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Flashcards in Criminal Law/Procedure Deck (28)
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1

Which of the following statements is correct regarding the ability of police officers to stop automobiles for investigatory purposes?

A The police may stop an automobile for investigatory purposes without cause because automobiles are not areas protected by the Fourth Amendment.
B The police may not stop an automobile for investigatory purposes unless they have probable cause to believe that the driver has broken a law.
C The police may not stop an automobile for investigatory purposes unless they have reasonable suspicion that the driver has broken a law.
D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.

D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.

It is true that the police may stop automobiles on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles. Generally, to make an investigatory stop of an automobile, the police must have at least reasonable suspicion that the driver or an occupant violated or was about to violate some law (i.e., the normal Terry standard). However, the Supreme Court has recognized that the mobility of automobiles can cause special problems, and allow the police to set up roadblocks to stop automobiles even without individualized suspicion to investigate these problems. A good example would be a roadblock that stops every car to determine whether the drivers are intoxicated. The police do not need to have probable cause to believe that the driver has broken the law to stop an automobile for investigatory purposes, because automobiles can be stopped on reasonable suspicion or even without any individualized suspicion, as discussed above. The police do not need to have even reasonable suspicion that the driver has broken the law to stop an automobile for investigatory purposes. First, the driver is not the only possible object of reasonable suspicion. And second, as discussed above, automobiles can be stopped even without any individualized suspicion, to investigate a problem closely related to automobiles and their mobility, as long as the stops are made on a neutral and articulable basis. The choice indicating that automobiles are not areas protected by the Fourth Amendment is incorrect. The Fourth Amendment protects people rather than places. And the courts have held that people do have a privacy interest (albeit a diminished one) when in their automobiles and are protected by the Fourth Amendment.

2

Felony murder generally requires that:

A The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony
B The killing be committed during the course of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony.
C The killing be committed during the course of the felony, the death must have been a foreseeable result of the felony, and the defendant must have been convicted of the underlying felony
D The death must have been a foreseeable result of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony

A The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony.

To convict a defendant of felony murder, the prosecution must prove, beyond a reasonable doubt, that the defendant committed a felony (i.e., he is factually guilty of the felony). However, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired. The killing must take place while the felony is being committed. When the defendant reaches “a place of temporary safety,” the felony is deemed terminated. The felony must be independent of the killing (e.g., the felony of manslaughter cannot be the underlying felony for felony murder). Finally, most states require that the death must be a foreseeable result of the commission of the felony.

3

Which of the following presents the strongest intervening event to relieve the defendant of homicide liability?

A The defendant stabs the victim; the victim commits suicide due to the resulting pain.
B The defendant stabs the victim, who is treated at a hospital. Due to negligent care, the victim contracts an infection and dies.
C The defendant stabs the victim; the victim refuses medical treatment and dies.
D The defendant stabs the victim, who is treated for two hours at a hospital. On his way home from the hospital, the victim is killed in an automobile accident.

D The defendant stabs the victim, who is treated for two hours at a hospital. On his way home from the hospital, the victim is killed in an automobile accident.

The case where the defendant stabs the victim, who after being treated at the hospital, is killed in an automobile accident, is likely to present an intervening event sufficient to relieve the defendant of homicide liability. As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act. The automobile accident presents a case of a mere coincidence that is outside the foreseeable sphere of risk. It could be said that, but for the defendant’s act of stabbing the victim, the victim probably would not have been in an automobile accident. However, the connection between the stabbing and the automobile accident is too tenuous and unforeseeable to allow for homicide liability against the defendant. Acts by third parties that are within the foreseeable sphere of risk created by the defendant’s act will not be sufficient intervening acts to relieve the defendant of homicide. Unforeseeable risks, however, will be sufficient. Negligent medical care (as opposed to grossly negligent or intentional mistreatment) is not a sufficient intervening act to relieve the defendant of homicide liability. Acts by the victim, such as refusing medical care and committing suicide, generally will not be considered intervening acts.

4

If a detainee requests the presence of counsel at an interrogation under Miranda:

A the prohibition against questioning the detainee ends immediately after he is released
B the request must be clear to the police officer present
C the police may continue to interrogate if the request is ambiguous
D the request can be met by halting the interrogation to allow the detainee to consult with counsel and reinitiating the interrogation once counsel leaves

C the police may continue to interrogate if the request is ambiguous

If a detainee requests the presence of counsel at interrogation, under Miranda the police may continue to interrogate if the request is ambiguous. Once a detainee has expressed an unequivocal desire for counsel, all questioning must cease. However, when the request is ambiguous, the police may continue to interrogate until the detainee gives an unambiguous request. The police may also ask clarifying questions when the request is ambiguous. It is inaccurate to state that the detainee’s request for the presence of counsel must be clear to the police officer present. The test is objective—the request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel. Following a request for the presence of counsel by a detainee, the prohibition against questioning the detainee does NOT end immediately after he is released. Instead, the prohibition lasts the entire time the detainee is in custody for interrogation, plus 14 more days after the detainee returns to his normal life. After that point, the detainee may be questioned about the same matter upon receiving a fresh set of Miranda warnings. Finally, if there has been a request for counsel, it is not enough for the police merely to halt the interrogation to allow the detainee to consult with counsel and then reinitiate the interrogation once counsel leaves. Mere consultation with counsel prior to questioning does not satisfy the right to counsel; the police cannot resume questioning the detainee in the absence of counsel.

