Criminal Law And Procedure Learning Questions - Set 8 Flashcards
In a criminal trial, what is the minimum number of jurors allowed under the Sixth and Fourteenth Amendments?
A
Nine
B
Six
C
Twelve
D
Seven
B
There must be at least six jurors to satisfy the right to a jury trial under the Sixth and Fourteenth Amendments.
If more than _______ months’ imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial.
A
nine
B
six
C
three
D
twelve
B
An offense is considered serious, making a jury trial a constitutional right, when more than six months’ imprisonment is authorized.
Which of the following statements regarding speedy trials is correct?
A
Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the state.
B
One factor in determining whether a defendant’s right to a speedy trial was violated is whether the defendant asserted his right.
C
The remedy for a violation of the constitutional right to a speedy trial is dismissal without prejudice.
D
A defendant is entitled to speedy trial relief for the period between the dismissal of charges and later refiling.
B
Whether a defendant asserted his right is one factor in determining whether the defendant’s right to a speedy trial was violated. The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant.
The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice.
Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the defendant and NOT to the state.
A defendant is NOT entitled to speedy trial relief for the period between the dismissal of charges and later refiling.
The Sixth Amendment right to counsel applies __________.
A
only at interrogations performed by one known to be a government agent
B
only after adversary judicial proceedings have begun
C
whenever an informant is placed in the defendant’s cell
D
whenever a defendant gives a blood sample
B
The Sixth Amendment right to counsel applies only after adversary judicial proceedings have begun (e.g., formal charges have been filed).
It is not true that the Sixth Amendment applies whenever an informant is placed in the defendant’s cell. It applies when an informant is placed in a defendant’s cell after adversary judicial proceedings have been initiated. But there is no Sixth Amendment violation just because an informant is placed in the defendant’s cell after charges are filed. There is a violation only if the informant does something designed to elicit incriminating remarks.
The choice providing that the Sixth Amendment applies only at interrogations performed by one known to be a government agent is too limiting to be correct. A limitation like this one applies to Miranda warnings. The warnings must be given before interrogation by one known to be a government agent in order to offset the coercive nature of police interrogation. A similar rule does not apply under the Sixth Amendment right to counsel. The Sixth Amendment right to counsel applies to all post-charge interrogations, whether or not the defendant knows he is speaking to a government informant.
Finally, the blood sample choice is incorrect. The Sixth Amendment right to counsel applies at critical stages of a criminal prosecution after formal proceedings have begun, and the taking of a blood sample is not a critical stage.
At the defendant’s prosecution for robbery of a drugstore, the main prosecution witness testified that the defendant had asked her to drive him to the town where the drugstore was located. The witness testified that the defendant did not explain his purpose for going to the town, and that he had stopped at a relative’s house along the way to pick up a bundle that could have been the sawed-off shotgun used by the robber. On cross-examination, the defendant’s attorney asked a number of pointed questions of the witness, implying that the defendant had asked her to drive to the town so that he could visit relatives there and suggesting that the witness had obtained a sawed-off shotgun for use by a confederate. The defendant did not testify on his own behalf.
In final argument, the prosecutor called the jury’s attention to the two versions of events suggested by the witness’s testimony on direct examination and the defense attorney’s questions on cross-examination, and then said, “Remember, you only heard one of the two people testify who know what really happened that day.”
If the defendant is convicted of robbery, will his conviction likely be upheld?
A No, because the prosecutor’s comment referred to the defendant’s failure to testify, a violation of his Fifth Amendment privilege of silence.
B No, because under the circumstances the attack on the witness’s credibility was not strong enough to permit the prosecutor to mention the defendant’s failure to testify in rebuttal.
C Yes, because the prosecutor is entitled to comment on the state of the evidence.
D Yes, because even if it was error to comment on the defendant’s failure to testify, the error was harmless beyond a reasonable doubt.
A
The defendant’s conviction will likely not be upheld because the prosecutor’s comment improperly burdened the defendant’s assertion of his privilege against self-incrimination. The prosecution is not allowed to comment on the defendant’s failure to testify at trial, because the defendant is privileged under the Fifth Amendment to remain silent. (B) is incorrect because no amount of attacks on the credibility of prosecution witnesses will justify such a comment as a rebuttal. (C) is incorrect because the Fifth Amendment privilege outweighs the prosecutor’s right to comment on the state of the evidence. (D) is not the best answer even though the harmless error test does apply to improper comments by the prosecution (i.e., the conviction will not be overturned if the prosecution can show beyond a reasonable doubt that the comments did not affect the outcome of the case). Because there is no real indication as to the strength of the case against the defendant, it is impossible to conclude that the error was harmless beyond a reasonable doubt.
