M/C MBE Crim Pro

Question 1

Does a Prison have an expectation of privacy?

Answer 1

NO. Not a convicted prison inmate

Although prison inmates possess many constitutional rights, the Fourth Amendment right to be free from unreasonable search and seizure is less stringent in the prison context.

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

Question 2

Does a resident Alien have the same 5th Amendment rights as a US Citizen?

Answer 2

YES.

The Fifth Amendment states that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The right is not limited to U.S. citizens, but it extends to lawful resident aliens.

A suspect has a constitutional right not to be compelled to make incriminating statements about himself during a police interrogation. Any incriminating statement made as a result of such interrogation is inadmissible unless the police informed the suspect of his Miranda rights.

In this case, the resident alien was likely in a custodial interrogation, and a reasonable person in his situation would not think that they could leave (e.g., the fact that he had no contact with anyone else for hours, that he was never told he was free to go, that he was told that the police wanted to keep him there until “they cleared up the whole situation”).

Accordingly, he should have been given Miranda warnings, and anything he said in the absence of those warnings should not be admitted.

Question 3

Can a case be dismissed due to an arrest stemming from a valid arrest warrant that was improperly executed resulting in an illegal arrest?

Answer 3

NO.

An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested.

Although a Defendant is arrested pursuant to a valid arrest warrant, the arrest was illegally effected because the officer arrested the woman at the home of her friend.

An illegal arrest does not prevent the prosecution of the woman for misdemeanor theft.

Question 4

Are Mandatory Presumptions in a Criminal Trial Jury Instruction constitutional?

Answer 4

NO.

The U.S. Supreme Court has held it to be a violation of due process for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime.

The instruction is unconstitutional because the phrase “shall be presumed” could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible.

Question 5

If an Item such as a shirt is seized during a valid search warrant but was not listed in the search warrant is that shirt excluded due to the exclusionary rule?

Answer 5

NO.

A search warrant must describe with particularity the objects to be seized.

Here, the search warrant did not specifically describe the plaid shirt worn by the robber during the robbery as the item to be seized.

The plaid shirt, mere evidence linking the customer to the robbery, did not fit within the general categories also mentioned in the warrant (i.e., fruits or instrumentalities of the robbery).

However, because the search warrant was a valid warrant, the police officers were legally entitled to be in the customer’s apartment.

Because an officer saw the plaid shirt in plain view while searching the apartment for the gun as well fruits and instrumentalities of the robbery, the officer’s seizure of this shirt was permitted under the “plain view” exception to the warrant requirement.

Question 6

Must an out of court identification be suppressed if it is unnecessarily suggestive?

Answer 6

NO.

An improper out-of-court identification procedure may require suppression of in-court testimony if it produces a substantial likelihood of irreparable misidentification.

However, suppression of in-court testimony is not required if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry.

Even if an out-of-court identification procedure is unnecessarily suggestive, which this one plainly was, suppression of in-court testimony is not required if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry.

Question 7

May an officer make an arrest of a person in someone else’s home?

Answer 7

YES…kind of.

A police officer may not arrest a person in another person’s home without a search warrant, absent exigent circumstances or valid consent. If consent is given to be in the home and an officer’s presence is for a legal purpose via consent, then an officer can effect an arrest on a guest in that home if probable cause arises, making the arrest valid

Question 8

What standard does the administrator of a school need to satisfy in order to conduct a strip search of the other student for possession of prescription medications?

Answer 8

Reasonable Suspicion (Standard)

A search conducted by local public school personnel of a student must be based on reasonable suspicion that the search will produce evidence that the student is or has violated school rules.

It must also be reasonable in its scope in light of the student’s age and gender and the nature of the infraction.

This standard applies to strip searches as well as other less intrusive types of searches.

Question 9

When does Double Jeopardy attach?

Answer 9

For double jeopardy purposes, jeopardy does not attach until trial, when the jury is sworn in (or, in a bench trial, when the first witness is sworn in)

A dismissal after a preliminary hearing has no double jeopardy consequences. Answer choice D is incorrect.

While jeopardy does not attach until trial, actions short of a conviction or acquittal (for example, a mistrial) may bar retrial on double jeopardy grounds

Question 10

When may a statement obtained in violation of Miranda be used by the Prosecution in a trial?

Answer 10

To only Impeach the Defendant.

Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant, if the defendant takes the witness stand and gives testimony at variance with previous admissions.