5

In which of the following situations is there sufficient intent to constitute larceny?

A Taking goods with the belief that the taker is entitled to them as repayment for a debt of the owner.
B Taking goods that are not for sale with the intent to pay the owner.
C Taking goods with the intent to return them and receive a reward.
D Taking goods with the intent to return them within a reasonable time.

B Taking goods that are not for sale with the intent to pay the owner.

Taking goods that are not for sale with the intent to pay the owner constitutes larceny. If the goods taken are not for sale, the fact that the defendant intends to pay the owner for them does not negate the larceny. (If the goods are for sale and the defendant has a specific and realistic intent to repay the owner, the taking is not larceny.) Taking goods with the intent to return them within a reasonable time does NOT constitute larceny if at the time of the taking the defendant has a substantial ability to do so. However, many states make it a crime to borrow a motor vehicle, even when the borrower fully intends to return it (“joyriding”). Taking goods with the honest belief that the taker is entitled to them as repayment for a debt of the owner is NOT larceny, but the goods must not be worth more than the amount of the debt. In these situations, the defendant believes the property is hers and therefore lacks an intent to deprive someone else of his property. Taking goods, intending to return them and receive a reward is NOT larceny . However, if the defendant takes them, not intending to return them unless she is assured of a reward, she has committed larceny, because she has created a substantial risk of loss.

6

Which of the following will not establish the general intent requirement of a crime?

A The doing of the act
B The intent to cause a harmful result to a different person or object
C Proof that the defendant is acting in a proscribed way and that any attendant circumstances required by the crime are present
D Motive

D Motive

Motive will not establish the general intent requirement of a crime. Motive is merely a reason or explanation for committing the offense, and is generally immaterial to substantive criminal law. A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution. The intent to cause a harmful result to a different person or object is sufficient to establish intent to cause a similar harmful result to the person or object actually harmed. This is known as transferred intent. General intent requires that the defendant be aware that he is acting in a proscribed way and that any attendant circumstances required by the crime are present. Thus, proof that this is true will establish general intent.

7

The privilege against self-incrimination is waived:

A by a witness once she takes the stand, but a defendant must affirmatively waive the privilege
B by a defendant or witness once she takes the stand
C by a witness once she discloses incriminating information, but she cannot be compelled to reveal anything further
D by a defendant when she takes the stand, but only to the extent that she is subject to cross-examination

D by a defendant when she takes the stand, but only to the extent that she is subject to cross-examination

The privilege against self-incrimination is waived by a defendant when she takes the witness stand, but only to the extent that she is subject to cross-examination. By taking the stand, the defendant waives the privilege to the extent necessary to subject her to any cross-examination proper under the rules of evidence. The choices indicating that a witness waives the privilege once she takes the stand are incorrect. A defendant’s taking the stand constitutes a waiver because a defendant may refuse to take the stand completely. A witness, on the other hand, cannot refuse to take the stand, but instead must take the stand and assert the privilege, if applicable, to the specific questions posed. A witness will be held to have waived the privilege only to the extent that she discloses incriminating information. If a witness discloses incriminating information, she CAN be compelled to reveal further information as long as the disclosure does not increase her risk of conviction or create a risk of conviction for a different offense.

8

A witness subpoenaed to testify before a grand jury has no right to:

A Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant
B Warnings that she is a potential defendant, but she must be provided counsel in the courtroom and Miranda warnings
C Counsel in the courtroom or Miranda warnings, but she must be warned if she is a potential defendant
D Counsel in the courtroom, but she must be provided Miranda warnings and warned if she is a potential defendant

A Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant

A witness subpoenaed to testify before a grand jury has no right to receive Miranda warnings. A grand jury witness also has no right to have an attorney present, but she may consult with an attorney outside the grand jury room. A witness who is under investigation and may well become a defendant has no right to a warning that she is a “potential defendant” when called to testify before the grand jury.

9

The defendant, who formerly worked for a construction company, became intoxicated one night and decided to move some heavy construction equipment that was parked at a construction site. Ignoring "no trespassing" signs, the defendant jumped the fence and climbed into a large dump truck and started it up. However, due to his intoxication, he quickly lost control of the truck. It rumbled a short distance and crashed into a trailer housing the main office of the construction site. The defendant is prosecuted for recklessly damaging property.

The defendant should be found:


A Guilty, because his actions constituted an unlawful taking of the construction equipment.

B Guilty, because he was intoxicated while attempting to move the construction equipment.

C Not guilty, because at most he could be found guilty of criminal negligence.

D Not guilty, because he must have been aware that his conduct would cause the damage to the trailer in order to be found guilty of reckless damage.

B Guilty, because he was intoxicated while attempting to move the construction equipment.

The defendant should be convicted because he was intoxicated when he damaged the trailer. The defendant is being charged with reckless damage to property. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of reasonable care. Attempting to move a large piece of construction equipment while intoxicated should be considered to be reckless conduct because of the great potential for destruction arising from the size and destructive power of the construction equipment. Therefore, (B) is correct. (A) is incorrect because merely driving the equipment in violation of the law would not necessarily be reckless. For instance, here, the statute likely was enacted to prevent untrained persons from driving dangerous equipment, but the defendant was trained to operate the truck in question; thus, if not for the fact that he was drunk, his action would not necessarily have been reckless. Violating the statute may be evidence of negligence, but negligence is insufficient to establish recklessness. (C) is incorrect for the same reason that (B) is correct—driving the equipment while intoxicated constitutes reckless conduct. Although voluntary intoxication is a defense to a crime that requires purpose or knowledge, it is no defense to crimes involving recklessness. Even though the defendant's condition may in fact have precluded him from being consciously aware of the risk, one who is not consciously aware of a risk only because he was voluntarily intoxicated will be deemed to have acted recklessly with regard to the risk. (D) is incorrect because it states the mental state for knowing conduct—if the defendant is aware that his conduct will necessarily or very likely cause a certain result, he acts knowingly with respect to that result. Recklessness is a lesser standard of fault.

