Criminal Procedure (Contains Crim Law and Crim Pro MC Qs)

Question 1

How do you broadly analyze of a 4th Am. question (what steps)?

Answer 1

1. Is this search/seizure governed by 4th Am?
2. If there is a warrant, were the warrant requirements satisfied?
3. If the search was without a warrant, does an exception apply?
4. Even if there was no warrant, the warrant was invalid, and/or there was no exception, can the search still be lawful?

Question 2

What does the Fourth Am. say?

Answer 2

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Question 3

When does the 4th Am apply?

Answer 3

1. Gov’t action
2. Search or seizure in an area protected by 4th Am.
3. Jones (physical intrusion on protected area) or Katz (violate REP in a protected area or item) violated.
4. Standing

Question 4

Who qualifies as the gov’t for 4th Am?

Answer 4

A gov’t agent including:

1. Publicly paid police
2. Private citizens if they are acting at direction of the police.
3. Private security guards who are deputized with the power to make arrests (e.g. campus security).
4. Public school administrators (e.g. principal)

Question 5

What parts of your house are protected?

Answer 5

The house itself and the curtilage (area immediately adjacent to the home to which the activity of the home life extends such as porches and fenced in backyards.

Question 6

What is decidedly not protected by the 4th Am?

Answer 6

1. Physical characteristics (voice and handwriting)
2. Odors emanating from home or property
3. Garbage you put on the street
4. Open Fields Doctrine
5. Financial records held by a bank
6. Things seen by those flying in public airspace
7. Pen registers.

Question 7

What is the Jones test for a search; what is the Katz test for a search?

Answer 7

Jones = Agent physically invaded a constitutionally protected area in order to obtain information.

Katz = The agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy. Must be an actual or subjective expectation of privacy that the public objectively recognizes as reasonable.

Question 8

Can police use technology to look at your shit?

Answer 8

Using a device that is not in public use to explore details of a home that officers would not otherwise know about unless they physically intruded is presumptively unreasonable.

In other words, you cannot use technology to get at the intimate details of someone’s home without a warrant.

Question 9

When does a D have standing to mount a 4th Am challenge?

Answer 9

1. He owns, resides, or is an overnight guest of the premises. (Overnight guests only have standing to areas that he could be expected to access in that capacity.)
2. No standing if only using someone else’s residence for business purposes.
3. Standing over property if you own the property and you have REP in the area fro which the property was seized (not your GF’s purse or a vehicle in which you are merely a passenger).

In MA, there is automatic standing to challenge a S&S where possession of seized evidence is an essential element of the crime and the evidence was take from any home or any automobile.

Question 10

What is needed for a valid warrant?

Answer 10

1. PC
2. N&D magistrate
3. Describe with particularity the places to be searched and the persons or things to be seized.
4. Proper execution of the warrant by the gov’t.

Question 11

What is PC?

Answer 11

Fair probability that contraband or evidence of a crime will be found in the area to be searched. Hearsay is admissible, as well as, use of informant tips.

In MA, PC requires evidence that establishes a substantial basis that criminal evidence may be reasonably expected to be located in the place to be searched at the time the search warrant issues.

Question 12

When are informant tips ok for PC?

Answer 12

Generally, informant tips, even anonymous ones, are ok if there is police corroboration of the tipster’s info in order to allow the magistrate to make a common sense practical determination that there is PC based on the the totality of circumstances.

In MA, use Aguilar-Spinelli, which is that the informant’s
(a) Basis of knowledge; and
(b) Reliability
are established by those seeking the warrant.
Independent police corroboration may make up for deficiencies in one or both prongs.

Question 13

What is a general warrant?

Answer 13

One that does not describe with particularity the places to be searched AND the persons or things to be seized.

General warrants are a NO GO.

Question 14

When will good faith not overcome a warrant’s deficiencies?

Answer 14

1. So egregiously lacking in PC, that no officer would reasonably rely on it.
2. So facially deficient of particularity that no officer would reasonably rely on it.
3. It contains known or reckless falsehoods that are necessary to the pc finding, that is, if the warrant is still valid without the falsehoods, then the warrant is good.
4. Magistrate who issued it is bias in favor of the state.

MA does not follow the federal good faith doctrine. In MA, evidence found with a defective warrant is only excluded if there was a substantial and prejudicial constitutional violation.
All PC defects are substantial and prejudicial, but not all particularity issues are substantial and prejudicial.

Question 15

What are the two steps in analyzing whether a warrant was properly executed by police?

Answer 15

1. Scope exceeded?
   (a) Can only search areas and items authorized by the language of the warrant.
   (b) e.g. things large enough to contain the thing you are looking for in the place you are allowed to look for it.
   (c) You may detain those in a home or those immediately outside while you execute the warrant.
   (d) In MA, officers must have a copy of the warrant in hand.
2. Knock and announce rule violated?
   (a) Must announce presence and purpose before entering unless:
   (b) Doing so would be futile, dangerous, or inhibit the investigation.

Question 16

What are the warrant exceptions?

Answer 16

ESCAPPIST

Exigent circumstances
SILA
Consent
Automobile exception
Plain View
Protective Sweep (they include this in Terry.  I think it's easier here.)
Inventory
Special needs
Terry

Question 17

What are the three sub-parts of Exigent Circumstances?

Answer 17

1. Evanescent Evidence - evidence that might disappear or disipate if you are forced to wait. (Stuff under fingernails, yes; BAC, no.)
2. Hot Pursuit - Can pursue a fleeing felon into a home and seize what’s in plain view while searching for suspect.
3. Emergency Aid - Objectively reasonable belief that someone in the house needs emergency aid to address or prevent injury. MA extends to animals.

Question 18

What is SILA?

Answer 18

Requires:

1. A lawful arrest.
2. A search contemporaneous with the arrest.
3. The scope of the search goes no farther than D’s person and what is in his immediate reach, including containers (wingspan).

Question 19

Can gov’t search my cell without a warrant pursuant to my lawful arrest?

Answer 19

Can search its physical characteristics to determine that it is not a weapon.

