MBE KAPLAN--CRIM PRO Flashcards
1
Q
- A defendant was employed by a railroad company as a watchman at its crossing, to give warning to the public of approaching trains. Late one evening, he fell asleep in his kiosk and failed to warn of the approach of an oncoming train. A man, who was driving his car, knew of the usual presence of the watchman. As he approached the crossing, he received no warning. Driving onto the track, the man’s car was struck and crushed by the train. The man died instantly.
A few minutes after the accident, a police officer arrived at the crossing and walked into the kiosk. As he entered, the defendant then awoke. The police officer asked him, “What happened here?” The defendant made incriminating statements.
The defendant is subsequently charged with involuntary manslaughter. His motion to prevent the introduction of his incriminating statements into evidence will most likely be
(A) granted, because the police officer failed to give the defendant his Miranda warnings.
(B) granted, because the police officer’s conduct in questioning the defendant immediately after he awoke was unfairly prejudicial to the defendant.
(C) denied, because the exchange took place in a non-custodial setting and the question was investigatory in nature.
(D) denied, because the defendant’s incriminating statements were voluntary.
A
- (C) With Miranda, the Fifth Amendment privilege against compelled self-incrimination became the basis for ruling upon the admissibility of a confession. Miranda warnings (and a valid waiver) are prerequisites to the admissibility of any statement made by the accused during a custodial interrogation. Generally speaking, an interrogation will be considered custodial if the individual is not free to leave. According to Orozco v. Texas, 394 u.s. 324 (1969), the Court held that a person is in “custody” if he is not free to leave, even if the questioning occurs in the individual’s bedroom. In the present example, the facts do not indicate that the defendant was in police “custody” for Miranda purposes. Therefore, choice (C) is the best answer because the defendant’s statements were not made during a custodial interrogation. Choice (C) is a better answer than choice (D) because the issue here is whether the police questioning was “on-the-scene” or “custodial.” Choices (A) and (B) are incorrect for the reasons stated above.
2
Q
- A defendant was convicted of assault of a federal officer and imprisoned in a federal penitentiary. While in prison, federal authorities began investigating the murder of the defendant’s 11-year- old stepdaughter who was murdered two years earlier. Believing that the defendant was responsible for this killing, federal agents decided to plant an informant at the prison to befriend the defendant and possibly obtain evidence about the crime.
In accord with this plan, the federal agents hired a paid informant and placed him in the prison as a fellow inmate, masquerading as an organized crime figure. The informant soon befriended the defendant and learned that he was being threatened by other inmates because of a rumor that he had killed a child. The informant then raised the subject in several conversations, but the defendant repeatedly denied any such involvement. After the defendant started receiving tough treatment from other inmates because of the rumor, the informant offered to protect the defendant but told him, “You have to tell me the truth about what really happened you know, if you want me to help you.” Believing that the informant would protect him from the other inmates, the defendant then admitted to the informant that he had driven his stepdaughter to the desert where he killed her.
Based upon this confession, the defendant was then indicted for the first-degree murder of his stepdaughter. Prior to trial, the defendant moves to suppress the statement given to the informant.
Should the defendant’s motion be granted?
(A) Yes, because the confession was coerced by the threat of physical violence, absent protection from the informant that motivated the defendant to confess.
(B) Yes, because the informant was a false friend, and the defendant was tricked into making the confession.
(C) No, because the confession was voluntary.
(D) No, because under the totality of circumstances, the informant’s conduct was not inherently coercive.
A
- (A) Under the voluntariness standard, the issue of whether a defendant’s confession will be admissible is determined by a “totality of circumstances” approach, which examines both (1) the nature of the defendant (i.e., age, sex, race, mental condition, physical condition, history of drug or alcohol abuse), and (2) the nature of the police conduct. These factors help determine the extent to which the defendant’s ability to submit to external pressures has been affected. Confessions obtained under conditions where the defendant’s free choice is significantly impaired are likely to be found coercive. However, where the police employ a “false friend,” such as a jail cell “plant,” and by deception the defendant is unaware that the person with whom he is conversing is a police officer or agent, a confession thereby obtained will not necessarily be involuntary, even if the defendant mistakenly believed the person could be trusted. LaFave, Criminal Procedure. Choice (B) is incorrect. Nevertheless, where actual or threatened physical harm or brutality is involved, the Court has readily found there to be coercion sufficient to negate the defendant’s free will. In Arizona v. Fulminante, 59 LW 4235 (1991) under similar facts regarding the murder of the defendant’s stepdaughter, the Court heLd that a credible threat of physical violence is sufficient to support a finding of coercion. By intimidating the defendant with the threat of physical violence from other inmates unless he sought the informant’s protection, the government employed coercive tactics in obtaining the defendant’s confession. Therefore, choice (A) is correct. Choices (C) and (D) are incorrect for the reasons stated above.
3
Q
- Late one evening, a police department received a telephone call from an unidentified woman who reported hearing loud shrieks and screams from a neighboring home. The caller furnished the police with the address where the disturbance was taking place. When the police arrived at the home, they discovered the homeowner, bludgeoned to death. The murder weapon was a blood-stained baseball bat found near the victim’s body.
A subsequent investigation revealed that the homeowner had recently been separated from her husband who had since moved to another city. After questioning several of the victim’s friends and relatives, the police concluded that the husband was a prime suspect in the murder. Thus, two detectives went to question the husband about the killing. When they arrived at his apartment, the detectives persuaded the landlord to let them into his apartment. Finding no one inside, they searched the apartment. Before leaving, the detectives took a box of cereal, which they planned to use for a fingerprint comparison. The prints from the cereal box matched those found on the baseball bat. The police provided the grand jury investigating the murder with the fingerprint comparison.
The husband is subsequently subpoenaed to testify before the grand jury. Before his scheduled appearance, the husband files a motion to suppress evidence of the fingerprint comparison, contending that the evidence was illegally obtained.
His motion should be
(A) granted, because the warrantless search of the husband’s apartment was unconstitutional.
(B) granted, because the grand jury is barred from considering illegally obtained evidence.
(C) denied, because the exclusionary rule has not been extended to grand jury hearings.
(D) denied, because the landlord had the apparent authority to authorize the search of the husband’s apartment.
A
- (C) In United States v. Calandra, 414 U.S. 338 (1974), the Court refused to extend the exclusionary rule to grand jury proceedings. A divided Supreme Court (6-3) noted that “in deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context. It is evident that this extension of the exclusionary rule would seriously impede the grand jury.” Therefore, choices (A), (B), and (D) are incorrect.
4
Q
- A defendant was suspected of having burglarized his neighbor’s apartment. The neighbor reported that his apartment had been ransacked and several items of clothing had been stolen. During the course of their investigation, two police detectives went to the defendant’s place of work to interview him. After being advised of his Miranda rights, the defendant requested permission to call his attorney. Although his attorney was unavailable, the attorney’s receptionist admonished him not to say anything. The defendant told the detectives he would have nothing further to say unless his attorney was present. The detectives then asked him if he would accompany them to the police station to answer some questions about an unrelated robbery. The defendant agreed.