10

A bartender diligently followed the procedure her employer set: She would ask every patron for identification regardless of how old (or young) the patron appeared to be. One day, after asking for identification, the bartender served alcohol to a minor. The identification that the minor gave to the bartender was actually issued by mistake by an appropriate state agency and appeared to show that the minor was of legal age. After another patron, an off-duty police officer, recognized the minor, the bartender was arrested for serving alcohol to a minor. In this jurisdiction, the highest state court has held that, under state law, strict liability is abolished and all crimes require a culpable mental state.

The best reason for finding the bartender not guilty would be:


A She did not know that the minor was underage, and she relied on the identification card for proof of age.

B She did not know that the minor was underage, and therefore never intended to serve alcohol to a minor.

C She made a diligent effort to determine the minor's age.

D She checked the minor's state-issued identification card, which showed that the minor was of age.

A She did not know that the minor was underage, and she relied on the identification card for proof of age.

An honest and reasonable mistake as to a material element of the offense would negate criminal liability for all crimes except strict liability offenses. Thus, if the state had abolished strict liability crimes, the bartender's mistake would be a defense regardless of the mental state required for the crime of serving alcohol to a minor. (B) is not as good an answer as (A). The bartender's lack of intent to commit the crime of serving alcohol to a minor would negate criminal liability if the crime required a specific intent, thus requiring an actual intention to engage in the act of serving alcohol to a minor. The question does not indicate the mental state required for the crime of serving alcohol to a minor. Even though the state had abolished strict liability offenses, the state could punish the crime of serving alcohol to a minor with a "reckless" or "should have known" state of mind. If so, the bartender's lack of intent would not result in a not guilty verdict. (C) is not as good an answer as (A) because the fact that the bartender made a diligent effort to determine the age of the minor would be an important consideration in deciding whether she made an honest and reasonable mistake, but it would not in and of itself automatically negate liability. A similar analysis applies to (D). The fact that the bartender checked the identification card supplied by a state agency would be an important consideration in deciding the nature of her mistake, but it would not by itself negate liability, as the mistake must be both honest and reasonable. For example, if the bartender knew that the minor was not of age despite what the identification card showed, she would commit a crime by serving the minor alcohol.

11

A college student was the sole lifetime beneficiary under a large trust administered by a banker. The student received a large monthly distribution from the trust, and whenever he ran short, he simply called the banker for extra funds, because the trust provided that the student was to receive whatever he needed from income or principal. The student's roommate found out about the trust arrangement and decided to see if he could make it pay off for him. The roommate sent a telegram to the banker, which appeared to be from the student, and which asked for several thousand dollars to cover medical expenses. The telegram further stated that, since he was in the hospital, the student would send his roommate to pick up the cash. The next day, the roommate showed up at the banker's office and obtained the money on the promise that he would take it to the student. The roommate absconded with the funds.

When the roommate obtained the cash from the banker, he committed:


A False pretenses.
B Embezzlement.
C Larceny by trick.
D Larceny.

C Larceny by trick.

The roommate committed larceny by trick because the banker's consent to the roommate's taking the money was induced by the misrepresentation that the roommate would take the money to the student/beneficiary. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. If the person in possession of property has not consented to the taking of it by the defendant, the taking is trespassory. However, if the victim consents to the defendant's taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid. Under such circumstances, the larceny is called larceny by trick. Here, the roommate obtained the money from the banker on the promise that he would take it to the student/beneficiary. This misrepresentation induced the banker to give possession of the money to the roommate. The roommate then proceeded to take the money and carry it away, intending all the while to permanently deprive one who had a possessory interest superior to the roommate's of his interest in the money. Thus, all the elements of larceny are present. Because the original wrongful taking resulted from consent induced by misrepresentation, the specific larceny committed by the roommate is more precisely characterized as larceny by trick. Consequently, although the roommate has in fact committed larceny, (C) is a better answer than (D). Regarding (A), false pretenses consists of obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other. If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses. Here, the banker intended to convey possession of the money to the roommate so that he could give the money to the student/beneficiary. The banker did not intend to convey title to the roommate. Because the roommate did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed. (B) is incorrect because embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, the misappropriation of the property occurs while the defendant has lawful possession of it. In larceny, the misappropriation occurs generally at the time the defendant obtains wrongful possession of the property. The roommate did not have lawful possession of the money because his possession of the money resulted from his misrepresentation to the banker. Thus, the roommate's taking of the money was wrongful from the outset. Because the roommate had wrongful, rather than lawful, possession of the money, there was no embezzlement.

12

Acting with probable cause, the police arrested a man in connection with the armed robbery of a liquor store. After being given Miranda warnings, the man confessed to the robbery but denied his involvement with several other recent armed robberies of businesses in the area. He was formally charged with the one robbery and put into a cell with a paid informant working undercover for the police. The informant had been instructed to find out what he could about the other robberies but not to ask any questions. The informant began talking about a convenience store robbery in which a bystander was shot and seriously injured by the robber, and he deliberately misstated how it happened. The man, unaware that his cell mate was an informant, interrupted to correct him, bragging that he knew what really happened because he was there, and proceeded to make incriminating statements about the robbery. The man was subsequently charged with armed robbery and attempted murder in the convenience store robbery.

