Criminal P&E

Question 1

What is a complaint?

Answer 1

A complaint is a sworn statement that alleges that there is probable cause to believe someone committed a crime. A criminal complaint has several requirements, including that it must be in writing, name the offense and date of the crime, and specify the name or description of the accused,

Question 2

What are three requisites of an arrest warrant?

Answer 2

Must state the name of the person being arrested or a physical description of him, state the name of the offense the person is accused of committing, include the signature of the issuing magistrate, and state the judicial office of the issuing magistrate.

Question 3

What warning must a magistrate give before the examination of any witness at his examining trial?

Answer 3

The magistrate shall inform the accused that it is his right to make statement relative to the accusation brought against him, but at the same time shall also inform him that he cannot be compelled to make any statement whatsoever. The magistrate shall also inform the accused that if he does make a statement, it may be used in evidence agains him.

Question 4

What is a personal bond, and what is one way in which it differs from a bail bond?

Answer 4

A person bond is the accused’s promise to pay the bond amount if he fails to comply with the terms. Unlike a personal bond, a bail bond requires surety.

Question 5

Can a magistrate impose conditions on release?

Answer 5

Yes. A magistrate may impose any reasonable condition on bail related tot he safety of the victim or the community.

Question 6

Can you appoint an expert even if you are representing a poor client?

Answer 6

yes, due process entitles an indigent defendant to the appointment of an expert, including a psychiatrist, if the expert’s expertise is likely to be a significant issue in the case.

Question 7

Who selects the people who serve on the grand jury?

Answer 7

By summons from a fair cross section of the community like a petit jury.

Question 8

Can a prosecutor authorize someone other then them that is not an attorney to question a witness?

Answer 8

No, the prosecutor is not permitted to have the computer expert question the officer. No person other than the attorney representing the State or a grand juror may question a witness before the grand jury.

Question 9

What steps can be taken to get access to a physical object and what do you have to show?

Answer 9

File a motion to inspect the object. Must demonstrate good cause that the object is a tangible thing, constitutes or contains material evidence, is in the possession of the state, and is not the work product of the state.

Question 10

The fear of the court not accepting a plea agreement.

Answer 10

The court is not required to follow the plea agreement. However, if the court refuses to impose the sentence recommended by the prosecutor; the court must allow defendants to withdraw the plea.

Question 11

What procedural step must you take to allow the jury to sentence defendant to probation, and when must you make it?

Answer 11

You must file a sworn application for probation. It must be the application for pretrial and be in writing, sworn, and it must state that the defendant has not been convicted of a felony.

Question 12

What procedural steps can be taken to prevent prosecutor from introducing physical objects and testimony by an officer. What grounds can you take it?

Answer 12

Move to suppress the object and file a motion in liming to prevent officer’s testimony at trail. Argue that the object and testimony were obtained illegally.

Question 13

Can a prosecutor move to amend the indictment to allege additional crimes?

Answer 13

No, an indictment can be amended to fix a defect it cannot be amended to add an additional crime. If prosecutor was to add the additional crime he must go back to the grand jury and ask it to indict for the new offense.

Question 14

What procedural steps can prosecutor take to preclude a person from serving on a jury?

Answer 14

Can asked for the juror to be struck for cause of bias and/or prejudice. If not granted, the prosecutor can use one of their peremptory strikes/.

Question 15

Are you required to make your opening statement immediately after prosecutor’s opening statement?

Answer 15

No, you can but you are not required to make an opening statement immediately after the prosecutor’s opening. The defense may do so anytime up until after the prosecution rests its case in chief.

Question 16

Is “Laura informed me that the defendant is very skilled at hacking” admissible?

Answer 16

No, it is hearsay and does not fall into any hearsay exceptions.

Question 17

Can statements made during plea negotiations that was later withdrawn be used?

Answer 17

No, any statement made in the court of plea discussion with an attorney for the prosecuting authority is not admissible.

Question 18

What three criteria must evidence derived from a scientific theory meet to be reliable?

Answer 18

Evidence must satisfy that the underlying scientific theory is valid, the technique applying the theory is valid, and the technique was properly applied.

Question 19

What procedural steps should a prosecutor take to preserve for appeal the admissibility of testimony that was prohibited from testifying?

Answer 19

Submit an offer of proof detailing the substance o the evidence, this can be done either orally or through a question and answer form.

Question 20

When, if ever, must the defense of insanity be disclosed to the prosecution?