May not access digital data without a warrant.

Question 20

May police swab my cheek or take DNA without a warrant?

Answer 20

Cheek swab is ok if arrested for a serious offense.

Blood requires a warrant since it is a more serious bodily intrusion.

Question 21

May the police search my car incident to my lawful arrest?

Answer 21

If I am arrested, but not yet secured, then police may search the cabin of my vehicle including any containers (but not trunk).

If I am arrested and secured, then police may not search my vehicle unless there is reason to believe the vehicle contains evidence of the crime of my arrest, in which case, the police are limited by the scope discussed above.

Question 22

What is the consent warrant exception?

Answer 22

People can waive the warrant requirement if consent is:
1) Voluntary; and
2) Intelligent.
Need not inform person of their right to refuse.
Scope extends to all areas a reasonable officer would believe the consent extends to.
The consenter need only have apparent authority (officer reasonably believed the consenter had authority).

If shared premises:

1) Any adult resident can consent to a search of common areas within it.
2) However, if co-tenants disagree, the objection prevails as to common areas.
3) If the objecting co-tenant is removed for reasons unrelated to his refusal (e.g. lawful arrest), the police ma rely on the consent of the remaining co-tenant.

Question 23

What is the automobile exception to the warrant requirement?

Answer 23

Gov’t can search entire automobile including trunk and any container therein that might contain what they are looking for if there is probable cause that they will find contraband or evidence of a crime.

A routine traffic stop often begins for simply the traffic infraction, but PC for a search can arise during the stop.

Question 24

Are mobile homes covered by the automobile exception?

Answer 24

Yes in Fed Ct.

No in MA Ct.

Question 25

What is the plain view exception to the warrant requirement? Commonly tested.

Answer 25

Gov’t must have:

1) The right to be where they are
2) Right of access to the contraband
3) Immediately recognize the criminality of the contraband.

Question 26

What is an inventory search?

Answer 26

Arise in two scenarios on the bar:
1) Arrestees when booked into jail.
2) Vehicles when they are impounded.
Must comply in good faith with regulations that are reasonable in scope. That is, the motive is to safeguard items not search for contraband.

In MA, if the regs governing the inventory search do not expressly authorize opening containers, gov’t official may not do so.

Question 27

What is a Terry Stop?

Answer 27

Stop:
1) Brief detention to investigate suspicious conduct.
2) “Seized” when would not feel free to leave or free to decline the offer to answer questions. Consider:
(i) Officer used weapon?
(ii) Officer’s tone?
(iii) Told of right to refuse consent?
In Fed Court an individual is not seized while he is running from the cops until he submits.
In MA, police pursuit = seizure.

In a traffic stop, both the driver and the passenger are seized and either has standing to challenge the legality of the stop.

In Federal Court, the police, at their discretion, may order both the driver and the passengers out of the car.

In MA, to justify ordering occupants out of the vehicle, an officer must identify concerns such as officer safety or suspicion of criminality.

Dog sniffs are permitted at traffic stops if it does not extend the stop. (Note - can’t bring a dog up to the curtilage of someone’s home and let it sniff though.)

In MA, during a routine traffic stop, police inquiry must end when the driver produces a valid license or registration.

Question 28

What is a Terry frisk?

Answer 28

A patdown for weapons during a Terry stop because the officer has reasonable suspicion to fear that the suspect is armed and dangerous.

Something felt during the patdown can be seized if the officer reasonably believes it is a weapon or immediately recognizes the criminal nature of the object without manipulating it.

Question 29

What is a car frisk?

Answer 29

Under Terry, during a routine traffic stop, if an officer believes that the occupants are armed and dangerous, he may search the passenger cabin in places where a weapon may be stashed.

Question 30

What is a protective sweep?

Answer 30

When making an in-home arrest, police may sweep the residence to look for criminal confederates of arrestee whose presence may threaten officer safety. Let you look in closets, rooms, etc. but not small boxes and other places where a person could not hide.

Barbri put this with Terry, but I think this is misleading, because you do not need reasonable suspicion to look in areas adjoining the place of arrest from which an attack could be launched. However, to search more remote areas, officers must have reasonable suspicion.

Question 31

What is the standard across Terry?

Answer 31

Reasonable Suspicion which requires specific and articulable facts that inform an officer’s belief that criminal activity is present (for the stop) or the suspect is armed and dangerous (for the frisk). Officer is ultimately judged on an objective standard though, so his subjective intent is irrelevant.

Informant’s tips can do this if:
Fed = Tips contain sufficient predictive info, corroborted by police to show reliability.
MA = (A-S test) Informant’s basis of knowledge and reliability are assessed in conjunction with independent police corroboration, to determine if the standard has been met.

Question 32

Seth Rogen travels to MA to hang out with Sully and Moricas. They are high as kites riding in the car with Blais and Jen. Cop pull them over in Seekonk. Cop immediately smells marijuana. Does he have PC to search the car?

Answer 32

No, since MA decriminalized possession of small amounts of marijuana, just smelling it is not enough to give the cop PC for a search.

Question 33

What is the special needs exception?

Answer 33

The special needs of certain arms of the gov’t allows warrantless searches:
(a) Drug Testing of R/R employees, customs agents, and public school children engaged in after school activities.
Note - In MA, the state prohibits random urine tests for illegal drugs by state and local gov’t officials in the absence of consent or reasonable suspicion unless the state can show a substantial gov’t interest.
(b) Parolees - warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole.
(c) School searches - Warrantless searches of a person and the affects of public schoolchildren are permissible to investigate violations of school rules provided the search is reasonable at its inception and is not excessively intrusive given the age and sex of the suspect and the nature of the infraction.
(d) Border searches - No 4th Am. rights at the border for citizens or non-citizens with respect to routine searches of persons and affects.
(e) Non-Law Enforcement reason is primary purpose (e.g. DUI checkpoints, but not drug search checkpoints). Primary purpose cannot be to gather evidence.

Question 34

Global view of searches follows what steps?