At a motion-to-suppress hearing on that charge, if the man's attorney moves to exclude the statements made to the informant, should the motion be granted?


A Yes, because the informant deliberately elicited incriminating statements in violation of the man's Sixth Amendment right to counsel.

B Yes, because the informant's conduct constituted custodial interrogation in violation of the man's Fifth Amendment privilege against self-incrimination.

C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.

D No, because the informant's conduct did not constitute interrogation.

C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.

The man's motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant's conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is "offense specific," the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant's status, the informant's conduct did not constitute a police interrogation. (A) is wrong despite the fact that the informant's conduct may have been deliberately designed to elicit incriminating remarks. As discussed above, the man's right to counsel did not attach for purposes of the convenience store robbery. (B) is incorrect because, as discussed above, the Miranda warnings need not be given before questioning by a cellmate working covertly for the police. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. Hence, it is not the absence of "interrogation" that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police.

13

A driver was operating her car on a city street when she was stopped by a police officer for speeding. As the police officer reached the driver's car, he saw her put something into her purse. The officer told the driver, "Ma'am, you were speeding; that's why I stopped you. I'd like your driver's license, and, by the way, what did you just put into your purse?" The driver responded, "It's just a marijuana cigarette, but don't worry, I've only had two and my driving judgment hasn't been impaired." The officer took her purse, removed the "joint," and charged the driver with possession of marijuana as well as speeding. At the driver's trial for marijuana possession, the prosecution seeks to introduce the marijuana cigarette into evidence. The driver's attorney moves to suppress the evidence.

The defense motion should be:


A Granted, because the cigarette is fruit of the poisonous tree.

B Granted, because the police officer did not have a valid search warrant.

C Denied, because the police officer's asking about the contents of the driver's purse did not constitute custodial interrogation.

D Denied, provided the police officer had a reasonable suspicion of criminal activity.

C Denied, because the police officer's asking about the contents of the driver's purse did not constitute custodial interrogation.

The defense motion should be denied because the driver was not in custody when she made the statement. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse. (A) is therefore wrong. (B) is wrong because this case falls within the automobile exception to the warrant requirement. (D) states the test for a stop, not a search. An automobile search requires probable cause.

14

A woman was arrested, given Miranda warnings, and questioned about an armed robbery. After she asked to speak with an attorney, the police stopped questioning her about the robbery. Several hours later, the police gave the woman a fresh set of Miranda warnings and began to question her about a different robbery. She did not repeat her request for an attorney and instead made several incriminating statements about the robbery. At the woman's trial for the robbery for which she made incriminating statements, the prosecution seeks to have her statements introduced into evidence.

If the woman's attorney objects on appropriate grounds, the court should:


A Overrule the objection, because the police did not badger the woman into confessing.

B Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh Miranda warnings.

C Sustain the objection, because the police did not honor the woman's request.

D Sustain the objection, because a confession obtained in violation of a defendant's Miranda rights but otherwise voluntary may be used against the defendant.

C Sustain the objection, because the police did not honor the woman's request.

The court should sustain the objection because the police did not honor the woman's request for an attorney. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease. (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment - a confession obtained in violation of a defendant's Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.

15

A husband discovered his wife in bed with a neighbor. The neighbor ran out the back door. The husband screamed at his wife and vowed revenge. After consuming several drinks to build up his nerve and becoming intoxicated, the husband went to his friend’s house and borrowed a gun, and then went to the neighbor’s house. The neighbor had neglected to lock his front door, so the husband walked in. He found the neighbor trembling in the living room and pointed the gun at him. The neighbor immediately began apologizing and pleading for his life, but then suddenly he pulled a switchblade knife from his pocket. As the metal flashed, the husband fired a single shot at the neighbor, killing him.

What is the most serious crime of which the husband can be convicted?


A Murder.

B Manslaughter, because the husband was still distraught over finding the neighbor in bed with his wife.

C Manslaughter, because his intoxication prevented the husband from having the requisite intent for murder.

D No homicide crime, because the neighbor was about to attack him with a knife.

A Murder.

The husband can be convicted of murder. Murder is the unlawful killing of another human being with malice aforethought, which may be (i) intent to kill, (ii) intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) intent to commit a felony. Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. Here, the husband uttered statements of revenge, confronted the neighbor with a loaded gun, and intentionally shot him when he pulled out a knife—more than enough evidence for a jury to find that the husband had the malice aforethought necessary for murder. Furthermore, none of the issues raised in the other choices will suffice to excuse the killing or reduce it to voluntary manslaughter. (B) is incorrect because the husband will not be able to meet all four tests for establishing the provocation necessary to reduce a killing from murder to voluntary manslaughter. The husband would have to offer evidence that (i) a provocation existed that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control, (ii) the husband was in fact provoked and lost his self-control, (iii) there was not sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and (iv) the husband in fact did not cool off between the provocation and the killing. The husband can easily establish the first two elements, because discovery of one’s spouse in bed with another person is virtually always considered adequate provocation by common law courts. However, the time interval between the provocation and the killing was probably sufficient for a reasonable person to cool off, and the facts strongly suggest that the husband did in fact cool off—he consumed several drinks to build up his nerve and went to a friend’s house to get a gun before confronting the neighbor. Thus, a jury would probably reject a claim of voluntary manslaughter here. (C) is incorrect because the husband’s voluntary intoxication would not preclude a finding of intent for murder. Because the husband became intoxicated to build up his nerve to kill the neighbor, a court would probably find that his intent at the time he began drinking would apply to his later conduct. Furthermore, voluntary intoxication is no defense to crimes involving recklessness. The husband can still be liable for murder based on a state of mind of reckless indifference to human life—his conduct in becoming intoxicated and then confronting the neighbor with a loaded gun is sufficient to establish that state of mind. (D) is incorrect because the homicide will not be excused on self-defense grounds. A person may use deadly force in self-defense only if (i) he is without fault, (ii) he is confronted with unlawful force, and (iii) he is threatened with imminent death or great bodily harm. The husband is not without fault, however, because he initiated the assault and prompted the neighbor to pull the knife. His status as the aggressor deprives him of the right to use force in his own defense under these circumstances.