As they were driving to the police station, the defendant was asked where he had purchased the boots that he was wearing. He refused to answer. When they arrived at the police station, the detectives requested that he sign a waiver of his right to counsel. The defendant replied that he would not sign anything in the absence of his attorney. He was then placed in an interrogation room. Shortly thereafter, the defendant was told he could leave if he would be willing to say where he had purchased his boots. The defendant admitted that he had bought the boots and some shirts from a friend. From this information, the detectives obtained a search warrant and went to the defendant’s home where they found the stolen clothing.
The defendant is charged with burglarizing the apartment. At trial, the court should
(A) admit the confession because it was voluntary, and the clothing because it was obtained pursuant to a valid search warrant.
(B) suppress the confession because it was obtained in violation of his Sixth Amendment right to counsel, but admit the clothing because it was obtained pursuant to a valid search warrant.
(C) suppress the confession because the defendant failed to sign the waiver, but admit the clothing because it was obtained pursuant to a valid search warrant.
(D) suppress the confession because it was obtained in violation of his Fifth Amendment right to counsel, and the clothing because the search warrant was secured as a result of the confession.
A
- (D) In Miranda, the U.S. Supreme Court said “if the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” In addition, the Court stated that “if the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligentLy waived his privilege against self-incrimination and his right to retained or appointed counsel.”
5
Q
- A student was a junior criminology major at state university and a member of a fraternity. While new members were pledging the fraternity, the student had a reputation for initiating pranks and hazing the pledges. Late one night, after a fraternity party, the student decided to kidnap one of the pledges. Enlisting the help of his friend, they grabbed the pledge, tied him up, and locked him in the trunk of the student’s car. They then drove into the downtown section of a city where they dropped the pledge at a street corner. While the pledge was wandering around and trying to find a telephone booth, a gang of youths saw his predicament and attacked him. The pledge, who was severely beaten, suffered a broken nose, multiple lacerations, and contusions.
When the pledge finally returned to the school, he filed a criminal complaint against the student who was charged with violating a state law, which provides:
“Every person who hazes a student and thereby is responsible for causing bodily harm to said student is guilty of a felony punishable by three years in prison.”
At thai, the prosecuting attorney called the student’s alleged accomplice as a witness. The friend refused to answer any questions and was cited for contempt. After the friend left the witness stand, the prosecutor offered into evidence a transcript of the friend’s testimony given at the student’s preliminary hearing. At the preliminary hearing, the friend testified under oath that he and the student were responsible for hazing the pledge and driving the victim against his will to the city. During the preliminary hearing, the friend was also cross-examined by the student’s defense counsel. Over defense objections, the trial court admitted the transcript of the friend’s testimony at the preliminary hearing. Thereafter, the student was convicted of violating the aforementioned hazing statute.
The student appeals the conviction and contends that the admission of the transcript of the friend’s testimony at the preliminary hearing violated his Sixth Amendment right of confrontation.
As to this claim, the student’s appeal will most likely be
(A) granted, because there was no opportunity to cross-examine the witness at trial.
(B) granted, because in order to admit prior testimony, the witness must be shown to be unavailable.
(C) denied, because the witness was unavailable, and there was adequate opportunity for crossexamination at the preliminary hearing.
(D) denied, because the testimony was a statement by a co-conspirator and, therefore, admissible as a recognized exception to the hearsay rule.
A
- (C) Former testimony under FRE 804(b)(1) is defined as “testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The transcript of the friend’s testimony at the preliminary hearing will be admissible as former testimony, and the student’s cLaim will be denied. Similarly, in California v. Green, 399 U.S. 149 (1969), the use of preliminary hearing testimony of a witness who was unavailable at trial was held not to violate the defendant’s constitutionaL right of confrontation. Choice (C) is thus correct. Choice (A) is incorrect because the opportunity to cross- examine the friend at trial is unnecessary, since he was already cross-examined by the student’s attorney at the preliminary hearing concerning the testimony given at that time. Choice (B) is incorrect because under FRE 804(a)(2), refusal to testify constitutes unavailability. Choice (D) is incorrect because it mixes two different rules. First, under FRE 804(b) (3), a declaration against interest must be against the declarant’s (penal) interest at the time when made. The friend’s statement incriminated the student as the perpetrator, not himself. Second, a co-conspirator’s admission under FRE 801 (d)(2)(e) is defined as non-hearsay—not as a hearsay exception—under the FRE.
6
Q
- In her request for jury instructions on the defense of duress, a defendant argued that she should have the burden of producing some evidence of duress, but the prosecution should be required to disprove duress beyond a reasonable doubt. The trial court denied the defendant’s request and instead instructed the jury that the defendant had the burden of proof to establish the defense of duress by a preponderance of the evidence. After she was convicted by the jury, the defendant claims on appeal that the jury instructions regarding duress violated the due process clause.
Were the jury instructions correct?
(A) No, because the prosecution bears the burden of proof beyond a reasonable doubt on all elements and defenses produced at trial by a defendant.
(B) No, because the jury instruction impermissibly shifts the burden of proof to the defendant.
(C) No, because the defense of duress is no longer a recognized defense in federal prosecutions, although it was recognized at common law, and is recognized in most state courts.
(D) Yes, because the defense has the burden of proving the defense of duress by a preponderance of the evidence.
A
- (D) In Dixon v. United States, 126 S. Ct. 2437 (2006), the Supreme Court ruled that, in the absence of a federal statute, modern common law does not require the prosecution to bear the burden of disproving defendant’s duress beyond a reasonable doubt. Instead, the Court held that Congress intended the defendant to bear the burden of proving the duress defense by a preponderance of the evidence. Note:
Congress can change the result in Dixon by statute. Choices (A), (B), and (C) are incorrect for the reasons stated above.
7
Q
- Under which of the following fact situations would the defendant’s Miranda waiver most likely be ineffective?
(A) A defendant recently graduated from law school. At her graduation party, the defendant became highly intoxicated after drinking a pint of whiskey. Following the party, the defendant attempted to drive home in her car. She fell asleep at the wheel and crashed into another vehicle, seriously injuring the driver. Shortly after the accident, a police officer came on the scene and arrested the defendant, charging her with D.U.I. The defendant was then given her Miranda warnings and transported to the police station. Upon questioning, the defendant, who was still highly intoxicated, waived her Miranda rights, and the police elicited an incriminating statement.
(B) A defendant stabbed a victim after a violent argument. Following the stabbing death, the police arrested the defendant and charged him with murder. He was transported to the station house where Miranda warnings were given. Afterward, the defendant was interrogated and proceeded to waive his Miranda rights. He then confessed to committing the crime. At trial, a psychiatrist testified that the defendant was mentally ill and his confession was not the result of a knowing and intelligent waiver.
(C) A defendant was a 15-year-old boy who was a high school sophomore. He possessed normal intelligence and experience for a youth of his age. One night he and two friends attended a concert in the park. After the concert, the defendant and his friends went on a spree, assaulting and robbing a number of victims in the park. The next day, the defendant was arrested. After being subjected to persistent questioning for two hours, the defendant waived his Miranda rights and made a confession. At trial, the defendant claims that he did not make a knowing and intelligent waiver.
