Criminal Procedure

Question 1

Would a demand for blood sample or voice represent a violation of the Fifth Amendment’s protection against compulsory self-incrimination?

Answer 1

Neither the blood sample nor the voice sample are testimonial evidence, which is the only type of evidence the Fifth Amendment right against self-incrimination protects.

Question 2

When does the untimely disclosure of evidence favorable to the defense (including impeachment information) violate the Constitution?

Answer 2

The untimely disclosure of evidence favorable to the defense (including impeachment information) violates the Constitution if the evidence would have created a reasonable probability of a different outcome had it been disclosed earlier.

Question 3

Will an unlawful arrest result in a dismissal of the charges?

Answer 3

No, an unlawful arrest may result in suppression of evidence, but not necessarily the charges.

Question 4

Can a confession after an unlawful arrest still be valid?

Answer 4

Yes, a voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed.

Question 5

Will a warrant missing specification of which particular items to be seized, but well supported by an affidavit containing such specification, be valid?

Answer 5

No, a warrant must have on it all the essential elements such as specific items to be seized and the source of information used to establish its reliability.

Question 6

What is the difference in terms of expectation of privacy between a pretrial detainee and a convicted prison inmate?

Answer 6

A pretrial detainee may have a limited expectation of privacy in his cell, but a convicted prison inmate has no reasonable expectation of privacy in his cell.

Question 7

Does a warrant need to describe the triggering condition for the seizure?

Answer 7

No, it does not.

Question 8

Will a shirt be qualified as evidence to be seized under the plain view doctrine?

Answer 8

Yes.

Question 9

Should a shirt be additionall specifically described in a warrant already stating “fruits or instrumentalities” of the robbery?

Answer 9

Yes.

Question 10

What is the standard applicable to strip searches in public schools?

Answer 10

A search conducted by local public school personnel of a student must be based on reasonable suspicion that the search will produce evidence that the student is or has violated school rules. It must also be reasonable in its scope in light of the student’s age and gender and the nature of the infraction.

Question 11

Once a passenger leaves a car, will the police be able to seizure this person if there was probable cause to seizure the car and/or its driver?

Answer 11

No, in a hit and run, for example, the probable cause would probably be limited to the driver. A passenger could be interrogated/searched only if still in the car.

Question 12

What are the requirements for police to setup checkpoints/stopping cars?

Answer 12

a) info about others, b) important public interest, c) tailor to minimally interfere

(i) the checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals;
(ii) the stop advanced a public concern to a significant degree; and
(iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment

Question 13

Can a person being hold several hours in a police station interpret the situation as being interrogated?

Answer 13

Yes.

Question 14

Do resident aliens have 5th amendment (Miranda) warning rights?

Answer 14

Yes.

Question 15

When can a statement obtained in violation of Miranda be used in a trial?

Answer 15

Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant, if the defendant takes the witness stand and gives testimony at variance with previous admissions. Such statements may not be used as direct evidence, however.

Question 16

Will taking handwriting samples require the presence of an attorney after indictment?

Answer 16

No, because the 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 17

When is a Defendant entitled to her attorney of choice? What is the sanction for violation of such right?

Answer 17

A defendant is constitutionally entitled to be represented at trial by a qualified attorney of the defendant’s choice, where that attorney is not provided by the state. The sanction for violation of this Sixth Amendment right is reversal of the defendant’s conviction.

Question 18

When can a statement obtained in violation of 6th amendment rights (e.g.: informant in cell eliciting information) be used in a trial?

Answer 18

A criminal defendant’s Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant’s attorney. However, even where a voluntary confession is obtained in violation of a defendant’s Sixth Amendment right to counsel, such confession may be used at trial to impeach the defendant’s testimony.

Question 19

Can a presumption in an instruction given to the jury in a criminal case contain “shall”?

Answer 19

No, the U.S. Supreme Court has held it to be a violation of due process for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime. The instruction is unconstitutional because the phrase “shall be presumed” could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible.

Question 20

How is the Wharton rule applied in criminal law?

Answer 20

If a crime requires two or more participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime.

Question 21

Does house arrest constitute “custody” for the purpose of assessing a 6th A. defense after a police officer “dropped by” to talk with the suspect?

Answer 21

Yes, since house arrest may be interpreted as bein in “custody.” A reasonable person would not believe that he was free to leave under such circumstances.

Question 22

What are the elements for a D to establish a prima facie case for non-representative jury selection?

Answer 22

(i) the group excluded is a distinctive group in the community; (ii) the group was not fairly represented in the venire from which the jury was selected; and
(iii) the underrepresentation resulted from a systematic exclusion of the group.

Question 23

In a case for non-representative jury selection, does a D must show actual bias?

Answer 23

No.

Question 24

Is the right to have a jury selected from a representative cross-section of the community subject to harmless error analysis?

Answer 24

No, the right to have a jury selected from a representative cross-section of the community is not subject to harmless error analysis.

Question 25

Is delay in proceeding to trial caused by D’s attorney attributable to the state when state has provided the attorney?

Answer 25

No, delay in proceeding to trial attributable to the D’s attorney is not allocated to the state simply because the attorney was provided by the state to the D.

Instead, as with delay attributable to a D-supplied attorney, delay attributable to a public defendant is generally treated as caused by the D rather than the state.

Question 26

When is a reversal of a conviction based on insufficiency of evidence warranted?

Answer 26

1) The evidence,
2) When viewed in the light most favorable to the prosecution,
3) Would not support a conviction by any reasonable fact finder.

Question 27

How is jeopardy implicated in a reversal of a conviction based on insufficiency of evidence?