16

One night when a man was very drunk, he took one of his rifles, loaded it, and fired a bullet through his front door. Unbeknownst to him, at the time he fired the rifle, someone was driving by the house. The bullet went through the front door, through the window of the car, and killed the driver. The shooter was convicted of murder and appeals. He contends that there was insufficient evidence to support a finding of murder.

The court of appeals should rule that the evidence is:

A Sufficient to prove that the killing was intentional.

B Sufficient to prove that the killing was done with malice aforethought.

C Insufficient, because the shooter did not know that the driver was driving by his house and therefore he could not have acted intentionally.

D Insufficient, because at most the shooter's conduct constituted gross negligence and involuntary manslaughter.

B Sufficient to prove that the killing was done with malice aforethought.

Under the facts of this case, to support a finding of murder, the trial court would have to find that the shooter acted either intentionally or with malice aforethought. The facts clearly indicate that the shooter did not know of the car, so it cannot be said that he shot at it intentionally, and therefore (A) is not correct. "Malice aforethought" can mean that the defendant is acting with a "wanton" state of mind. There is little question that shooting a rifle through a front door can be considered "wanton." Thus, the question is whether the shooter's intoxication was sufficient to negate this state of mind. If a defendant's lack of awareness results from voluntary intoxication, his conduct will nevertheless be deemed wanton. (C) is not a correct analysis of the issue, because his intentional act was firing the rifle, not shooting at the car. (D) is not the best answer, because although there is the possibility that the shooter might have been able to show only gross negligence, there is sufficient evidence to support a finding of malice aforethought and murder.

17

A man and a woman were traveling in the man's car when they were stopped by the police for running a red light. Before the police came up to the car, the man told the woman, "You owe me a favor. Keep this package for me," and gave the woman a small foil package. The woman put the package in her backpack, saying, "O.K., but don't tell me what's in it." Before the police even began to question the occupants, the man blurted out, "I'm clean, man, but she has a stash," pointing at the woman. The officers searched the backpack that the woman was holding and found the foil package, which contained heroin. The woman was arrested, but the man was not.

Is the evidence found on the woman admissible?

A Yes, under the automobile exception.

B Yes, because due process imputes knowledge where there is willful ignorance.

C No, because due process forbids granting of immunity to the more culpable defendant.

D No, because the woman did not know that the package contained heroin.

A Yes, under the automobile exception.

The evidence is admissible because the search was valid. Even though the police have validly stopped an automobile, they cannot search the vehicle without meeting the requirements of one of the exceptions to the warrant requirement, such as the automobile exception (which requires probable cause) or consent. The automobile exception comes into play when the police have probable cause to believe that the vehicle contains evidence of a crime. Under the exception, the police may search anywhere in the vehicle in which the item for which they have cause to search may be hidden, including packages in the vehicle. The statement of the man to the police officers gave them probable cause to believe that the car contained evidence of a crime (i.e., that the woman had drugs somewhere in the car). Thus, the requirement for application of the automobile exception was present, providing validity for the warrantless search conducted by the police. Because the search was valid, the evidence found on the woman is admissible. Besides being an incorrect statement of law, (B) is incorrect because it focuses on the woman's knowledge of the contents of the package. Whether the woman knew that heroin (or some other illegal substance) was in the package is irrelevant to the admissibility of the heroin. Even assuming that the woman knew of the contents, the search would not be valid unless there was a ground for the warrantless search. (D) similarly links the woman's knowledge of the package's contents to the admissibility of the evidence. As noted above, the admissibility of the evidence is dependent on the validity of the search that produced the evidence, rather than on the knowledge of the defendant as to the existence of the evidence. (C) is incorrect for three reasons: First, due process does not prohibit granting of immunity to a more culpable defendant. Second, there is no indication that immunity was even granted here (immunity from prosecution may be granted to compel a witness to answer questions. The facts merely state that the man was not arrested; this does not necessarily mean that he was granted immunity). Third, the call of the question relates to the admissibility of the evidence, and a grant of immunity does not relate to the question of the admissibility of the evidence found on the woman; such admissibility is determined by the validity of the search of the woman by the officers.

18

Suspecting criminal activity, a police officer acting without a warrant peeked through a small opening in the shutters of an apartment. The officer observed the apartment's tenant and the defendant making methamphetamine. The officer immediately entered the apartment and arrested the tenant and the defendant, and he confiscated the ingredients for the methamphetamine, the tools used for methamphetamine production, and any completed methamphetamine for evidence. The search is later ruled invalid at a suppression hearing.

