Criminal Procedure Capstone Questions Flashcards
The police obtained a valid arrest warrant for a drug dealer. A reliable informant told the police that the drug dealer was staying at a friend’s house until “the heat was off.” Without having obtained a search warrant, the police went to the friend’s house, knocked on the door, and asked the friend if the drug dealer was there. The friend replied that the drug dealer had been staying at the house for a few days but had left a few hours ago. The police pushed open the door and began searching for the drug dealer. They found him hiding in a closet along with two five-pound bricks of marijuana. They arrested both the drug dealer and the friend. Before his trial for possession of marijuana, the friend moved to suppress the marijuana found in the closet.
Should the court grant the motion to suppress?
A Yes, because a search warrant was required.Yes, because a search warrant was required.
B Yes, because the police may not execute an arrest warrant at the third party’s home.Yes, because the police may not execute an arrest warrant at the third party’s home.
C No, because the police had probable cause to believe that the drug dealer was staying at the friend’s home.No, because the police had probable cause to believe that the drug dealer was staying at the friend’s home.
D No, because the police had a valid arrest warrant and the marijuana was found incident to the arrest.
A
The court should grant the motion to suppress because a search warrant was required. Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search. Thus, (A) is correct and (D) is incorrect. (B) is incorrect because it is too broad. A person can be arrested at the home of a third party, but the police generally cannot enter the third party’s home without consent unless they have a search warrant for the home. (C) is incorrect because, as discussed above, a search warrant is required absent exigent circumstances, which are not present in this case. Here, the probable cause established by the informant’s disclosure would have enabled the police to obtain a search warrant.
A man and a woman were traveling in the man’s car when they were stopped by the police for running a red light. Before the police came up to the car, the man told the woman, “You owe me a favor. Keep this package for me,” and gave the woman a small foil package. The woman put the package in her backpack, saying, “O.K., but don’t tell me what’s in it.” Before the police even began to question the occupants, the man blurted out, “I’m clean, man, but she has a stash,” pointing at the woman. The officers searched the backpack that the woman was holding and found the foil package, which contained heroin. The woman was arrested, but the man was not.
Is the evidence found on the woman admissible?
A Yes, under the automobile exception.Yes, under the automobile exception.
B Yes, because due process imputes knowledge where there is willful ignorance.Yes, because due process imputes knowledge where there is willful ignorance.
C No, because due process forbids granting of immunity to the more culpable defendant.No, because due process forbids granting of immunity to the more culpable defendant.
D No, because the woman did not know that the package contained heroin.
A
The evidence is admissible because the search was valid. Even though the police have validly stopped an automobile, they cannot search the vehicle without meeting the requirements of one of the exceptions to the warrant requirement, such as the automobile exception (which requires probable cause) or consent. The automobile exception comes into play when the police have probable cause to believe that the vehicle contains evidence of a crime. Under the exception, the police may search anywhere in the vehicle in which the item for which they have cause to search may be hidden, including packages in the vehicle. The statement of the man to the officers gave them probable cause to believe that the car contained evidence of a crime (i.e., that the woman had drugs somewhere in the car). Thus, the requirement for application of the automobile exception was present, providing validity for the warrantless search conducted by the police. Because the search was valid, the evidence found on the woman is admissible. Besides being an incorrect statement of law, (B) is incorrect because it focuses on the woman’s knowledge of the contents of the package. Whether the woman knew that heroin (or some other illegal substance) was in the package is irrelevant to the admissibility of the heroin. Even assuming that the woman knew of the contents, the search would not be valid unless there was a ground for the warrantless search. (D) similarly links the woman’s knowledge of the package’s contents to the admissibility of the evidence. As noted above, the admissibility of the evidence is dependent on the validity of the search that produced the evidence, rather than on the knowledge of the defendant as to the existence of the evidence. (C) is incorrect for three reasons: First, due process does not prohibit granting of immunity to a more culpable defendant. Second, there is no indication that immunity was even granted here (immunity from prosecution may be granted to compel a witness to answer questions. The facts merely state that the man was not arrested; this does not necessarily mean that he was granted immunity). Third, the call of the question relates to the admissibility of the evidence, and a grant of immunity does not relate to the question of the admissibility of the evidence found on the woman; such admissibility is determined by the validity of the search of the woman by the officers.
