Criminal Procedure And Evidence: Pre-Trial Procedure In Trial Court

Front 1

Where does the arraignment take?

What functions does it serve?

Back 1

It takes place in the trial court.

It serves multiple functions:
1) The accused enters a plea;
2) This is the point for fixing the accused's identitity;
3) (if not already done), the judge appoint counsel (indigent)

Front 2

What pleas may an accused enter?

Back 2

Not guilty, guilty, nolo contendere

Front 3

What are some decisions that a criminal D must personally make?

Back 3

1) What plea to enter

2) Whether to have a trial by jury

3) Whether to himself take the witness stand at trial

Front 4

When must defense intent to introduce evidence that he was insane at time of crime be presented?

Back 4

10 days before trial.

Front 5

Is there any difference in pleading nolo contendere rather than guilty?

Back 5

No difference in the criminal prosecution.

If civil litigation arises out of the same incident, a plea of guilty could be used as evidence again D. A plea of nolo contendere could not be so used.

Front 6

What are some admonitions trial judge must give D. before accepting a felony plea of guilty or nolo contendere?

** frequently asked ** memorize at least 3

Back 6

1) Inform D of range of punishment

2) Inform D that recommendations by State are not binding

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

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

5) Inquire as to whether there is a plea bargain

Front 7

Can a plea of guilty be entered if D can't sign the written admonishments?

Back 7

Yes, because they can be given in either writing or orally.

Front 8

Can a guilty plea be withdrawn?

Back 8

Yes, at any time before the trial court takes the matter under advisement.

Front 9

Is a withdrawn guilty plea admissible as evidence?

Back 9

Evidence Rule 410 makes inadmissible withdrawn pleas of guilty or nolo contendere

Front 10

Does a trial judge have to set a case for pre-trial hearing and conference?

Back 10

He may, but need not.

Front 11

If a pretrial hearing and conference is set, parties must do what 7 days before hearing?

Back 11

1) Enter any special plea;
2) Make challenges to indictment;
3) Make motions for continuances;
4) Make motions for change of venue;
5) Make motions to suppress evidence;
6) Make requests for discovery;
7) Raise claims of entrapment

Front 12

What effect does scheduling a pre-trial hearing and conference have on how the defense challenges the indictment?

Back 12

Motion to quash must be filed 7 days before the trial hearing, not just before the day on which trial begins. If not filed before then, it can't be raised later except by permission of the court on the basis of good cause.

Front 13

Does the D have the right to be present at any pretrial proceeding?

Back 13

Yes

Front 14

What is a motion in limine?

Back 14

Pre-trial motion that asks for:

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

2) Pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury

Front 15

Does a motion in limine preserve any error (ie, for appeal?

Back 15

No. Even if granted, object as if it hadn't been.

Front 16

Name the purpose of a motion to suppress.

Back 16

A motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible.

Most often, used to raise a contention that evidence has been illegally obtained or a confession is inadmissible.

Front 17

What are ways for defense to raise admissibility?

Back 17

Counsel may

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

Generally, pre-trial motion to suppress is preferred method for exclusionary rule stuff

Front 18

Does a pre-trial ruling on a motion to suppress preserve the issue for appeal? How about a pre-trial ruling on a motion in limine?

Back 18

Yes to motion to suppress; no to motion in limine.

Front 19

What issues may prosecutor inquire to at hearing on motion to suppress?

Back 19

Only matters related to the hearing issues; cannot extend to guilt of charged crime.

If d. testifies at pre-trial hearing, he does not waive his right to remain silent at rest of trial.

Front 20

What are witness lists?

Back 20

Trial judge has discretion to order State to provide the defense with a list of witnesses that the State intends to call.

Discretion to order either/both sides to provide the other with a list (names and addresses) of expert witnesses it may call at trial (at least 20 days before trial date)

Front 21

Who may order a deposition and how does this happen?

Back 21

Either side may be permitted to depose a witness. Trial judge must issue an order authorizing the deposition. Party must show "good reason" for deposition

V. rare in criminal cases

Front 22

Who has authority to order the State to permit the D. to inspect certain things (inspection/ "real discovery")

Back 22

Trial judge

Front 23

When must inspection be ordered? Does it require giving up possession?

Back 23

Mandatory if:
1) thing is a tangible thing;
2) constitutes or contains material evidence;
3) is in possession of the State; and
4) is not "work product" of the State

Can't require State to give up possession

Front 24

Inspection must be sufficient to __

Back 24

Give accused the information necessary to prepare for trial

Front 25

What other "discovery" requirements?

