Criminal law and procedure

Question 1

murder

Answer 1

At common law, murder is an
unlawful killing (neither justifiable nor excusable) with malice
aforethought. Remember, “malice” doesn’t mean intent.
Although the malice element can be satisfied by an intent either to kill or to cause serious injury, or by felony murder, it can also be satisfied by a “depraved heart” — that is, the actor disregards an unreasonably high risk of harm
to human life. Usually on the MBE, if the examiners want to indicate a depraved heart, they will give you facts from which a reasonable jury can infer that the defendant beyond doubt consciously disregarded (i.e., wasn’t just unaware of) the high risk of harm. In any event, keep in mind that it’s possible to be convicted of murder without intending to kill!

Intent to cause serious bodily injury: A man swings with a hammer on friends head clear intent to cause bodily injury ( reasonable provocation would be partial defense but not effective)

Question 2

Manslaughter

Answer 2

If a defendant satisfies the test for intentional murder, always look to see if there’s sufficient provocation by the victim to knock the conviction down to voluntary manslaughter. Keep in mind that provocation is both subjective and objective: The provocation must be enough to anger this defendant, and it should be of a type that would provoke a reasonable
person to kill; furthermore, this defendant must not have cooled off when the killing takes place, and a reasonable person would not have cooled off in these circumstance (a “heat of passion” killing)

Question 3

Involuntary manslaughter

Answer 3

there are two types: criminal negligence and misdemeanor manslaughter.
Criminal negligence means that the defendant ignores a risk of harm to human life, and that risk is less than the risk represented by depraved heart murder. Misdemeanor manslaughter is the misdemeanor equivalent of felony murder. What’s important to remember here? First,
don’t get hung up on the difference between the mental state needed for depraved heart murder and the “gross negligence” that suffices for criminal negligence involuntary manslaughter

Question 4

Illustration of depraved heart murder and

Answer 4

Here’s a good illustration of the difference between the mind-sets for depraved heart murder and criminal-negligence manslaughter: Two men set out in separate cars. One drives through town and shoots a gun into the window of a house where it’s obvious that a crowded party is being
held. He doesn’t intend to kill anyone, but he does kill one of the people at the party. The other man drives out to the country and fires a gun into the window of what seems to be an abandoned hunting cabin. He doesn’t
intend to kill anyone, but he hits and kills a homeless person who’s taken refuge in the cabin. The man who drove through the city committed depraved heart murder, due to what the jury can infer was his conscious disregard of the high probability that firing into a crowded house would hurt or kill someone. The one who drove through the
country is liable for at most criminal-negligence involuntary
manslaughter; the egregiousness of his conduct is much less, and there’s no indication that he consciously disregarded a high risk of death or serious bodily harm.

Question 5

Larceny, Burglary and Robbery

Answer 5

Larceny is a trespassory taking and carrying away of the personal property of another with the intent to steal it. Larceny is continuous trespass and if you don’t return the tangible objects picked up.
Robbery is very similar; it’s simply a larceny from a person that is accomplished by force or fear.
Burglary is the breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein intent to commit felony at the time of entering the dwelling

Question 6

Forgery

Answer 6

Forgery can occur only with respect to a document that has some apparent legal
significance — for instance, the document represents a right to payment
(e.g., a negotiable instrument), or indicates that title to property has
passed (a deed), or purports to show that a contractual obligation is
owed (a signed contract), or the like. Where the document when viewed
on its face — and whether fake or genuine — does not purport to have
legal significance, it can’t be a “forgery” even if it’s “counterfeit.” Since
even a genuine letter by Jefferson wouldn’t have present legal
significance, faking it can’t be forgery.

Question 7

Intent

Answer 7

intent is important for crimes like larceny ( intent to steal and not borrow), conspiracy ( intended principal to commit crime).Burglary is similar in that it requires breaking and entering another’s dwelling house, at night, with the intent to commit a felony therein.
Even an unreasonable belief can be a defense if it negates intent

Further, even if he has a change of heart once he’s inside, he’s still liable!

