Overview of Pretrial & Trial Procedure. Basic Concepts. What is Proof (Evidence) David Hamilton City Attorney Reno & Honey Grove Tx.

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1 Overview of Pretrial & Trial Procedure David Hamilton City Attorney Reno & Honey Grove Tx Basic Concepts PresumptionofInnocence:BurdenonStateto erase presumption by proof Beyond a Reasonable Doubt. Absolute right to jury trial: written waiver required, Prosecutor must consent in writing, Art 1.13 CCP (even if D refuses to enter a plea). Right to remain Silent: Testimony cannot be compelled. Guilt cannot be inferred from silence. What is Proof (Evidence) Testimony Exhibits Judicial Notice 1

2 Basic Judge 1. Accepts Plea. if No Contest or Guilty Punishment 2. Not Guilty Plea Bench or Jury trial Pre trial conference Presides over the Jury Trail 3. Determines all legal issues except Guilt if a Jury Trial. Basic Prosecutor It is the primary duty of a prosecutor not to convict, but to see that justice is done - Arts & (d) C.C.P. Decideshowapersonischarged Only one who can move to dismiss a case (in most instances) Can waive the D s presence for trial Goes first and last at trial No motion required: Prosecutor Brady Brady v. Maryland, 373 U.S. 83 (1963) Suppression of evidence favorable to an accused violates due process where evidence is material to guilt or to punishment. Shall timely disclose to Δ all evidence/information that tends to negate the guilt of Δ or mitigates the offense. Tex. Disciplinary R. Prof. Conduct 3.09(d) State shall disclose to Δ any exculpatory, impeachment, or mitigating item or information in the possession, custody, or control of the state that tends to negate the guilt of Δ or would tend to reduce the punishment. Art (h) C.C.P. 2

3 Complaint Complaint (art ) charges D with offense; in writing and sworn to. Δ is entitled to notice of the complaint the day before any proceeding under the complaint (art ) Δ may waive complaint by written waiver filed with the court. Trial on the citation (art (d)) Complaint Forms- TMCEC Article C.C.P.Courtmaysetanycriminalcasefor a pre-trial hearing Pre Trial Hearing Can be by motion of party or Court s own motion Order directs Δ, his attorney & the prosecutor appear for a conference & hearing Δ s presence is required at all pre-trial proceedings Δcan twaivepresence Warren v. State, 804 S.W.2d 597 (Tex. App. Houston [1 st District] 1991, no pet.) (requirement not a right) 3

4 Pre-trial hearing to determine: 1) Arraignment if necessary - fixing identity & hearing Δ s plea; not required in municipal court (art ) 2) Defendant s motions 3) Special pleas - double jeopardy 4) Motions to quash - Challenging the complaint 5) Motion for continuance* - set another date 6) Motion to suppress - Prohibiting State from using evidence 7) Motion in Limine* - Cannot raise issue w/o prior permission 8) Discovery motion to compel 9) Motion to appoint interpreter* 10) Anything else Court wants to address Art Any such matters not raised or filed 7 days before the pre-trial hearing are waived except by leave of court for good cause shown Record made at the hearing, objections, exceptions, & rulings are part of the trial record Important for appellate reasons Notice of Pre-trial Δ shall have at least 10 days notice in which to raise or file matters listed Art Notice can be by 1) Announcement in open court by judge in presence of Δ or attorney; 2) Personal service to Δ or attorney; 3) Mail by clerk to either Δ or his attorney deposited in mail at least 6 days b/f hearing. If no attorney, mail to Δ at address on bond. If no address on bond, mail to surety 4

5 Pre-trial Hearing Procedure Defense Counsel has right to open & conclude argument in all motions submitted by defense (Art ) Witnesses can be subpoenaed (Art ) Burden on Movant Submit special requests or requested language for jury charge, determination of admissibility of scientific evidence, designation & qualifications of experts, etc. Written or oral? Pre-trial Procedure Art C.C.P. pleadings may be oral or in writing as Court may direct BUT Gov t Code all pleadings must substantially conform to Chapters 27 & 45 Art C.C.P. all motions to set aside & all special pleas & exceptions shall be in writing Discovery Art (a) C.C.P. As soon as practicable after receiving a timely request from Δ the state shall produce: o o o any offense reports, any designated documents, papers, written/recorded statements of the Δ or a witness, including statements of law enforcement officers, or o any designated objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and are in the possession, custody, or control of the state or any person under contract with the state. 5

6 Discovery Art (c) C.C.P. If only part of the applicable document, item, or information is subject to discovery, state is not required to produce or permit inspection of the remaining portion and may withhold or redact that portion. The state shall inform Δ that a portion of the document, item, or information has been withheld or redacted. On request of Δ, the court shall conduct a hearing to determine whether withholding or redaction is justified. (h) Brady exculpatory disclosure Discovery Art (b) C.C.P. If party requests the name & address of experts at least 30 days b/f date jury selection is scheduled to begin or presentation of evidence is scheduled to begin in a bench trial Party receiving request shall disclose in writing not later than 20th day before the date jury selection is scheduled to begin or presentation of evidence is scheduled to begin in a bench trial On motion of a party and on notice to the other parties, the court may order disclosure at an earlier time Michael Morton Case Glover v. State, 496 S.W.3d 812 (Tex. App.--Houston [14 th Dist.] 2016) Davy v. State, No CR, 2017 (Tex. App.--Amarillo) 6