(D) A defendant was a 16-year-old juvenile who was in police custody on suspicion of murder. He was given his Miranda warnings and he then requested to have his probation officer present. He had been on probation for a series of juvenile offenses. His request was denied. During a brief interrogation, the defendant proceeded to waive his Miranda rights and made incriminating statements that linked him with the crime. At trial, the defendant’s lawyer claims that his waiver was ineffective because his request to see the probation officer was the equivalent of asking for a lawyer.
A
- (C) The Miranda right to silence can be waived either expressly or impLiedly. Miranda waiver is based on voluntariness as determined by the “totality of circumstances.” To determine if a knowing and intelLigent waiver has occurred, the Court views both the (1) competence of the defendant (i.e., age, experience, inteLligence, and ability to fully understand the warnings), and (2) the conduct of the police, namely as to whether there has been overreaching. Choice (A) is wrong because defendants have generally been unsuccessful in claiming that their Miranda waivers should be held invalid because they were either intoxicated or under the influence of drugs or medication at that time. Likewise, choice (B) is wrong inasmuch as the “personal characteristics of the defendant existing at the time of the purported waiver are relevant only as they relate to police overreaching.” See Colorado v. Connelly, 479 U.S. 157 (1986), where the Court rejected a state court ruling that a defendant’s Miranda waiver was not voluntary because he suffered from a psychosis that interfered with his ability to make free and rational choices. The Court concluded that “Miranda protects defendants against government coercion but goes no further than that.” As a result, choice (C) is the best answer because the defendant was subjected to persistent questioning for two hours before waiving his Miranda rights. According to LaFave, courts have held waivers invalid where the defendant had been held in custody for an extended period of time before being given the warnings, orwhere the defendant had first been subjected to persistent questioning. Lastly, choice (D) is incorrect because in Fare v. Michael C., 442 U.S. 707 (1979), the Court held that a juvenile’s request to have his probation officer present was notaperse invocation of Mfranda rights.
8
Q
- A defendant was arrested and charged with conspiracy to receive stolen property. At his arraignment, the defendant was represented by counsel. He was then released after posting bond. Following his release, the defendant resumed his job as a bartender at a local bar. Three weeks before the defendant’s scheduled trial, an informant entered the bar. After a few drinks, the informant began conversing with the defendant, who was on duty at the time. Unknown to the defendant, the man was a paid police informant. During the course of their conversation, the informant told the defendant that he had read about his arrest in the newspapers and questioned the defendant about the names of his accomplices. Unsuspectingly, the defendant made some admissions, which the informant then passed on to the prosecuting attorney.
At trial, the prosecution tried to introduce into evidence the defendant’s admissions. The defendant’s motion to exclude this offer of proof will most likely be
(A) denied, because the defendant’s statements were voluntary.
(B) denied, because the defendant assumed the risk that his confidence in the informant was not misplaced.
(C) granted, because the defendant’s Sixth Amendment right to counsel was violated.
(D) granted, because the defendant’s Fifth Amendment privilege against self-incrimination was violated.
A
- (C) The clear rule in Massiah v. United States, 377 U.s. 201 (1964), is that once adversary proceedings have been commenced against an individual, he has a right to legal representation when the government interrogates him. As in Brewer v. WI!hams, 430 U.S. 387 (1977), the critical issue in this example is whether, after judicial proceedings have been initiated against the defendant, a police informant elicited information from him in the absence of defense counsel. According to Brewer, proof of formal interrogation is unnecessary to invoke the protection of the Sixth Amendment. A conversation that is tantamount to interrogation is sufficient. Similarly, since the defendant was under arraignment, the informant could not effectively “interrogate” him (i.e., attempt to obtain information reasonably calculated to induce conversations relative to the crime) in the absence of defense counsel. Therefore choices (A) and (B) are incorrect. Choice (D) is incorrect. Due to the fact that we have reached a critical stage, namely the arraignment, it is the Sixth Amendment right to counsel that has attached.
9
Q
- One evening, a defendant set fire to an occupied house. As a result of the blaze, the homeowner’s daughter was killed. The defendant was charged with felony murder on the first count and arson on the second count of the two-count indictment. The jury found the defendant guilty on the first count, but returned a not guilty verdict on the second count.
The defendant’s attorney’s motion to set aside the guilty verdict on the felony murder charge will be
(A) granted, because the guilty verdict is plain error that adversely affects the defendant’s constitutional rights.
(B) granted, because the verdicts are legally inconsistent and should lead to an acquittal of both charges.
(C) denied, because the verdicts do not amount to a reversible error.
(D) denied, because the defendant’s proper remedy is to seek an appellate review for a non-constitutional error.
A
- (B) In order for one to be found guilty of murder under the felony murder rule, he must also be found guilty of the underlying felony. Thus, as in the present example, if a defendant is found innocent of the underlying felony, be cannot be found guilty of felony murder. Briefly, the felony murder rule provides that one whose conduct brought about an unintended death in the commission or attempted commission of an inherently dangerous felony was guilty of murder. Choices (A), (C), and (D) are incorrect for the reasons stated above.
10
Q
- Police received reliable information that a homeowner had a stolen x-brand stereo in his possession. The detectives then submitted an affidavit to a neutral magistrate setting forth sufficient underlying circumstances for the issuance of a search warrant. Making a determination of probable cause, the magistrate issued a warrant for the x-brand stereo at the homeowner’s address.
The police arrived at the homeowner’s dwelling, showed him the warrant, and came inside. In the living room, they noticed a y-brand stereo, which had the serial number removed. Upon further inspection, the police determined that the stereo had been stolen from a local electronics store during a recent burglary. Thereupon, the police placed the homeowner under arrest and instructed him to remain seated in the living room while they searched the rest of the home. One of the officers proceeded to the basement where she found the stolen x-brand stereo. She then decided to search the upstairs and came upon a stolen z-brand stereo in the homeowner’s second-floor bedroom.
The homeowner was subsequently prosecuted for receiving stolen property. At trial, the homeowner moves to prevent introduction of the stereos into evidence. His motion should be granted with respect to
(A) the y-brand stereo.
(B) the z-brand stereo.
(C) the y-brand and the z-brand stereos.
(D) none of the stereos.
A
- (C) A search made under authority of a search warrant may extend to the entire area covered by the warrant’s description. For example, if the warrant authorizes a search of “premises” at a certain described geographical location, buildings standing on that land may be searched. If the place is identified by a street number, the search may extend to those buildings within the curtilage and the yard within the curtilage. LaFave points out that the permissible intensity of the search within the described premises is determined by the description of the things to be seized.
Here, the warrant covered the seizure of a stolen x-brand stereo at the homeowner’s address. When the police arrived at the defendant’s home, they noticed a y-brand stereo in the living room. The first question is whether the police, under the “plain view” doctrine, were permitted to seize the y-brand stereo, which also turned out to be stolen. The “plain view” doctrine is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another. In fact, in Arizona v. Hicks, 480 U.S. 321 (1987), it was held that full probable cause was needed to pick up an item of stereo equipment to ascertain its serial number (which revealed it was stolen). Based on Hicks, the y-brand stereo was unlawfully seized since the police needed to “further inspect” it to determine its stolen status. By the same token, the police did not have authority to continue to search the home after discovering the stolen x-brand stereo (specified in the warrant). When the purpose(s) of the warrant have been carried out, the authority to search is atan end. Choice (C) is correct because the defendant’s motion to exclude the y-brand and the z-brand stereos will be granted. Therefore, (A), (B), and (D) are incorrect.