Answer 34

1. Valid and properly executed warrants mean it was a good search.
2. In Fed, defective warrant is ok if properly executed and good faith doctrine applies.
3. In MA, defective warrant is ok if properly executed and the defect is not substantial and prejudicial.
4. Warrantless searches are ok if a warrant exception applies.

Question 35

If a search is deemed unconstitutional, what happens to the evidence?

Answer 35

The exclusionary rule applies and the evidence is inadmissible in the prosecution’s case in chief. It may be used to impeach on cross.

If the only violation is a knock and announce violation, then the subsequently found evidence is not excluded. D’s sole recourse is a civil rights suit.

Police error triggers the exclusionary rule if the conduct was deliberate, reckless, or grossly negligent. It does not apply to officer’s reasonable mistakes.

Question 36

What is Fruit of the Poisonous Tree (FOPT)?

Answer 36

It is derivative evidence obtained directly or indirectly as a result of a constitutional violation. FOPT can be admissible and not subject to the exclusionary rule if one of these three doctrines applies:

1) Independent source - didn’t need unconst. evidence to get the evidence in question. Was able to get the evidence in question from another source distinct from the illegality.
2) Inevitable Discovery - we were closing in on the evidence in question anyway; it was only a matter of time. It would have necessarily been discovered by lawful means.
3) Attenuation of the taint - we may have fucked up, but our fuck up is far enough removed from us getting the evidence that the “taint is purged” (look for passage of time and intervening events to purge illegality and restore D’s free will.)

Question 37

What special requirements are required for wiretapping?

Answer 37

1) Name suspected persons
2) Strict time period
3) PC that specific crime has been committed
4) Describe w/ particularity which convos can be heard

MA mirrors feds but expires in 30 days.

Note:
In Fed - you assume the risk when you speak with someone whether they are wearing a wire or not.
In MA - unlawful to willfully engage in electronic surveillance of a convo in a private home with consent of only one party.

Question 38

When does arrest occur?

Answer 38

Take someone against their will for prosecution or interrogation.

Taking to station for questioning or fingerprinting is a de facto arrest.

PC required for arrests.

All offenses, including those only punishable by a fine, permit custodial arrests.

Question 39

When do you need an arrest warrant?

Answer 39

To arrest someone in his or her home or in someone else’s home. If in someone else’s home, you also need a search warrant.

No warrant needed if suspect is in a public place.

Question 40

How may D challenge a confession?

Answer 40

1) Due process clause of 14th Am. = requires showing of involuntariness, that is, confession was a product of police coercion that overbears suspect’s will.
In MA, determined by a judge, if involuntary, it’s excluded. If voluntary, then jury can make its own determination (“human practice” rule).

2) Right to Counsel in 6th Am. - an express const. guarantee that once D is formally charged, the right to counsel attaches at all critical stages. However, it is offense specific so it attaches only the crimes for which D has been formally charged. It is a violation if after the right attaches, gov’t deliberately elicits statements and D did not knowingly, intelligently, and voluntarily waive.

3) Miranda Doctrine in 5th Am. - an implied right which attaches during custodial interrogations. Police must inform suspect of his right to remain silent (anything you say can and will be used against you in a court of law) and the right to an attorney (if he cannot afford an attorney, one will be appointed).
Custody = reasonable person wouldn’t think he could end and leave, and the environment presents the same coercive pressures as a station house questioning. Juveniles age and officer’s objective knowledge of age is relevant.
Interrogation = officer knew or should have known his conduct was likely to elicit an incriminating response.
Miranda does not apply to spontaneous outbursts of suspects.
Police must reasonably convey these rights and obtain an express or implied waiver.

Question 41

What is the public safety inspection?

Answer 41

An immediate concern for public safety allow police to question a suspect without Miranda warnings about those matters that concern public safety.

Think Dzhokhar Tsarnaev. He woke up in hosptial and police asked about other accomplices, other bombs, etc.

Question 42

How does a suspect waive his Miranda rights? How does he invoke them?

Answer 42

Waive: Knowingly and intelligently, understanding the nature of the rights and consequences of waiving. Must also be voluntary (no coercion).
In MA, if attorney has offered his assistance, the cops must tell the suspect of the offer for the waiver to be valid.
In either Fed or MA, waiver may be:
1. Express, orally or in writing.
2. Implied, by speaking.
Pros. bears burden of proof of waiver by preponderance.

Invoke right to silence:

1) Must be unambiguous in Fed (Not in MA).
2) Once invoked, police must scrupulously honor the invocation. Cannot badger; must wait a significant time before re-initiating and when re-initiating, must re-mirandize.

Invoke right to counsel:

1) Must be sufficiently clear.
2) Once invoked, police must immediately cease talking to the suspect. Can only talk if suspect initiates convo.
3) Not offense specific.
4) Must give suspect 14 days to seek counsel before re-initiating.

Question 43

What is the result if police obtain evidence in violation of Miranda?

Answer 43

Inadmissible to pros.’s case-in-chief, but may be used to impeach on cross.

Failure to give Miranda rights does not require suppression of physical fruits of incriminating statements, if the statements are voluntary. MA rejects this rule.

If cops make a Miranda mistake, but then correct it, the cops have a second bite at the apple as long as the first statement was not inherently coercive.
In MA, this second bite at the apple is presumptively tainted but can be overcome by showing a break in the stream of events or that the illegally obtained statement did not incriminate D.

Question 44

What if improper Miranda evidence that should have been excluded is admitted at trial?

Answer 44

If gov’t can show that the error was harmless beyond a reasonable doubt then conviction stands.

This rule also applies to physical evidence improperly admitted.

Question 45

What are the three types of pre-trial ID?

Answer 45

Line Ups - see almost every episode of law and order
Show Ups - one on one ID with witness and suspect
Photo Arrays - see every other episode of law and order

No 5th Am. Miranda Rights under any of the above.
6th Am. attaches to line ups and show ups that take place after formal charging, but not photo arrays. (BAR FAVORITE, know that shit!).

Question 46

When does a pre-trial ID violate DP? What is the remedy?