Back 25

D. may request State to provide notice of

1) rules 404(b) extraneous offense evidence at guilty;
2) Art. 37.07, Sec. 3g extraneous offense evidence at punishment

Front 26

How can defense obtain testimony of witnesses who testified before the grand jury?

Back 26

Must show "particularized need"

Front 27

What is main rule of inspection?

Back 27

Work product.

1) Physical evidence not covered work product;

2) Work product covers reports of state employees, policy reports, and witness statements

Front 28

What result if State seeks to offer testimony of witnesses whose names were not on list provided to defense?

Back 28

Discretionary with trial judge. Relevant considerations include:

1) Whether omission was intentional;
2) Whether defense received actual notice that witness would testify

Front 29

Regarding witnesses, what does trial court have authority to order?

** Asked multiple times

Back 29

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

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

3) In regards to non-expert witnesses (fact witnesses), no authority to compel D. to provide the state with any information at all.

Front 30

Is identity of an informer privileged?

Back 30

Yes, can be withheld by the State.

Disclosure may be required in 2 situations:

1) Informant provided information by which the State obtained evidence in a way the D. claims was illegal, the court has discretion to require disclosure if necessary to establish the informer's reliability;

2) Upon a showing the informant can provide testimony necessary to a fair determination of guilt-innocence, the court must order disclosure

Front 31

Describe the federal constitutional duty to disclose exculpatory evidence?

Back 31

D's due process under Brady v. Maryland are violated if:

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

2) Info that is "material" which means if it had been disclosed, there is a reasonable probability the outcome of the case would have been different

Front 32

When must exculpatory evidence must be disclosed?

Back 32

1) if it's material

2) If it's in possession of trial prosecutor; another prosecutor; or police

Front 33

When is a conviction invalid for nondisclosure?

Back 33

Only when nondisclosed exculpatory evidence is material

Front 34

Under federal due process and TX statute, criminal proceedings cannot continue if D is incompetent to stand trial.

When is a D. incompetent to stand trial?

Back 34

1) She lacks the ability to consult with counsel with a reasonable degree of rational understanding; or

2) She lacks a rational and factual understanding of the proceedings

Front 35

If after being found incompetent to stand trial, D's condition improves, what result?

Back 35

D. can be determined competent and prosecution can proceed.

Front 36

How can competency be raised?

Back 36

1) Defense of State may by motion suggest the D may be incometent; or

2) Trial court may on its own motion suggest the D. may be incompetent. Trial judge MUST suggest on its own motion if evidence sugesting this comes to attention of court.

Front 37

How is competency issue determined?

Back 37

1) Trial judge makes a preliminary inquiry;

2) If it shows significant evidence of incompetency, judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury.

Front 38

What is the legal presumptiona bout competency?

Back 38

That a D is competent.

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

Front 39

** Multiple exams**

How does incompetency differ form insanity under TX law?

Back 39

Relevant time:
Insanity is time of offense; incompetency is at time of trial

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

Result:
Insanity: final verdict of not guilty by reason of insanity;
Incompetency: bar to continuing proceedings

Front 40

Generally where does venue lie?

Back 40

In county where crime was committed

Front 41

When may a D. seek a change of venue?

Back 41

1) Prejudice in county would prevent fair trial; or

2) Dangerous combination of influential persons against the D would prevent a fair trial

Front 42

When may the State seek a change of venue?

Back 42

1) Combinations or influences in favor of D would prevent fair trial;

2) Lawless conditions would prevent fair trial;

3) Life of D or a witness would be jeopardized by local trial

Front 43

Trial court may change venue on its own motion because?

Back 43

Trial fair and impartial to D and state alike can't be held.

Front 44

What procedural steps must D. follow to change venue?

Back 44

Must file

1) Written motion for change of venue;

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

At hearing, must present evidence showing there is sufficient prejudice to prevent a fair trial

Front 45

When is a judge disqualified?

Back 45

1) Was victim of crime

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

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

4) Bias

Front 46

Regarding the accused's presence, what are the rules in a felony case?

Back 46

In a felony case or prosecution for misdemeanor punishable by jail time, the D. must be present at beginning of trial.

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

And, D must be present at end of trial for formal sentencing; but if D is voluntarily absent in middle, trial may proceed

Front 47

Regarding the accused's presence, what are the rules in a misdemeanor case?

Back 47

For a fine-only misdemanor, D can be absent and appear "by counsel" if prosecutor consents.

Front 48

The general "One Offense" rule governs joinder of offenses. What are its parameters?

