Evidence
Define hearsay
An out of court statement used to prove the truth of the matter asserted. TRE 801(d).
What number of days prior to trial must you request notice of expert witnesses to trigger an obligation for the opposing party to provide notice?
30 days. CCP 39.14(b)
What factors must a judge consider when setting bail, according to state law (CCP 17.15)? Name at least 5.
Ability to afford, nature of offense, criminal history, not an instrument of oppression, safety of victim and community, give reasonable assurance of return to court.
What is the maximum number of actual days I would have to serve in Harris County Jail if I was convicted of a DWI 1st?
60 days, due to 3 for 1 credit on 180 day max.
What article/section of the Code of Criminal Procedure governs discovery?
Art. 39.14
Name five exceptions to or exclusions from the rule against hearsay.
There are many. TRE 801-804
How many peremptory challenges does each side get during jury selection in a misdemeanor case in county court?
Three
CCP 35.15(c)
True or False: Bail determinations can never be appealed.
False. A writ of habeas corpus can challenge a bail determination and can be appealed.
If client is charged with a Class A misdemeanor and is enhanced with a prior Class A misdemeanor conviction, what is the minimum jail time he is facing if he is convicted and the enhancement is found to be true?
90 days. Penal Code 12.43(a)
True or False: you may show your client items received in discovery from the State but may not give them copies
True. See 39.14(f)
What steps do you have to take to introduce a business record into evidence?
Lay the foundation outlined in TRE 803(6) either through a live witness, or through a business record affidavit that is served on opposing party 14 days in advance of trial. TRE 902(10).
At trial, in closing argument in an assault case, the prosecutor says: “This was not self-defense. The defendant didn’t even testify to tell you he acted in self-defense. He clearly was the initial aggressor.” What is your objection, and the legal grounds for such objection, if any?
Improper argument/improper comment on the right to remain silent. Fifth Amendment, Art. 1 Sec. 10 of Texas Constitution.
True or False: before setting bail at an unaffordable amount, the court must find by a preponderance of the evidence that no non-financial conditions can reasonably assure client’s return to court and community safety.
False. The standard is "clear and convincing evidence." Local Rule 9.12.
For a class A misdemeanor, what is the maximum number of years that a client can get deferred adjudication at the time it is granted?
2 years. CCP 42A.053(f)
A complaining witness in an assault family violence case calls you. She says she wants the case against her boyfriend (your client) dismissed. You tell her: just don’t come to court and it will be dismissed. Is this advice proper?
No.
What is the legal test for whether the Confrontation Clause prohibits a hearsay statement from being introduced at trial?
A testimonial out-of-court statement is inadmissible where declarant is unavailable and the defense has not had a prior opportunity to cross-examine.
What are the three steps you take to impeach a witness with a prior inconsistent statement?
Commit, Credit, Confront
True or False: For a client charged with assault family member that is in custody, he must be released if the State is not ready for trial within 30 days of when he was arrested
True. CCP 17.151(1)(2)
True or False: Client is on probation in Fort Bend County, and has an open misdemeanor in Harris County. If client goes on a deferred adjudication in Harris County, the Fort Bend County prosecutor will not be able to use the order of deferred adjudication filed in Harris County as evidence against him in his probation revocation hearing, because deferred adjudication is not a conviction.
False. A deferred adjudication requires a judicial admission of guilt that is admissible in a probation revocation hearing.
Your client is pulled over for driving 60 in a 55 speed limit zone. The officer sees an open can of beer in the cup holder, and an assault rifle in the back seat. Without more information, what offenses can the officer arrest your client for?
None. Speeding and open container are not arrestable offenses. A long gun in plain view is legal.
The complaining witness in one of your trials has a prior conviction. What information do you need to determine whether you can impeach the witness using his prior criminal conviction?
Age of the conviction, whether it's a felony or crime of moral turpitude, probative value/prejudicial effect. See TRE 609.
The prosecutor makes an improper argument during closing. Your objection is sustained. What do you do next?
Request the jury be instructed to disregard the improper argument.
Move for a mistrial
In what circumstance can a client be denied bail entirely in a misdemeanor case?
Tex. Const. Art. I Sec. 11b
In a family violence case, violation of a condition of release related to community safety or victim safety, after a hearing
Sec. 11c
Violation of a family violence protective order after a hearing
Client is charged with DWI 2nd offense. He is convicted at trial and you are being sentenced by the judge. What is the minimum amount of days your client will have to serve in jail?
3 days continuous confinement as a condition of probation. CCP Art. 42A.401
Your client is pulled over by police because client matches the description of a suspect in a burglary that just happened nearby. The officer asks client to step out of the car. He pats down client and finds a baggie of pills inside his pocket. Client is then arrested for possession of a controlled substance. What is your strongest argument to suppress the pills in your motion to suppress?
Terry frisk does not include going into pockets.