11
Q
- A defendant was prosecuted for murder. At trial, the prosecutor called a police detective to testif’. The detective, who questioned the defendant at the station house after his arrest, testified that the defendant initially declared his innocence. The detective further testified that when given the opportunity to take a lie detector test, the defendant refused. The defendant’s attorney did not object to the detective’s testimony. The defendant was convicted and sentenced to prison.
The defendant, who is now represented by a new attorney, appeals, claiming that it was error to admit the detective’s testimony. The appellate court should find
(A) plain error, because the trial court should have acted on its own motion to order reference to the lie detector test stricken.
(B) plain error, because admission of the detective’s testimony violated the defendant’s privilege against self-incrimination.
(C) harmless error, because the defendant’s trial attorney failed to preserve the argument by timely objection.
(D) harmless error, because the defendant’s statements were admissions.
A
- (A) A distinction frequently tested on the MBE is between “harmless error” and “plain error.” If an error has not resulted in damage to the complaining party, it may be deemed harmless, and a new trial need not be had. For an example of “harmless error,” see United States v. Shepard, 538 R2d 107 (1976) (permitting psychiatrist who examined defendant to determine competency to stand trial and to testify about alibi related to him by defendant). On the other hand, even where no timely objection is made, if a grave injustice might result from a serious trial error, the Appellate Court may still order a new trial. For example, in U.S. v. Sisto, 534 F.2d 616 (1976), it was held to be “plain error” where the judge failed to instruct the jury that an undercover agent’s statements (concerning what an alleged accomplice said about the defendant’s activities) should be considered only as impeachment evidence and not for their truth. The facts of this question raise a general rule concerning criminal prosecutions, which is that evidence is not admissible that the defendant has been willing or unwilling to take a lie detector test. It has been noted that the impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence might well be more devastating than a disclosure of the results of such test. In other words, the contention that evidence of the defendant’s refusal to take a lie detector test tends to establish consciousness of guilt, and that evidence of the defendant’s willingness to take such a test shows consciousness of innocence, has been rejected. Choice (A) is a better answer than choice (B) because it addresses the issue that “plain error” affects substantial rights to such a serious degree that a new trial can be given (even though the defendant’s attorney did not object to the detective’s testimony). Choices (C) and (D) are incorrect for the reasons stated above.
12
Q
- A husband is charged with murder in the shooting death of his brother-in-law. In the jurisdiction in which the husband is on trial for murder, the defense of insanity is an affirmative defense. The husband pleads insanity as his defense.
At trial, in order to prove his defense of insanity, the husband has
(A) the burden of production.
(B) the burden of persuasion only.
(C) both the burden of production and the burden of persuasion.
(D) neither the burden of production nor the burden of persuasion.
A
- (A) The husband has the burden of production of proving his insanity at the time of the offense. On the issue of lack of responsibility because of insanity, the initial burden of going foiward (the production burden) is placed upon the defendant in every jurisdiction in the United States. The burden of persuasion, on the other hand, after the issue of insanity has been raised, is upon the prosecution. LaFave in Criminal Law notes that the defendant’s production burden is often stated in terms of a presumption of sanity; most men are sane, and thus the defendant in the particular case is presumed to be sane until some amount of evidence to the contrary is produced. Note that the Model Penal Code takes the view as to the affirmative defenses that the accused has the first burden of producing evidence. Choices (B), (C), and (D) are incorrect for the reasons stated above.
13
Q
- Defendant was on trial for robbery. Defendant’s direct examination continued until late in the day when it finally concluded. At this time, the trial court judge adjourned the proceedings for the evening. The judge then instructed Defendant not to speak with anyone during the night and scheduled cross- examination to begin in the morning.
The judge’s instruction to Defendant was
(A) proper, because a judge has broad discretion to instruct witnesses in such a manner.
(B) proper, because it would have the same effect as permitting cross-examination to continue after direct was concluded.
(C) improper, because it violates the defendant’s Sixth Amendment right to counsel.
(D) improper, because it violates the attorney-client privilege.
A
- (C) In Geders v. United States, 425 U.S. 80 (1976), the trial court ordered the defendant not to consult his attorney during an overnight recess that separated the direct examination and the cross-examination of the defendant. The court of appeals affirmed the conviction because the defendant made no claim of prejudice from the order. The Supreme Court reversed, holding that the 17-hour denial of counsel, regardless of demonstrated evidence, constituted a deprivation of the effective assistance of counsel. LaFave and Israel, Criminal Procedure. This “evidence” question is obviously very difficult, since it involves knowledge of a specific “criminal procedure” case. In light of Geders, choice (C) is correct, since the judge’s instruction to the defendant denied him his Sixth Amendment right to counsel. Choices (A), (B), and (D) are, therefore, incorrect.
14
Q
- A defendant was arrested one morning by a police officer for the attempted murder of the victim. The defendant had allegedly fired three shots at the victim, a physical education teacher, in the schoolyard of an elementary school.
Immediately after the arrest, the arresting officer advised the defendant of his Miranda rights. The defendant responded that he would not make any statement until he consulted his attorney.
Within minutes, a patrol car arrived and the defendant was taken into the car to be transported to the police station. The arresting officer sat in the front, next to the driver, and the defendant sat alone in the back seat, with his hands cuffed.
On the way to the station, the driver stated to the arresting officer, “I hope that the gun involved in this crime doesn’t get into the hands of those small children, because one of them could be seriously injured, to say the least.” The defendant interrupted the officers and told them where to look in the schoolyard for the abandoned gun. As a result of this information, the police found the gun where the defendant said it was.
What is the state’s best rebuttal to the defendant’s argument that the gun was illegally seized?
(A) The defendant was not entitled to be re-warned of his Miranda rights in the patrol car.
(B) The defendant was not interrogated in the patrol car.
(C) The defendant waived his right to consult counsel.
(D) The seizure of the gun was not the fruit of the defendant’s statement.
A
- (B) The state’s best rebuttal to the defendant’s argument of illegal seizure of the gun would be that the defendant was not being interrogated in the police car when he revealed the location of the gun to the police officers. The U.S. Supreme Court in Rhode Island v. Innis, 446 U.S. 21 (1980), held that where a suspect in crimes committed with a shotgun told police of the gun’s location after hearing police talk of a handicapped child’s possibility of finding a gun (when the suspect was being transported to a police station), it was not an interrogation in violation of the suspect’s Miranda rights. In the Innis case, as in our factual presentation, the suspect, upon arrest, was advised of his Miranda rights and refused to make any statements without an attorney present. Furthermore, the suspect was questioned or interrogated by the police officers during the ride to the police station; the suspect acted voluntarily when he heard the police officers mention the possibility of children being injured by the gun. The Supreme Court has held that “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know or should have known are reasonably likely to elicit an incriminating response from the suspect. Nothing suggests that the police were aware that the defendant was particularly susceptible to an appeal to his conscience concerning the safety of small children. Choice (A) is incorrect because there was no need for the defendant to be re-warned of his Miranda rights because there was no interrogation. Choice (C) is incorrect because the defendant invoked his right to counsel. Choice (D) is incorrect because the gun was the fruit of the statement, but no interrogation took place, so Miranda was not violated.
