Term
| Requirements of Arrest Warrant |
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Definition
-Specify name of person to be arrested
-State that person is accused of particular offense and give the person adequate notice of what that offense is
-Be signed by a magistrate and give the office of that magistrate |
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Term
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Definition
-Arrests for Traffic Offenses: cop can make a custodial arrest, but not for speeding or violation of open containers law if the violator signs the citation and agrees to appear
-Entry of Residence to Make Arrest: an officer making an arrest w/o a warrant can't enter a residence unless A) person who lives in the residence consents or B) exigent circumstances |
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Term
| When are warrantless arrests allowed? |
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Definition
-Suspect committed offense in front of officer
-Officer has PC to believe suspect violated a protective order
-Officer has PC to believe suspect committed a felony and is about to escape
-Officer has recovered stolen property and believes suspect stole it
-Officer has PC that suspect committed assault w/ bodily injury and there's immediate danger of further bodily injury
-Officer finds suspect in suspicious place under circumstances that reasonably show suspect is guilty of felony/disorderly conduct/etc.
-Officer has PC that suspect prevented/interfered with another person's ability to make a phone call in an emergency
-Suspect makes voluntary statement to officer that establishes PC that suspect committed a felony |
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Term
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Definition
"Show me the body" - court order to custodial person to produce person in custody and show why they're being held; used to:
-challenge amount or denial of bail
-obtain appellate review of pretrial ruling of no double jeopardy
-attack a conviction after appeal failed |
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Term
| Requirements for Petition for Writ of Habeas Corpus |
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Definition
-State that person is being unlawfully confined and name those confining him (including their office, if any - e.g. prison warden)
-Petition must be attached to writ under which person is detained
-Contain prayer for the writ
-Be sworn to that the allegations are true |
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Term
| Reasons for Denial of Bail |
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Definition
-D is charged with capital murder and the state establishes a likelihood of conviction and the death penalty
-D is charged with a felony and has 2 prior felony convictions
-D is charged with felony while on bail for a previous felony
-D is charged with noncapital felony involving use of deadly weapon AND has a prior felony conviction
-D is charged with violent/sexual felony while on community supervision/parole
-D charged with sex crime against a child under 14 AND D violated bail condition related to safety of victim/community, OR
-D violated bail condition related to safety of victim/community
DETENTION UNDER ORDER DENYING BAIL LIMITED TO 60 DAYS |
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Term
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Definition
Felony Ds have a right to examining trial if indictment hasn't yet been returned
-Used to determine if there's PC to believe D is guilty
-But failure to establish PC not bar to prosecution
-D has right to be present and cross-examine and subpoena witnesses |
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Term
| Statute Period of Limitations |
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Definition
Murder, manslaughter, leaving scene of accident that resulted in death, sexual abuse of child - NONE
Agg kidnapping with intent to abuse child younger than 17 - 20 yrs from victim's 18th birthday
Injury to a child - 10 yrs from victim's 18th birthday
Theft by fiduciary/public servant, sexual assault, injury to elderly/disabled person - 10 years
Money laundering/CC abuse - 7 years
Theft/burglary/kidnapping/abandoning or endangering a child - 5 yrs
Felonies other than those above - 3 years
Misdemeanors - 2 years |
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Term
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Definition
-Secret - accused has no right to participate but may be allowed to
-Witnesses may invoke 5th amend
-No right to have lawyer present
-Indictment based on vote of 9/12 jurors
-ONLY way to charge felonies
-Felony D may waive his right to indictment if he's repped by counsel, waiver is written or took place in open court, and it was voluntary - then he will be charged by an information instead |
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Term
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Definition
| Indictment may only charge one offense, BUT several crimes can be charged in the same indictment if they're part of the same criminal episode |
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Term
| Motion to Set Aside Indictment or Information |
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Definition
May be made on grounds that:
-Indictment wasn't found by at least 9 jurors
-Information wasn't based on a valid complaint
-Some person not authorized was present before the grand jury while deliberating/voting
-Grand jury was illegally impaneled OR
-Other ground authorized by law |
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Term
| Why plead nolo contedere? |
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Definition
| It may not be used as an admission against D in later civil litigation if it arises out of the same act as the criminal prosecution |
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Term
| Exceptions to Double Jeopardy |
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Definition
-First prosecution ended in a mistrial declared for "manifest necessity"
-Mistrial requested by D
-D seeks relief for an error of law and an error in the trial is so found
CONVICTION REVERSED FOR INSUFFICIENT EVIDENCE ACQUITS THE D - NO SECOND TRIAL ALLOWED!