Question 8

warrantless search

Answer 8

They are: (1) search incident to arrest; (2) inventory
searches; (3) exigent circumstances; (4) plain view doctrine; (5)
automobile searches; (6) consent searches; (7) stop and frisk; and (8) regulatory inspections (actually, you do need a warrant for this last one,
but you don’t need conventional probable cause to get it).

e Fourth Amendment applies only to searches
and seizures done by the police or by people working under the direction of the police.

remember Arizona v. Gant (2009), which changed the rules on
when the passenger compartment of a vehicle can be searched incident to arrest of the driver: The basic rule that a warrantless search incident to arrest must be limited to areas within the arrestee’s “immediate control” now applies to searches of vehicles after the arrest of the driver.
So if the police make an arrest for a traffic violation, handcuff the driver and put him in the patrol car, and then find evidence of some other crime when they search the passenger compartment, that search is not justified by the incident-to-arrest doctrine

Question 9

Miranda rights

Answer 9

Also, remember that Miranda warnings are required only when the suspect would reasonably believe that the police intend to conduct a custodial interrogation. “Custodial” means the suspect is not free to leave. Thus, if the police question someone under circumstances not
indicating that he’s not free to leave (e.g., a casual street encounter,
where suspicion of a particular crime has not yet focused on the person)
— no Miranda. If the suspect volunteers a confession — no Miranda.
Note also that a custodial interrogation can take place away from the
police station, but it must be administered by the police (or an agent of
the police) — not by someone who’s just a civilian.

Question 10

Burden of proof for conspiracy

Answer 10

Conspiracy is an agreement between two or more persons to
accomplish a crime. (Some jurisdictions also require an overt act in furtherance of the conspiracy, but any overt-act requirement is not at issue here.)
The prosecution bears the burden of proving that an
agreement to commit a crime was made by the two defendants.
However, the existence of an agreement need not be proven by direct evidence; circumstantial evidence can suffice. g: An alibi defense negates an element of the crime, rather than
supplying some new fact of justification or mitigation; therefore, the defendant can never be required to bear the burden of proving an alibi defense.
This choice suggests that it is only where “the defendant’s evidence has caused you to have a reasonable doubt . . . ” that a not guilty verdict is required. In reality, the prosecution’s own failure to show, beyond a reasonable doubt, that the defendant was the robber, would also require an acquittal. So by implying that the defendant had
the burden to come up with evidence creating a reasonable doubt, this
instruction unconstitutionally diminishes the prosecution’s burden of
proof.

Question 11

Involuntary intoxication

Answer 11

Once the defendant has established that his intoxication was
involuntary, he would be entitled to an acquittal if the intoxication either prevented him from having the required mental state, or deprived him of the ability to conform his conduct to the requirements of the law. See, e.g., Model Penal Code § 2.08(4): “Intoxication that (a) is not self-induced [i.e., that is involuntary] . . . is an affirmative defense if by reason of such intoxication the actor at the time of his
conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.”
Here, the other evidence suggests that even if the drug did not negate the defendant’s intent to strike another, it may have caused him to lose the ability to conform his conduct to the law (i.e., his ability to resist
the urge to strike). So if the defendant can show that his intoxication was involuntary, he will be entitled to the requested instruction.

Question 12

Voluntary intoxication

Answer 12

Voluntary intoxication is not a defense for battery. Battery needs required mental state + recklessness to disregard others.The defendant’s voluntary taking of an intoxicant that produces rages would not be deemed to negate recklessness (and, indeed, the taking would itself probably constitute recklessness). Therefore, the voluntary
intoxication would not negate all possible mental states for battery

Question 13

Accomplice

Answer 13

If A, while having the mental state for crime X, aids, abets,
encourages or assists B to commit crime X, and B in fact commits crime X, A is guilty of crime X as an accomplice

To gain a conviction of an accomplice, the prosecution must prove that the principal committed the underlying crime. But under virtually all modern approaches, the fact that the principal has not been prosecuted does not bar a successful prosecution of the accomplice, assuming, of course, that in the accomplice’s trial the prosecution
proves that the principal committed the crime.