Suspecting criminal activity, a police officer acting without a warrant peeked through a small opening in the shutters of an apartment. The officer observed the apartment’s tenant and the defendant making methamphetamine. The officer immediately entered the apartment and arrested the tenant and the defendant, and he confiscated the ingredients for the methamphetamine, the tools used for methamphetamine production, and any completed methamphetamine for evidence. The search is later ruled invalid at a suppression hearing.
May the defendant now claim that her Fourth Amendment rights have been violated by the seizure of the ingredients, tools, and methamphetamine from the apartment?
A Yes, because the items will be used in evidence against her.Yes, because the items will be used in evidence against her.
B Yes, if she was an overnight guest of the tenant.Yes, if she was an overnight guest of the tenant.
C No, because she was not the owner or occupier of the apartment.No, because she was not the owner or occupier of the apartment.
D No, unless she admits to ownership of the items.
B
The defendant can claim a reasonable expectation of privacy for Fourth Amendment purposes if she was an overnight guest of the owner of the place searched. To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own reasonable expectations of privacy. The Court has held that a person has a reasonable expectation of privacy any time (i) she owned or had a right to possession of the place searched, (ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or (iii) she was an overnight guest of the owner of the place searched. Thus, the defendant would have standing to challenge the search of the tenant’s apartment if she was an overnight guest of the tenant. (A) is incorrect because standing to raise a Fourth Amendment claim does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person’s property. The person must establish that her own reasonable expectation of privacy has been violated. (C) is wrong because the fact that the defendant was not the owner or occupier of the apartment does not preclude her from challenging the search. As discussed above, an overnight guest may also have a reasonable expectation of privacy in the premises for purposes of the Fourth Amendment. (D) is incorrect. Although the defendant may have standing to object to the seizure of items if she claims ownership of them, that is not the only basis for raising a Fourth Amendment claim; she will have standing to object to the search of the apartment under the circumstances in (B) regardless of whether she claims ownership of the methamphetamine.
A police officer was given a tip about a blonde male living in a nearby trailer park who was selling narcotics. The officer immediately drove to the trailer park and obtained from the manager the names of six blonde males who had trailers or mobile homes in the trailer park. At the first lot, the officer knocked on the defendant’s door, announced that he was a police officer, and asked to talk to the defendant. The defendant’s girlfriend, who did not live there but had been visiting, told the officer that the defendant would not be back for some time. The officer, believing that the girlfriend lived there, told her that he suspected that the defendant was dealing drugs and asked her if he could look around a little. The girlfriend said, “Sure, why not?” and let the officer in. After seeing nothing in the main living area, he went into the small back bedroom and opened several small storage compartments. In the corner of one of the compartments, he found an opaque bag. On opening it, he observed that it contained what appeared to be marijuana and confiscated the bag. Shortly thereafter, the defendant was arrested and charged with possession of narcotics with intent to distribute, a felony.
On a motion by the defendant’s attorney to suppress the introduction of the marijuana into evidence, how is the court likely to rule?
A For the defendant, because his girlfriend did not live in the trailer.For the defendant, because his girlfriend did not live in the trailer.
B For the defendant, because the search exceeded the scope of the consent.For the defendant, because the search exceeded the scope of the consent.
C Against the defendant, because mobile homes fall within the automobile exception to the warrant requirement.Against the defendant, because mobile homes fall within the automobile exception to the warrant requirement.
D Against the defendant, because the officer reasonably believed that the defendant’s girlfriend lived in the trailer.