If conviction on lesser included offense is reversed, retrial is permitted only on the lesser included offense |
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Term
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Definition
| When a crime requires both a particular act and an intent, D must have required intent when he does the act constituting the crime |
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Term
| Formal Requirements of Charging Instrument |
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Definition
-Name and description of accused (if wrong, D has to raise this at arraignment and judge has to correct it)
Facts for every element of offense
Enough details to give accused notice
Allege date of crime is w/i SOL and before presentment of indictment
Allege commission in county w/i jurisdiction/venue
Conclude: "AGAINST THE PEACE AND DIGNITY OF THE STATE"
Be signed by foreperson (for indictment), DA (information) |
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Term
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Definition
Proved by some but not all of the same facts required to prove the more serious offense, OR
Requires a less serious injury, OR
A less culpable mental state, OR
Just an attempt to commit the more serious offense
*Jury can be instructed on lesser if they could find D is NG of charged offense but guilty of lesser |
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Term
| Raising Indictment Defects |
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Definition
Known as "motion to quash"
MUST BE RAISED BEFORE THE DAY OF TRIAL
Defects of substance - failure to allege elements of the crime
Defects of form - other defects
Fundamental defects - not naming the D or a really unclear description of offense
IF DENIED: can appeal ON FORM ONLY if D shows harm |
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Term
| Curing Defects by Amendment |
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Definition
Allowed at any time if D doesn't object
BEFORE DAY OF TRIAL: any is allowed, unless D objects that it would allege a different offense or prejudice his rights
D is entitled to ADVANCE NOTICE of a proposed amendment
Trial judge must authorize it
IF AMENDED -- D gets 10 days extra for trial prep if requested |
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Term
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Definition
Occurs in trial court
Accused enters a plea, his identity is fixed
Judge appoints counsel if indigent
PLEAS: guilty, not guilty, NOLO
D decides whether to have a trial by jury, whether to testify, and what plea to enter |
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Term
| What warnings must the trial judge give D before he accepts a felony plea of guilty or NOLO? |
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Definition
Range of punishment
Limited right to appeal
Could result in deportation
Inquire as to whether there's a plea bargain
*If plea bargain is lesser than what judge imposes, D has right to withdraw plea |
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Term
| If there's a pretrial hearing, what must the parties do? |
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Definition
7 days before--
-Enter any special plea
-Make challenges to the indictment
-Make motions for continuance
-Make MTV
-Make motions to suppress
-Make requests for discovery
-Raise entrapment claim |
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Term
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Definition
Pretrial motion that asks for either/both:
-Ruling on question of evidence/procedure that'll arise at trial
-Ruling that opposing counsel must alert judge before raising any matters of evidence/procedure before the jury
*DOESN'T preserve the matter for appeal |
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Term
| Motion to suppress evidence |
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Definition
May be used to raise pretrial ANY argument that evidence to be offered is INADMISSIBLE
*Could wait til trial to object, but then the jury hears it
*PRESERVES FOR APPEAL |
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Term
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Definition
Trial judge has discretion to order P to provide D with a witness list (but D doesn't have to!)
If P calls a W that wasn't on the list, judge has discretion to exclude/admit the testimony (looks to whether P's omission was intentional and whether D received actual notice)
EXPERT WITNESS LIST: judge has discretion to order EITHER/BOTH SIDES to provide the otherwith lists AT LEAST 20 DAYS BEFORE TRIAL |
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Term
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Definition
Either side can depose a W - but usually only with a verified motion for good reason (W is on his death bed and his testimony is material, etc.)
