MBE Set. 70 good questions, nicely answered!

May police search the D on his person when he is arrested and booked at the station?

Yes, police can inventory items found on a person when he is arrested and booked into jail as long as they abide by the department policy governing the inventory. This search is authorized under the SITLA doctrine. It is called an Inventory Search

What should D raise if in a search warrant affidavit officer includes a statement that he knows to be false in every respect and a search warrant is issued based on the affidavit authorizing search of D’s residence, and officer finds evidence at residence?

Move for a Franks Hearing seeking suppression of the evidence. D has the BOP to substantially preliminary show that the false statement was knowingly and recklessly included and demand false potion to be struck from affidavit. If remainder of affidavit does not support PC then the evidence will be suppressed.

What should D raise if search warrant executed 7 days after warrant was issued and evidence was found by officer?

D should move to suppress the evidence because the warrant was not timely executed (stale). A search warrant must be executed w/in 3 days exclusive of the date of issuance and execution.

What procedural step if any can you take to have jury at D’s trial consider whether D’s post arrest statement was voluntarily made? What evidence must you present to get the court to allow jury to consider voluntariness issue?

If D can show that voluntariness of the confession is an issue of fact, then he may have the issue presented to the jury. The jury shall be instructed that it must find beyond a reasonable doubt that the confession was voluntary in order to consider it as evidence.

What procedural step if any can D take to have court exclude officer testimony about D’s confession from evidence? On what basis can D take this step?

D can move to suppress the confession on the basis that oral confessions are inadmissible in TX unless a specific statutory exception applies. Exceptions: Needs to have been recorded or led to evidence that corroborated the statement or else it is inadmissible (ex: result of a custodial interrogation)

What is required for an electronic recording of a confession to be admissible at trial?

The confession must be voluntarily made, it must be recorded on an adequate recording device, the recording must be accurate, all key voices must be identified, the statutory warnings must be given on the recording, and the recording must be turned over 20 days prior to trial.

When must counsel be appointed for indigent defendant?

All felonies. Misdemeanors where state seeks more than a fine (jail time).

What services must state provide?

Interpreter, transcript, use of experts.

When must court appointed counsel contact the defendant?

No later than the first working day after appointment

What is bail? What is a bail bond? In what major way does a personal bond differ from a bail bond?

“Bail” is the security given by a D to assure that he will appear in court to answer the accusation against him. A bail bond is a written undertaking to the D and 1 or more sureties that they will pay the amount of bail if the D does not make his required appearance. A personal bond requires neither an adequate surety or a cash deposit in the amount of the bond.

What is “personal” bond?

Requires the D to pay the amount but does not require a surety or cash deposit. Magistrate may impose any reasonable condition on the bail that is related to the safety of the victim of the crime or the community.

What are 3 rules for fixing the amount of bail?

(i) bail shall be sufficiently high to ensure that D appears for court settings and for trial;
(ii) not set so high as to be an instrument of oppression;
(iii) judge shall consider the nature of the charged offense in determining bail;
(iv) judge shall consider the D’s ability to make bail; and
(v) judge must consider the future safety of the victim and the community.

What is a writ of habeas corpus and in what circumstance should is be filed?

When a magistrate denied D bail even though has no prior criminal record, counsel should file this writ. It is court order directing someone to produce an individual before the court and to show why that individual is being held. It is directed to a person having the individual in custody or under restraint. The writ may be granted by the CCA, a district court, a county court, or a judge in any of these courts.

Does D have right to address the grand jury?

No. However, the grand jury may permit him to appear. The Prosecutor must consent to defense counsel’s addressing the grand jury.

What is the purpose of an examining trial?

Where D has been charged with a felony and not yet indicted she is entitled to an examining trial. Used to require the State to produce evidence establishing that there is probable cause to believe D is guilty of the offense charged. If the State fails to show probable cause, D is to be discharged until he is indicted. Magistrate will determine whether there is PC to believe D is guilty.

Under what conditions is D permitted to make an unsworn statement at the examining trial?

The D is entitled to make an unsworn statement at the examining trial if the magistrate warns him that 1) it is not required, 2) that it can be used against him, and 3) he may only make such a statement before other witnesses have testified. The statement must also be reduced to writing and signed.

What are 3 decisions a criminal D must personally make?

(i) what plea to enter; (ii) whether to have a trial by jury; and (iii) whether to take the W stand.

Who selects the people who serve on the GJ?

Selected in the same manner as trial jurors are selected in civil case. The District Judge himself will pick the grand jury members for a petit jury list. Abolished: Commissioners appointed by the District judge will compile a list of 15-40 persons form which the District Judge will impanel 12 grand jurors and 2 alternates

What should be the composition of the grand jury?