Answer 27

When a conviction is reversed on these grounds, jeopardy is implicated, and the prosecution is barred from retrying the defendant for the same offense.

Question 28

When will the double jeopardy clause prevent retrial?

Answer 28

When:

1) a defendant has been acquitted, or
2) the prosecution dismisses its case (after first juror is sworn in?), or
3) Case overturned due to insufficiency of evidence (appeal?)
4) Prosecution asks for a mistrial without good cause (e.g.: because of an inability to locate a witness.)

Question 29

What is the usual standard when assessing if a subpoena runs afoul of the Fourth Amendment?

Answer 29

Why a a subpoena for a witness to testisfy in a trial will require probable cause, a grand jury will require only “reason to suspect”.

Question 30

Will a Fourth Amendment violation result in exclusion of evidence for a civil trial?

Answer 30

No, the primary remedy for Fourth Amendment violations is the “exclusionary rule,” which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. The remedy provided by the exclusionary rule generally applies only to criminal trials; it is not applicable to civil proceedings such as wrongful death actions.

Question 31

Can a police arrest someone out of the front of the house and then search the home?

Answer 31

No, if the warrant is for just the arrest of a suspect, once the suspect is in the police case there won’t be basis for a search int he house.

Question 32

When can police officers drawn blood sample from a suspect without a Warrant?

Answer 32

While generally the Fourth Amendment mandates that police officers obtain a warrant before a blood sample can be drawn, a warrantless search is permitted in exigent circumstances when they cannot reasonably do so without significantly undermining the efficacy of the search.

Question 33

Is evidence found after an officer arrests a suspect because of a pending arrest warrant admissible despite an invalid Terry stop?

Answer 33

Yes, if an officer makes an unconstitutional investigatory stop, and learns during the stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and seizes incriminating evidence during a search incident to that arrest, then the evidence the officer seizes as part of the search incident to the arrest is admissible.

Question 34

Can police officers conduct warrantless searches similar to administrative inspections in highly regulated industries (e.g.: gun shops)?

Answer 34

Yes, the state may conduct warrantless searches of businesses in highly regulated industries due to an urgent public interest.

Question 35

When the confession of a co-defendant cannot be used against a defendant?

Answer 35

When the admission against a defendant of a confession that implicates the defendant was made by a non-testifying co-defendant participating at a joint trial.

Such admission violates the defendant’s Sixth Amendment right to confrontation.

Question 36

Will a coerced testimony be acceptable for impeachment only?

Answer 36

No.
Testimony given under a grant of immunity is considered coerced and involuntary. A defendant’s involuntary statement, such as a confession produced by coercion, cannot be used either substantively or for impeachment purposes.

While a defendant’s statement taken in violation of Miranda may be used to impeach the defendant’s testimony at trial, there is no similar exception for use of a statement made under a grant of immunity because such statement is viewed as having been coerced.

Question 37

Can a D be found guilty of crime A but not crime B, which is necessary for crime A to have occurred?

Answer 37

Yes.
When a jury renders a verdict that a defendant is guilty of certain offenses but not guilty of other related offenses, the guilty verdict is not reviewable on the grounds of inconsistency, even when the jury acquits the defendant of an offense that is a predicated on an offense for which the same jury finds the defendant guilty.

Question 38

Does a D always have right to a counsel at a probation revocation hearing that may result in jail time?

Answer 38

No.
An offender does not have an absolute constitutional right to counsel at a probation revocation hearing when an already-imposed sentence is executed as a result of the revocation of probation. Instead, an offender only has such a right if it is necessary for a fair trial.

Question 39

Can evidence seized pursuant to an unlawful arrest be suppressed at trial despite having been found in plain view?

Answer 39

Yes, the evidence will be suppressed. However, there may still be criminal charges brought through evidence other than the suppressed one.

Question 40

When does the right to a speedy trial attached?

Answer 40

When the defendant is charged or arrested, whichever comes first.

Question 41

If a grand jury relies in excludable evidence due to 4th A issues, will the S.Ct. uphold an indictment?

Answer 41

Yes, the S. Ct. has ruled that if a grand jury relies on inadmissible evidence while issuing an indictment, dismissal of the indictment is not the proper remedy.

Question 42

What type of “staleness” may render a warrant invalid?

Answer 42

If based on information from a couple of months ago.

Question 43

Which are the two ways of challenging discriminatory jury selection?

Answer 43

D’s constitutional rights to impartial jury (may be waived by D) and Equal Protection (may be argued by both D and prosecutor).

Question 44

How is the Batson test applied to address equal protection challenges to jury voir dire?

Answer 44

If the Batson test is satisfied, the jury voir dire action challenged will be unconstitutional:

The Batson test requires that:

(i) the moving party establishes a prima facie case of discrimination, (ii) the party who exercised the challenge provides a nondiscriminatory explanation for the strike, and
(iii) the moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination.

Question 45

Does a conflict of interest affect how the effectiveness of counsel is assessed in a constitutional challenge for innefective counsel?

Answer 45

Yes - regular test: “reasonable probability that the outcome would have been different.”

Conflict of interest test has a lower bar: “if the defendant is able to establish that the conflict adversely affected the lawyer’s performance”

Question 46

How is the right to a jury trial for offenses triggered?

Answer 46

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 47

Which are the factors to be considered in determining whether the defendant has been deprived his post-accusation right to a speedy trial?

Answer 47

The factors to be considered in determining whether the defendant has been deprived his post-accusation right to a speedy trial are (i) the length of the delay; (ii) the reason for the delay; (iii) the defendant’s assertion of a right to a speedy trial; and (iv) the prejudice to the defendant resulting from the delay.