May the defendant now claim that her Fourth Amendment rights have been violated by the seizure of the ingredients, tools, and methamphetamine from the apartment?

A Yes, because the items will be used in evidence against her.

B Yes, if she was an overnight guest of the tenant.

C No, because she was not the owner or occupier of the apartment.

D No, unless she admits to ownership of the items.

B Yes, if she was an overnight guest of the tenant.

The defendant can claim a reasonable expectation of privacy for Fourth Amendment purposes if she was an overnight guest of the owner of the place searched. To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own reasonable expectations of privacy. The Court has held that a person has a reasonable expectation of privacy any time (i) she owned or had a right to possession of the place searched, (ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or (iii) she was an overnight guest of the owner of the place searched. Thus, the defendant would have standing to challenge the search of the tenant's apartment if she was an overnight guest of the tenant. (A) is incorrect because standing to raise a Fourth Amendment claim does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person's property. The person must establish that her own reasonable expectation of privacy has been violated. (C) is wrong because the fact that the defendant was not the owner or occupier of the apartment does not preclude her from challenging the search. As discussed above, an overnight guest may also have a reasonable expectation of privacy in the premises for purposes of the Fourth Amendment. (D) is incorrect. Although the defendant may have standing to object to the seizure of items if she claims ownership of them, that is not the only basis for raising a Fourth Amendment claim; she will have standing to object to the search of the apartment under the circumstances in (B) regardless of whether she claims ownership of the methamphetamine.

19

A police officer learned from a reliable informant that a major drug deal was about to take place at a local restaurant. The officer obtained a search warrant for the restaurant and arrived with other uniformed officers to search the premises. While conducting the search, the officer searched several of the customers. While searching one of the restaurant's regular customers, the officer felt an object in the customer's pocket and pulled out a container filled with heroin. The customer was arrested and later convicted of possession of heroin. A state statute permits officers executing a search warrant to search persons on the premises if the officers reasonably expect danger to themselves or a risk of disposal or concealment of anything described in the warrant.

If the customer challenges his conviction on the ground that his Fourth Amendment rights were violated, will he be successful?

A Yes, because the statute is vague and overbroad.

B Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.

C No, because the search was conducted pursuant to a valid search warrant.

D No, because the search was authorized by statute.

B Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.

The customer will be successful. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. In Ybarra v. Illinois (1979), a case based on similar facts, the Supreme Court held that "each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present." (A) is incorrect because the validity of the statute is not the primary issue. Even in the absence of a statute, the search of the customer by the officer violated the customer's Fourth Amendment rights. (C) is incorrect because, as discussed above, the search warrant did not override the customer's Fourth Amendment rights. While the police would be able to search a person discovered on the premises for whom they had probable cause to arrest, because the search would be incident to a lawful arrest, here they searched the customer prior to an arrest and without probable cause. (D) is irrelevant; if a search is unconstitutional, it does not matter that it was authorized by statute. To the extent that the statute authorizes a search in violation of the Fourth Amendment, it is unconstitutional.

20

A grand jury was investigating a bank robbery. The only information known to the prosecutor was a rumor that a certain ex-convict might have been involved. The grand jury subpoenaed the ex-convict. He refused to answer questions about the robbery and was granted use immunity. He then testified that he and a friend had robbed the bank. The grand jury indicted both the ex-convict and his friend for the bank robbery. The prosecutor permitted the friend to enter a plea to a lesser offense in exchange for the friend’s agreement to testify against the ex-convict. The prosecutor had no evidence as to the identity of the robbers except the testimony of the friend and the ex-convict.

At the ex-convict’s trial, should his objection to his friend’s being permitted to testify be sustained?

A Yes, because the prosecutor may not bargain away the rights of one co-defendant in a deal with another.

B Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.

C No, because the police suspected the ex-convict even before he testified in the grand jury hearing.

D No, because a witness cannot be precluded from testifying if his testimony is given voluntarily.

B Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.

Testimony obtained by a promise of immunity is by definition coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of the defendant’s testimony at trial. The friend’s testimony will not be permitted to be used against the ex-convict because it resulted from the ex-convict’s immunized testimony. (A) is wrong because it is an inaccurate statement of the law. Prosecutors can bargain away the rights of co-defendants. (C) is wrong because police suspicion is not the equivalent of actual testimony. (D) is wrong. Even though a witness wants to testify, various privileges such as lawyer-client, doctor-patient, etc., may bar the testimony. Here, the grant of immunity to the ex-convict is a bar to the friend’s derived testimony because use immunity bars use of one’s testimony or anything derived from it.

21

The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant’s fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence.

How should the court rule?

A Admissible, because the affidavit satisfies the best evidence rule.
B Admissible, because the affidavit is a business record.
C Admissible, because the affidavit was prepared pursuant to statute.
D Inadmissible, because the defendant’s rights under the Confrontation Clause are violated.

D Inadmissible, because the defendant’s rights under the Confrontation Clause are violated.

The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible—the lab technician must be brought in to testify as to the findings of the fingerprint test. (A) is incorrect because the fact that the affidavit is an original does not, by itself, make it admissible. Admissibility still violates the defendant’s rights under the Confrontation Clause. (B) is incorrect because, even if the affidavit qualifies as a business record, it is inadmissible in this case under the Confrontation Clause. (C) is incorrect because the report, even if prepared pursuant to statute, is still inadmissible because it violates the Confrontation Clause.

22

A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state.