Grand jurors who represent a broad-cross section of the population as to race, sex, and age. To challenge the composition, raise the matter during the grand jury selection process by a challenge to the array. Raise it later by a motion to set aside the indictment but only show that there was no opportunity to raise this by a challenge to the array.

What are the circumstances on which you can appear and present evidence before a grand jury on behalf of the Defendant?

Defense counsel may address grand jury if grand jury is willing and Prosecutor approves. Can provide with evidence, but cannot question witnesses b/c only Prosecutor and grand jurors can do so.

How can an indictment be challenged?

By filing an exception, often called a motion to quash the indictment based on the defects. Both substantive and procedural defects in the indictment must be objected to before trial on the merits, otherwise they are waived.

When must an application for probation be filed and what are requirements for D to be eligible for probation?

Before trial.

1) D cannot be sentenced to prison term exceeding 10 years,
2) D must file a written, sworn motion with the judge prior to trial that he has not previously been convicted of a felony in any state,
3) D cannot be convicted of an offense of indecency with a child, aggravated kidnapping, or sexual assault if the victim is under age of 14.

When must an election for jury sentencing be filed?

Must elect to have jury sentencing in writing before the beginning of voir dire examination of the prospective jurors.

What must be done to allow the jury to recommend community supervision?

D should file a sworn motion for community supervision stating that the D has never been convicted of a felony in TX or elsewhere. Also, punishment assessed must not exceed 10 years’ imprisonment. This should be filed before trial.

Can D withdraw his guilty plea if court decides not to follow the plea agreement?

Yes. If the trial court does not follow the plea agreement, D must be allowed to withdraw his plea and enter a “not guilty” plea if he wishes. A plea of guilty to the judge can be withdrawn as a matter of right before the court takes the plea under advisement. Plea of guilty later withdrawn and plea negotiations not admissible against the D as evidence of his guilt at later proceedings.

What is the effect of pleading “guilty” or “nolo contendere”?

In the criminal prosecution itself, it has the same legal effect. But if civil litigation were to arise out of the same incident, a plea of guilty could be used against D, but not a plea of nolo contendere.

What are 2 differences b/t deferred adjudication and probation?

(i) deferred adjudication can be imposed w/o a conviction or a finding that D is guilty, while probation can be imposed only if D has been found guilty; and
(ii) revocation of deferred adjudication permits the court to sentence D to any term of imprisonment w/in the statutory range, while revocation of probation limits the term of imprisonment to the one assessed before D was placed on probation.

Can jury place D on deferred adjudication?

No. Only a judge can place D on deferred adjudication. In order to be eligible, D must plead guilty or nolo contendere rather than going to trial and being found guilty.

D tells Atty he has a felony. D wants Atty to file an application for community supervision. Should Atty do so?

No. An application for community supervision must state under oath that D has never been convicted of a felony. To file the application would be unethical participation in making a false statement to the court and may result in criminal liability. If the application is not filed, D’s previous criminal history need not be disclosed to the State b/c atty learned of it during a confidential communication w/ D and disclosure would violate the A/C privilege.

D wants to testify concerning his incriminating statement at pre-trial hearing. Does this waive right to remain silent at his trial?

No. D has not waived his right to remain silent at trial. Additionally, the State’s cross-examination at the pre-trial hearing is limited to the circumstances surrounding the post-arrest statement; it cannot ask him about his guilt of the offense.

What procedural step can be taken if D can’t obtain a fair trial?

Counsel can move for a change of venue. At the hearing that will be held on the motion, must show that b/c of influences in the original county, a trial fair and impartial cannot be held.

Does D have to be present at trial?

D has a right to be personally present, and in fact, can be compelled to be present. But in a felony trial, a trial can continue w/o the D if the D was present through selection of the jury and after that he voluntarily absents himself from trial.

Can defense counsel be ordered to produce witness lists to the State?

Judge has no authority to order the defense to provide a general lay witness list for the State, but does have statutory authority to order the defense to provide a list of expert witnesses it may call, so the judge has discretion to order a list of any expert witnesses the defense will call. Must provide expert witness list 20 days prior to trial.

Is Prosecutor required to provide exculpatory information to D?

As a matter of federal due process under Brady v. Maryland, Prosecutor is required to disclose exculpatory (favorable) information (even if W statement is unsigned). This duty to disclose does not depend on request by the defendant.

When is a pre-trial deposition allowed?

Either party may apply to the court for authorization to depose a W. Application must be accompanied by an affidavit setting out “good cause” for the taking of the deposition. Notice must be given to opposing party. A hearing is held, and if the court finds good cause it may grant the application.