Answer 46

If it is so unnecessarily suggestive that it creates a substantial likelihood of mis-ID. Courts weigh the reliability against its corrupting effect.

In MA, an unnecessarily suggestive ID procedure is automatically excluded at trial.

The remedy is normally to exclude the witness’ in court ID.

In court ID is a powerful tool for the prosecution. If the witness’ recognition was planted by police, then courts want to keep it out of the court room. However, if everything we know about the witness’ ID before the coercion is reliable (good view, good specificity, and certain) then the court will still allow it to come in.

In MA, if pre-trial ID is excluded under DP, subsequent IDs are also excluded unless gov’t can show subsequent ID was untainted by prior ID.

Question 47

What do I need to know about grand juries for the bar exam?

Answer 47

1. They issue indictments.
2. They are not public; they are secret.
3. States do not have to use grand juries as part of the charging process. MA does for felonies.

Question 48

When is D’s first appearance? What happens there?

Answer 48

Soon after arrest, D is brought before a magistrate who advises him of his rights, appoints counsel, and sets bail (enough to ensure he appears in court, but may be denied if he is a danger to the community). Need PC to bind over til trial or impose bail. To hold over for trial requires a Gerstein hearing to ensure PC unless grand jury issued the indictment or there was an arrest warrant.

In MA, the first 6 hours are a “safe harbor” period during which police may question an arrestee. After that, statements are inadmissible unless he has been arraigned or waived his arraignment.

In MA, in a warrantless arrest, judicial determination of PC must be made within 24 hours absent extraordinary circumstances.

Question 49

What are D’s trial rights?

Answer 49

1) Speedy trial - determined by Tot. of Circ.
(a) length of delay
(b) reason
(c) prejudice to D

2) Evidentiary disclosure - Pros. must disclose all material exculpatory evidence. (Brady Rule)
3) Right to an impartial judge (no financial stake and no actual malice).
4) Fair and impartial jury if max auth. sentence is +6 months. Need at least 6 jurors. Unanimous if 6, not need to be unanimous in 12 person juries. MA always requires unanimous verdicts. Jury pool must represent a fair cross-section of the community. Peremptory challenges cannot demonstrate race or gender bias (Batson).

5) Ineffective assistance of counsel requires objectively judged errors so serious that counsel was not functioning as such and that the outcome would have been different but for counsel.
In MA, standard = performance falls measurably below that of an ordinary attorney and that deprived D of a ground of defense or otherwise materially affected the outcome.

Question 50

When are guilty please valid? When may they be withdrawn?

Answer 50

Valid if voluntary and intelligent. Judge must conduct a colloquy in open court on the record to go over the nature of the charges and the consequences of the plea.

Can be withdrawn only if plea was involuntary (defect in colloquy)
OR
Ineffective assistance of counsel (like failure to inform of a deportation risk and rejecting the deal would have been rational under the circumstances).
OR
Pros. fails to fulfill his end of the bargain.

Question 51

How do you challenge the sentence under the 8th Am.?

Answer 51

1) Criminal penalty is grossly disproportionate to the seriousness of the offense charged (you’re not going to win on it.)

2) To impose death, jurors must be allowed to consider all mitigating evidence.
Death penalty expressly prohibited as to mentally retarded, presently insane Ds, kids under 18 when committed the crime, or child rape when child didn’t die.

3) Any fact enhancing the max or decreasing the min must be found by the jury. However, whether sentences run consecutively or concurrently is decided by the judge.

Question 52

What do I need to know about Double Jeopardy for the bar?

Answer 52

1) Attaches when jury is sworn, when the first witness is called in a bench trial, or when the court accepts D’s plea in a guilty plea case.
2) DJ does not attach from preceeding civil proceedings.
3) Offenses are not the same if each has a different element from the other. Pros for lesser included/greater offenses precludes later pros. for the other lesser/greater offenses.
4) States and Fed, and different states are different sovereigns (e.g. you may be tried federally and locally for the same thing). However, states and municipalities are the same sovereign so you may not be tried in a local court, and a state court for the same crime.

5) 4 Exceptions:
1) Hung Jury
2) Mistrial for manifest necessity
3) Successful appeal unless appeal was for insufficient evidence
4) Breach of the plea agreement by D.

Question 53

Who can you plead the fifth and when?

Answer 53

Anyone can, but it must be asserted at the first proceeding at which an individual testifies under oath (civil, criminal, congressional, administrative, etc.) Failure to do so may undermine your ability to assert it later.

Asserting this testimonial privilege prevents pros. from using your lack of testimony as evidence of guilt. That is pros. can’t use your pleading the fifth, your choice to remain silent, or your decision to invoke your right to counsel as evidence of guilt. However, pros. can comment negatively on non-custodial choice to remain silent when suspect had not invoked his Miranda rights.

This does not apply to the contents of docs produced by a subpoena.

Question 54

How may pros. get around the 5th Am. privilege?

Answer 54

1. Grant immunity
   (a) Fed uses use and derivative use - so pros. can’t use that evidence in a later pros. of the witness, but can use evidence obtained prior to granting immunity.
   (b) MA uses transactional immunity which means you can’t pros. the witness for the offense to which he is testifying.
2. By taking the stand, D waives his privilege to take the fifth on cross.
3. Privilege unavailable if SoL has run because you can’t be prosecuted anyway.

Question 55

Which of the following statements is correct regarding the ability of police officers to stop automobiles for investigatory purposes?

A The police may stop an automobile for investigatory purposes without cause because automobiles are not areas protected by the Fourth Amendment.
B The police may not stop an automobile for investigatory purposes unless they have probable cause to believe that the driver has broken a law.
C The police may not stop an automobile for investigatory purposes unless they have reasonable suspicion that the driver has broken a law.
D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.

Answer 55

D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.

Generally, to make an investigatory stop of an automobile, the police must have at least reasonable suspicion that the driver or an occupant violated or was about to violate some law (i.e., the normal Terry standard). However, the Supreme Court has recognized that the mobility of automobiles can cause special problems, and allow the police to set up roadblocks to stop automobiles even without individualized suspicion to investigate these problems. A good example would be a roadblock that stops every car to determine whether the drivers are intoxicated.