Answer 20

A defendant planning to offer evidence of the insanity defense must file with he court a notice of the defendant’s intention to offer that evidence. If the court has scheduled a pretrial hearing, the defendant must given notice at that hearing, if no pretrial hearing the notice must be filed no later then 20 days before the date the case is set for trial and must be served on the prosecutor.

Question 21

What must prosecutor show for a defendant to be denied bail?

Answer 21

Demonstrate that defendant is charged with a felony, substantial evidence of his guilt, or either that he has been convicted of two prior felonies or committed this new felony while on bail for a prior felony. Or a showing of capital murder or if the felony was committed with a deadly weapon.

Question 22

What is the purpose of an examining trial?

Answer 22

A pre-trail hearing before a magistrate to require the State to produce evidence showing probable cause to believe the defendants guilty of the crime.

Question 23

Does the defendant have a right to be charged by a grand jury indictment?

Answer 23

Yes, prosecutors cannot circumvent the grand jury and issue felony indictments by themselves. Prosecutors are free to use an information to charge misdemeanor defendants or felony defendants who have waived their right to an indictment. But a felony without an indictment, requires an indictment issued by a grand jury.

Question 24

What woulds should an indictment commence with and conclude with?

Answer 24

Commence with “In the name and by authority of the State of Texas” and conclude with “Against the peace and dignity of the State”

Question 25

What should be filed to stop prosecutor from introducing certain evidence and what additional steps should be taken to preserve the issue for appeal?

Answer 25

File a motion in limine asking the court to order the prosecutor not to introduce evidence. If the judge denies the motion, defense counsel should also object to the evidence at the time it is offered at trail in order to preserve the issue for appeal.

Question 26

What is the required to tell a defendant before the court accepts a guilty plea?

Answer 26

the range of punishment, recommendations by the state are not binding, have a limited right to appeal after pleading, guilty plea could result in deportation, exclusions from the US, or denial of naturalization. The could should also inquire as to whether there is a plea bargain.

Question 27

What procedural step can you take to obtain more time before the trial? What are three of the necessary statements you must make when you take this step?

Answer 27

File a motion for continuance. In seeking a continuance, defense counsel must make the request in writing, show good cause for delay, and motion must be sworn.

Question 28

What argument could be made that co defendants should not be tried together?

Answer 28

Maybe that prior conviction admissible against him in trial. If such prior conviction is admissible, severance is mandatory. Could also seek discretionary severance on the ground that a joint trail would be prejudicial.

Question 29

Can the testimony of someone who the defendant made an admission be the sole bases of the conviction?

Answer 29

No, a conviction cannot rest solely on the testimony of a person to whom the defendant made a confession while that person was confined in jail with the defendant. A jailhouse confession must be corroborated by other evidence connecting the defiant. Addition, if it falls under the accomplice-witness rule corroborating evidence is required too.

Question 30

During a cross-eximiniaton, is is proper for a conviction two years ago of a misdemeanor to be used?

Answer 30

Yes, it is permissible to impeach a witness by introducing a misdemeanor conviction if it is a crime of moral turpitude that is less then ten years old.

Question 31

When must a motion to quash an indictment be filed?

Answer 31

The general rule is that a defect in indictments must be raised before trial. Although there is an exception for fundamental defects.

Question 32

What procedural steps should be taken to bring an omission of evidence of an element of the offense to the courts attention?

Answer 32

Motion for directed verdict of not guilty. This motion asks the judge to hold that no reasonable jury could find, on the basis of the State's case in shelf, that all elements of the crime have been proven beyond a reasonable doubt. If the court does not grant the motion at the conclusion of the prosecutor's case in chief, the defense should renew its motion for directed verdict at the close of all evidence.

Question 33

Must an arrest and search warrant be separate?

Answer 33

No, a search and arrest warrant may be combined.

Question 34

Is a peace officer authroized on the basis of a arrest warrant in another country to arrest in the current county?

Answer 34

Yes. A valid arrest warrant issued by a magistrate extends to every part of the state.

Question 35

Which party has the burden to prove whether venue is proper or improper, and what standard of proof must be satisfied to meet the burden?

Answer 35

The prosecution has the burden to prove venue is proper by preponderance of the evidence.

Question 36

What are the rules for fixing the amount of bail?

Answer 36

The court should considered the likelihood of defendant appearing for trail, the ability of defendant to make bail, the seriousness of the crime charged, the future safety of the victim and the community. Additionally, bail cannot be used awn instrument of oppression.