15
Q
- A town had been experiencing a rash of bank robberies. All the witnesses at each bank had described a man with a gun who said, “Get down on the floor and no one has to die today!” Following a series of leads, the detectives in the case finally made an arrest.
At the police station, the suspect was placed in a lineup. One of the victims observed the lineup, and after each of the six participants stated, “Get down on the floor and no one has to die today,” the victim identified the suspect as the perpetrator. The defendant’s attorney subsequently moved to suppress the out-of-court identification, arguing that because the defendant was forced to speak, this violated his Fifth Amendment right to remain silent, which had been invoked previously by the defendant.
The police requirement that the defendant state at the lineup, “Get down on the floor and no one has to die today”
(A) invalidated the lineup.
(B) violated the defendant’s right against self-incrimination.
(C) tainted the victim’s identification of the defendant.
(D) would not prohibit the defendant’s lineup identification from being introduced at trial.
A
- (D) The defendant’s statement during the lineup would not be testimonial in nature. Therefore, the victim’s lineup identification may be introduced by the prosecution at trial. Students should note that appearing in a lineup and being required to make statements during the lineup procedure are not testimonial activities, but demonstrative in nature. Thus, a suspect does not have a right under the Fifth Amendment privilege against self-incrimination to refuse to appear or make a statement during a lineup. See United States v. Wade, 388 U.S. 218 (1967), where the Court held that an accused’s privilege against self-incrimination was not violated by the lineup itself or by requiring the accused to speak the words allegedly uttered by the robber. Choice (A) is incorrect for reasons stated above. Choice (B) is incorrect because, as stated above, there is no Fifth Amendment privilege here. Choice (C) is incorrect because the defendant’s statement did not taint any identification by the victim. Typically, lineups are tainted by improper suggestion by police hints, or unduly suggestive lineups, which tend to point the finger at one particular suspect. For example, if a white man is described as the suspect and the lineup contains one white man and five Hispanic or African American men, then that would be considered unduly suggestive.
16
Q
- An older and younger brother had always done everything together. They had grown up together, gone to school together, and partied together. One night, while drinking at a bar, both brothers decided that they wanted a little more action than the bar was offering up, so they left and went to a strip club.
At the strip club, they paid for private dances and attempted to have conversations with the women. As hard as they tried, the women who worked in the club did not seem as interested in the brothers as they were in the women.
As the night wore on, the brothers decided that they would wait behind the club until closing for the women to come out. The victim, who had given a dance to one of the brothers, came out and proceeded to walk to her car. One of the brothers grabbed the victim from behind and pulled her to the ground while the other brother sexually assaulted her.
Both brothers were arrested and charged with the rape of the victim. Their long-time family attorney represented them both at their trial. The younger brother intended to testify that his older brother had forced him to hold the victim down by threatening him with a gun.
If appropriate objections are made by either brother, the court should rule that the attorney’s representation of the brothers at trial
(A) violated the younger brother’s Sixth Amendment right to counsel.
(B) constituted an impermissible conflict of interest.
(C) violated the younger brother’s constitutional rights, but did not infringe on the older brother’s constitutional rights.
(D) did not violate the older brother’s constitutional rights if he separately paid for his representation.
A
- (A) The Sixth Amendment, which is applicable to the states through the Fourteenth Amendment, guarantees an accused the right to be represented by counsel. The attorney’s dual representation of both brothers created a conflict of interest, which violated the younger brother’s Sixth Amendment rights. The U.S. Supreme Court in Cuylerv. Sullivan, 446 U.S. 335 (1980), held that multiple representation in the sense that the same counsel actively represented two defendants charged with the same crime does not violate the Sixth Amendment unless it gives rise to a conflict of interest. The Court further stated that since a conflict of interest inheres in almost every instance of multiple representation, a defendant who objects to it must have the opportunity to show a potential conflict that imperils his right to a fair trial. The younger brother’s incriminating testimony about the older brother at trial should have been sufficient for the court to inquire as to whether or not a conflict of interest existed over the attorney’s dual representation of the defendants. In other words, the trial court more or less had a duty to inquire as to whether there was a conflict of interest as a result of the younger brother’s defense. Although choice (B) provides a correct statement of fact, choice (A) is the better alternative, since it provides a correct statement of law. Choice (C) is incorrect because it is does not specifically address the issues presented by these facts. Choice (A) is better because it directly addresses the specific constitutional amendment. Choice (D) is incorrect because the manner of payment for the representation does not cure the conflict.
17
Q
- A riot broke out in a city, and many shops had been looted and some had been burned during the riots. Goods of all kinds were in piles or strewn about the sidewalk. During the riot, a defendant was walking along the street when he paused in front of an appliance store. He picked up a portable television set that was lying on the sidewalk and started to walk off quickly. A police officer who was standing in front of the shop rushed after the defendant and arrested him.
The defendant, an indigent, was charged with grand larceny, a felony carrying the maximum penalty of seven months imprisonment and a S 1,000 fine. At his arraignment, the judge advised the defendant of his right to have counsel appointed for him. The defendant, however, told the judge that he wanted to represent himself and waive his right to a jury trial. The judge then questioned the defendant at length about his demands. The defendant indicated that he had no previous legal experience. He told the judge that the reason he didn’t want a court-appointed attorney to represent him was because he didn’t trust lawyers. The judge did not find the defendant’s reasons for representing himself to be persuasive and appointed an attorney to represent him.
Thereafter, an attorney was appointed by the court to represent the defendant. The attorney told the court that the defendant wanted a non-jury trial. However, at the prosecution’s request, the court impaneled a jury. The defendant was subsequently convicted by the jury and sentenced to six months imprisonment. In addition, the defendant was ordered to reimburse the state $450 to cover the cost of his attorney. This reimbursement order was made pursuant to a relevant statute in effect at the time of the defendant’s arrest.
The defendant appeals both the conviction and the reimbursement order. The appellate court should
(A) affirm both the conviction and the reimbursement order.
(B) affirm the conviction, but not the reimbursement order.
(C) reverse the conviction because he was denied the right to a non-jury trial, but not the reimbursement order.
(D) reverse both the conviction and the reimbursement order because the defendant was denied the right to represent himself.
A
- (D) Here’s another classic Multistate example dealing with waiver of right to counsel. A defendant may waive his constitutional right to assistance of counsel provided he does so “knowingly and intelligently,” which means it must have been the product of a reasoned and deliberate choice based upon adequate knowledge of what the assistance of counsel encompasses. A defendant who acts knowingly and intelligently in waiving his right to counsel has a right to proceed pro Se, since he must be free to decide if counsel will be to his advantage in the case. The defendant had the right to waive representation by counsel. See Faretta v. California, 422 u.s. 806 (1975). Although this right of waiver may be denied if a defendant is not competent to represent himself, there is no evidence that the defendant was incompetent. Therefore, his conviction should be overturned, since he was not given the right to represent himself. In addition, the defendant should not be required to reimburse the state for his attorney’s fees due to the fact that counsel was imposed upon him in violation of his constitutional rights. Note, however, that a state can recover legal costs from an indigent who is convicted and is subsequently able to pay. See Fullerv. Oregon, 417 u.s. 40(1974). Choices (A), (B), and (C) are incorrect for the reasons stated above.