D
The court should deny the defendant’s motion because the officer reasonably believed that the defendant’s girlfriend lived in the trailer, making the search valid. Under the exclusionary rule, evidence obtained from an unconstitutional search must be excluded from trial. To be valid, searches must be reasonable. The Supreme Court has held that most searches are unreasonable unless the police obtain a warrant before searching. However, there are six categories of searches that the Court has held to be reasonable without a warrant. One such category is searches conducted pursuant to consent. To fall within this exception to the warrant requirement, consent must be given by one who appears to have an apparent right to use or occupy the premises and the search cannot go beyond the scope of the consent given. The consent is valid as long as the police reasonably believed that the person who gave the consent had the authority to do so, and the scope of the consent is limited only to areas to which a reasonable person under the circumstances would believe it extends. Here, the girlfriend’s consent was valid because the officer believed that she lived there. His belief appears to be reasonable because she answered the door, knew of the defendant’s whereabouts, and readily consented to the search. Therefore, the search was valid under the consent exception and the evidence should not be excluded. (A) is incorrect because consent is not invalid merely because the person who gave it did not actually have authority to do so; the police need only reasonably believe that the person had authority to consent, and as explained above, it was reasonable for the officer to believe that the defendant’s girlfriend had authority here. (B) is incorrect because the scope of consent extends to any area where a reasonable person under the circumstances would assume it extends. Because the officer told the girlfriend that he suspected the defendant of dealing drugs, it was reasonable to assume that he was looking for drugs and so would probably look in even small containers. (C) is incorrect because it appears that the defendant’s trailer would not fall within the automobile exception. Certain searches of automobiles are excluded from the requirement of a warrant because the Supreme Court has held that people have a lesser expectation of privacy in an automobile than in other areas and automobiles are likely to disappear before a warrant can be acquired. The automobile exception extends not only to cars, but also to other vehicles that are readily mobile and as to which there is a lesser expectation of privacy. However, nothing in the facts here indicates that the defendant’s mobile home may readily be moved, and because it appears to be the defendant’s regular home rather than a vehicle, it is doubtful that the Court would find the requisite lesser expectation of privacy. Therefore, the trailer would not fall within the automobile exception to the warrant requirement.
A police officer learned from a reliable informant that a major drug deal was about to take place at a local restaurant. The officer obtained a search warrant for the restaurant and arrived with other uniformed officers to search the premises. While conducting the search, the officer searched several of the customers. While searching one of the restaurant’s regular customers, the officer felt an object in the customer’s pocket and pulled out a container filled with heroin. The customer was arrested and later convicted of possession of heroin. A state statute permits officers executing a search warrant to search persons on the premises if the officers reasonably expect danger to themselves or a risk of disposal or concealment of anything described in the warrant.
If the customer challenges his conviction on the ground that his Fourth Amendment rights were violated, will he be successful?
A Yes, because the statute is vague and overbroad.Yes, because the statute is vague and overbroad.
B Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.
C No, because the search was conducted pursuant to a valid search warrant.No, because the search was conducted pursuant to a valid search warrant.
D No, because the search was authorized by statute.
B
The customer will be successful. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. In Ybarra v. Illinois (1979), a case based on similar facts, the Supreme Court held that “each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present.” (A) is incorrect because the validity of the statute is not the primary issue. Even in the absence of a statute, the search of the customer by the officer violated the customer’s Fourth Amendment rights. (C) is incorrect because, as discussed above, the search warrant did not override the customer’s Fourth Amendment rights. While the police would be able to search a person discovered on the premises for whom they had probable cause to arrest, because the search would be incident to a lawful arrest, here they searched the customer prior to an arrest and without probable cause. (D) is irrelevant; if a search is unconstitutional, it does not matter that it was authorized by statute. To the extent that the statute authorizes a search in violation of the Fourth Amendment, it is unconstitutional.
Acting with probable cause, the police arrested a man in connection with the armed robbery of a liquor store. After being given Miranda warnings, the man confessed to the robbery but denied his involvement with several other recent armed robberies of businesses in the area. He was formally charged with the one robbery and put into a cell with a paid informant working undercover for the police. The informant had been instructed to find out what he could about the other robberies but not to ask any questions. The informant began talking about a convenience store robbery in which a bystander was shot and seriously injured by the robber, and he deliberately misstated how it happened. The man, unaware that his cellmate was an informant, interrupted to correct him, bragging that he knew what really happened because he was there, and proceeded to make incriminating statements about the robbery. The man was subsequently charged with armed robbery and attempted murder in the convenience store robbery.
At a motion-to-suppress hearing on that charge, if the man’s attorney moves to exclude the statements made to the informant, should the motion be granted?
A Yes, because the informant deliberately elicited incriminating statements in violation of the man’s Sixth Amendment right to counsel.Yes, because the informant deliberately elicited incriminating statements in violation of the man’s Sixth Amendment right to counsel.