Question 37

What other participations, other than grand jurors, may be preset in the grand jury room while the grand jury is conducting proceedings?

Answer 37

witness being examined, prosecution, bailiff, interpreter

Question 38

How many jurors is the grand jury composed of, and how many of them must concur for a person to be indicted?

Answer 38

A grand jury consists of 12 people and nine must concur for an indictment.

Question 39

What is an indictment? What is one way in which it differs from an information?

Answer 39

An indictment is the written statement of a grand jury accusing a named person of a criminal offense. It differs from an information because an indictment must be approved by a grand jury and signed by the foreman, which an information need only be authorized and singed by the prosecutor

Question 40

Will a guilty plea waive a right to appeal a ruling on the admission of testimony about damages?

Answer 40

No, there is still a right to appeal the testimony. Generally, a defendant who pleads guilty waives the right to appeal. However, when the defendant's appeal is based on matters raised by pretrial written motion and ruled on before trial, the appeal can proceed.

Question 41

Can a guilty plea be before a judge or jury?

Answer 41

Both, a guilty plea can be before either the judge or the jury.

Question 42

Can a judge denies a request to ask a proper question to the venire panel?

Answer 42

No, while judges have wide discretion they may not preclude counsel form asking a proper question.

Question 43

Must material evidence be given without discovery?

Answer 43

Yes, under Brady the prosecutor has a duty to disclose exculpatory evidence to the defense if it is immaterial.

Question 44

Requirements for a dying declaration?

Answer 44

the declarant must be unavailable, the statement must have been made while believing that his death was imminent, and the statement concerns the case or circumstances of what the declarant believed to be his impending death.

Question 45

Can a police officer testify to his observations in a police report?

Answer 45

No, the rules specifically exclude from the exception of public records matters observed by police officers and other law enforcement personnel in criminal cases.

Question 46

Are polygraph results and testimony allowed?

Answer 46

No, lie detector tests are not admissible evidence.

Question 47

Is the court required to include definitions in the jury charge?

Answer 47

only if definitions are likely to be helpful to the jury.

Question 48

What procedure steps can be taken to seek a reduction in bail, and what argument, if any, can you make for such reduction?

Answer 48

File an application for a writ of habeas corpus in district court. You can argue that bail is being used as an instrument of oppression, that there is strong likelihood the defendant will appear for trial, and cannot afford a higher bail.

Question 49

Can a defendant waive the right to be charged by indictment with a felony? If a defendant can waive that right, what is the procedural steps by which a defendant may do so?

Answer 49

Yes, the defiant may waive the indictment in all prosecution except capital murder. To waive an indictment and be charged by an information, the defendant must be represented by counsel, waived n writing or open court, and the waiver must be voluntary.

Question 50

Can a court compel a witness to answer the grand jury's questions? If so, by what means?

Answer 50

Yes, unless a valid claim of self incrimination. To compel can impose a fine not exceeding $500 or commit her to jail until willing to testify.

Question 51

Can two or more offenses be charged in the same indictment?

Answer 51

Yes, two or more offenses an be charged in one indictment when they arise in the same criminal episode.

Question 52

How many days before pretrial hearing must you file your motion for discovery? What consequences are there, if any, if you fail to file discovery motion by that time?

Answer 52

Must be filed seven days before and failure to file will prevent filing the motion later except by permission of the court for good cause shown.

Question 53

Can a defendant charged with a felony waive the right to have a jury determine her guilt or innocence? If a defendant can waive that right, what procedural step, if any, must be taken by the defendant to do so?

Answer 53

Yes, defendant can waive except for capital murder where the state seeks the death penalty. Waiver of jury trial requires the consent of step prosecutor and the judge.

Question 54

How should a court rule on the objection that because a child is 5 years old he is not competent?

Answer 54

Consider overruling, just because a child is 5 years old does not mean his incompetent per se. The judge should examine the kid on the record to determine whether he has sufficient intellect to relate transactions regarding which will be asked to testify.

Question 55

What testimony of the custodian of records show?

Answer 55

Testify that the records were kept in the regular course of business, that it was the regular course of business for a person with knowledge of the matter to make the records, that the entries were made at or near the time of events, and that the witness is the custodian of the records.

Question 56

Is an acquittal appealable?

Answer 56

No, double jeopardy forbids the state from appealing a jury's verdict of acquittal.