Question 14

Abandonment

Answer 14

In order to successfully claim
abandonment, the abandonment must be completely voluntary, and not made due to problems in completing the crime or the risk of getting caught; and it must represent a full renunciation of the criminal purpose

Question 15

Attempted possession

Answer 15

because the defendant must go beyond mere preparation in order to be convicted for attempted possession.
The common law of attempt required that the defendant commit some act (beyond mere ‘‘preparation’’) toward bringing about the intended crime. Lafave, § 10.4, pp. 442-49. Here, the drug dealer took no act, much less any act that would qualify at common law, toward obtaining the cocaine. Indeed, the drug dealer likely would not be
guilty of attempt even under the Model Penal Code’s broadened standards because there was no ‘‘substantial step’’ toward commission
of the crime. See MPC § 5.01(1)(c).

because an agreement to commit a crime is neither necessary nor sufficient to constitute attempt.
The call of this question does not concern conspiracy, so the
existence of an agreement is not relevant. Instead, the defendant will not be convicted because he must go beyond mere preparation in order to be convicted for attempted possession. The common law of attempt
required that the defendant commit some act (beyond mere
‘‘preparation’’) toward bringing about the intended crime. LaFave, § 10.4, pp. 442-49

Question 16

mistake a defense for specific intent

Answer 16

robbery intent to permanently deprive, voluntary intoxication- mistaken beleif bag was his got into a fight, he is not found guilty of robbery because intent was lacking. He genuinely believed the bag belonged to him

Question 17

Deadly force as self defense

Note always remember initial aggressor forfeits right to use self defense

Answer 17

A person may use deadly force in self-defense if he: (1) is
confronted with unlawful force; (2) reasonably believes he is
threatened with imminent death or great bodily harm; and (3) uses no greater force that he reasonably believes is required to avoid the danger.
Here, the student was certainly faced with ‘‘unlawful force’’ (the
threatened knife attack), and reasonably believed that this attack threatened him with death or great bodily harm. In addition, the level of force used was no greater than the student reasonably believed was
necessary, given that the student was not trying to actually hit his friend. (If he had shot to kill, rather than just to frighten or wound, this might have been greater force than was reasonably believed necessary, which would have been a violation of requirement (3)
above

Question 18

Attempted Rape and Statutory Rape

Answer 18

In order to be convicted of attempted rape, all the state must show is that the defendant attempted to have unlawful intercourse, with one other than his wife, without the victim’s consent. It’s possible to be convicted of attempted rape of someone under the age of consent.
(However, when the female is under the age of consent, the defendant can also be charged with statutory rape. When one is charged with statutory rape, his knowledge of the female’s being under age is irrelevant.)

Question 19

Larceny by trick

Answer 19

ponse.
Larceny by trick is different from larceny in the way that the
property is acquired; larceny by trick involves a fraudulent taking, which negates the owner’s apparent consent. Every other element is the same: The carrying away of another’s personal property, with
intent to steal it. Under the facts here, these elements are satisfied: The defendant obtains possession by misrepresenting his intent to return
the car. The wrinkle here is that, after taking the car, the defendant decides to return it after all. However, the defendant’s subsequent actions are not relevant to his guilt — once he has fulfilled all the requirements of larceny by trick, his subsequent repentance cannot
exonerate him

Question 20

False pretences

Answer 20

title to the property has to be based on the misrepresentation. If only possession, tough to prove false pretences

Question 21

intent needed for involuntary manslaughter??

