will not be eligible for release on parole.
Crim Pro: What evidence and arguments may be presented at a separate hearing before the same jury when a defendant is convicted of capital murder?
Evidence: Any matter court deems relevant (except race or ethnicity to prove dangerousness)
Arguments: Why or why not the death penalty should be imposed.
Crim Pro: What are the three issues submitted to the jury in determining capital sentencing?
1. Whether there is a probability that D would commit criminal acts of violence that would constitute a threat to society.
2. Whether D actually caused death of victim, intended to kill victim, or anticipated that human life would be taken
3. Whether there are sufficient mitigating circumstances to warrant life imprisonment.
Crim Pro: What right does a defendant have at the formal pronoucement of sentence? The victim or relative of deceased victim?
1. "Right of allocution" - personally state reason why sentence should not be pronounced.
2. Victim impact statement.
Crim Pro: What must the state allege and prove in order to increase a penalty for a criminal offense?
Prior convictions.
Crim Pro: What happens if to the penalty for a felony offense if a prior felony conviction is proved? Two prior felonies?
1. Felony offense is moved into next most serious category.
2. Must be sentenced to life or 25 to 99.
Crim Pro: What biological/DNA material must be preseved?
Evidence that would more likely than not:
1. Establish the identity of the person committing the offense; or
2. Exclude a person from a group of persons who could have committed the offense.
Crim Pro: What are the grounds for granting a new trial?
1. Bribery of a juror.
2. Intentional destruction of exculpatory evidence.
3. Verdict contrary to the law and evidence.
Crim Pro: When must a defense motion for a new trial be filed? Presented to the Court?
1. 30 days after formal sentencing.
2. 10 days after filing. (Trial judge may allow 75 days after formal sentencing)
Crim Pro: What is the standard for newly discovered evidence in allowing a new trial?
Evidence must be material.
Crim Pro: When is there a right to appeal after trial de novo on appeal?
1. The fine imposed by the county court exceeds $100, or
2. The sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
Crim Pro: When may a defendant appeal after pleading guilty or nolo contendre?
1. Trial court grants permission to appeal
2. Matter was raised by written motion and ruled on before trial.
Crim Pro: When is an appeal perfected?
When any required notice is given.
Crim Pro: When must notice of an appeal be given?
Within 30 days of formal sentencing. (90 if motion for new trial has been filed) An extension may be granted.
Crim Pro: Upon appeal, the record must contain the trial judge's certification of the right to appeal. What does it state?
Whether the case is a plea bargain case, and if so, why the defendant has the right of appeal despite the nature of the case.
Crim Pro: What does the record on appeal consist of?
1. The clerk's record.
2. The Court Reporter's record.
3. Docketing statement by appellant.
Crim Pro: Who has the responsibility to make sure that a sufficient record is presented to the appellate court?
The appealing party.
Crim Pro: When must the appellant file their brief? The appellee?
1. Within 30 days of the filing of the clerk's record or the reporter's record.
2. 30 days after the appellant's brief.
Crim Pro: When may a motion for rehearing be filed?
Within 15 days after the court of appeals' judgment. Not required to preseve error.
Crim Pro: Why did I stop at this point?
Because Texas Criminal Procedure is at most 5% of the bar exam.