Question 56

Under the plain view exception to the warrant requirement, which of the following is NOT required?

A The police must be legitimately on the premises where the item is found.
B The item must be evidence, contraband, or a fruit or instrumentality of a crime.
C The police must have inadvertently discovered the item.
D It must be immediately apparent that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Answer 56

C The police must have inadvertently discovered the item.

Formerly, this exception to the warrant requirement applied only if the item was inadvertently discovered. Inadvertence, however, is no longer a requirement. To make a warrantless seizure, the police (i) must be legitimately on the premises where the item is found; (ii) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (iii) the item must be in plain view; and (iv) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Question 57

Felony murder generally requires that:

A The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony
B The killing be committed during the course of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony.
C The killing be committed during the course of the felony, the death must have been a foreseeable result of the felony, and the defendant must have been convicted of the underlying felony
D The death must have been a foreseeable result of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony

Answer 57

A The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony.

To convict a defendant of felony murder, the prosecution must prove, beyond a reasonable doubt, that the defendant committed a felony (i.e., he is factually guilty of the felony). However, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired. The killing must take place while the felony is being committed. When the defendant reaches “a place of temporary safety,” the felony is deemed terminated. The felony must be independent of the killing (e.g., the felony of manslaughter cannot be the underlying felony for felony murder). Finally, most states require that the death must be a foreseeable result of the commission of the felony.

Question 58

In criminal cases, certain rights may be waived. Which of the following statements is correct regarding waiver of the right to counsel under the Fifth and Sixth Amendments?

A Neither the Fifth nor Sixth Amendment right to counsel can be waived, because the rights provided by each are fundamental to a fair trial.
B The Fifth Amendment right to counsel may be waived by a knowing and voluntary waiver, but the Sixth Amendment right cannot be waived.
C The Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver.
D The Sixth Amendment right to counsel may be waived by a knowing and voluntary waiver, but the Fifth Amendment right cannot be waived.

Answer 58

C The Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver.

Question 59

Traditionally, which of the following is a defense to solicitation?

A The solicitation could not have been successful due to actual circumstances.
B There was no overt act committed in furtherance of the solicitation.
C The solicitor is exempt from liability for the completed crime.
D The solicitor withdrew the solicitation.

Answer 59

C The solicitor is exempt from liability for the completed crime.

Question 60

With regard to the crime of robbery, which of the following statements is true?

A The force or threats of force may be used to retain possession immediately after such possession has been accomplished.
B If intimidation is used, a threat to destroy the victim’s dwelling house is insufficient.
C If threats of immediate death or serious physical injury are used, they must be threats only to the robbery victim.
D The property must be taken from the victim’s person.

Answer 60

A The force or threats of force may be used to retain possession immediately after such possession has been accomplished.

The force or threats must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished. If force is used, it must be sufficient to overcome the victim’s resistance. If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time. The property must be taken from the victim’s person or presence. “Presence” means some location reasonably close to the victim, but it need not be taken from the victim’s person. Property in other rooms of the house in which the victim is located is in her “presence.” A threat to do damage to property will not suffice—with the exception of a threat to destroy the victim’s dwelling house.

Question 61

In which of the following situations is there sufficient intent to constitute larceny?

A Taking goods with the belief that the taker is entitled to them as repayment for a debt of the owner.
B Taking goods that are not for sale with the intent to pay the owner.
C Taking goods with the intent to return them and receive a reward.
D Taking goods with the intent to return them within a reasonable time.

Answer 61

B Taking goods that are not for sale with the intent to pay the owner.

Question 62

The privilege against self-incrimination is waived:

A by a witness once she takes the stand, but a defendant must affirmatively waive the privilege
B by a defendant or witness once she takes the stand
C by a witness once she discloses incriminating information, but she cannot be compelled to reveal anything further
D by a defendant when she takes the stand, but only to the extent that she is subject to cross-examination

Answer 62

D by a defendant when she takes the stand, but only to the extent that she is subject to cross-examination

Question 63

A witness subpoenaed to testify before a grand jury has no right to:

A Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant
B Warnings that she is a potential defendant, but she must be provided counsel in the courtroom and Miranda warnings
C Counsel in the courtroom or Miranda warnings, but she must be warned if she is a potential defendant
D Counsel in the courtroom, but she must be provided Miranda warnings and warned if she is a potential defendant

Answer 63

A Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant.

A witness subpoenaed to testify before a grand jury has no right to receive Miranda warnings. A grand jury witness also has no right to have an attorney present, but she may consult with an attorney outside the grand jury room. A witness who is under investigation and may well become a defendant has no right to a warning that she is a “potential defendant” when called to testify before the grand jury.

Question 64

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 challenged 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.
B 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.
D The man testified at trial and was subject to cross-examination but denied making the confession attributed to him.

Answer 64

C The man refused to testify at trial and therefore was not subject to cross-examination regarding his confession.

Confrontation Clause.

Question 65

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.
B 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.
D No, because it is premature to move for a dismissal based on double jeopardy until the defendant is convicted.

Answer 65

C No, because the wife requested the mistrial.

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.

Question 66

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 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.
B 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.
D No, because a witness cannot be precluded from testifying if his testimony is given voluntarily.

Answer 66

B Yes, because the friend’s testimony was acquired as a result of the ex-convict’s grand jury testimony.

Testimony obtained by a promise of immunity is by definition coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of the defendant’s testimony at trial. The friend’s testimony will not be permitted to be used against the ex-convict because it resulted from the ex-convict’s immunized testimony. (A) is wrong because it is an inaccurate statement of the law. Prosecutors can bargain away the rights of co-defendants. (C) is wrong because police suspicion is not the equivalent of actual testimony. (D) is wrong. Even though a witness wants to testify, various privileges such as lawyer-client, doctor-patient, etc., may bar the testimony. Here, the grant of immunity to the ex-convict is a bar to the friend’s derived testimony because use immunity bars use of one’s testimony or anything derived from it.