Answer 21

No Involuntary manslaughter
is generally defined as death caused by gross criminal negligence (or, sometimes, ‘‘recklessness’’).
The fact that the student did not intend to cause the teacher’s death could not possibly be a defense here, because the student’s subjective intent would not be the issue where the question is whether she acted
with gross negligence or recklessness about the risk of death

Question 22

Arson

Answer 22

Arson, as defined by the common law, is the: (1) malicious, (2)
burning, (3) of the dwelling, (4) of another. Malice for arson does not require a specific intent, but only that the defendant acted with either:
(1) the intent or knowledge that the structure would burn, or (2) the reckless disregard of an obvious risk that the structure would burn.

Question 23

common law murder- felony murder

Answer 23

Felony-murder occurs where a defendant
commits a killing — even an accidental one — that occurs during the course of, and as a result of, the defendant’s commission of any of a series of defined dangerous felonies.
Arson is one of the ‘‘dangerous felonies’’ for common-law felony murder. Since as described above the customer is guilty of arson, and since the death of the businessman occurred during and as the direct result of the arson, the customer is also guilty of felony murder.

least likely basis for felony: Felony murder requires an underlying felony that is inherently dangerous to human life, while remaining sufficiently ‘‘independent’’
from homicide. Such crimes traditionally include rape, robbery, arson, burglary, and kidnapping. Here, manslaughter is a homicide, so it cannot be ‘‘independent’’ from it. The same would go for a crime like
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aggravated battery

Question 24

Modern statute- burglary

Answer 24

At common law,
burglary requires breaking and entering the dwelling house of another, at night, with the intent to commit a felony therein (most modern statutes broaden this to include entry at all times in all kinds of structures, thus eliminating the breaking, dwelling house, and
nighttime requirements).
Thus, the ‘‘mental state’’ to which C refers is intent. Although it
seems as though the law student had the right mental state, his mistaken belief that what he was doing was criminal, when in fact it wasn’t, will exonerate him — since his mistake negates his intent to
commit a felony. There’s no burglary when a defendant breaks and enters for the purpose of carrying out an act that is not itself a felony

Question 25

M’Naughten Rule

Answer 25

The most common test for insanity is the M’Naghten Rule, which requires that the defendant have a diseased mind which caused a defect of reason, such that when the defendant acted he either didn’t know his act was wrong or he didn’t understand the nature and quality
of his actions (e.g., mistaking someone’s head for a baseball and hitting it with a bat). Here, it’s not necessary to do a strict analysis under M’Naghten to appreciate the fact that the defendant is off his
rocker, and didn’t know what he was doing was wrong. Since the facts
indicate the defendant has a promising insanity defense, and insanity
is a good defense to murder

Question 26

solicitation

Answer 26

Solicitation consists of inciting, inducing, or urging another to
commit a felony with the specific intent that the person solicited commit the crime. The offense is complete at the time the solicitation is made, whether the solicitee agrees or not. Therefore, the college student’s effort to withdraw a few days before payment was due would not be a defense to the crime of solicitation — the crime was already
completed. (Nor does it make any difference that the solicitee was only pretending to agree to commit the underlying crime.)

No substantial act was performed is not relevant

Question 27

assault and aggravated assault

Answer 27

An assault is either (1) an attempt to
commit a battery or (2) an intentional placing of another in
apprehension of receiving an immediate battery. (Also, any completed battery contains an assault.) Since the young woman intentionally sprayed the guard with a harmful or offensive substance, she meets the prima facie requirement for type (1) assault (since she was trying
to commit a battery — i.e., trying to cause a harmful or offensive contact). The question is whether she has a valid defense. Self defense is a valid defense

Question 28

Identification procedures

Answer 28

In a series of cases, the Supreme Court has held that an
identification procedure may be so “unnecessarily suggestive” that allowing the results of that identification into evidence violates the accused’s due process rights. See, e.g., Stovall v. Denno, 388 U.S. 293
(1967). In fact, in extreme cases the unnecessarily suggestive
procedure may so irreparably taint the out-of-court identification that
the witness is even forbidden to make an in-court identification of the
accused at trial.