The testimony of the witness is:

A Admissible, because the witness testified under oath at another hearing related to the same subject matter.
B Admissible, because the defendant is a party to both proceedings.
C Inadmissible, because the plaintiffs were not parties to the criminal proceeding.
D Inadmissible, because the witness can be subpoenaed to testify.

C Inadmissible, because the plaintiffs were not parties to the criminal proceeding.

The witness's testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is "unavailable" for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant's attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of "unavailability" in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish "unavailability." In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.

23

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim's car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, "I don't think I'm going to make it. I tried to slow down, but my brakes didn't work. My former partner must have tampered with them to get back at me." With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant.

At trial, can the motorist testify as to the statement made by the victim?

A No, because the victim did not know that the defendant tampered with the brakes.
B No, because the victim is still alive.
C Yes, because the victim thought he was about to die.
D Yes, because this is a civil case.

A No, because the victim did not know that the defendant tampered with the brakes.

Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be "unavailable" when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court's subpoena and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim's statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception. Thus, (A) is the correct answer and (C) is incorrect. (B) is incorrect because the declarant's death is no longer required; unavailability is sufficient. Thus, if the victim's statement otherwise qualified under the dying declarations exception, the fact that he is not dead would not render the motorist's testimony inadmissible. (D) is incorrect for the reasons stated above and also because it incorrectly implies that the dying declarations hearsay exception applies only in civil cases. As noted above, the exception also applies to homicide cases. (Note that the traditional view, still followed by some states, would only allow the declaration in a homicide prosecution.)

24

A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff's attorney calls a witness who testifies that, at the time of the incident, the defendant stated, "It was my fault." The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest.

Are the grounds for the judge's decision correct?

A Yes, because the statement subjected the defendant to tort liability.
B Yes, because the defendant is a party to the litigation.
C No, because the statement is not against an important interest.
D No, because the defendant is available to testify.

D No, because the defendant is available to testify.

The ground for the judge's decision is incorrect because the defendant is available to testify. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement's proponent is unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defendant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incorrect in basing his decision on this exception. (A) is incorrect because the fact that the statement subjected the defendant to tort liability, and thus was against her interest, is not enough; she must also be unavailable. Also, this choice implies that this exception would be available only if she were subjected to tort liability, not criminal liability. Although some courts so limit the exception, the Federal Rules include statements against penal interest within the parameters of the statement against interest. (B) is incorrect because the defendant need not be a party to the litigation for her statement to qualify as a statement against interest. Thus, her status as a party would not be a basis for deciding that the statement against interest exception applies here. Of course, this choice is also incorrect because her availability to testify precludes application of this exception. (C) is incorrect because the defendant's statement, which effectively acknowledges liability for the plaintiff's injury, is most certainly against an important pecuniary interest; i.e., it subjects her to the possibility of being held financially liable for the plaintiff's damages. Note that the judge correctly overruled the objection by the defendant's attorney, but for the wrong reason. The defendant's statement constitutes a statement by a party-opponent (commonly called an admission), which is an act done or statement made by a party and offered against that party and is nonhearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] The defendant is a party, and her statement is a prior acknowledgment of the highly relevant matter of fault. For a statement by a party-opponent, the declarant need not be unavailable. (Don't be confused by the fact that, although the judge was correct in allowing the testimony as to the defendant's statement, the call of the question pertains to the grounds for the ruling, which were incorrect.)

25

In a claim for damages in a personal injury action, a plaintiff's attorney sought to introduce evidence of the plaintiff's testimony made to her boyfriend several days after her accident that "I must have sprained my neck when it happened because it hurts so much." The plaintiff is also planning to offer medical evidence that her neck was sprained.

The judge should rule the testimony:

A Inadmissible, because it is hearsay not within any exception.
B Inadmissible, because the plaintiff is not qualified to give testimony as to her medical condition.
C Admissible, because the plaintiff is also going to present medical evidence that her neck was sprained.
D Admissible, to show that the plaintiff had suffered physical pain.

D Admissible, to show that the plaintiff had suffered physical pain.

The judge should rule that the plaintiff's testimony is admissible. Although it was hearsay, the plaintiff's testimony was to show she was suffering pain, and is an exception to the hearsay rule as a declaration of present physical sensation. Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel. Thus, (A) is wrong. (B) is wrong because the plaintiff's testimony is not to establish that she suffered a "sprained" neck, which would require an expert witness, but just to establish that her neck was in pain. (C) is wrong because the plaintiff's statement would be admissible to show her current physical condition even if she had not planned to introduce medical evidence.

26

At the defendant’s trial for rape, he calls a witness who testifies that she was on her patio barbecuing some hamburgers at the time of the charged rape and saw the assailant run from the victim’s apartment. She further testifies that the person who ran from the victim’s apartment was not the defendant.

On cross-examination by the prosecutor, to which of the following questions would a defense objection most likely be sustained?

A “Weren’t you convicted of perjury 11 years ago?”
B “Weren’t you under the influence of heroin at the time you were barbecuing those hamburgers?”
C “Haven’t you and the defendant known each other since grammar school?”
D “Didn’t you embezzle funds from your most recent employer?”

A “Weren’t you convicted of perjury 11 years ago?”