Question 67

A former construction worker became intoxicated one night and decided to move some heavy construction equipment that was parked at a construction site. Ignoring “no trespassing” signs, the worker jumped the fence and climbed into a large dump truck and started it up. However, even though he knew how to operate the truck, he quickly lost control of it due to his intoxication. It rumbled a short distance and crashed into a trailer housing the main office of the construction site. The worker is prosecuted for recklessly damaging property. A separate statute in the jurisdiction prohibited the unauthorized operation of construction equipment.

Should the worker be found guilty of recklessly damaging property?

A
Yes, because his actions constituted an unlawful operation of the construction equipment.
B Yes, because he was intoxicated while attempting to move the construction equipment.
C No, because at most he could be found guilty of criminal negligence.
D No, because he must have been aware that his conduct would cause the damage to the trailer in order to be found guilty of reckless damage.

Answer 67

B Yes, because he was intoxicated while attempting to move the construction equipment.

The worker should be convicted because he was intoxicated when he damaged the trailer. The worker is being charged with reckless damage to property. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of reasonable care. Attempting to move a large piece of construction equipment while intoxicated should be considered reckless conduct because of the great potential for destruction arising from the size and destructive power of the construction equipment. Therefore, (B) is correct. (A) is incorrect because merely operating the equipment in violation of the law would not necessarily be reckless.

Question 68

The defendant was at a bar with a couple of friends when he spotted a man who had gotten the defendant’s friend fired from a job several weeks ago. Since that time, the defendant had been verbally harassing the man and calling him names. This particular night, the defendant went over to the man’s table and flirted with his girlfriend. The man was infuriated after having taken the defendant’s abuse for so long, so he jumped up and attacked the defendant with a knife. The defendant could have easily run away, but instead grabbed the man and slammed him backwards. The man went crashing through the front window and was severely cut by the broken glass. He died before he could be taken to the hospital.

The defendant will most likely be guilty of what crime?

A Voluntary manslaughter.
B Involuntary manslaughter.
C Murder
D None of the above.

Answer 68

D None of the above.

The defendant would most likely be guilty of none of the listed crimes because the defense of self-defense makes his homicide excusable. A person may use deadly force in self-defense if (i) he is without fault, (ii) he is confronted with unlawful force, and (iii) he reasonably believes that he is threatened with imminent death or great bodily harm. In a majority of states, a person may use deadly force in self-defense even if this could be avoided by retreating.

Question 69

A bartender diligently followed the procedure her employer set: She would ask every patron for identification regardless of how old (or young) the patron appeared to be. One day, after asking for identification, the bartender served alcohol to a minor. The identification that the minor gave to the bartender was actually issued by mistake by an appropriate state agency and appeared to show that the minor was of legal age. After another patron, an off-duty police officer, recognized the minor, the bartender was arrested for serving alcohol to a minor. In this jurisdiction, the highest state court has held that, under state law, strict liability is abolished and all crimes require a culpable mental state.

What would be the best reason for finding the bartender not guilty?

A She did not know that the minor was underage, and she relied on the identification card for proof of age.
B She did not know that the minor was underage, and therefore never intended to serve alcohol to a minor.
C She made a diligent effort to determine the minor’s age.
D She checked the minor’s state-issued identification card, which showed that the minor was of age.

Answer 69

A She did not know that the minor was underage, and she relied on the identification card for proof of age.

An honest and reasonable mistake as to a material element of the offense would negate criminal liability for all crimes except strict liability offenses. Thus, if the state had abolished strict liability crimes, the bartender’s mistake would be a defense regardless of the mental state required for the crime of serving alcohol to a minor. (B) is not as good an answer as (A). The bartender’s lack of intent to commit the crime of serving alcohol to a minor would negate criminal liability if the crime required a specific intent, thus requiring an actual intention to engage in the act of serving alcohol to a minor. The question does not indicate the mental state required for the crime of serving alcohol to a minor. Even though the state had abolished strict liability offenses, the state could punish the crime of serving alcohol to a minor with a “reckless” or “should have known” state of mind. If so, the bartender’s lack of intent would not result in a not guilty verdict. (C) is not as good an answer as (A) because the fact that the bartender made a diligent effort to determine the age of the minor would be an important consideration in deciding whether she made an honest and reasonable mistake, but it would not in and of itself automatically negate liability. A similar analysis applies to (D). The fact that the bartender checked the identification card supplied by a state agency would be an important consideration in deciding the nature of her mistake, but it would not by itself negate liability, as the mistake must be both honest and reasonable. For example, if the bartender knew that the minor was not of age despite what the identification card showed, she would commit a crime by serving the minor alcohol.

Question 70

The defendant, while visiting the victim, asked for permission to borrow the victim’s car so he could drive to a convenience store to buy cigarettes. In fact, he intended to keep the car and sell it for cash. The victim agreed, and the defendant took the car and drove off. After thinking about it further, the defendant decided that it would be wrong to sell the victim’s car, and headed back to the victim’s house. On the way back, the car was destroyed in a collision through no fault of the defendant.

May the defendant be convicted of larceny?

A No, because he intended to return the car and therefore lacked the requisite mens rea for the crime.
B No, because he abandoned his plan of selling the vehicle.
C Yes, because withdrawal is not a defense to the crime.
D Yes, because he intended to permanently deprive the victim of the car when he drove off in it.

Answer 70

D Yes, because he intended to permanently deprive the victim of the car when he drove off in it.

Question 71

A college student was the sole lifetime beneficiary under a large trust administered by a banker. The student received a large monthly distribution from the trust, and whenever he ran short, he simply called the banker for extra funds, because the trust provided that the student was to receive whatever he needed from income or principal. The student’s roommate found out about the trust arrangement and decided to see if he could make it pay off for him. The roommate sent an e-mail to the banker, which appeared to be from the student, and which asked for several thousand dollars to cover medical expenses. The e-mail further stated that, since he was in the hospital, the student would send his roommate to pick up the cash. The next day, the roommate showed up at the banker’s office and obtained the money on the promise that he would take it to the student. The roommate absconded with the funds.