18
Q
- A state has a hit-and-run statute in effect that makes it a crime to leave the scene of an accident. One afternoon, a 9-year-old victim was riding her bicycle along the street. As the victim swerved into the southbound lane, her bicycle was struck by a car driven by the defendant. The victim was knocked off her bike and thrown onto the sidewalk adjacent to the street. Although the victim received some minor scrapes and bruises, she was not seriously injured. Following the accident, the car driven by the defendant sped away.
Moments later, however, a tractor-trailer crashed into the rear of a car about 30 feet from where the victim was lying. The car almost instantly caught fire as its gas tank exploded. The victim, who was engulfed in the flaming wreckage, was killed.
If the defendant is charged with involuntary manslaughter for the death of the victim, the defendant should be found
(A) guilty, because she unlawfully fled the scene of an accident in violation of her statutory duty.
(B) guilty, because her failure to render aid to the victim would make the defendant criminally responsible for the victim’s death.
(C) not guilty, because under the circumstances her failure to aid the victim cannot be a basis for imposing criminal responsibility for the victim’s death.
(D) not guilty, because there was not a sufficient causal connection between her actions and the victim’s death to impose criminal responsibility.
A
- (D) As a general rule, most crimes require the following elements: (1) an act, (2) mental fault (or “guilty mind”), (3) concurrence (or act + mental state), (4) harm, and (5) causation. With crimes so defined as to require not merely conduct but also a specified result of conduct, the defendant’s conduct must be the “legal” or “proximate” cause of the result. The fact that the defendant fled the scene of the accident (in violation of the hit-and-run statute) was not the “legal” cause of the victim’s death. The victim’s death resulted from the car’s gas tank exploding, which was caused by the collision with the tractor-trailer. Although choice (C) is also conceivably correct, choice (D) is preferred because it refers to the requirement of a causal connection, which is a material element in criminal law. Choices (A) and (B) both contain the incorrect result because the defendant was not the legal cause of the victim’s death.
19
Q
- A state has the following hit-and-run statute in effect:
“Any driver of a motor vehicle (including but not limited to automobiles, trucks, buses, or motorcycles) involved in an accident or collision resulting in injury or death to a human being shall immediately stop his or her vehicle at the scene of such accident or collision, render necessary aid to the injured victim, and furnish the police or other person(s) at the scene with his or her name, address and driver’s license. Any violation or noncompliance with said statute shall be punished by imprisonment for not less than three years nor more than seven years.”
The defendant was involved in an accident that involved injuries to the other driver. The defendant, however, knowing his license to be revoked and afraid of being arrested, fled the scene. However, the victim was able to write down the license number of the defendant’s vehicle, and the defendant was rapidly apprehended and put in jail.
The defendant is charged with violating the aforementioned statute. He files a motion to dismiss on the grounds that the disclosure requirement of the statute violates his privilege against self-incrimination.
His motion should be
(A) granted, because the statute makes no provision for Miranda warnings concerning his right to remain silent.
(B) granted, because the statute requires him to provide incriminating information that can be used againsthim in a criminal prosecution.
(C) denied, because the legislative intent in enacting the statute was designed to require disclosure of information to be used primarily in civil litigation.
(D) denied, because in accordance with public policy considerations, the required disclosures are insufficiently testimonial.
A
- (D) The u.s. Supreme Court has held that a statute requiring a motorist involved in an accident to stop and give his name and address did not involve self-incrimination in a constitutional sense. Choice (C) is wrong because violation of the statute results in a (criminal) sentence of imprisonment. Therefore, clearly, the legislative intent was not directed for the disclosure requirement to be used primarily in civil litigation. Choices (A) and (B) are incorrect because the statute need not make any provision for Miranda, as the defendant’s Miranda rights are not implicated by a
requirement to give information at the scene of an accident.
20
Q
- One evening, an undercover narcotics agent, with the help of a confidential informant, met with a man. The man took the agent to the home of a drug dealer, who sold the agent four pounds of marijuana. At trial, the drug dealer claimed the defense of entrapment and demanded that the informant’s identity be disclosed and that he be produced. At no time prior to trial did the drug dealer seek to subpoena the man. However, the man was a fugitive from justice the whole time, and no subpoena could have been served. The government claims a right to protect the informant’s identity.
Should the government’s claim be honored?
(A) Yes, because an informant has a Fifth Amendment privilege against self-incrimination.
(B) Yes, because informants would not assist in crime prevention unless they were reasonably certain that their identities would be kept secret.
(C) No, because under the Fifth Amendment, a defendant has the right to be confronted by witnesses against him.
(D) No, because under the Sixth Amendment, a defendant has the right to a fair trial.
A
- (B) In the present fact situation, the government’s claim should be honored. See McCray v. Illinois, 386 U.S. 300 (1967). Choice (A) is incorrect because an unidentified informant has not been extended a Fifth Amendment privilege against self-incrimination. In the McCray case, the court held that it may, in the exercise of its power to formulate evidentiary rules for federal criminal cases, decline to disclose an informer’s identity. Choices (C) and (D) are incorrect for the reasons stated above.
21
Q
- A defendant was on the first day of her new secretarial job when her boss called her into his office. The boss directly suggested that if the defendant did not go out on a date with him, she would be fired in one week. Every day during the remainder of the week, the boss approached the defendant with his demand, and the defendant refused to cooperate.
At the end of the week, when the boss called the defendant into his office and again tried to pressure her to go out on a date with him, the defendant knocked him unconscious with a giant stapler and choked him to death.
The defendant is tried for murder. In accordance with the following statute, the state relies at trial on the presumption of malice:
“When the act of killing another is proved, malice aforethought shall be presumed, and the burden shall rest upon the party who committed the killing to show that malice did not exist.”
If the defendant is convicted of first-degree murder and challenges her conviction on the grounds of the above statute, on appeal she will
(A) win, because the statute is unconstitutional.
(B) win, because the statute violates due process.
(C) lose, because she failed to overcome the presumption.
(D) lose, because the presumption may be rebutted.
A
- (B) The defendant will win on the appeaL of her murder conviction under the state murder statute, since the statute placed the burden on the defendant to prove or disprove the element of malice. The U.S. Supreme Court in In re Winship, 397 U.S. 358 (1910), held that the Due Process Clause protects an accused in a criminal case against conviction except upon proof “beyond a reasonable doubt” of every fact necessary to constitute the crime for which the defendant is charged. In other words, the Court in the Winship case held that proof of a criminal charge beyond a reasonable doubt is constitutionaLLy required. Consequently, the murder statute in our question is unconstitutional, since the burden of proving the various elements of the offense (murder) is on the defendant, and not on the prosecution, as required in all jurisdictions. Choice (A) is incorrect as it does not go far enough. It is not enough to say unconstitutional. The precise constitutional violation is a better answer choice. Choices (C) and (D) are incorrect for the reasons stated above.