Here, the out-of-court identification was certainly needlessly
suggestive, both because it used only a single photograph, and
because the officer told the store owner before the identification that the police were pretty sure the person in the photo was the culprit.
However, even where an unnecessarily suggestive identification procedure is used, neither the out-of-court identification itself, nor the
witness’ later in-court identification, will be excluded unless the trial
court concludes that there is “a very substantial likelihood of
irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98
(1977). The likelihood of misidentification is to be determined by
considering the “totality of the circumstances,” including such factors
as how good an opportunity the witness had to observe the
perpetrator. So, here, as long as the court believes that the in-court identification is reasonably reliable, the fact that it may have been influenced by earlier unnecessarily suggestive out-of-court identification methods will not cause the in-court testimony to be excluded

Question 29

Sixth amendment

Answer 29

It’s true that a criminal defendant has a Sixth Amendment right to be tried by a jury selected from a representative cross-section of the community. But where a prospective juror indicates in voir dire that her opposition to the death penalty is so strong that it may prevent her from voting to impose that penalty, that prospective juror may be
removed for cause without violating the defendant’s right to a
representative jury. Lockhart v. McCree, 476 U.S. 162 (1986). And that’s true even if the juror is removed before the guilt phase in a bifurcated trial (i.e., one divided into a phase that determines guilt,
followed by a separate sentencing phase if the defendant is found
guilty)

Question 30

Automobile stops

Answer 30

In Delaware v Proust:The Court affirmed the grant of a motion to suppress evidence in favor of defendant because the officer did not have a reasonable suspicion that defendant had violated the law and stopping defendant’s vehicle and detaining him in order to check his driver’s license and registration was unreasonable under the Fourth Amendment. The Court held that, except in those situations in which there was reasonable suspicion that a motorist was unlicensed or that an automobile was not registered, or that either the vehicle or an occupant was otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile was unreasonable under the Fourth Amendment. The Court held that the states were not precluded from developing methods for spot checks that involved less intrusion or that did not involve the unconstrained exercise of discretion.

Question 31

Miranda warnings

Answer 31

Certainly the most obvious issue where a confession is concerned is whether the Miranda warning was required and given. Here, the Miranda warning was not required because there was no custodial interrogation. An interrogation is custodial only if the individual questioned is not free to leave. Here, the friend voluntarily went to the
police station, and he volunteered his confession.
Under these facts, there was no time up to and including his
confession when the friend was not free to leave. Thereafter, when the police were no longer willing to allow the friend to leave and wanted to question him further, they properly gave him his Miranda warning.

Question 32

Use immunity in grand jury- can accomplice to crime testify in actual crime

transactional immunity- independent source of evidence

Answer 32

gnores the real reason the objection to the
accomplice’s testimony will be sustained: because it was derived from the defendant’s immunized testimony, since the defendant’s testimony is the only way the prosecutor discovered the accomplice. Thus, the
accomplice’s testimony against the defendant derived from the defendant’s own immunized testimony, so it cannot be used against the defendant.

— transactional immunity — under
which the witness is immunized from prosecution for any crime related to the transaction to which the witness testifies. However, the witness may nonetheless be prosecuted if the prosecution can show an independent source for the evidence — i.e., any source other than the
immunized testimony. Under these facts, however, it’s use immunity, not transactional immunity, that’s involved — so the ‘‘independent source’’ concept isn’t relevant

Question 33

Fifth amendment

Answer 33

The key here is that a handwriting sample is considered physical, not communicative, evidence — and the Fifth Amendment only covers communicative evidence. As a result, handwriting samples are not covered by the Fifth Amendment, and will be admissible even if the suspect wasn’t given the opportunity to obtain counsel, or told any
other Miranda warning

Question 34

Fifth and sixth amendment

Answer 34

The two sources of the right to counsel are the Fifth Amendment and the Sixth Amendment. Under the Fifth Amendment, the suspect is entitled to counsel for the investigative stage of the prosecution, but
only for custodial questioning (under Miranda), when a defendant must take part in a lineup or show up after ‘‘formal proceedings’’ have
begun, or undercover agents elicit incriminating statements from an already indicted suspect. The Sixth Amendment covers ‘‘critical stages’’ of the trial (e.g., arraignment and trial)