Such statements may not be used as direct evidence, however.

Question 11

Do a person have a 4th Amendment Expectation of Privacy from aerial searches?

Answer 11

YES IF LESS THAN 400 FT

However, an inspection conducted from the air at a height of at least 400 feet does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment.

Question 12

defendant’s claim of alibi, which of the following additional instructions would be proper?

Answer 12

Due process requires the prosecution to prove all elements of a crime beyond a reasonable doubt. Because alibi is not a traditional defense, but rather negates an essential element of the crime (the defendant’s actual commission thereof), due process precludes imposing upon a defendant the burden of proving alibi.

Due process requires the prosecution to prove all elements of a crime beyond a reasonable doubt.

Question 13

5th Amendment right against self incrimination

Answer 13

A defendant’s Fifth Amendment right against self-incrimination applies to custodial police interrogations. Interrogation refers to express questioning, as well as words or actions the police know or should know are likely to elicit an incriminating response. The Fifth Amendment right against self-incrimination does not apply to voluntary statements. Because the informant did not take any actions that were likely to elicit an incriminating response, there was no interrogation, and this was instead a voluntary statement.

Question 14

6th Amendment right to counsel

Answer 14

A criminal defendant’s Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant’s attorney. As discussed above, however, the informant did not seek to elicit incriminating information from the defendant in this case. Accordingly, this confession was not obtained in violation of the defendant’s Sixth Amendment right to counsel,

Question 15

GJ non adversarial proceeding

Answer 15

The grand jury conducts a non-adversarial proceeding. Any person, including a target of the investigation, does not have the right to present or confront witnesses or to introduce evidence at a grand jury proceeding.

Question 16

Grand Jury Indictment

Answer 16

Although a procedural defect that substantially impacts the grand jury’s decision to indict is grounds for dismissing an indictment, here there was no procedural defect in the proceedings due to the denial of the defendant’s request, as the defendant did not have the right to present and confront witnesses and introduce evidence.

Question 17

Juror stricken for cause

Answer 17

A trial court properly may excuse a juror for cause from serving in both the guilt and penalty phases of a capital case if a juror’s views regarding the death penalty would prevent or substantially impair the juror from impartially deciding whether the death penalty is warranted in that particular case. Exclusion of such jurors does not violate the fair cross-section right of the Sixth Amendment. Because there was no constitutional violation, the defendant is not entitled to a reversal of either his conviction or sentence,

Question 18

Voluntary Confession

Answer 18

A voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed. Here, the partner’s strongest argument is that the confession was too closely tied to the illegal arrest made by the officer. The officer illegally arrested the partner in his home without a warrant after breaking down his door in order to confront him about an alleged affair with his wife, and the confession was in response to his inquiries about the alleged affair. This makes the confession very closely tied to the unlawful arrest.

As stated above, a voluntary confession made after an illegal arrest will not automatically be suppressed. It is not the illegal arrest, but the strong connection of the confession to the illegal arrest, that makes the confession inadmissible.

Question 19

Unlawful arrest

Answer 19

An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (e.g., in his home without a warrant).

Question 20

checkpoint

Answer 20

Police may set up of checkpoint for the purpose of seeking information about a crime without violating the constitutional rights of a driver who is stopped, as long as (i) the checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment. The police need not have an individualized suspicion that a driver has committed a crime in order to stop the driver.

although the operation of a checkpoint by the police for the purpose of finding drug-related crimes is not constitutionally permissible, that was not the purpose of this checkpoint. Answer choice B is incorrect because, although the stop was part of an ongoing criminal investigation, the purpose of the stop was not to directly catch the perpetrator of the murder, but simply to elicit the public’s help in finding out who the killer was. Answer choice D is incorrect because an involuntary traffic stop does result in the seizure of the occupants of the car. There is no requirement that the police interrogate the driver or other occupants before the stop constitutes a seizure.

Question 21

INFORMANT

Answer 21

A criminal defendant’s Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant’s attorney. However, even where a voluntary confession is obtained in violation of a defendant’s Sixth Amendment right to counsel, such confession may be used at trial to impeach the defendant’s testimony. For this reason, answer choice B is incorrect. Answer choice A is incorrect because a defendant’s Fifth Amendment right against self-incrimination applies to custodial police interrogations. Although the defendant in question was in custody and was being interrogated by the police informant, since the defendant was unaware that the informant was acting at the behest of the police informant, the defendant’s confession was not coerced by a police dominated atmosphere and, hence, the defendant’s Fifth Amendment right against self-incrimination was not violated. Answer choice D is incorrect because, although the man’s indigency did require the state to provide him with an attorney and the opportunity to consult with that attorney, the man’s Sixth Amendment right to counsel also required the attorney’s presence when the police, acting through the informant, sought to elicit incriminating information from the man.