For discovery: for obtaining info for trial prep
TO preserve testimony for later use at trial |
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Term
| What can D have access to? |
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Definition
His written confession
Physical evidence - drugs or blood - in order to test it
Names and testimony of grand jury Ws IF D shows "particularized need" for it |
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Term
| Factors to Consider in Setting Bail |
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Definition
LASSO-
likelihood of D appearing for trial
Ability of D to make bail
Seriousness of the crime charged
Safety of V and community
Oppression - bail can't oppress |
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Term
| What CAN'T D have access to? |
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Definition
State crime lab report for blood/drugs
Police reports of investigating officers (work product)
Written statements given by state Ws to police or P (also work product)
Memo from ADA to P about the case (also WP) |
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Term
| Can informants be disclosed? |
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Definition
Usually no, but 2 exceptions:
-Informant provided evidence by which the state obtained evidence D claims was illegal - disclosure required to see if it's a reliable informant
-Upon a showing that informant can provide testimony to a fair degree of guilt or innocence |
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Term
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Definition
P is required to disclose exculpatory and material info - if not, violates D's due process rights
*includes eyewitness IDs |
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Term
| Competency to Stand Trial |
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Definition
D is incompetent if he either
1) lacks the ability to consult with counsel with a reasonable degree of understanding, or
2) lacks rational and factual understanding of the proceedings
*Can be raised by either side, or even the judge - MUST be raised by the judge if it comes to their attention
VERSUS INSANITY:
-Competency looks to D's mental state AT TRIAL, not at the time of the crime
-Insanity is "didn't know it was wrong" - competency is "don't understand my lawyer"
-Competency is a TEMPORARY, albeit not final bar to prosecution - if D regains competence at some point, he'll be tried |
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Term
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Definition
Can be sought by D because:
-Prejudice in county prevents a fair trial
-Dangerous combo of influential persons against D
Can be sought by State because:
-Combinations/influences in FAVOR of D would prevent fair trial
-Lawless conditions would prevent FT
-Life of D or W would be jeopardized by local trial |
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Term
| Procedure for Change of Venue |
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Definition
File a written Motion for Change of Venue
File 3 affidavits that a fair trial can't be held in the county - one from D, two from credible residents
-Movant must present evidence @hearing of sufficient prejudice in the county |
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Term
| How can a judge be disqualified? |
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Definition
Judge was victim of the crime
Judge was counsel for either side in this case
Judge is related within 3 degrees (blood OR marriage) to D or V
Bias |
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Term
| D's presence during trial |
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Definition
Must be present at beginning and end of trial, but can be absent in between
Can be absent for fine-only misdemeanor if his lawyer shows up for him |
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Term
| Joinder & Severance of Ds |
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Definition
Several Ds can be charged in one indictment and tried together if all charged with the same offense or different offenses arising out of th same transaction
MANDATORY SEVERANCE: D moves for severance, showing co-D has a prior conviction admissible that could prejudice D
DISCRETIONARY: judge can grant if it's prejudicial to moving D |
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Term
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Definition
Must be in writing, supported by a showing of good cause, and be sworn
If made AFTER trial has started:
-based on occurrence that happened after trial had begun that WASN'T anticipated and SURPRISE would prevent a fair trial
If it's to get a missing W:
-Name & residence of W
-Efforts made to secure W's presence
-Material facts D expects to prove by W
*WITHIN JUDGE'S DISCRETION |
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Term
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Definition
Indigent D has right to counsel if charged with any felony or misdemeanor with potential jail time
Also has a right to represent himself - judge must make sure D is competent and understands the risks of doing so
RIGHT TO EFFECTIVE REPRESENTATION: lawyer must be professionally competent and conduct adequate investigation and convey to client any plea bargain offers |
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Term
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Definition
| For an indigent D to get an expert witness at the state's cost |
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Term
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Definition
Criminal D must be tried to a jury UNLESS D waives his right before trial - requires consent of P and judge too
*CANNOT be waived in capital murder cases |
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Term
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Definition
12 in district, 6 elsewhere
Jury must communicate with judge IN WRITING and judge must also respond in writing and read to the jury in open court |
