crim pro

Question 1

crim pro

Crim pro MBE tips

Answer 1

1. Focus your studies on the Fourth Amendment and exceptions to the warrant requirement.
2. Remember that the state almost always wins!
3. Be sure you understand the probable cause and reasonable suspicion standards and when they apply.
4. Remember that defendant rights are usually very limited.

Question 2

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6AM right to counsel

Answer 2

The Sixth Amendment protects an accused’s right to “the assistance of counsel for his defense.” The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State indicts the defendant or brings formal charges. When a defendant is indigent, he is entitled to appointment of counsel

Question 3

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Double jeopardy: hung jury

Answer 3

enerally, if a mistrial is declared because of a hung jury, then the defendant may be retried.

Question 4

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Arrests for felony committed when officer wasn’t present

Answer 4

In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he reasonably believes has committed a felony.

Question 5

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Rights of a grand jury witness

Answer 5

A grand jury witness has no Fifth Amendment right to counsel in the grand jury room. The witness may, however, consult with an attorney outside the grand jury room. Additionally, a witness has no Sixth Amendment right to present witnesses or to introduce evidence at a grand jury proceeding.

Question 6

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Ineffective assistance of counsel

Answer 6

(i) the representation of a defendant by the defendant’s attorney must fall below an objective standard of reasonableness, and
(ii) the attorney’s deficient performance prejudiced the defendant.

Question 7

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Warrant less car search incident to arrest

Answer 7

In order to justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

Question 8

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Separate counsel for codefendants

Answer 8

If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction.

Question 9

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Life sentence for minors

Answer 9

A sentence of life imprisonment without the possibility of parole constitutes “cruel and unusual punishment” under the Eighth Amendment when the sentence is imposed for a non-homicide crime on a defendant who was a minor at the time that the crime was committed.

Question 10

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Open fields doctrine

Answer 10

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the Fourth Amendment protection for a home. Under the open-fields doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy

Question 11

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Search incident to arrest

Answer 11

The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers “immediately associated” with the person (such as a shoulder bag or purse), so long as the containers are large enough to conceal a weapon or evidence of a crime.

Question 12

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Brady in grand jury

Answer 12

The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury.

Question 13

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Excluding a racial group from grand jury

Answer 13

a defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.

Question 14

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Arrest warrant served at home

Answer 14

A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have probable cause to believe that the arrestee is present.

Question 15

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Hung jury and double jeopardy

Answer 15

Where a mistrial is declared despite the defendant’s opposition, the defendant cannot be retried unless the mistrial is due to a manifest necessity. A hung jury constitutes a manifest necessity

Question 16

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to whom and what does 5AM apply

Answer 16

Fifth Amendment privilege against self-incrimination applies only to individuals, not to corporations. The privilege does not extend to the custodian of corporate records, even if the records would incriminate the custodian personally. Additionally, the privilege applies only to testimonial evidence, not to voluntarily prepared business papers. Further, the Fifth Amendment privilege extends only to evidence that might incriminate the defendant in future criminal proceedings, not civil.

Question 17

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interrogation

Answer 17

express questioning, as well as words or actions the police know or should know are likely to elicit an incriminating response.

Question 18

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is grand jury limited to legally obtained evidence?

Answer 18

no, a grand jury is not restricted to hearing evidence that would be admissible at trial, and an indictment may be based on illegally obtained evidence.

Question 19

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when checkpoint stops violate 4AM

Answer 19

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not. Additionally, absent reasonable suspicion, police extension of a permissible traffic stop in order to conduct a dog sniff violates the Fourth Amendment’s protection against unreasonable seizures.

Question 20

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admissibility of ev in violation of 6AM

Answer 20

Evidence obtained in violation of a defendant’s Sixth Amendment rights may not be introduced at trial. This is the case for both statements of a defendant and any evidence derived from such statements

Question 21

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factors for curtilage

Answer 21

In determining whether the area is protected, the following four-factor test applies: (i) the proximity of the area to the home, (ii) whether the area is included within an enclosure surrounding the home, (iii) the nature of the uses to which the area is put, and (iv) the steps taken by the resident to protect the area from observation by passersby.

Question 22

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Brady

Answer 22

While, under the Brady rule, a prosecutor has an affirmative duty to disclose any material evidence favorable to the defendant, nondisclosure of such evidence does not violate the defendant’s due process rights unless the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant’s conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant).

Question 23

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unmirandized statements and evidence

Answer 23

Any statement obtained as the result of a custodial interrogation may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights. However, the United States Supreme Court has ruled that derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings is admissible.

Question 24

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burden of proving validity of Miranda waiver

Answer 24

The burden is on the prosecution to establish the validity of the defendant’s waiver by a preponderance of the evidence.

Question 25

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critical stages: handwriting exemplar

Answer 25

taking of a handwriting exemplar, even after a defendant has been charged or indicted, is not a critical stage of the criminal proceedings that requires the presence of counsel.

Question 26

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Effects of illegal arrest

Answer 26

An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested. The evidence seized as a consequence of an illegal arrest may be suppressed under the fruit of the poisonous tree doctrine, and the charge may be thrown out if such evidence is necessary for conviction.

Question 27

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voluntary consent to a search

Answer 27

Consent to a search is voluntary if it is made free from threat or compulsion.

Question 28

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capital punishment for rape

Answer 28

Capital punishment for the crime of rape, even when the victim is a child, constitutes cruel and unusual punishment under the Eighth Amendment.

Question 29

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right to enter home to serve an arrest warrant

Answer 29

A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have probable cause to believe that the arrestee is present. A police officer may not arrest a person in another person’s home without a search warrant, however, absent exigent circumstances or valid consent from the person whose home is being entered.

Question 30

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right to a jury trial

Answer 30

There is a right to a jury trial for offenses that carry an authorized sentence of more than six months, regardless of the actual penalty imposed.

Question 31

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concurrent vs consecutive sentences

Answer 31

A judge may make the determination of whether sentences for separate crimes may run consecutively.

Question 32

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death penalty aggravating circumstances

Answer 32

In order to impose the death penalty, the aggravating circumstance involved cannot be unconstitutionally vague. A crime being “heinous or brutal” has been held unconstitutionally vague.

Question 33

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challenging facially valid warrant

Answer 33

A defendant can successfully challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that: (i) the affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and (ii) the false statements were necessary to the finding of probable cause.

Question 34

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6Am right to counsel at arraignment

Answer 34

D has right to counsel at arraignment