Question 35

arizona v evans

Answer 35

because evidence generally will not be suppressed where police reasonably held a good faith belief that their action leading to its discovery was authorized by a valid warrant. See Arizona v. Evans,
514 U.S. 1 (1995).
In this case, the computer check on the license number of the
driver’s car revealed that there was an outstanding warrant for the driver’s arrest based on unpaid parking tickets. The police had no reason to believe that the warrant was invalid, so the search of the car was proper as a valid search incident to arrest

Question 36

Right of police to force the door open with a search warrant

Answer 36

cause the police had the right to force the door open.
As a general rule, the officer executing the warrant must announce
that he is a law enforcement officer, that he possesses a warrant, and that he is there to execute it. If the officer identifies himself and then is not answered he may use force to break into the premises described.
The facts make clear that the police followed correct procedures for executing the warrant and that their forcing open the door was reasonable. The police met the announcement requirements. They
announced that they were law officers when they knocked on the drug dealer’s door and called out, ‘‘Police.’’ They announced they possessed
a warrant. And they made clear that they were there to execute the warrant when they called, ‘‘Open up.’’ They then waited a few seconds and when they received no response they broke down the door and entered.

Question 37

Expectation of privacy of a guest

Answer 37

A person only has standing to claim a search
or seizure violated the Fourth Amendment when the evidence was
obtained from a search or seizure that violated that person’s own
‘‘legitimate expectation of privacy.’’ Rakas v. Illinois (1978). This
means that even if the defendant owns the property in question, or is present when the search takes place, he will have no standing to challenge the search unless the search violated his legitimate expectation of privacy as to the place being searched.

The owner of a house unquestionably has the right to invite the
police in — when they enter in response to such an invitation and
move around the house, they are not violating the rights of a guest, as long as they stay within the scope of the owner’s invitation. That’s
what happened here: The police were invited (by the homeowner) into, or to a place near, the kitchen. (If the thief had, say, rented a particular bedroom from the owner for the night, then it’s conceivable that the owner would be found to have surrendered his right to invite
the police into that bedroom during the night – but here, of course, the invitation to the police was to enter the kitchen, not the bedroom.)
Since the police were authorized to be in or near the kitchen, they were entitled to be in the place from which they recognized the thief.
And that recognition triggered their right to arrest and then to search incident to arrest, all without constitutional violation

Question 38

Can a police search the passanger seat of a car for speeding ticket arreast or is scope of search excessive

Answer 38

Let’s suppose, though, that it was the addict who was on trial, and
was objecting to the introduction of the evidence against him. Then,
this choice probably would be correct. That’s because, according to
Arizona v. Gant, 556 U.S. 332 (2009), even when a driver is subjected
to a full custody arrest, the officer may not search the passenger
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compartment incident to that arrest unless either (1) the arrestee has
access to the passenger compartment at the moment of the search; or
(2) the officer reasonably believes that the passenger compartment
may contain evidence of the particular offense for which the arrest is
being made. Here, by the time one officer began to search the
passenger compartment, the addict was already handcuffed and in the
patrol car, preventing him from having access to the passenger
compartment. And since the arrest was for speeding, the officer who did the search could not have had a reasonable belief that the passenger compartment would contain evidence of that offense (what
physical evidence of speeding could there have been in the
compartment?). So if the fruits of the search were being introduced against the addict, not the defendant/seller, Choice B’s assertion that the scope of the search was excessive (in that it included the car, not
just the addict’s person) would have been correct.