B Yes, because the informant’s conduct constituted custodial interrogation in violation of the man’s Fifth Amendment privilege against self-incrimination.Yes, because the informant’s conduct constituted custodial interrogation in violation of the man’s Fifth Amendment privilege against self-incrimination.
C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.
D No, because the informant’s conduct did not constitute interrogation.
C
The man’s motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant’s conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is “offense specific,” the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant’s status, the informant’s conduct did not constitute a police interrogation. (A) is wrong despite the fact that the informant’s conduct may have been deliberately designed to elicit incriminating remarks. As discussed above, the man’s right to counsel did not attach for purposes of the convenience store robbery. (B) is incorrect because, as discussed above, the Miranda warnings need not be given before questioning by a cellmate working covertly for the police. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. Hence, it is not the absence of “interrogation” that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police.
A driver was operating her car on a city street when she was stopped by a police officer for speeding. As the police officer reached the driver’s car, he saw her put something into her purse. The officer told the driver, “Ma’am, you were speeding; that’s why I stopped you. I’d like your driver’s license, and, by the way, what did you just put into your purse?” The driver responded, “It’s just a marijuana cigarette, but don’t worry, I’ve only had two and my driving judgment hasn’t been impaired.” The officer took her purse, removed the “joint,” and charged the driver with possession of marijuana as well as speeding. At the driver’s trial for marijuana possession, the prosecution seeks to introduce the marijuana cigarette into evidence. The driver’s attorney moves to suppress the evidence.
Should the defense motion be granted?
A Yes, because the cigarette is fruit of the poisonous tree.Yes, because the cigarette is fruit of the poisonous tree.
B Yes, because the police officer did not have a valid search warrant.Yes, because the police officer did not have a valid search warrant.
C No, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.No, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.
D No, provided the police officer had a reasonable suspicion of criminal activity.
C
The defense motion should be denied because the driver was not in custody when she made the statement. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse. (A) is therefore wrong. (B) is wrong because this case falls within the automobile exception to the warrant requirement. Under that exception, if the police have probable cause to believe that a vehicle contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle, including the driver’s belongings, without a warrant. Here, the driver’s response established probable cause to search her purse. (D) states the test for a stop, not a search. An automobile search requires probable cause.
The defendant was arrested, given Miranda warnings, and charged with burglary. At the police station, he telephoned his mother and asked her to come to the station to post bail. Instead, his mother immediately called the family attorney. In the meantime, the police had begun questioning the defendant. Although he never told the police to stop the questioning, his answers were at first vague or clearly unresponsive. During the course of the questioning, the family attorney phoned the station and told the police that she had been hired to represent the defendant and would be there in half an hour. The police did not inform the defendant of the attorney’s call. Ten minutes later, the defendant admitted to committing the burglary, and signed a statement to that effect prepared by the police. The attorney arrived a few minutes later and advised the defendant to remain silent, but he told her that he had already signed a confession.
How should the court rule on the attorney’s pretrial motion to exclude the confession as evidence at trial?
A Grant the motion, because the police had a duty to inform the defendant that an attorney was coming to represent him.Grant the motion, because the police had a duty to inform the defendant that an attorney was coming to represent him.
B Grant the motion, because the defendant has been deprived of his Sixth Amendment right to counsel.Grant the motion, because the defendant has been deprived of his Sixth Amendment right to counsel.
C Deny the motion, because the defendant’s statement admitting the crime was voluntary.Deny the motion, because the defendant’s statement admitting the crime was voluntary.
D Deny the motion, because the defendant waived his Miranda rights.
D
The defendant’s confession should be admitted because he waived his Fifth Amendment privilege against compelled self-incrimination after receiving Miranda warnings. Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. In this case, the defendant received proper Miranda warnings, and there is no indication that he did not understand what his rights were. Although his answers during questioning were initially unresponsive, he never asked for an attorney or indicated that he wished to remain silent, and he voluntarily confessed after a relatively short period of interrogation. Hence, he validly waived his Miranda rights. (A) is incorrect because the police have no duty to inform the defendant that an attorney is attempting to see him. The defendant’s ignorance of his attorney’s efforts has no bearing on whether he made a knowing waiver of his Miranda rights. (B) is incorrect because the defendant’s right to counsel was not violated. Although the defendant does have a separate Sixth Amendment right to counsel under Escobedo v. Illinois because he has already been arrested and charged with the crime, this right would only be violated if the defendant, after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney. Here, he made no request to see an attorney-even when he called his mother-and his attorney was allowed to see him immediately upon her arrival. Thus, he has waived his Sixth Amendment right to counsel. (C) is incorrect even though it is true that the defendant made a voluntary statement. Due process requires that for confessions to be admissible, they must be “voluntary,” based on the totality of the circumstances, and here all of the circumstances indicate that the defendant’s confession was voluntary. However, even a voluntary confession will be inadmissible if it was obtained in violation of Miranda rights. (D) is therefore a better choice than (C).