Question 22

INFORMANT

Answer 22

A criminal defendant’s Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant’s attorney. However, even where a voluntary confession is obtained in violation of a defendant’s Sixth Amendment right to counsel, such confession may be used at trial to impeach the defendant’s testimony. For this reason, answer choice B is incorrect. Answer choice A is incorrect because a defendant’s Fifth Amendment right against self-incrimination applies to custodial police interrogations. Although the defendant in question was in custody and was being interrogated by the police informant, since the defendant was unaware that the informant was acting at the behest of the police informant, the defendant’s confession was not coerced by a police dominated atmosphere and, hence, the defendant’s Fifth Amendment right against self-incrimination was not violated. Answer choice D is incorrect because, although the man’s indigency did require the state to provide him with an attorney and the opportunity to consult with that attorney, the man’s Sixth Amendment right to counsel also required the attorney’s presence when the police, acting through the informant, sought to elicit incriminating information from the man.

Question 23

A defendants right to privacy when he abandons property in another home. And that other party is coerced into providing consent to search.

Answer 23

Only unreasonable searches and seizures are subject to the Fourth Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy. An individual generally does not have a reasonable expectation of privacy in the home of another in which the individual was merely a visitor (although an overnight guest may have a reasonable expectation of privacy). In this case, the defendant did not have a reasonable expectation of privacy in his girlfriend’s home, and thus his rights were not violated by the search. Accordingly, the knife would be admissible. Answer choice A is incorrect because the issue is not whether the girlfriend’s consent was effective as related to the defendant but instead whether the defendant had an expectation of privacy in his girlfriend’s home. The defendant had no expectation of privacy in his girlfriend’s home, and thus the issue of consent is not relevant in determining whether the evidence may be admitted against the defendant. Answer choice B is incorrect because, although the consent was likely not voluntary given the threats made by the police, the defendant’s rights were not violated because he had no standing to raise this challenge. Thus, although the girlfriend might be able to suppress evidence from the search used against her, the defendant would have no such right. Answer choice C is incorrect because it is not relevant whether there was consent for the search or whether the search itself was legal. The search did not violate the rights of the defendant, and thus he may not suppress evidence found during the search.

Question 24

One officer searched the drug dealer and the defendant, while the others searched the areas of the home specified in the warrant. The search of the defendant uncovered a handgun with an obliterated serial number, which the officer seized. It was later revealed that the handgun was stolen, that the defendant was a convicted felon, and that the gun was possessed illegally. The defendant was charged with crimes related to possession of the handgun. The defendant has moved to suppress evidence of the handgun, arguing that it was illegally seized.

What is the defendant’s best argument that the handgun should be suppressed?

Answer 24

Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification. In this case, the defendant was not named in the search warrant, and the police did not even know his identity. Because the police had no independent justification to search the defendant, the search was illegal, and the gun should be suppressed. Answer choice B is incorrect because, although a violation of the “knock and announce” rule may invalidate an arrest, it does not trigger the exclusionary rule with respect to evidence discovered as a result of a search conducted in violation of the rule. This is because the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery. Answer choice C is incorrect because police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. Answer choice D is incorrect because a warrant may be based on information from a reliable, known informant. Moreover, the validity of the warrant itself is not relevant because it did not specify that the defendant could be searched.

Question 25

The agent testified to all of his investigation’s discoveries before a grand jury, which returned an indictment against the man for illegal gambling activities, based solely on the agent’s testimony. The man’s attorney then filed a motion to dismiss the indictment, claiming that it rested on violations of the man’s constitutional rights.

Should the court grant the motion?

Answer 25

Dismissal of the indictment would not be warranted, because a grand jury is entitled to consider hearsay and is not limited by the exclusionary rule. Answer choice B is incorrect. A grand jury is entitled to consider hearsay, and courts will not look behind a facially sufficient indictment to review the sufficiency of the grand jury’s probable cause determination. Answer choice C is incorrect because the Fourth Amendment exclusionary rule does not extend to grand juries or provide a basis for dismissing a facially valid indictment. Answer choice D is incorrect because there was no violation of any right to counsel that could justify dismissal of the indictment.

