Term
| For purposes of miranda, what is custody? |
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Definition
| arest or any significant restraint on the freedom of movement of a person |
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Term
| for purposes of miranda, what is interrogation? |
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Definition
| question designed to elicit a statement OR functional equivalent. |
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Term
| how to challenge voluntariness of statement? (6 steps) |
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Definition
1) motion to suppress
2) hearing outside the presence of the jury (Jackson-Denno hearing). In Jackson-Denno hearing, defendant can take stand without waiving 5th am. right. Only inquiry is voluntariness of statement.
3) judicial order with specific findings on voluntariness
4) jury cannot know that there was a hearing.
5) D may still challenge voluntariness in front of jury.
6) Judge tells jury that: jury must believe confession is voluntary beyond a reasonable doubt in order to use statemetn |
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Term
| required for written statement to be admitted |
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Definition
statement must say on its face:
1) defendant was given proper miranda warnings
2) D, prior to making statement, knowingly intelligently and voluntarily wavied Miranda rights
3) confeesion is hadwritten or signed by D |
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Term
| requirement for oral statement to be admitted |
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Definition
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Term
| when is oral statement admitted, even when it doesn't make minimum requirements? |
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Definition
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Term
| List of things to which a criminal defendant is entitle in Texas: |
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Definition
documents
papers
written statements/ confessions by defendant |
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Term
| Does defendant have general right to the discovery of evidence in the possession of the prosecution prior to trial? |
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Definition
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Term
| Must prosecution disclose autopsy report during pre-trial discovery? |
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Definition
| No. But they are public records- you just get them on your own |
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Term
| Must prosecution in a criminal case disclose a list of their witnesses? |
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Definition
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Term
| must the prosecution disclose material evidence favorable to the accused? |
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Definition
| YES- prosecution may not withhold and material evidence. Failure to disclose = violation of due process. This is the Brady Rule |
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Term
| If material in the police files is favorable to D but the prosecutor is not aware that it is there, does the Brady Rule apply? |
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Definition
| Yes. Pros. cannot escape the brady rule by claiming lack of knowledge. |
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Term
| must prosecution disclose evidence tat affects the credibility of prosecution witnesses? |
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Definition
| Yes, including alibi witnesses. |
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Term
| define "favorable material evidence" in terms of brady rule? |
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Definition
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Term
| What is the function of the Grand Jury |
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Definition
| Ex Parte proceeding that determines whether probable cause exists to formally charge a person with an offense, usually a felony. |
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Term
| how many people required to indict? |
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Definition
| 9 of the 12 in favor returns an indictment. |
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Term
| who may be present during a grand jury? |
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Definition
| prosecution, witnesses, grand jruors, court reporter, interpreter, others if allowed. |
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Term
| Can a Defendant get an examinig cause after an indictment? |
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Definition
| No. a grand jury has already dtermined there is probably cause. |
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Term
| What is an examining trial? |
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Definition
| a pre-indictment dtermination by a magistrate to determine if there is probable cause. |
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Term
| what effect if unauthorised persons at grand jury? |
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Definition
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Term
| if D appears before grand jury, what warning required? |
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Definition
- right not to answer
- right to have counsel outside
- right to leave to confer with attorney
- right to have questions and answers recorded
- right to stop answering questions at any time |
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Term
| can D get copy of grand jury transcript? |
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Definition
| If they show a particularized need. |
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Term
| If there is a defect in the indictment, when must the issue be waived? |
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Definition
| before the date of trail, or it is waived. Day of trial is not tiimely |
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Term
| defects that make indictment invalid? |
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Definition
| - failure to allege name of defendant |
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Term
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Definition
1) to tell the D what they are charged with
2) to tell the prosecutor, what they must prove in order to sustain a conviction |
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Term
| what are the magic words at the beginning of the indictment? |
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Definition
| "in the name and by the authority of the State of Texas" |
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Term
| magic words at the end of the indictment |
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Definition
| "against the peace and dignity of the state" |
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Term
| what must appear on face of indictment? |
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Definition
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Term
| what is likely missing from a sample indictment on exam |
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Definition
missing initial phrase, missing closing magic words.
- elements of crime |
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Term
| do defendants have constitutional right to bail |
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Definition
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Term
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Definition
1 capital murder
2- charged with felony and has 2 prior felonies
3- charged with felony while on bail for another felony
4- charged with felony involving deadly weapon + 1 prior felony
5- D charged with violent or sexual felony while D on probabion or parole for prior felony. |
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Term
| what factors can be considered in determining bail |
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Definition
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Term
| What conditions can be placed on release on bail? |
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Definition
- stay away from child victim or offense,
- submit to elec monitoring and stay in home
- submit to home curfew
- submit to breath analysis in car
- not communicate with victim or go near victim residence or workplace |
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Term
| competency standard for pleading guilty? |
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Definition
same as for going to trial.