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Term
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Definition
-Swearing in a panel: qualification based on whether they are a qualified voter, have ever been convicted of theft or a felony, and if they're under indictment or accused or theft/felony
-Jury shuffle: random reseating - either D or P can request this |
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Term
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Definition
Grounds:
ABSOLUTELY DISQUALIFIED:
Prior conviction for theft/felony
Under formal charge for theft/felony
Insane
Not qualified to be a voter
Is a witness in the case
Served on jury in prior trial of this case
Served on indicting grand jury
Can't read or write
Biased or prejudiced for or against the accused or for or against any law applicable in this case |
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Term
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Definition
Each side gets:
capital murder - 15
other felonies - 10
misdemeanors in district ct - 5
misdemeanors in other ct - 3
FOR ANY REASON except race or gender |
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Term
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Definition
-Judge calls for announcements, parties announce "ready"
-P reads indictment
-D enters a plea
-P opening, D opening (or later)
-P case in chief
(motion for DV out of jury's hearing)
-D opening (or earlier)
-D case
-P rebuttal
-Judge reads charge to the jury
-Closing arguments |
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Term
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Definition
| Both sides on application can subpoena Ws (good statewide, not just 150 mi like in civil cases) and either side can have a peace officer go get the person if they were subpoenaed but failed to appear |
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Term
| Ways to Impeach a Witness |
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Definition
Character for untruthfulness (opinion and reputation evidence)
Prior convictions (final criminal conviction - inadmissible if it's pending on appeal - within 10 yrs - misdemeanor w/ moral turpitude - domestic violence, forgery, false reports to police, theft - or felony)
PRIOR INCONSISTENT STATEMENT
BIAS OR ITNEREST |
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Term
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Definition
May testify to an opinion w/o first disclosing the facts or data on which it's based
Admissibility of scientific evidence? Look to:
-Generally accepted theory/technique
-Potential error rate
-W's qualifications/skills/knowledge
-Availability of other experts to test/evaluate the technique
-Clarity with which it can be explained in court |
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Term
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Definition
Party entitled to a writing if other party's W used it to refresh her memory before or during testimony
Also entitled to prior written or recorded statement |
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Term
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Definition
Judge can't summarize or comment on the evidence
Judge must read to the jury before final arguments and is given a written copy
Any objections/requests must be made in writing or by dictation to court reporter BEFORE the charge is read
Should NOT define reasonable doubt |
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Term
| Elements, exceptions and defenses |
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Definition
ELEMENTS: must be pleaded, jury is always instructed, burden on the state by beyond a reasonable doubt
EXCEPTIONS: must be pleaded, must be NEGATED in the charging instrument
DEFENSES: don't need to be pleaded, jury instructed only if evidence for that defense is produced, state has burden
AFFIRMATIVE DEFENSES: need not be pleaded, jury instructed only if evidence produced, D has BURDEN BY PREPONDERANCE OF THE EVIDENCE |
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Term
| What can the DA not comment on during closing arguments? |
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Definition
-D's invocation of self-incrimination rights (to not testify, silence after Miranda warnings, silence after arrest - but CAN comment on P's silence BEFORE arrest)
Express personal opinions (I think D looks guilty)
Argue what the community demands
Attack D b/c of his lawyer |
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Term
| What kind of evidence requires corroboration? |
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Definition
ACCOMPLICE TESTIMONY - D can't be convicted on their testimony unless there's corroborating evidence that connects D to the crime
UNDERCOVER INFORMER TESTIMONY
D'S OUT OF COURT CONFESSION
SEXUAL ASSAULT VICTIM'S TESTIMONY |
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Term
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Definition
Ds have a right to have jury assess the punishment (in fed ct the judge does it) IF D invokes it
State CANNOT have jury decide punishment if D doesn't elect for it
All issues deemed relevant to sentencing are allowed, including D's prior record, general reputation and character |
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Term
| Notice of extraneous offenses |
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Definition
D can make a pretrial request for notice of extraneous offenses that the state intends to introduce, and the state must tell D:
-date of offense
-county where it occurred
-name of victim |
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Term
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Definition
Sentencing jury required if state seeks DP
Jury will be asked:
"Is there a probability that D will commit criminal acts of violence constituting a continuing threat?"
"Are there sufficient mitigating circumstances in warrant life imprisonment rather than death?"