22
Q
- A defendant suspected her long-term boyfriend was cheating on her. On a hunch, she went to her boyfriend’s apartment one afternoon and, using her key, she entered the apartment. Once inside, she found her boyfriend and his new girlfriend in bed together. In a rage, the defendant retrieved the gun from the nightstand and killed her boyfriend and his new girlfriend.
After the shooting, the defendant left on a two-day trip to the mountains to get the week’s events off her mind. She called her teenage neighbor to take care of her apartment while she was gone and to look after her 4-year-old daughter. That night, after the defendant left, the police came to the apartment. They asked the neighbor if they could search the apartment, and the neighbor gave them permission. The police found in the defendant’s bedroom the gun used to kill her boyfriend.
At a motion to suppress the gun prior to trial, which of the following facts would the defendant’s attorney be LEAST likely to attempt to prove?
(A) The defendant gave her neighbor the keys to her apartment.
(B) The police did not have a search warrant.
(C) The defendant told her neighbor not to answer the door to anyone.
(D) The police told the neighbor she would be taken to the police station if she refused permission to search.
A
- (A) Choice (B) is incorrect, since the defendant’s attorney would attempt to prove that the search of her apartment was illegal and, thus, violative of the Fourth Am endment’s protection against unreasonable searches and seizures. Choice (C) is incorrect because if the defendant told the neighbor not to answer the door to anyone, the neighbor could not exercise apparent authority and, thus, consent to a search of the defendant’s apartment. Choice (D) is also incorrect, since the defendant’s attorneywould attempt to prove thatthe neighborwas coerced into granting consent for the search, thus deeming it an illegal search and seizure. ConsequentLy, choice (A) is the LEAST likely fact that the defendant’s attorney would attempt to prove at the suppression hearing. It is important to note that consent searches are one of the exceptions of the Fourth Amendment requirement of a search warrant. However, for a consent search to be vaLid, three factors must be considered: (1) the person consenting must have the authority to consent to a search of the premises; (2) the person’s consent to the search must be voluntary; and (3) the police may not exceed their search into areas for which consent to a search has not been given.
23
Q
- A detective received information from an informant, who had given reliable information many times in the past, that a man was a narcotics dealer. Specifically, the informant said that, two months before, he had visited the man’s apartment with a friend and that on that occasion he saw the man sell his friend some heroin. The detective knew that the informant, the man, and the friend were acquaintances. Thereafter, the detective put all this information into affidavit form, appeared before a magistrate, and secured a search warrant for the man’s apartment. The search turned up a supply of heroin.
The man’s motion to suppress introduction of the heroin into evidence will most probably be
(A) granted, because a search warrant cannot validly be issued solely on the basis of an informant’s information.
(B) granted, because the information supplied to the detective concerned an occurrence too remote in time to justify a finding of probable cause at the time of the search.
(C) granted, because a search for mere evidence alone is improper and illegal.
(D) denied, because the informant had proven himself reliable in the past, and the information he gave turned out to be correct.
A
- (B) The Fourth Amendment states, in part, “… and no warrants shall issue but on probable cause supported by oath or affirmation …“ Searches conducted pursuant to a warrant must be based on an adequate and reasonable showing of probable cause when a police officer provides information to a neutral and detached magistrate by affidavit or by testimony under oath. However, when an informant uses an affidavit to provide information, the rigid Aguilar—Spinelli test has been used to establish (1) probable cause for issuing the warrant, as well as (2) reliability of the informant. More recently, a “totality of the circumstances” approach has been adopted [Illinois v. Gates, 462 U.S. 213 (1983)] to determine whether there is a “fair probability” or “substantial basis” to conclude that contraband wiLl be found at the particular time and place. The fact that the informant saw the man selL heroin two months before is critical because it is too remote in time to justify a present finding of probable cause. Choice (B) is correct. Choices (A) and (C) are incorrect for the reasons stated above. Choice (D) is incorrect because reliability of the informant without probable cause to search is an insufficient basis to issue a warrant.
24
Q
- During the murder trial of a defendant, the prosecution presented four witnesses to the brutal slaying of the victim. The evidence pointed to the fact that the defendant beat her about the head and neck with a baseball bat, causing severe injuries to her brain and her ultimate death.
The prosecution rested, and the defendant presented two witnesses, his brother and his girlfriend, who testified that the defendant was dining at an elegant restaurant on the other side of town at the time of the alleged murder. The defendant presented no other witnesses.
During his closing argument to the jury, the assistant district attorney called attention to the fact that the prosecution witnesses had no apparent reason to have any bias toward the prosecution or against the defendant. He then noted that the defendant’s witnesses had clear motives to falsify their testimony and favor the defendant. The assistant district attorney added, “If the defendant was on the other side of town, why didn’t he tell us himself? Why didn’t he get on the stand? What was he hiding? Those are questions for you, the jury, to answer.”
The defendant was convicted of first-degree murder and sentenced to life imprisonment.
On appeal, his conviction should be
(A) reversed, because the prosecutor improperly referred to the possible motives or interests of the defense witnesses.
(B) reversed, because the defendant’s constitutional rights were violated in the assistant district attorney’s closing argument.
(C) reversed, because the assistant district attorney referred to the defendant’s failure to testify.
(D) reversed, because the assistant district attorney’s argument violated the defendant’s rights under the Fifth and Fourteenth Amendments.
A
- (0) In Griffin v. California, 380 U.S. 609 (1965), the U.S. Supreme Court held that the self-incrimination guarantee of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, forbids either comment by the prosecution of an accused’s silence or instructions by the court that such silence is evidence of guilt. The closing comments by the prosecutorthat the defendant failed to take the stand would be violative of the defendant’s right against self-incrimination. Choice (A) is incorrect because it is not improper to argue the bias of a defense witness. Choice (B) is incorrect because it is not as specific and on point to the facts as choice (D). Choice (D) is a better answer than choice (C) because a correct statement of law is generally preferred over a correct statement of fact.
25
Q
- A defendant and his co-conspirator were arrested and charged with robbery and conspiracy to commit robbery. Following their arrest, they were both taken to the police station and given Miranda warnings. They both expressed a desire to remain silent until they could consult an attorney. At the station house, they were booked and placed in separate jail cells.
Later that day, and before any attorney consultations could take place, a police detective went to the coconspirator’s cell and began interrogating him. The detective told the co-conspirator that if he cooperated in their investigation, the prosecuting attorney would drop charges against him. The co-conspirator then reluctantly confessed and implicated the defendant in the commission of the crimes. The co-conspirator also told the police where the defendant had hidden the stolen property. Based on this information, the police retrieved the stolen property, which included a diamond necklace.
Later the same day, the police went to the defendant’s jail cell and showed him the diamond necklace that they had recovered. They also told the defendant that the co-conspirator had confessed and implicated him in the perpetration of the crime. Confronted by this evidence, the defendant confessed.
The defendant was then prosecuted for conspiracy and robbery. At the defendant’s trial, the prosecution sought to introduce into evidence the necklace and the defendant’s confession.