A woman was arrested, given Miranda warnings, and questioned about an armed robbery. After she asked to speak with an attorney, the police stopped questioning her about the robbery. Several hours later, the police gave the woman a fresh set of Miranda warnings and began to question her about a different robbery. She did not repeat her request for an attorney and instead made several incriminating statements about the robbery. At the woman’s trial for the robbery for which she made incriminating statements, the prosecution seeks to have her statements introduced into evidence.
If the woman’s attorney objects on appropriate grounds, how should the court rule?
A Overrule the objection, because the police did not badger the woman into confessing.Overrule the objection, because the police did not badger the woman into confessing.
B Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh Miranda warnings.Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh , Miranda, warnings.
C Sustain the objection, because the police did not honor the woman’s request.Sustain the objection, because the police did not honor the woman’s request.
D Sustain the objection, because a confession obtained in violation of a defendant’s Miranda r
C
The court should sustain the objection because the police did not honor the woman’s request for an attorney. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease. (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment-a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.
A man and a woman were arrested and charged with conspiring to blow up a federal government building. After being given Miranda warnings, they were questioned separately and each of them gave a written confession. The confessions interlocked with each other, implicating both of the defendants as being involved in every stage of the conspiracy. Subsequently, the woman attempted to retract her confession, claiming that it was false. At a preliminary hearing, the judge rejected her claim. Both defendants were tried together, and the prosecutor introduced both confessions into evidence. At trial, the woman testified that she was not involved in any conspiracy and that her confession was fabricated. Both defendants were found guilty by the jury.
The woman challenges her conviction on appeal because of the admission of the man’s confession. If the woman succeeds, what is the likely reason?
A The man’s confession was more incriminatory to her than her own confession.The man’s confession was more incriminatory to her than her own confession.
B The jury was not instructed to consider the man’s confession as evidence only of his guilt and not of the woman’s.The jury was not instructed to consider the man’s confession as evidence only of his guilt and not of the woman’s.
C The man refused to testify at trial and therefore was not subject to cross-examination regarding his confession.The man refused to testify at trial and therefore was not subject to cross-examination regarding his confession.
D The man testified at trial and was subject to cross-examination but denied making the confession attributed to him.
C
If the woman prevails in her challenge to the admission of the man’s confession, it will be because the man could not be cross-examined regarding his confession. Under the Sixth Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted. If the man refused to take the stand and subject himself to cross-examination, his confession was not properly admitted because it violated the woman’s Confrontation Clause rights. (A) is incorrect because the fact that the man’s confession incriminates the woman more than her own confession is not relevant. Just the interlocking nature of the man’s confession with the woman’s confession makes it more damaging by making it harder for the woman to claim that her confession was false. (B) is incorrect because the Supreme Court has held that instructing the jury to consider the confession only as going to the guilt of the confessing defendant is inadequate to avoid Confrontation Clause problems, because the risk that the jury will not follow the limiting instructions is too great in this context. (D) is incorrect. Confessions of a co-defendant may be admitted if (i) all portions referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement), (ii) the confessing defendant takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement, or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose. Even if the co-defendant denies ever having made the confession, as stated in choice (D), the opportunity at trial to cross-examine the co-defendant satisfies the Confrontation Clause.
A husband and wife were charged with stealing credit cards and charging expensive items on the misappropriated cards. An attorney was appointed by the court to represent the couple jointly. At the preliminary hearing, the judge found that the attorney would have no conflict representing both defendants in the joint trial. Halfway through the trial, however, a conflict arose between the defenses of the husband and wife. At the wife’s request, the attorney moved that another attorney be appointed to represent the wife and that a mistrial be declared. The trial judge moved favorably on the attorney’s motion.