When the roommate obtained the cash from the banker, what crime did the roommate commit?

A False pretenses.
B Embezzlement.
C Larceny by trick.
D Larceny.

Answer 71

C Larceny by trick.

The roommate committed larceny by trick because the banker’s consent to the roommate’s taking the money was induced by the misrepresentation that the roommate would take the money to the student/beneficiary. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. If the person in possession of property has not consented to the taking of it by the defendant, the taking is trespassory. However, if the victim consents to the defendant’s taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid. Under such circumstances, the larceny is called larceny by trick.

Question 72

The owner of a furnished cottage leased it to another for one year. While this lease was in effect, the cottage owner found herself in immediate need of cash, and decided to burn down the cottage to collect the insurance on it. She waited until one evening when the tenant was away. The cottage owner then used her own key to gain access to it. To make it appear that the fire was caused accidentally by the tenant, she soaked one end of the mattress on the bed in the bedroom with gasoline and then left a lighted cigarette burning at the other end of the mattress. She planned that the cigarette would ignite the mattress and that when the fire smoldered to the area soaked in gasoline, the entire bed would burst into flames, and the resulting fire would destroy the house. However, the tenant returned home earlier than expected and discovered the fire just as the mattress burst into flames. He immediately put it out with a fire extinguisher. A police investigation revealed the cottage owner’s activities.

The cottage owner is guilty of:

A Burglary as to the house and arson as to the mattress.
B Neither burglary nor arson because she owned the structure and its contents.
C Burglary and attempted arson.
D Attempted arson but not burglary because she entered with her own key.

Answer 72

C Burglary and attempted arson.

The cottage owner is guilty of burglary because the right of occupancy belonged to the tenant. However, the fact that there was no burning of the structure means that the cottage owner is guilty of attempted arson, rather than arson. Burglary at common law is a breaking and entering of the dwelling of another at nighttime, with the intent of committing a felony therein. A breaking requires some use of force to gain entry, but minimal force is sufficient. In determining whether the dwelling is that of another, occupancy rather than ownership is material. Thus, an owner can commit burglary of her own structure if it is rented and used as a dwelling by someone else. Here, although the cottage owner owned the cottage, the tenant had the right to occupy it pursuant to a lease. Thus, for purposes of the crime of burglary, the cottage owner is deemed to have entered the dwelling of another. Although the cottage owner used her own key to gain access to the cottage, this was still an unconsented use of force to effectuate entry, thereby constituting a breaking. This breaking and entering of the tenant’s dwelling occurred in the evening. At the time of the entry, the cottage owner intended to commit the felony of arson. Consequently, all the elements of burglary are in place, making her guilty of this crime. Arson consists of the malicious burning of the dwelling of another. There is a requirement of some damage to the fiber of the wood or other combustible material. As with burglary, ownership of the structure is not material for determining whether the dwelling is that of another; rather, the right to occupancy is material. The cottage owner left a lighted cigarette on the mattress, intending to burn down the entire cottage. However, the tenant extinguished the fire before any damage was done to the structure of the cottage, even mere charring. Absent such damage, arson cannot have been committed. The cottage owner did commit attempted arson. A criminal attempt is an act which, although done with the intention of committing a crime, falls short of completing the crime. The defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. The cottage owner intended to perform an act that would have culminated in the crime of arson. By soaking the mattress with gasoline and leaving a lighted cigarette on it, the cottage owner committed an act that came dangerously close to successfully burning the cottage. This act, in combination with the intent to commit arson, means that the cottage owner is guilty of attempted arson.

Question 73

A felon intending to rob a market waited outside until there were no customers. When he saw that the market was empty, he went inside and walked up to the counter with his hand in his jacket pocket to simulate a gun. Before the clerk could turn around to see what the felon wanted, another customer entered the market, startling the felon, who turned and ran out the door.

Should the felon be found guilty on a charge of attempted robbery?

A No, because he used no actual force on the clerk nor threatened any.
B No, because he withdrew successfully from the robbery attempt.
C No, because he never entered the zone of perpetration.
D Yes, regardless of whether he totally abandoned his plan when the customer entered the market.

Answer 73

D Yes, regardless of whether he totally abandoned his plan when the customer entered the market.

The felon should be found guilty of attempted robbery. With the specific intent to commit a robbery, the felon went beyond mere preparation for the offense. Once a person has gone beyond preparation, abandonment is not a defense to attempt. A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. If a defendant has, with the required intent, gone beyond preparation, the general rule is that abandonment is not a defense.

Question 74

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 cell mate 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.
B 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.
D No, because the informant’s conduct did not constitute interrogation.

Answer 74

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.

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. (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.

Question 75

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.

The defense motion should be:

A Granted, because the cigarette is fruit of the poisonous tree.
B Granted, because the police officer did not have a valid search warrant.
C Denied, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.
D Denied, provided the police officer had a reasonable suspicion of criminal activity.

Answer 75

C Denied, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.

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.

Question 76

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.
B 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.
D Deny the motion, because the defendant waived his Miranda rights.

Answer 76

D Deny the motion, because the defendant waived his Miranda rights.

(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).

Question 77

A husband discovered his wife in bed with a neighbor. The neighbor ran out the back door. The husband screamed at his wife and vowed revenge. After consuming several drinks to build up his nerve and becoming intoxicated, the husband went to his friend’s house and borrowed a gun, and then went to the neighbor’s house. The neighbor had neglected to lock his front door, so the husband walked in. He found the neighbor trembling in the living room and pointed the gun at him. The neighbor immediately began apologizing and pleading for his life, but then suddenly he pulled a switchblade knife from his pocket. As the metal flashed, the husband fired a single shot at the neighbor, killing him.

What is the most serious crime of which the husband can be convicted?

A Murder.
B Manslaughter, because the husband was still distraught over finding the neighbor in bed with his wife.
C Manslaughter, because his intoxication prevented the husband from having the requisite intent for murder.
D No homicide crime, because the neighbor was about to attack him with a knife.