- present ability to consult with lawyer to a reasonable degree
- rational and factual understanding of the proceedings. |
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Term
| evidentiary standard for competency to stand trial |
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Definition
| prepoderence of the evidence |
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Term
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Definition
1) competent enough to stand trial
2) represented by counsel at guilty plea (unless waived)
3) effective assistance of counsel during plea bargaining process
4) voluntary and knowing waiver of the rights being waived by pleading guilty. |
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Term
| does defendant have a right to counsel during plea bargaining? |
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Definition
| yes. under sixth amendment |
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Term
| can D plea guilty if there D claims factual innocence? |
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Definition
| only in federal court.????? |
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Term
| what rights does D waive by pleading guilty. |
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Definition
- privilege against self-incrimination
- right to jury trial
- right to confront adverse witnesses
- right to call witnesses
- right to be convicted by proof beyond a reasoanble doubt. |
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Term
| what must court find on the record before accepting guilty plea? |
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Definition
1) D is competent
2) plea is voluntary
3) D is knowingly waiving certain rights |
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Term
| what must the judge advise the D of before accepting guilty plea? |
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Definition
1) any recommendation by presecutor is not binding on court
2) D's right to appeal may be restricted
3) whether the court intents to follow the plea agreement
4) the punishment range (max/min)
if D is not citizen, conviction may lead to deportation/ denial of citizenship |
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Term
| What three decisions exclusively made by Defendant |
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Definition
1) plea of guilty or not guilty
2) whether to take the stand
3) whether to have a jury trial or bench trial |
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Term
| burden of proof for venue in criminal trial? |
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Definition
| preponderance of the evidence |
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Term
| when does D attorney make opening statement? |
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Definition
| can either make opening statement immediately after Pros. opening statement, or after state rests, or can waive opening statement. |
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Term
| difference between closing and resting |
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Definition
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Term
| how many jurors required for criminal trial? |
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Definition
felony- 12 jurors
misdemeanor- 6 jurors |
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Term
| how many jurors required to convict? |
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Definition
| must be unanimous (6 or 12) |
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Term
| must juror be registered voter? |
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Definition
| no. only required to be qualified to vote. |
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Term
| 4 absolute disqualifications |
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Definition
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Term
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Definition
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Term
| how many challenges for cause can be made? |
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Definition
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Term
| how many peremptory challenges allowed? |
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Definition
Both sides-
capital trial= 15
non-capital felony trial=10
misdemeanor trials= 3 |
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Term
| reasons to strike for peremptory challenges |
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Definition
| inattentive; hostile; employment or personal history |
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Term
| Does Batson apply to civil or criminal trials? |
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Definition
|
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Term
| what does Batson rule say |
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Definition
| prospective juror may not be excluded because of their race or gender. |
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Term
| In Texas, does Batson rule apply to religion? |
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Definition
|
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Term
| when must Batson challenge be raised? |
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Definition
|
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Term
| steps of Batson challenge |
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Definition
before the jury is impaneled:
1) D makes prima facie case of discrimination (pattern of discrimination
2) P offers race neutral reasons
3) D shows that race neutral reasons are not real (whites with similar characteristics not stricken) |
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Term
| If judge finds Batson violation, what remedy? |
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Definition
| judge can place stricken jurors onto panel |
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Term
| list challenges for cause |
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Definition
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Term
| purpose of motion in limine |
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Definition
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Term
| effect of motion in limine on preserving error? |
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Definition
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Term
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Definition
| written instructions that will be given to the jury. |
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Term
| what must jury charge do (5 things) |
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Definition
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Term
| what rights to Prosecutor and Defense have before the jury charge is read |
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Definition
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Term
| who decides whether the judge or jury determines punishment? When is the decision made. |
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Definition
| the defendant (not the lawyer) makes the decision before the trial |
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Term
| effect of failure of jury to reach unanimous verdict at guilt phase |
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Definition
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Term
| effect of failure of jury to reach unanimous verdict at punishment phase |
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Definition
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Term
| factors in determining the amount of bail? |
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Definition
- large enough to reasonably assure presence of D
- not excessive or an intstrument of oppression
- type of crime charged
- D's financial resources
- safety of victim and community |
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