Question 57

What about a time must the defendant be brought before a magistrate

Answer 57

without unreasonable delay but no later then 48 hours after arrest

Question 58

Is there a way that a person charged with a felony can be released from jail if he has no money and cannot secure a surety?

Answer 58

A person charged with a felony can be released on a personal bond. Unlike a bail bond, a personal bond requires no surety or deposit of money with the court

Question 59

Where is Venue Proper?

Answer 59

Where is Venue Proper? - where the offense was committed [preferred] - in the county where D resides or - in the county where D was apprehended - in county where an act involved in the commission of the crime occurred

Question 60

Which of the following courts, if any, have jurisdiction over a [felony] offense of impersonating a public servant: (a) a district court; (b) a county court; or (c) a municipal court?

Answer 60

The district court has jurisdiction over all felony cases. County courts and municipal courts do not have jurisdiction over felony cases.

Question 61

What procedural step can be taken to complain about the grand jury proceedings not being made up of the jurors who were selected by the jury commissioner?

Answer 61

Can file a challenge to the array in writing.

Question 62

You believe that the indictment does not charge your client with a committed offense against the law. What procedural step, if any, can you take to bring this apparent defect to the Court's attention? If there is such a procedural step, when should you take it?

Answer 62

I can move to quash the indictment pretrial based upon the defect. Both substantive and procedural defects in the indictment must be objected to before trial, otherwise they are waived.

Question 63

two ways in which deferred adjudication differs from probation

Answer 63

defendant must be found guilty before probation can be imposed; deferred adjudication involves no finding of guilty defendant can get regular probable about a plea of not guilty, deferred adjudication requires a plea of guilty or solo contender if deferred adjudication probation is "revoked" the demands can give any sentence in statutory range; if regular probation is revoked, D gets sentenced previously assessed.

Question 64

Can a plea of guilty be withdrawn?

Answer 64

yes up until the point the judgement has been pronounced or the case has been taken under advisement

Question 65

What procedural steps can be taken to ensure a witness is present at trail to testify? What are two things that you must state as part of that procedural step?

Answer 65

A subpoena can be issued and must identify the person who is to appear and the state and court in which the person is to appear.

Question 66

How many peremptory challenges may you exercise in the selection of an alternate juror assuming the court gives you one additional strike and you had one remaining prior?

Answer 66

The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled. The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.

Question 67

What document must be filed in every instance in which a search warrant is requested?