Answer 77

A Murder.

The time interval between the provocation and the killing was probably sufficient for a reasonable person to cool off, and the facts strongly suggest that the husband did in fact cool off—he consumed several drinks to build up his nerve and went to a friend’s house to get a gun before confronting the neighbor. Thus, a jury would probably reject a claim of voluntary manslaughter here.

Question 78

One night when a man was very drunk, he took one of his rifles, loaded it, and fired a bullet through his front door. Unbeknownst to him, at the time he fired the rifle, someone was driving by the house. The bullet went through the front door, through the window of the car, and killed the driver. The shooter was convicted of murder and appeals. He contends that there was insufficient evidence to support a finding of murder.

How should the court of appeals rule?

A That the evidence is sufficient to prove that the killing was intentional.
B That the evidence is sufficient to prove that the killing was done with malice aforethought.
C That the evidence is insufficient, because the shooter did not know that the driver was driving by his house and therefore he could not have acted intentionally.
D That the evidence is insufficient, because at most the shooter’s conduct constituted gross negligence and involuntary manslaughter.

Answer 78

B That the evidence is sufficient to prove that the killing was done with malice aforethought.

“Malice aforethought” can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life.

Question 79

Two robbers planned to rob a local convenience store, with one using a gun to force the clerk to turn over all of the money in the cash register while the other stood lookout near the door. The robbery did not go as planned. Instead of turning over any cash, the store clerk tried to disarm the gunman. During their struggle for the gun, the lookout decided that her best course of action was to grab what she could and flee the scene. The lookout took a newspaper and a bag of potato chips and ran out of the store. On her way out, she heard a gunshot. Later that day, she learned from news accounts that the gun accidentally discharged, killing the gunman. After an investigation, the lookout was arrested.

If the lookout is charged with felony murder, what would be her most promising defense?

A She did not intend for the gunman to get killed.
B The only person killed was the gunman.
C The killing occurred after the robbery was over.
D The robbery was not a felony because the items that the lookout took had only minimal value.

Answer 79

B The only person killed was the gunman.

The lookout’s best defense is that the gunman was the only person killed. Under the felony murder doctrine, a killing committed during the course of a felony is murder, malice being implied from the intent to commit the underlying felony. However, under the majority view, criminal liability for murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit.

Question 80

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.
B 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.
D No, because the search was authorized by statute.

Answer 80

B Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.

Question 81

Any evidence obtained as result of a pursuit must be:

A Suppressed because a pursuit is not a seizure.
B Admitted.
C Suppressed unless the police had reasonable suspicion to justify the pursuit.
D Suppressed even if the police had reasonable suspicion to justify the pursuit.

Answer 81

C Suppressed unless the police had reasonable suspicion to justify the pursuit.

Question 82

When the police enter a third party’s residence to arrest a person who is subject to a valid arrest warrant, they:

A Must have a reasonable belief that the person is present in the residence.
B Must have knowledge that the person was present in the residence within the last 30 days.
C Must not detain other occupants of the premises during a proper search.
D May not use deadly force to apprehend the suspect.

Answer 82

A Must have a reasonable belief that the person is present in the residence.

Question 83

With regard to a roadblock for enforcing drunk driving statutes, the Commonwealth:

A Must show whether there is a less intrusive alternative to enforce the drunk driving statutes, even if it would be less effective.
B Does not need to show that there is no equally effective, yet less intrusive, alternative to enforce the drunk driving statutes.
C May conduct the roadblock for private interests.
D Must show that the plan was devised in advance by a local community board.

Answer 83

B Does not need to show that there is no equally effective, yet less intrusive, alternative to enforce the drunk driving statutes.

Question 84

Automatic standing to contest the legality of a search and seizure is permissible in which of the following circumstances:

A In crimes where the defendant’s knowledge is an essential element.
B In crimes where the possession of seized evidence is an essential element.
C In crimes where the defendant’s legitimacy on the premises is an essential element.
D In crimes where the account records held by a bank are an essential element.

Answer 84

B In crimes where the possession of seized evidence is an essential element.

Question 85

What must occur before a blood sample is taken from a person who is suspected of a crime but not yet charged?

A A hearing.
B A provision of notice.
C Obtaining the suspect’s consent.
D Execution of a search warrant.

Answer 85

A A hearing.

Question 86

In applying the inevitable discovery exception under the exclusionary rule, the government must:

A Substantiate the severity of any constitutional violation.
B Demonstrate that any bad faith on part of the police was irrelevant.
C Prove that discovery was certain as a practical matter.
D Show that there is no resulting substantial and injurious effect.

Answer 86

C Prove that discovery was certain as a practical matter.

Question 87

After a warrantless search, a judicial determination of probable cause must be made:

A Immediately following the arrest.
B Within 48 hours.
C No later than is reasonably necessary to process the arrest and contact the magistrate.
D No later than 24 hours after the arrest under any circumstances.

Answer 87

C No later than is reasonably necessary to process the arrest and contact the magistrate.

Question 88

During closing arguments, a prosecutor makes a comment about a witness based on his own personal opinion. Which of the following statements is correct?

A A prosecutor is permitted to make comments about a witness’s credibility as well as comments about the witness based on personal belief.
B The verdict will be overturned for such a comment only if it results in prejudicial error.
C The verdict will always be overturned for such a comment.
D Even if the jury had the opportunity to observe the witness and make its own conclusions regarding trustworthiness, the comment will be found prejudicial.

Answer 88

B The verdict will be overturned for such a comment only if it results in prejudicial error.

Question 89

In certain types of cases, the judge must inquire of each potential juror whether the juror has any opinion that would prevent the potential juror from returning an impartial verdict. This applies in all of the following types of cases EXCEPT:

A Cases involving an insanity defense.
B Cases involving childhood sexual abuse.
C Cases involving interracial murder.
D Cases involving rape.

Answer 89

D Cases involving rape.

Question 90

Re-Do Crim Law Crim Pro Set 2

Answer 90

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