A defendant going to trial for the felony of aggravated battery filed a motion to have the court seat a jury with only five members. He stated that five was his lucky number and that he would be willing to sign any release to ensure a jury of five.
Should the judge grant the defendant’s motion to impanel a jury of five members?
A Yes, the number of jurors is up to the defendant.
B Yes, the number of jurors is typically six, but five is permitted as long as the verdict is unanimous.
C No, the Constitution requires at least six jurors.
D No, the number of jurors is up to the judge, and the defendant does not have any say in the matter.
C
The judge should not grant the defendant’s motion. The Constitution requires at least six jurors. There is no constitutional right to a jury of 12, but there must be at least six jurors to satisfy the right to jury trial under the Sixth and Fourteenth Amendments. [Ballew v. Georgia (1978)] (A) is incorrect because, even were a defendant to waive his right to a jury of six, the judge could not constitutionally impanel such a jury. (B) is incorrect because, as stated above, at least six jurors are required by the Constitution. Note also that six-person juries must be unanimous, although 12-person juries need not be. [Burch v. Louisiana (1979)] (D) is incorrect because the number of jurors is not up to the judge in the sense that a judge may not waive the six-juror minimum. In most jurisdictions, the number of jurors (above six) is established by statute or court rule, not by the judge.
A defendant was convicted after a jury trial of violation of federal statutes prohibiting the sale of automatic weapons to foreign nationals. It was established at trial that the defendant had purchased a number of stolen United States Army heavy machine guns and attempted to ship them abroad. The trial court expressly based its imposition of the maximum possible sentence for the conviction on the defendant’s refusal to reveal the names of the persons from whom he purchased the stolen weapons. His counsel argues that this consideration is reversible error.
If the defendant appeals the sentence imposed, what should the appeals court do?
A Reverse the trial court, because the consideration of the defendant’s silence violates his Fifth Amendment privilege against self-incrimination.
B Reverse the trial court, because the consideration of collateral circumstances in sentencing violates his due process rights.
C Affirm the trial court, because the right to remain silent granted by the Fifth Amendment does not include the right to protect others from incrimination.
D Affirm the trial court, because citizens must report violations of the criminal statutes.
C
The appeals court should affirm the trial court because the right to remain silent does not include the right to protect others from incrimination. The defendant was not privileged to refuse revealing the names of the stolen weapon sellers. The United States Supreme Court held, in Roberts v. United States (1980), that a defendant’s refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence. This is because the Fifth Amendment right to remain silent does not afford a privilege to refuse to incriminate others. (C) is therefore correct and (A) is incorrect. (B) is incorrect because the court’s consideration of the defendant’s refusal to cooperate does not violate due process. (D) is not an accurate statement of the law.
A man was driving very erratically when he was stopped by state troopers and arrested for drunk driving. He was advised of his constitutional rights and elected to remain silent. At trial for his drunk driving charge, the man testified in his own defense, stating that he had just left his doctor’s office and had been administered medication without being told that it would seriously and immediately hamper his coordination. On cross-examination, the prosecutor asked whether the defendant just made up this medication story after the fact to evade legitimate liability for driving while intoxicated and the man said he had not. The prosecutor then asked why the defendant had not told the arresting officer about the medication, and defense counsel objects.
The trial court should rule that the question is:
A Improper, because to require the defense to inform the prosecution of defendant’s testimony prior to trial would be unconstitutional pretrial discovery.
B Improper, because use of defendant’s post-arrest silence violates his right to due process of law.
C Proper, because defendant’s silence was not used as direct evidence but only for impeachment on cross-examination.
D Proper, because defendant’s post-arrest silence is a prior inconsistent statement which is admissible to show recent fabrication.
B
The question was improper because it effectively comments on the defendant’s post-arrest silence and thus violates his right to due process of law. A prosecutor may not comment on the defendant’s silence after being arrested and receiving Miranda warnings. The warnings carry an implicit assurance that silence will carry no penalty. Thus, the defendant’s invocation of his right to remain silent cannot be used as evidence against him at trial, nor can he be questioned or cross-examined about his decision to remain silent, even if he testifies at trial. Thus, (B) is the correct answer, and (C) is wrong. (Distinguish: If the defendant fails to disclose potential exculpatory evidence to the police after waiving his right to remain silent, he may be cross-examined at trial on that failure in an effort to show that it is a recent fabrication. In this case, however, the defendant invoked his right to remain silent.) (A) is wrong; the question is improper, but not because it would be unconstitutional pretrial discovery. (D) is also wrong. Although statements made without proper Miranda warnings can sometimes be used to impeach, the defendant’s silence would not be classified as a prior statement.