The objection to the perjury question is most likely to be sustained. Federal Rule 609 permits the prosecution to inquire into prior convictions of crimes requiring proof or admission of dishonesty or false statement unless over 10 years have passed since the date of conviction or date of release from confinement (whichever is later). While the facts do not indicate the latter date (or even whether a confinement occurred), (A) remains the best of the four choices. The conviction in (A) is more than 10 years old, so it probably would be subject to objection as being too remote. (B) relates to the witness’s ability to perceive and would be a legitimate question on cross-examination. (C) shows a possible bias on the part of the witness, which is an acceptable method of impeachment. (D) relates to a prior bad act that shows dishonesty. Such acts may be asked about on cross-examination of the witness.

27

A well-known actor sued a resort hotel for damages to his new limited edition sports car caused by the hotel’s parking valet while the actor was a guest at the hotel. His lawsuit, based on theories of respondeat superior and negligent hiring, alleged that after he gave the valet the keys, the valet, who had been working for the hotel for nine months, took the car for a drive without permission and negligently drove it into a tree, causing extensive damage to the car. At trial, the actor’s counsel offers evidence that six months before the accident, but three months after the valet was hired, the hotel instituted new hiring procedures for all potential employees, including parking valets. Included in the new rules was a requirement that all persons must pass a thorough background check before being hired. The valet had been required only to have a valid driver’s license when he was hired. In fact, he had an extensive record of traffic offenses at the time he was hired.

Is the evidence regarding the new employment requirements admissible?

A No, because it is irrelevant.
B No, because it is evidence of remedial measures.
C Yes, because it is evidence of the hotel’s negligence.
D Yes, because it is evidence that the valet was incompetent.

C Yes, because it is evidence of the hotel’s negligence.

The evidence is admissible because it tends to show that the hotel was not acting prudently when it hired the valet, an employee who damaged a guest’s car; thus (C) is correct and (A) is incorrect. (B) is not a good answer because only subsequent remedial measures (i.e., those taken after the injury to the plaintiff occurred) may not be proven as evidence of negligence; here the change in hiring procedures took place before the car was damaged, and so would be allowed. (D) is not accurate—the evidence does not show that the valet was incompetent, but rather that the hotel did not investigate his competence when he was hired, an issue related to the actor’s negligent hiring claim.

28

During the course of their marriage, a husband told his wife that he stole a famous painting from a federal museum. Six months after the admission, the couple divorced. Shortly after the divorce, the husband was killed in an automobile accident. Later, the wife read in the paper that a man had been charged with the theft of the painting her husband admitted to stealing and was about to be tried in federal district court. She told her friend that the man was probably innocent because the husband told her that he had stolen the painting himself. The friend told several other people what the wife had told her, and eventually the story got back to the defense attorney. The attorney now wants the wife to testify in court to the husband's statement.

Can the wife be compelled to testify?

A Yes, but only because the husband is dead and cannot invoke his privilege.
B Yes, because there is no privilege when the defendant is not a spouse.
C No, because the couple was still married at the time of the disclosure.
D No, because her testimony is not essential to prevent a fraud on the court.

A Yes, but only because the husband is dead and cannot invoke his privilege.

The wife can be compelled to testify because her husband is dead and cannot invoke the privilege. There are two separate privileges related to marriage. There is spousal immunity, under which: (i) a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and (ii) a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, this privilege belongs to the witness-spouse so that she may not be compelled to testify, but neither may she be foreclosed from testifying. This privilege terminates upon divorce. There is also a privilege for confidential marital communications, under which either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Both spouses jointly hold this privilege. Divorce does not terminate this privilege retroactively. Because the communication must be made in reliance upon the intimacy of the marital relationship, if the communication is made in the known presence of a stranger, it is not privileged. Similarly, if one spouse voluntarily reveals the contents of the communication to a stranger, that spouse waives the protection of the privilege as to herself (i.e., she cannot use the privilege to refuse to disclose, or to prevent another from disclosing, the communication), but the other spouse (i.e., the one who did not reveal the communication) retains this privilege. Here, the spousal immunity between the husband and the wife terminated upon their divorce. Thus, the only consideration is the applicability of the privilege for confidential marital communications. The husband's statement to the wife came during their marriage and was made in reliance upon the intimacy of their relationship (marital communications are presumed to be confidential). Thus, the statement was covered by the privilege for confidential marital communications. Their subsequent divorce did not terminate this privilege. However, when the wife revealed to her friend what her husband had told her concerning the theft of the painting, the wife lost her privilege to refuse to disclose the matter. If the husband were alive, he would retain the privilege despite the wife's disclosure and could prevent her from testifying to his statement concerning the theft of the painting. Because the husband is dead, he cannot invoke his privilege. Because the wife has waived her privilege and the husband is unable to foreclose her testimony, she can be compelled to testify. (B) is incorrect because the privilege for confidential marital communications applies to the disclosure of matters communicated during and in reliance on the intimacy of the marital relationship regardless of whether one of the spouses is a defendant in a criminal case. Even spousal immunity is deemed to preclude the compelled testimony of one spouse against the other in any criminal proceeding, regardless of whether the other spouse is a defendant. The difference when a spouse is a criminal defendant is that the other spouse may not even be compelled to take the stand. (C) is incorrect because it does not take into account the fact that the wife waived her privilege when she communicated her husband's admission to her friend, as explained above. (D) incorrectly concludes that the wife cannot be compelled to testify. Due to her knowing and voluntary revelation of the husband's statement to her friend, the wife has waived her privilege and may be compelled to testify. Note that, if the privilege were still applicable (i.e., if the wife had not waived it), she could not be compelled to testify as to the contents of the privileged communication simply on the ground that such testimony would be essential to prevent a fraud on the court.