Another attorney was appointed to represent the wife, and as soon as the wife’s trial began, her attorney moved to dismiss the case on the ground that jeopardy had attached during the wife’s first trial and that she was being retried in violation of the United States Constitution.
Should the judge grant the wife’s attorney’s motion?
A Yes, because jeopardy attached when the jury began to hear evidence in the first trial.Yes, because jeopardy attached when the jury began to hear evidence in the first trial.
B Yes, because the judge incorrectly ruled that there would be no conflict of interest from the joint representation.Yes, because the judge incorrectly ruled that there would be no conflict of interest from the joint representation.
C No, because the wife requested the mistrial.No, because the wife requested the mistrial.
D No, because it is premature to move for a dismissal based on double jeopardy until the defendant is convicted.
B
Although jeopardy attached in the wife’s first trial, her retrial is not barred because she initiated the grant of the mistrial in her first trial. As a general rule, the right to be free of double jeopardy for the same offense bars a retrial for the same offense once jeopardy has attached in the first trial. However, one of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits. Here, the wife requested the mistrial because a conflict arose between the defenses of her and her co-defendant in the joint trial, and the judge granted the mistrial solely to allow the wife to obtain another attorney. Thus, no acquittal on the merits occurred and the double jeopardy rule does not apply. (A) is incorrect for several reasons. Merely because jeopardy attaches does not mean that the double jeopardy rule will apply; retrial will be permitted under certain exceptions, one of which is applicable here. Furthermore, (A) is not a correct statement of law. Jeopardy attaches in a jury trial when the jury is impaneled and sworn in, even if it has not yet heard any evidence. (B) is incorrect because the judge’s finding at the preliminary hearing stage appears to be an honest error rather than bad faith conduct. In the absence of bad faith conduct by the judge or prosecutor designed to force the defendant to seek a mistrial, the defendant’s securing of a mistrial does not preclude a retrial. (D) is incorrect because the right to be free of double jeopardy creates a bar as soon as the defendant is retried for the same offense, rather than on her conviction.
A grand jury was investigating a bank robbery. The only information known to the prosecutor was a rumor that a certain ex-convict might have been involved. The grand jury subpoenaed the ex-convict. He refused to answer questions about the robbery and was granted use and derivative use immunity. He then testified that he and a friend had robbed the bank. The grand jury indicted both the ex-convict and his friend for the bank robbery. The prosecutor permitted the friend to enter a plea to a lesser offense in exchange for the friend’s agreement to testify against the ex-convict. The prosecutor had no evidence as to the identity of the robbers except the testimony of the friend and the ex-convict.
At the ex-convict’s trial, should his objection to his friend’s being permitted to testify be sustained?
A Yes, because the prosecutor may not bargain away the rights of one co-defendant in a deal with another.Yes, because the prosecutor may not bargain away the rights of one co-defendant in a deal with another.
B Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.
C No, because the police suspected the ex-convict even before he testified in the grand jury hearing.No, because the police suspected the ex-convict even before he testified in the grand jury hearing.
D No, because a witness cannot be precluded from testifying if his testimony is given voluntarily.
A grand jury was investigating a bank robbery. The only information known to the prosecutor was a rumor that a certain ex-convict might have been involved. The grand jury subpoenaed the ex-convict. He refused to answer questions about the robbery and was granted use and derivative use immunity. He then testified that he and a friend had robbed the bank. The grand jury indicted both the ex-convict and his friend for the bank robbery. The prosecutor permitted the friend to enter a plea to a lesser offense in exchange for the friend’s agreement to testify against the ex-convict. The prosecutor had no evidence as to the identity of the robbers except the testimony of the friend and the ex-convict.
At the ex-convict’s trial, should his objection to his friend’s being permitted to testify be sustained?
A Yes, because the prosecutor may not bargain away the rights of one co-defendant in a deal with another.Yes, because the prosecutor may not bargain away the rights of one co-defendant in a deal with another.
B Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.
C No, because the police suspected the ex-convict even before he testified in the grand jury hearing.No, because the police suspected the ex-convict even before he testified in the grand jury hearing.
D No, because a witness cannot be precluded from testifying if his testimony is given voluntarily.