Question 39

Plain view doctrine

Answer 39

The ‘‘plain view’’ doctrine provides one means by which the
police can conduct a warrantless search. It states that police can make
a warrantless seizure when they are on the premises for lawful
purposes, and they inadvertently discover evidence in ‘‘plain view.’’
Choice A correctly states the facts, in the sense that, since the heroin was under the rear seat, it was not in ‘‘plain view.’’ However, the choice ignores the central reason why the motion to suppress will be
denied: The defendant has no standing to object to the search, since it was the addict’s car that was searched, and the defendant had no
privacy interest in that car. If it were the addict who was being tried, the result would likely be different, because the issues would be different, since the addict clearly would have standing to object. (And at the moment the officer found the heroin under the rear seat, the officer was not in a place he had the right to be, since no exception to
the requirement of a warrant entitled the officer to be inside the car looking under the seat.)

Question 40

Informant

Answer 40

Informant’s information cannot be stale.

An informant’s information can constitute probable cause for a search or arrest if it meets the ‘‘totality of the circumstances’’ test from Illinois v. Gates (1983). Under that test, elements determining the reliability of the informant include: the informant’s prior use and reliability; the informant’s status as a member of a reliable group (e.g.,
a minister); clarity of detail in the informant’s tip, showing the
informant has personal knowledge of where evidence is located; and the tip includes a declaration against the informant’s penal interest (e.g., that he bought narcotics from the individual named)

Question 41

consent

Answer 41

There are six general exceptions to the requirement of a search
warrant: the search is incident to a lawful, custodial arrest; the
‘‘automobile’’ exception (which requires probable cause that vehicle contains evidence of crime, and exigent circumstances); plain view;
consent; stop and frisk; and hot pursuit/evanescent evidence. The consent exception applies where one with the authority to consent offers voluntary and intelligent consent to the search. Under the “third-party consent” version of the consent exception, one who surrenders possession of property to another is likely to be found to
have surrendered his expectation of privacy in the event that the other might consent to a search of that property. That’s the case here: The ex-convict authorized his cellmate to drive his car and, thus, impliedly authorized his cellmate to consent to a search

Question 42

custodial interrogation

Answer 42

If Miranda warnings are required and are not given, any resulting
confession is normally not admissible. Miranda warnings are required
whenever the police engage in a “custodial interrogation.” There was
obviously an “interrogation” here, since we’re told that an officer
“asked the man if he had committed a particular robbery.”
It’s a closer question whether this interrogation was a “custodial” one. An interrogation is “custodial” if and only if the one being
questioned believes he is not free to leave. The prosecution could argue that since the man was in his own house, and had not yet been
formally told that he was under arrest, he could reasonably have believed that he was free to leave. But the prosecution is unlikely to prevail with this argument: When police break into a person’s house at 6 a.m., and with guns drawn awaken the person in his bed and say
“We’ve got you now,” a reasonable person in that person’s position would typically not believe that he was free to leave. See, e.g., Orozco
v. Texas, 394 U.S. 324 (1969) (where police break into D’s bedroom at
4 a.m. to question him, this was a custodial interrogation).

Question 43

Double Jeopardy

Answer 43

The Double Jeopardy Clause cannot be triggered until jeopardy
has “attached,” which happens when the jury is chosen and sworn in, or (in a bench trial) when the first witness is sworn in. If jeopardy has not attached, the Clause will not be triggered even if the prosecution
does not have any evidence that was not presented in the first case. Since this choice ignores the significance of whether jeopardy has attached, it is not the best response.

Question 44

public exception to Miranda

Answer 44

For the reasons described in the analysis of choice A above, the Miranda warning was required here. It’s true that there’s a ‘‘public safety’’ exception to Miranda, announced in N.Y. v. Quarles (1984).
But the doctrine applies only where unwarned questioning is dictated
by ‘‘overriding considerations of public safety’’ (e.g., an attempt to find a weapon that may have been hidden nearby by the suspect).
Here, after arresting the rival farmer, the police had plenty of time to check for the grave based on the tip they’d received (and no danger from delay in doing so), so there was no imminent need or public danger of the sort that triggers the public-safety exception.