The defendant’s motion to exclude these offers of proof will be
(A) denied to both the necklace and the confession.
(B) denied to the necklace, but granted to the confession.
(C) granted to the necklace, but denied to the confession.
(D) granted to both the necklace and the confession.
A
- (B) The defendant’s confession will be inadmissible, whereas the necklace will be admitted over the defendant’s motion to exclude. As to the necklace, the rule is that a conspirator does not have automatic standing to challenge the seizure of illegally obtained evidence from a co-conspirator. To have authority or standing to challenge the lawfulness of a search or seizure by a government agent, an individual’s personal privacy rights must be invaded (rather than those of a third party). Therefore, regardless of any violation of the co-conspirator’s rights, the defendant here has no standing to challenge the admission of the necklace. As to the defendant’s own confession, it will be inadmissible due to the violation of the defendant’s Miranda rights. The defendant clearly expressed a desire to remain silent until he could consult an attorney. Once defendant asserted this right, the re-initiation of interrogation by the police without an attorney present violated the defendant’s Fifth Amendment right to counsel. Here, the police showed defendant the diamond necklace that they had recovered and told the defendant that he had been implicated by the co-conspirator, which is conduct wherein the police knew or should have known they could get a damaging statement. Therefore, the correct answer is (B) because the defendant’s motion to exclude the necklace will be denied and defendant’s motion to exclude his own confession will be granted.
26
Q
- The police received a report that women dressed as superheroes had robbed a man in his house and stolen many of his valuables. The only way onto or off the island where he lived was a ferry. The last ferry was getting ready to leave for the night when the report came in to the police.
Without attempting to get a warrant, the police stopped all the cars waiting for the ferry. In one vehicle, the police noticed three women fidgeting rather nervously. Upon searching their auto, the police found the victim’s stolen property hidden under the front seat. The defendants were immediately placed under arrest.
At their trial for armed robbery, the defendants move to suppress the use of the property confiscated by the police as evidence. Their motion should be
(A) granted, because the police did not have a warrant to search their car.
(B) granted, because the police did not have probable cause to suspect that their car contained evidence of the crime.
(C) denied, because the police had probable cause to search their car and, under the circumstances, no warrant was required.
(D) denied, because even though the detention was unlawful, the police had reasonable suspicion to believe that their car contained evidence of the crime since they observed the women fidgeting nervously.
A
- (B) Keep in mind that the warrant requirement is central to the Fourth Amendment protection against unreasonable searches and seizures. As a basic rule, all warrantLess searches are unconstitutional unless they fall into one of the following seven exceptions to the warrant requirement: (1) search incident to a Lawful arrest; (2) the “automobile” exception; (3) plain view; (4) “stop and frisk”; (5) consent; (6) hot pursuit; and (7) other emergencies. A valid warrantless search must meet the requirements of at least one of the above exceptions. With respect to the “automobile” exception, the police must have probable cause to suspect or reasonably believe that the vehicle contains evidence of the crime. In the present example, the police did not have a reasonable or articulable suspicion to believe that the defendants’ car contained evidence of the crime. As a result, choice (B) is correct because the police did not have probable cause to conduct a warrantless search of the auto. Choice (A) is wrong because, if the police had probable cause to suspect that the vehicle contained evidence of the crime, then no warrant would have been necessary. Choice (D) is incorrect because the mere fact that the police observed the women “fidgeting nervously” would not by itself give the officers probable cause to suspect that the defendants’ car contained evidence of the crime. Choice (C) is incorrect because the police did not have probable cause to search the vehicle, for reasons stated above.
27
Q
- A defendant was smoking marijuana as he was driving home from work one afternoon. A police officer approached him on the freeway and stopped the car to issue a citation for speeding. As the defendant handed the officer his driver’s license, the officer smelled burnt marijuana, saw the joint, and saw an open envelope on the seat next to the defendant containing a substance that looked like marijuana. The officer ordered the defendant out of the car, arrested him for unlawful possession of marijuana. The officer then searched the defendant and found a sealed envelope in the defendant’s back pocket. Without asking the defendant’s permission, the officer opened the envelope and discovered that it contained cocaine. The officer then unzipped one of the jacket pockets on the jacket the defendant was wearing and found more cocaine and arrested the defendant for possession of cocaine.
The defendant was taken to the police station and immediately escorted to an interrogation room. He was given his Miranda warnings, waived his rights, and gave a statement admitting to possession of cocaine and marijuana.
Which of the following is a correct statement of the applicable legal principles regarding the search of the defendant?
(A) When a police officer has made a lawful custodial arrest of an individual, he may, as a contemporaneous incident of that arrest, search the person of the individual.
(B) The exclusionary rule requires that if an officer conducts an unconstitutional search, the evidence acquired in the course of the officer’s subsequent activities is inadmissible.
(C) If an individual effectively consents to a search of their person, the evidence gathered during the search is admissible.
(D) One who drives an automobile on a public highway does not have a legitimate expectation of privacy.
A
- (A) When a police officer has made a lawful custodial arrest of an individual, the police officer may, as a contemporaneous incident of that arrest, search the person of that individual. Thus, the search of the defendant’s person, after the police officer placed him under arrest, would not be violative of the Fourth or Fourteenth Amendments. The search was lawful as a result of the police officer’s probable cause to search the defendant as incident to the arrest on the charge of unlawful possession of marijuana. Choice (B) is incorrect because, as stated above, the evidence is admissible. Choice (C) is incorrect because consent is not necessary in a search incident to a lawful arrest. Choice (D) is incorrect because it is a misstatement of the law. People do still have an expectation of privacy in their persons on public roads.
28
Q
- A defendant was arrested for the armed robbery of a liquor store. The defendant was taken directly from the scene of the crime in a patrol car to the police station where he was placed, still handcuffed, in an interview room. He waited for about an hour, and a detective finally came in. The detective gave the defendant his Miranda warnings, and the defendant agreed to sign the waiver and speak to the detective. The defendant then confessed to the robbery.
Which of the following allegations would be LEAST helpful in suppressing his statement?
(A) Before the defendant gave the statement he was refused permission to use the bathroom.
(B) The defendant had a private lawyer on retainer at the time he gave his statement.
(C) The defendant’s arrest was not based on probable cause.
(D) The defendant could not speak English, and the warnings were given in English.
A
- (B) Choice (B) would be LEAST helpful to the defendant in suppressing his statements to the police in which he admitted robbing the liquor store. The facts tell us that the defendant waived his rights to remain silent; in accordance with Miranda, a suspect may waive his rights, as long as the waiver was knowingly, voluntarily, and intelligently made by the suspect. Consequently, the mere fact that one has retained an attorney does not preclude him from waiving his Miranda rights. Choice (A) is incorrect because it is helpful to the defendant if he is refused a chance to use the restroom. It could be seen as coercive conduct by the police. Choice (C) is incorrect because it is very helpful for the defendant if his arrest was illegal. Any confessions that proceed from it would, therefore, be inadmissible. Choice (D) is incorrect because the defendant cannot give a voluntary waiver of Miranda if he does not understand the warnings.
