I'm certifying a 31-year old for a capital murder committed when he was 16 (recent DNA hit on CODIS). We had his initial detention hearing under 54.02(o) at which I offered the p.c. affidavit and arrest warrant so that my juvenile judge did not have to make another p.c. finding. Any thoughts on whether I can use the same theory at the certification hearing--that there has already been a finding of probable cause? The affidavit and warrant were admitted as exhibits, so they are already in the court's file. Cannot find any relevant case law. I'm trying to prevent open season on my officers.
We've touched on this issue before here so you might search the archives to find that old thread.
The problem with only using paper and not a live witness is there is no way to ID your perp as the perp in the paperwork. There is an old case out there that if I remember it correctly says that a Judge can cut off the fishing expedition once pc has been established but of course you have to have a willing Judge
Unless the respondent waives the hearing I don't see a way around putting on a live witness.
My thought on the issue of using the PC in the detention hearing as your PC for certification (if you could talk a judge into that) is that if it was a no no to do it that way, the appeal comes after the criminal trial so you would have to go through the entire case and then come back to the beginning if you get reversed, BIG risk just to save one officer from the stand !
I agree it would not be worth the risk. Just seems silly that we have to in effect establish probable cause twice--once at the detention hearing and then again at certification. It's the same standard applied to the same transaction. More absurd is that we still have to do the diagnostic study, etc., on a 31-year-old when we would not have to do it on a 16 year-old mandatory transfer. The statute is a bit messy.
I agree it can be a mess.
Any chance your guy will waive the hearing and/or the psych ?
I had 3 kids in Gregg Co. all waive their cert. hearings on a Capital Murder this year.
Not sure you would want to waive the psych though as lots of interesting things can come from a good eval !!
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