7 Pre-Trial Motions (Day of Trial) Motion in Limine Cannot raise issue w/o prior permission Invoking the Rule Barring witnesses from courtroom (except Δ) Appointment of Interpreter Any motion carried by Court to trial Voir Dire (Jury Selection) Purpose: To determine how potential jurors feel about relevant issues so parties can intelligently exercise challenges for cause & peremptory strikes Judge may make introductory remarks Only time potential jurors can speak to parties Voir Dire (Jury Selection) II State goes first Defense goes second Parties do not pick the jury Peremptory strikes: 3 Challenges or cause: legal reasons unlimited 1 st six not struck are the jury 7

8 Voir Dire (Jury Selection) III Ask each party if there are any challenges to the array (Batson) Administer the juror oath Jury Shuffle Only 1 art C.C.P. Excuse the rest of the panel Before the trial Plea Offer Padilla inquiry Is the Δ aware of a plea offer? (Padilla v. Kentucky, 559 U.S. 356 (2010) 1) What is state s offer? 2) Has your attorney conveyed that offer to you? 3) Do you reject offer? Before any plea or trial, parties shall acknowledge in writing or on the record the disclosure & receipt, of all discovery provided to Δ (art C.C.P.) Outside jury s presence - Can do before voir dire. Jury Instructions after seated 1) Please do not deliberate until asked 2) Nothing the parties say is evidence 3) You are not to take any ruling as a comment on the weight of the evidence 4) If parties/witnesses do not talk to you during breaks, they are following my order 8

9 Jury Instructions II 1) Exclusive judges of facts & credibility of witnesses can believe some, none or all of what you hear 2) The Court will instruct on the law which you must apply to the facts. 3) Parties & witnesses are following my order not to talk to jurors during any recess Reading the Complaint So jury knows what the accusation is So Δ knows what he is accused of doing Can be waived in a Bench Trial Entry of the Plea Not Guilty invoking the presumption of innocence I did not do it I don t think State can prove it Guilty admission that Δ did it No contest (nolo contendere) not saying Δ did it or did not do it, but not fighting the case If no plea entered by Δ, Judge must enter not guilty plea 9

10 Opening Statement Not argument or testimony Simply a statement as to what a party expects the evidence to show State goes first If State waives opening statement, Δ has to wait until State has rested its case-inchief Δ goes second State s Case-in-Chief State calls witness(es): officer, etc. Swear each witness: then If Rule invoked For each witness: Direct Examination State asks questions Cross Examination Δ asks questions Redirect Examination State asks questions When the State is finished with its witnesses, then State rests Motion for Directed Verdict Judge takes decision away from jury If when the State rests, there is NO evidence on at least one of the elements, Δ is entitled to a directed verdict NOT a substitute for a motion to quash 10

11 Defense Case Δ has absolute right not to testify Δ has no burden of proof as to guilt & can rest w/o calling any witnesses Can allow Δ to testify in narrative fashion If Δ calls witnesses, for each witness: Direct Examination Defense asks questions Cross Examination State asks questions Redirect Examination Defense asks questions Affirmative Defenses When the Defense is finished with witnesses, the Defense rests Objections Everyone stops talking no interrupting Objections Hey, Judge, the other side is not following the rules of evidence or procedure If Judge sustains objection, Judge agrees If Judge overrules objection, Judge disagrees Give movant a chance to fully state objection; then give other side a chance to respond; movant has chance to reply (if you want) If you are unsure, ask movant/respondent for supporting authority State s Rebuttal Case State can re-call prior witnesses or call new witnesses Same procedures as in State s case-in-chief When this is done, both sides close This means the evidence portion of the trial is finished no new evidence can be admitted (unless you re-open evidence) 11

12 Jury Charge Conference Jury charge is the law that applies to case & jury is sworn to follow it Jury charge has instructions, legal definitions & verdict form Judge gives parties proposed jury charge to give them a chance to make objections can do this even before voir dire Judge makes final decision re: jury charge Jury Charge Forms Charging the Jury Judge reads jury charge verbatim to jury Charge is given to jury to have during deliberations 12

13 Closing Argument Parties summarize the evidence from their point of view Parties cannot raise new facts or give personal opinion as to credibility Parties show why they are entitled to a result Closing Argument Parties ask for a result State: guilty & fine Defense: not guilty State goes 1st and last (rebuttal) Defense goes 2 nd No sur-reply Court can ask questions in a bench trial Deliberation Jury (jury trial) or judge (bench trial) weighs evidence credibility of witnesses and Jury (jury trial) or judge (bench trial) can believe some, all or none of a witness testimony Jury (jury trial) or judge (bench trial) is entitled to resolve conflicts in a witness testimony or among several witness testimony Jury (jury trial) or judge (bench trial) follows the law to make a decision not guilty or guilty 13

14 Verdict Formal announcement of not guilty or guilty Guilty State proved accusation beyond a reasonable doubt *NEW* - Judge must make inquiry whether Δ can pay Not Guilty State did not prove beyond a reasonable doubt Verdict must be unanimous If not unanimous, no verdict = hung jury Mistrial declared Case not over Post Trial Motions Time to pay or payment plan OCA forms Community service in lieu of fine Credit for time served Motion for new trial judge made legal error regarding admission of evidence Defendant has right of appeal: on the record in court of record; de novo in nonrecord courts Execution of Judgment Community service (art ) Capias pro fine (art ) arrest warrant for failure to pay the fine as required. Δ cannot bond out of jail if arrested *NEW* - hearing required first Commitment order (art ) commits nonindigent Δ who failed to make a good faith effort to satisfy judgment to jail until satisfied Civil execution (art ) abstract of judgment, writ of execution, public auction Collection agency (art ) private agency; can increase amount owed by 30% 14

15 Thanks for Coming! David Hamilton City Attorney Cities of Reno, Honey Grove (903)