Who decides what plea will be entered, and what are three admonishments that the court must give before accepting a plea of guilty?

Defendant must decide what plea to enter. Numerous admonishments are required, including (i) the range of penalties that must be imposed; (ii) any recommendation by the prosecution on punishment is not binding on the court; and (iii) the limited right to appeal after conviction on a plea of guilty.

Does a guilty plea waive right to appeal the ruling on admission of testimony?

Generally, a D 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.

Can judge prevent you from asking proper questions at voir dire?

Judges have wide discretion in how to conduct voir dire but they cannot preclude counsel from asking proper questions like burden of proof.

What three questions must the court ask in testing the qualifications of a prospective juror?

The three questions are

(i) are you a qualified voter in this county and state?;
(ii) have you ever been convicted of theft or any felony?;
(iii) are you under indictment or accusation of theft or any felony?

How many “for cause” and peremptory challenges does each side get?

Each party is entitled to unlimited challenges for cause provided the party can establish grounds for the challenge. Each party in a noncapital felony prosecution involving only 1 D is entitled to 10 peremptory challenges (6 if more than 1 D).

What challenges of a prospective juror can you make “for cause”?

biased or prejudiced for or against the accused, biased or prejudiced against any law applicable to the case, prior conviction for theft/felony, insane, not qualified to be a voter, cannot read/write, is a W in the case, served on indicting grand jury.

What procedure should defense counsel use to prevent Prosecutor from referring to prior bad acts during voir dire, and how do you preserve the issue for appeal?

Employ the procedure of motion in limine. Move that the court order the Prosecutor to not, during voir dire, refer to the alleged acts of misconduct. Object immediately even if the judge has granted the motion in limine. This is because a ruling on motion in limine does not itself preserve a matter for appeal.

What procedure should defense counsel use to ensure that Prosecutor will disclose before trial whether he intends to use “prior bad acts” in evidence at trial?

To ensure that the State will disclose before trial that he intends to introduce evidence of “bad acts” on guilty-innocence as proof of a prior “bad act”, D should make a timely request for such notice. D should also request pre-trial notice of the State’s intention to introduce at punishment evidence of extraneous crimes or bad acts under the Tex. Code of Crim. Pro.

If evidence of D, that he committed a prior crime, admissible against D in the sentencing phase of trial?

Yes, prior bad acts, including uncharged criminal activity, are admissible at sentencing. The state must prove commission of those acts beyond a reasonable doubt.

Can an action of striking all African-American potential jurors be challenged?

Yes. Batson Challenge Neither the State nor the defendant can exercise peremptory challenges on racial grounds. The opposing party must attempt to rebut the challenge by offering evidence that each strike was in fact made for reasons other than the race of the juror

What is the procedure for continuing the proceedings because of a missing W?

D’s first motion for continuance b/c of a missing W must state: (i) name & residence of W; (ii) diligence which has been used to procure the attendance of W; (iii) material facts which the D expects to prove by the W; (iv) the W is not absent by the procurement or consent of the D; (v) motion is not made for delay; and (vi) there is no reasonable expectation that the W can be presented during the present term of the trial court.

What is the proper predicate for “business records” to come into evidence?

Must show that the witness had custody of the records, the records were made in the regular course of business, persons making the entries in the records had or receiving the information from someone with firsthand knowledge of the matters, and the entries were made near the time of the events recorded in the records.

Is testimony from a doctor witness admissible?

Normally hearsay but exception if the statement was made for the purpose of medical diagnosis or treatment.

Can D be convicted on testimony of an inmate alone?

No, D may not be convicted on the testimony of a witness to whom the D made a statement against interest during the time when the witness was imprisoned UNLESS that testimony is corroborated by other evidence.

What must court inquire if W is qualified to testify as expert witness?

If they have sufficient background in the field and whether that background goes to the matter on which she is to give an opinion. The court should consider whether the technique employed by witness meets the considerations below.

What should the court consider in determining admissibility of scientific evidence?

(i) the extent to which the underlying scientific theory and techniques are accepted as valid by the scientific community;
(ii) the qualifications of the expert;
(iii) the existence of literature supporting or rejecting the underlying theory and technique;
(iv) the potential error rate of the technique;
(v) the availability of other experts to test and evaluate the technique.

Should court sustain defense counsel’s objection when Prosecutor calls Defendant to stand, and how should the issue of prejudice be preserved on appeal?

Yes. Defendant has constitutional right to not testify and to not have the failure to testify called to the jury’s attention. To preserve the matter for appeal, must do more than object since the objection was sustained. He must move for an instruction to the jury to disregard the references to D’s failure to testify. If this motion is granted, D must then move for a mistrial on the ground that the instruction will not be effective and the jury will nevertheless consider D’s refusal to testify against him.