Answer 67

``` include a sworn affidavit set out the facts stating probable cause the place to be searched items to be seized establish the place to be search where the items to be seized will be contained ```

Question 68

What is required for an arrest

Answer 68

1.an offense was comitted 2. there is an warrant issued 3. there is probable cause to believe the defendant committed the crime OR 4. the officer observed the defendant commit a crime in his presence

Question 69

How is a a grand jury chosen?

Answer 69

the court summons the grand jurors which on a ramrod basis they are summoned the grand jurors are summoned in the same manner as petit jurors.

Question 70

What procedural steps, if any can you take to try and prevent prosecute from introducing testimony at trial? In there is such a step, on what basis can you take?

Answer 70

File a motion to suppress or exclude evidence. If the statement was no recorded as is requires or corroborated by other evidence the judge will likely grant it.

Question 71

in what ways is a plea of solo contendere the same as or different from a plea of guilty?

Answer 71

it has the same legal effect as a plea of guilty and it cannot be used in civil case to attach liability

Question 72

Can two joint defendants be tried jointly even though they are charged in two separate indictments?

Answer 72

yes, two or more individuals may be tried jointly for the same offense or offenses arising in the same transaction

Question 73

Is ordering defendant to submit fingerprinting a violation of the right against self-incrimination?

Answer 73

no, fingerprints are not testimonial-they are physical attributes and identity

Question 74

How many preemptory challenges are allowed for felonys?

Answer 74

10

Question 75

What objects or request should be made in regards to the written admission of a confession that states the co defendant and the defendant committed the crime?

Answer 75

raise the issues that - the testimony violates a co defendants right to confrontation - it is hearsay - the part of his confession implication the co defendant is unreliable and should not be allowed - severance should be granted

Question 76

Can a magistrate issue a summons instead of an arrest warrant?

Answer 76

Yes. A magistrate may, in his discretion, issue a summons rather than an arrest warrant. The summons directs the person to appear but does not authorize the taking o the person into custody.

Question 77

Can a defendant be denied bail?

Answer 77

No, under the Texas Constitution criminal defendants have a right to bail.

Question 78

Is there a right to address the grand jury?

Answer 78

No, while the defendant and even the defendant's attorney may address the grand jury, there is no right to.

Question 79

What procedural steps should you take to challenge an indictment, and when should you take it?

Answer 79

File a pretrial exception to the substance for he indictment, often called a "motion to quash" for failure to charge an offense. The motion must be in writing and filed before the date on which trial on the merits begins.

Question 80

What two procedural steps must occur after the jury is impaneled and before any evidence is introduced at trial?

Answer 80

the reading go the indictment or information to the jury by the prosecutor, and the entering of a plea by the defense. Failure to take these steps can be fixed later during trail.

Question 81

Is prosecutor required to tell about testimony prior to trial?

Answer 81

Only if requested. Pretrial notice of other acts evidence is only mandatory if the defendant requests it

Question 82

Can evidence of a prior bad act that was never charged with or convicted with but was given notice that it would be introduced, be used in the sentencing stage?

Answer 82

Yes, evidence is admissible at sentencing if prosecutor can prove that the bad act happened beyond a reasonable doubt. At sentencing hearing, the state and the defense may offer evidence as to any matter the court deems relevant to sentencing, which includes extraneous crimes or bad acts regardless of whether the defendant has been charged with or convicted of those crimes or bad acts.

Question 83

How may an attorney for the defendant have evidence presented to the grand jury?

Answer 83

Request to do so from the court and prosecutor.

Question 84

What procedural steps can an attorney use to attempt to prevent prosecutor form presenting evidence to a grand jury?

Answer 84

None, rules of evidence do not apply in grand jury proceedings thus illegally obtained evidence can be presented.

Question 85

After the jury is sworn and the trial lbegans, can the state appeal the court's ruling to suppress evidence?

Answer 85

No, jeopardy attaches after the jury is sworn in a thus cannot be appealed.

Question 86

How can a prosecutor compel a defendant to answer over attorney client privilege objection?

Answer 86

If there is a successful assertion of exception such as fraud, crime, or waiver.

Question 87

Can a transcript f a witness's police interview from the scene be used instead of the witness's live testimony?

Answer 87

No, the interview is hearsay under which no exception applies and violates the defendants right to confrontation.

Question 88

Is it permissible for the jury to ask a court a question during deliberation, if so, how must the communication occur?

Answer 88

Yes, it is proper the communication must occur through the bailiff.

Question 89

What procedure can be used if newly discovered evidence is found before sentencing?

Answer 89

File a motion for new trial on the basis of new evidence.

Question 90

Is testimony about oral statements admissible in evidence if the recording equipment malfunctioned?

Answer 90

No, oral statements are only admissible if recorded.

Question 91

After the search warrant is issued how many days do the police have to execute it? Explain.

Answer 91

Three days excluding the day of issuance.

Question 92

Is evidence of the defendant meeting with his lawyer admissible? Explain.

Answer 92

No, the act of meeting with or retaining a lawyer is not any evidence of guilt.

Question 93

What procedural rules control the conduct of the deposition? Explain.

Answer 93

The rules of civil procedure control where they do not conflict with the CCP or constitutional rights.

Question 94

What are the first two steps that must be taken in a criminal trial prior to the presentation of evidence?

Answer 94

The indictment must read and a plea entered.

Question 95

Are victims subject to the rule of sequestration? Explain.

Answer 95

Yes, if they are witnesses and their testimony will be materially affected.

Question 96

Prosecutor plans to call Jackie to testify that she engaged in a social media conversation with Marty, thinking she was speaking with June. Marty’s lawyer objects that this testimony is hearsay. How should the court rule? The social media conversation is an operative fact

Answer 96

The Court will overrule the objection because the social media conversation is an operative fact.

Question 97

Defendant was previously convicted of felony possession of marijuana, but his conviction is on appeal. Prosecutor wants to introduce this prior conviction into evidence. Marty’s lawyer objects that this is not proper under the Rules of Evidence?

Answer 97

.convictions on appeal are not admissible. The Court should grant the objection.

Question 98

In Texas, is the closing jury charge given by the Court before or after he lawyers give their closing arguments?

Answer 98

Before

Question 99

What must a lawyer do, in addition to objecting to the Court’s comment about testimony, to preserve error, if any, for appeal?

Answer 99

Ask for the jury to be instructed and move for a mistrial.

Question 100

A court may not do this in regards to the jury?

Answer 100

May not comment on the weight of the evidence.