Back 48

1) An indictment may allege only one offense. If an indictment charges more than that, it is to be quashed.

2) A defendant may be tried on only one indictment per trial. If a D. is scheduled for trial on several indictments, the D. is entitled to have the trial severed.

Front 49

"One Offense Rule" is subject to the "Criminal Episode Exception." What consequence?

Back 49

State may join in one indictment all offense arising out of one "criminal episode," and D. will be tride for all of these in one trial unless there is a severance of charges.

If several offenses charged in one instrument, each must be in a separate count.

Front 50

If a D. is charged in different indictments with offenses arising ouft of one "criminal episode," State may have these indictments __.

Back 50

Consolidated for trial together.

Front 51

What are the major functions of the following receptor type: M2

Back 51

Decrease heart rate and contractility of atria

Front 52

Is the state required to seek trial together of offenses arising out of one criminal episode?

Back 52

No

Front 53

A defendant who is schedule for trial together on multiple charges because those charges arose from the same criminal episode has an absolute right to have the charges severed for separate trials.

BUT a defendant who invokes the right to severance incurs who potential disadvantage?

Back 53

1) If a D. is convicted in one trial of several charges arising out of one criminal episode and sentenced to imprisonment, the prison terms must run concurrently.

2) If D. schedule for one trial on such charges invokes right to severance and is sentenced to imprisonment, trial judge has discretion to make prison terms consecutive.

Front 54

Several defendants may be charged in one indictment and tried together if they are all charged with the same ___.

Back 54

Offense; or

They are charged with different offenses arising out of one transaction

Front 55

What is mandatory severance?

Back 55

D who moves for severance and shows her co-D has a prior conviction admissible against that co-D must be granted a severance.

Front 56

What is discretionary severance?

Back 56

In other situations, trial judge has discretion to grant a motion for severance of trials, and should grant such a motion if a joint trial would be prejudicial to the defendant who has moved for severance.

Front 57

Generally, how is a motion for continuance made?

What if it's made after trial has begun?

Back 57

A motion for continuance must:
1) Be in writing;
2) Be supported by a showing of 'good cause' and
3) Be sworn

If made after trial has begun, it must also be
1) Based on an occurrence that happened after trial started; and
2) That occurrence could not have been anticipated; and
3) Surprise must be such as to prevent a fair trial

Front 58

A defendant's motion for continuance to obtain a missing witness must alleged __?

Back 58

1) Name and residence of missing witness;

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

3) Material facts defense expects to prove by witness

Front 59

Is it mandatory to grant a D's first motion for continuance?

Back 59

No. All continuance motions are discretionary by the judge.

Front 60

Does an indigent D. have a 6th Amendment right to an appointed attorney?

Back 60

Sometimes.

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

2) If charged with misdemeanor, need not be provided an attorney if no jail time is imposed on conviction.

Front 61

Describe the 6th Amendment right to self-representation.

Back 61

Judge must make sufficient inquiries of D on the record to assure he's competent to do so. comptency requires only that he understands the disadvantages and risks of that course.

Front 62

What is timely effort required of an attorney?

Back 62

Must make every reasonable effort to contact the defendant not later than the first working day after the date of appointment. Must interview D as soon as practicable.

Front 63

What result if attorney fails to timely contac tor interview the defendant?

Back 63

Judge has discretion to replace.

Front 64

Can judge consider whether D has posted /is capable of posting bail in determining indigence for attorney representation?

Back 64

General rule is that judge may not consider this. Exception is that this may be considered as it reflects the D's financial circumstnaces as measured by proper considerations, such as income, property owned, dependents, etc.

Front 65

A D's 6th Amendment righ tto effective representation is violated if __.

Back 65

1) Lawyer's actions were beyond the bounds of professional competence, and were not simply tactical decisions; and

2) There's a reasonable probability that had counsel been effective, the results of the proceeding would have been different

Front 66

Representation is ineffective if counsel:

Back 66

1) Fails to conduct an adequate investigation; or

2) Fails to convey to the client an offer of a plea bargain

Front 67

To obtain expert appointment for indigent defendant, what pleading should you file?

Back 67

Ake motion invoking Ake v. Oklahmoa (due process entitles indigent to appointment of expert). Must show that area of expertise is likely to be a significant issue in the case. If so, mandatory.

Can make motion and showing ex parte. (just w/judge)

Front 68

When may state dismiss some or all of charges brought?

Back 68

1) Must file writen statement of reasons for seeking to dismiss;

2) Trial judge must consent.

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