Question 26

Several days later, in the early evening, a police officer knocked on the front door of the defendant’s residence and demanded that the defendant provide the police with a handwriting exemplar, the text of which was based on the contents of the note found in the victim’s home.

Prior to trial, the defendant’s attorney filed a motion to prevent the prosecution’s introduction of the exemplar as evidence at the trial because the taking of the exemplar violated the defendant’s constitutional rights.

Should the court grant this motion?

Answer 26

The taking of the exemplar did not violate the defendant’s constitutional rights. Answer choice A is incorrect. The taking of exemplar did not require a search warrant because, since the defendant did not have a reasonable expectation of privacy in his handwriting, its seizure was not unreasonable. Answer choice B is incorrect because, as physical evidence, the handwriting exemplar does not constitute testimonial evidence. Answer choice C is incorrect because the taking of a handwriting exemplar, even after a defendant has been charged or indicted, is not a critical stage of the criminal proceedings that requires the presence of counsel.

Question 27

A woman was suspected of murder in the shooting death of her husband and was taken into custody. The interrogating officers did not read the woman her Miranda rights, but instead waited in the room for another officer to arrive. After ninety minutes of waiting, the woman became extremely agitated and blurted out, “I did it! I killed him, and I threw the gun into the river!” The police dragged the river and recovered a gun, and ballistics tests confirmed that the gun was the murder weapon. At trial, the woman’s attorney moved to suppress introduction of both the confession and the gun as evidence.

How should the court rule?

Answer 27

Any statement obtained as the result of a custodial interrogation may not be used against a suspect at a subsequent trial unless the police first inform the suspect of her Miranda rights. Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant knowingly and voluntarily waives those rights. Volunteered statements, however, are not protected by Miranda. Here, the woman’s statements were not made in response to any interrogation on the part of the officers, but rather, were blurted out in a moment of panic before the interrogation began. Therefore, there was no violation of Miranda. Answer choices A and B are incorrect because the confession was voluntary and therefore not protected by Miranda. Answer choice C is incorrect because the gun would also be admissible. Derivative physical evidence obtained as a result of a non-purposeful failure by police to give Miranda warnings is admissible at trial.

Question 28

The accountant challenged the admissibility of the evidence seized by police as a violation of his Fifth Amendment privilege against self-incrimination.

How should the court rule on this challenge?

Answer 28

The Fifth Amendment privilege against self-incrimination does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person, even when those documents were prepared by the person. This privilege only protects against the compelled disclosure of incriminating testimonial evidence. Answer choice B is incorrect. Although the Fifth Amendment privilege against self-incrimination does not protect legal entities, such as corporations, it does protect an individual, even when the individual’s criminal conduct stems from his operation of a business as a sole proprietorship. Answer choice C is incorrect. Although the business records seized by police were testimonial evidence, the Fifth Amendment privilege against self-incrimination does not apply because the accountant was not compelled to disclose this information. Answer choice D is incorrect. Evidence of the physical characteristics of a person do not constitute testimonial evidence for the purposes of the Fifth Amendment privilege. On the other hand, records of a business generally do constitute testimonial evidence. However, the privilege generally does not apply to an individual’s voluntarily prepared business papers, even those records required by law to be kept, unless the act of producing the records constitutes self-incriminating testimony.

Question 29

A defendant sought the services of an out-of-state attorney to represent her against a charge of felony animal abuse. This attorney was erroneously denied pro hac vice admission by the trial court. The defendant then hired an in-state attorney to represent her. The defendant was convicted of the crime, even though the in-state attorney provided the defendant with competent, adequate representation. On appeal, the defendant challenged her conviction on the basis that she was denied her Sixth Amendment right to counsel.

How should the appellate court rule on this challenge?

Answer 29

A defendant is constitutionally entitled to be represented at trial by a qualified attorney of the defendant’s choice, where that attorney is not provided by the state. The sanction for violation of this Sixth Amendment right is reversal of the defendant’s conviction. Answer choice B is incorrect because the harmless error standard applies to the denial of the right to counsel only in non-trial proceedings. Answer choice C is incorrect because denial of the right to counsel at trial results in the automatic reversal of the defendant’s conviction. The defendant does not need to establish that the defendant was prejudiced by the denial. Answer choice D is incorrect because the defendant need not establish that the replacement counsel’s representation was inadequate or that such counsel was incompetent in order to reverse her conviction.