What must the jury charge contain?

Jury charge should contain both abstract portions and an application portion. The application portion should incorporate the specific allegations of the indictment and instruct the jury on what specifically it must find to convict the defendant. Also, the court need not include a definition of reasonable doubt. This is b/c any effort to define reasonable doubt will be of no help and will tend to confuse the jury.

What happens if a juror becomes disabled after trial begins but before the instructions are ready to the jury?

If this happens in a felony case, the remainder of the jurors can reach a valid verdict. All of the jurors, however, must sign the verdict.

Does the Code of Criminal Procedure confine the jury to reaching a verdict only on the state jail felonies charged in the indictment, or does it provide for some other alternative?

The TX Code of Crim. Pro. Provides for a jury to convict a D of a less serious offense than the offense charged in the indictment. The jury should be given this alternative only if both (i) that offense is a lesser-included offense of the charged offense, which means it requires proof of some but not all of the facts required for the charged offense; and (ii) there is evidence before the jury that the D is not guilty of the charged offense but is guilty of the less serious one.

What should defense counsel do if they believe Prosecution has not shown D’s guilty beyond a reasonable doubt?

Defense counsel should, before beginning defense case, move for an instructed verdict of not guilty. Defense counsel should argue that the state’s evidence would not permit a reasonable jury to find all elements of the crime proved beyond a reasonable doubt, and thus D is entitled as a matter of law to an acquittal. Counsel should not do this w/in hearing of the jury b/c this is a matter of law to be decided by the judge.

May D change his mind about jury sentencing after the jury finds him guilty?

An election may be changed after trial begins only if Prosecution consents.

Can Prosecutor argue to the jury to in his closing argument to consider that D will only serve one-half his sentence?

No. This argument invites the jury to consider how parole law will be applied to this particular defendant. Jury may consider parole in general, but not as applied to the particular case. Prosecutor is suggestion that the jury should assume that parole law will be applied so as to release D on parole as soon as he becomes eligible.

Can a judge declare a mistrial on the punishment issue only?

Yes if a jury cannot agree on punishment, the judge is to declare a mistrial on the punishment issue.

Can court ignore jury’s recommendation of community supervision?

No. If jury recommends suspension of a sentence and placement of the D on community supervision and D is eligible, the judge must suspend the sentence and place the D on community supervision. Judges can sometimes place person on CS, but not for agg rob, agg assault, murder and other enumerated defenses (reserved as jury decision).

What standard of proof is required to obtain a verdict of guilty, and how many jurors have to concur in the verdict?

The State must prove guilty beyond a reasonable doubt. All members of the jury have to concur in the verdict of guilty. If all jurors cannot agree on a verdict of guilty and they cannot unanimously agree on a verdict of not guilty, the grail judge must grant a mistrial.

How can you get the information of the jurors if you suspect juror misconduct?

Information collected during jury selection is confidential and cannot be disclosed. However, a party to the case can apply for an order permitting disclosure if good cause is shown.

What can D do to attack his conviction if his lawyer sucked?

D may attack his conviction on the ground that defense counsel’s failure violated his 6th amendment right to adequate defense representation. To prevail, D must show (i) counsel’s failure was below the standard of professional competence and not simply a tactical decision; and (ii) D was prejudiced, that is, there is a reasonable probability that if counsel had performed adequately, the outcome of the proceeding would have been different.

When should a Motion for New Trial be filed?

Must be filed w/in 30 days of sentencing and then present it to the trial court w/in 10 days of filing. The trial court can however permit D to present it w/in 75 days of sentencing.

How must appeal be perfected?

D must file a written notice of appeal in the trial court, which must be done w/in 30 days of formal sentencing.

When is there a violation of the Double Jeopardy clause?

The clause is not violated if each crime requires at least 1 element the other does not.

When is a judge not required to direct a presentence report?

If (1) punishment not assessed by a jury, (2) only available punishment is imprisonment, (3) judge is informed that a plea bargain exists under which D agrees to imprisonment and judge intends to follow the agreement, (4) D convicted of capital murder

What is a Capeas?

An order from a judge to have officer seek out criminal in the indictment and bring him before the judge.

When does a statement qualify as a dying declaration?

The statement qualifies as a dying declaration when the declarant is unavailable at the time of trial, the statement was made while believing that his death was imminent, and the statement concerns the cause or circumstances of what the declarant believed to be his impending death.

Can a police report come in under the public records hearsay exception?

Texas Rules of Evidence specifically exclude from that exception matters observed by police officers and other law enforcement personnel in criminal cases. A police officer’s observations in the police report cannot be admitted under the public records exception.

MBE Set

70 important questions on MBE Set