If jury wants DP, judge has to do it - no discretion |
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Term
| Judicial Confession at Sentencing |
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Definition
| Does NOT waive any errors committed during the guilt phase - D can still win on appeal |
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Term
| What is required for a proper application for felony probation/community supervision? |
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Definition
-In writing
-Sworn
-States that D hasn't been convicted of a felony |
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Term
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Definition
Court puts D on community supervision without finding him guilty (only applicable if it's an offense other than DWI/FWI/BWI, intoxicated assaulted, intoxication manslaughter), D enters plea of guilty or NOLO
If D successfully completes probation, the charges are dismissed
VS PROBATION: D has to be found guilty before he gets probation, but DA doesn't require this - if DA is "revoked" D can be given ANY sentence in the statutory range; if probation is revoked D can only get sentence previously assessed |
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Term
| Interlocutory appeal on a pretrial motion |
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Definition
State must:
-show that jeopardy hadn't attached when the order was entered
-Appeal must be taken w/i 15 days of the order |
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Term
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Definition
To preserve error in EXCLUDING EVIDENCE, counsel must make an offer of proof showing the substance of the evidence ad the record must reflect that judge rejected the offer and excluded it
To preserve error in ADMITTING EVIDENCE, counsel must make a timely objection and state specifically the ground and secure a ruling from the trial judge
IMPROPER ARGUMENT/COMMENT BY LAWYER OR JUDGE - must immediately object, seek instruction for jury to disregard, move for a mistrial and get rulings on each of these |
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Term
| What items are required for a search warrant in Texas? |
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Definition
-Statement that runs in the name of "the state of Texas"
-Specification of the person, place or thing to be searched
-Specification of items to be seized
-Endorsement of the date and hour it was issued
-Signature of issuing magistrate |
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Term
| What's Allowed in Closing Argument |
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Definition
| Summarize the evidence and make reasonable deductions from the evidence |
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Term
| Admonishments by judge during D's guilty plea |
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Definition
-Range of penalties that must be imposed
-Any recommendation by prosecution on punishment is NOT binding on the court
-Limited right to appeal after conviction on a plea of guilty |
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Term
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Definition
Claiming that a party's peremptory challenges are made on racial grounds
Have a hearing - prima facie case of racial motivation - challenged party must try to rebut prima facie showing by explaining that reasons for each strike was something other than race - moving party must show by preponderance of the evidence |
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Term
| When must defendant be taken before a magistrate? |
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Definition
Without unnecessary delay - within 48 hours of arrest
If not done, D can be released on bond |
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Term
| Duties of Magistrate at First Appearance for D |
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Definition
-Tell D the charges
-Tell D his rights to retain counsel and to an examining trial
-Warn D of Miranda and 6A rights
-Set bail
-Determine whether PC exists |
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Term
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Definition
Possible when D is being prosecuted for CAPITAL MURDER or for certain prosecutions for NONCAPITAL FELONIES
State must file motion in district court
Any order denying bail must issue within 7 days of D's arrest |
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Term
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Definition
File application for writ of habeas corpus
At hearing, introduce evidence showing
-Bail was excessive
-D can't meet bail set
-This is what D can meet |
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Term
| Trial court factors in determining bail |
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Definition
LASSO
Likelihood of D appearing for trial
Ability of D to make bail
Seriousness of the crime charged
Future safety of victim/community
Oppression - bail isn't used for this |
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Term
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Definition
| Pretrial hearing before a magistrate - requires State to produce evidence showing PC to believe D is guilty of the crime |
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Term
| D's Rights at Examining Trial |
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Definition
-Right to present
-Right to be represented by counsel
-Have rules of evidence applied
-Cross-examine State witnesses
-Subpoena & present D witnesses |
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Term
| Information vs. Indictment |
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Definition
Information: pleading filed by State charging D with criminal offense - ONLY needs to be approved & signed by the Prosecutor
INDICTMENT: Must be approved by a grand jury and signed by the foreperson |
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Term
| Who selects the people who will serve on the grand jury? |
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Definition
| Either by grand jury commissioners appointed by the district judge or just like trial jurors are picked for civil cases |
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Term
| How can D challenge the composition of the grand jury? |
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Definition
| Texas CCP requires commissioners to choose a broad cross section of grand jurors (race, sex, age) - D should raise the matter during GJ selection by a CHALLENGE TO THE ARRAY |
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Term
| D's presence at grand jury proceedings |
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Definition
-Can be compelled to appear by subpoena - can't be compelled to answer questions if they're self-incriminating
-He will be a suspect witness - so before questioning he must be warned of the offense of which he's suspected, the county in which it occurred and the time it occurred at - ALL QUESTIONS AND TESTIMONY MUST BE RECORDED |
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Term
| Warning for Grand Jury Subpoena |
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Definition
D must be warned that
-Testimony will be under oath
-False answer to a material question subjects him to prosecution for perjury
-He can refuse to answer incriminating Q's
-He has a right to have counsel appointed if he can't afford one
-Right to counsel outside the room
-His testimony can be used against him |
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