Question 30

A defendant sought the services of an out-of-state attorney to represent her against a charge of felony animal abuse. This attorney was erroneously denied pro hac vice admission by the trial court. The defendant then hired an in-state attorney to represent her. The defendant was convicted of the crime, even though the in-state attorney provided the defendant with competent, adequate representation. On appeal, the defendant challenged her conviction on the basis that she was denied her Sixth Amendment right to counsel.

How should the appellate court rule on this challenge?

Answer 30

A defendant is constitutionally entitled to be represented at trial by a qualified attorney of the defendant’s choice, where that attorney is not provided by the state. The sanction for violation of this Sixth Amendment right is reversal of the defendant’s conviction. Answer choice B is incorrect because the harmless error standard applies to the denial of the right to counsel only in non-trial proceedings. Answer choice C is incorrect because denial of the right to counsel at trial results in the automatic reversal of the defendant’s conviction. The defendant does not need to establish that the defendant was prejudiced by the denial. Answer choice D is incorrect because the defendant need not establish that the replacement counsel’s representation was inadequate or that such counsel was incompetent in order to reverse her conviction.

Question 31

They asked five of the bank’s senior employees, including the bank’s vice-president, to come to the police station the following day to answer some questions. Before any of the employees arrived, the investigating officers had a discussion in which they concluded that one of the five senior employees was likely involved in the robbery, and that they should attempt to elicit a confession since they had no evidence implicating any of them. The officers did not read the vice-president his Miranda rights when he arrived, but did indicate that he was free to leave at any time. A few minutes into the interview, the vice-president broke down and admitted that he was involved in the conspiracy. Following the confession, the officers informed the vice-president that he was under arrest, read him his Miranda rights, and asked if he would sign a written waiver of his rights and a written confession. The vice-president stated, “I already told you everything, so I might as well.” He then signed both documents.

Is the vice-president’s written confession likely admissible at trial?

Answer 31

A suspect must be informed of his Miranda rights before a custodial interrogation. Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody. A person is in custody when, under the totality of the circumstances, a reasonable person would believe that he is not free to leave. In this case, the vice-president was not under arrest, but rather came to the police station at the request of the police, and he was specifically told that he was free to leave. Thus, he likely was not entitled to Miranda warnings when he arrived. Answer choice A is incorrect because, while it is true that a second confession obtained as a result of a “question first, warn later” approach may not be admissible if the police intended to circumvent Miranda, that is not applicable here because the police were not required to provide Miranda warnings before the vice-president’s confession. Answer choice B is incorrect because a defendant must invoke his Miranda right to counsel, which the vice-president did not do. Answer choice D is incorrect because, as discussed above, the police were not required to provide the vice-president with Miranda warnings before his confession, and thus the initial part of the interrogation was not illegal.

Question 32

An undercover officer spread the word through a series of informants that he wanted to buy drugs. A well-known drug dealer called the officer, identified himself, and offered to sell drugs to the officer. The drug dealer was arrested, and the prosecutor sought to introduce the statements made by the drug dealer to the undercover officer at trial. The drug dealer’s attorney objected that the statements should be suppressed on constitutional grounds.

Should the statements be suppressed?

Answer 32

Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). In this case, the undercover officer sought to elicit incriminating responses from the drug dealer by putting word on the street that he wanted to buy drugs. However, the drug dealer was not in custody at the time that the incriminating statements were made to the undercover officer. Accordingly, the undercover officer was not required to inform the drug dealer of his Miranda rights prior to speaking with him. Moreover, Miranda warnings would not be required because the drug dealer was not aware that he was speaking to an undercover officer. Answer choice B is incorrect because, although the drug dealer’s statements should not be suppressed, the use of trickery may render a confession involuntary, when considered under the totality of the circumstances. Answer choice C is incorrect because, although the undercover police officer sought to use informants to elicit incriminating statements from the drug dealer, the drug dealer was not in custody at the time that he made the statements to the officer. Further, there is no expectation of privacy in conversations carried on with government agents or undercover officers. Answer choice D is incorrect because the drug dealer was not coerced into making the statement to the undercover officer. To see if a confession was coerced, courts look to the totality of the circumstances, including the defendant’s age, health, intoxication, and mental state. Nothing about these circumstances—a known drug dealer willingly trying to enter into a drug deal—points to coercion. A statement is not coerced just because it was made as a result of trickery, absent other circumstances.