MBE Crim Pro

Question 1

Is consent relevant to 4th AMD claim of non-government actors?

Answer 1

N

Question 2

Privacy interest of B at A’s home. Is A’s consent relevant in analyzing the validity of B’s 4th AMD claim?

Answer 2

N

Question 3

Knock and Announce rule and exclusionary rule

Answer 3

Officers executing an arrest warrant are required to knock and announce. Even if they fail to do so, that evidence doesn’t have to be suppressed.

Question 4

A search warrant issued after the police received an anon tip from a random person. Valid?

Answer 4

No. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, supported by oath or affidavit. Facts supporting probable cause may come from several sources, including information from a reliable, known informant, or information from an unknown informant that can be independently verified. In this case, the search warrant was based solely on a tip from an unknown informant, and thus probable cause was not established.

Question 5

Undercover officer entered the living room with the D’s consent + Search beyond the living room?

Answer 5

Nope.

Question 6

Searching the body of the arrested D + search of the home after taking the D?

Answer 6

Nope

Question 7

Vehicle exception to the 4th AMD

Answer 7

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of criminal activity. They can even search the trunk if they have reasonable cause to believe that it contains contraband.

Question 8

5th amd –> corporation?

Answer 8

N

Question 9

5th amd –> custodian of corporate record?

Answer 9

N

Question 10

5th amd –> non-testimonial evidence?

Answer 10

N. doesn’t apply to voluntarily prepared business papers.

Question 11

Miranda warning. What and how?

Answer 11

Miranda warnings must be given before interrogation begins. If interrogation is stopped for a long duration, the warnings must be given again.

Question 12

how to waive Miranda

Answer 12

although any waiver of a defendant’s Miranda rights must be knowing, voluntary, and intelligent, there is no requirement that the waiver be in writing.

Question 13

Right to counsel under the ‘5th’ amd

Answer 13

The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. In this case, the defendant did not request counsel, and thus did not invoke his Fifth Amendment right to counsel. The police’s actions therefore did not violate the defendant’s Fifth Amendment right to counsel.

Question 14

6th amd. offense specificity and lesser included offenses

Answer 14

The Sixth Amendment is offense-specific, meaning that the interrogation that is the subject of the Sixth Amendment inquiry must relate to the crime for which criminal proceedings have commenced. The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under investigation but which are unrelated to the pending prosecution. Under Blockburger v. United States, 284 U.S.299 (1932), two different crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Question 15

Prosecutor’s duty to present exculpating evidence to the Grand Jury.

Answer 15

No.The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury, even if it is requested by the grand jurors

Question 16

Peremptory challenge + 14th amd

Answer 16

The Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from exercising peremptory challenges solely based on race or gender. In order to determine whether a party exercised a peremptory challenge based on race, the U.S. Supreme Court has set forth a three-prong test. First, the moving party must establish a prima facie case of discrimination. Once that prima facie case is established, the party who exercised the challenge must provide a race-neutral explanation for the strike. If they succeed, the burden shifts back to the moving party to establish that the race-neutral explanation is only a pretext.

Question 17

D’s standing to EPC claims when the juror excluded on the basis of race + D not race of that group.

Answer 17

yes. a defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.

Question 18

Three strikes law constituional?

Answer 18

Yes the law does not criminalize behavior after it was performed; it simply addresses sentencing for already criminal behavior.

Question 19

Ex post facto law

Answer 19

Ex post facto laws criminalize acts that were not criminal when originally committed or imposes a more severe penalty after the act was committed.

Question 20

Death sentence requirement

Answer 20

In order for a judge to impose the death sentence in a jury trial, the Sixth Amendment Right to a Jury Trial as made applicable to the states through the Due Process Clause of the Fourteenth Amendment requires that jury must find at least one aggravating circumstance beyond a reasonable doubt.

Question 21

Dog sniffing. search?

Answer 21

The use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property, including the curtilage of a home.

Question 22

Authorization by the warrant once the object of the search is discovered?

Answer 22

The warrant was valid, but its validity was triggered by and limited to the delivered suitcase. Accordingly, once the only object of that search was discovered, the warrant did not authorize a further exploratory search of the house.

Question 23

Warrantless search of automobile . requirement

Answer 23

In order to justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

Question 24

Double purpose of search incident to arrest

Answer 24

: (1) to ensure officer safety, and (2) to prevent destruction of evidence.

Question 25

Miranda warning for undercover

Answer 25

Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer.

Question 26

Interrogation

Answer 26

interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response.

Question 27

derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings

Answer 27

Admissible

Question 28

Critical stages of the prosecution re: 6th AMD

Answer 28

Evidentiary hearings
Post indictment lienups
Post indictment interrogations
All parts of the trial process, including guilty pleas and sentencing

Question 29

Non critical stages

Answer 29

investigative lineups (pre-indictment)
witness looking at photo arrays
discretionary appeals and post-conviction (habeas) proceedings

Question 30

Grand jury & 5th, 6th AMD

Answer 30

A grand jury witness has no Fifth Amendment right to counsel in the grand jury room. The witness may, however, consult with an attorney outside the grand jury room.
Additionally, a witness has no Sixth Amendment right to present witnesses or to introduce evidence at a grand jury proceeding.

Question 31

The use of hearsay evidence by a grand jury in its decision to issue an indictment. Permitted under the 5th AMD?

Answer 31

Yes

Question 32

The indictment for perjury + A witness before a grand jury + entitled to be informed that she is a subject of the grand jury’s investigation?

Answer 32

No

Question 33

Felony murder case + D amenable to death penalty?

Answer 33

In felony-murder cases, the death penalty may not be imposed if the defendant, acting as an accomplice, did not kill, attempt to kill, or intend to kill, unless the defendant significantly participated in the commission of the felony and acted with reckless indifference to human life

Question 34

Hung Jury –> mistrial declared –> can D be retried?

Answer 34

yes

Question 35

Constitutional protection against double jeopardy to civil sanctions imposed on conduct for which a person has been subject to a criminal punishment?

Answer 35

No

Question 36

An officer can arrest an individual without a warrant in a — place, either for a crime committed in the officer’s —- or based on probable cause to believe the individual committed a —–

If the crime was not committed in the officer’s presence, the officer can make an arrest only for a —-

Answer 36

Public, Presence, Felony, Felony

Question 37

Open fields + 4th amd

Answer 37

By its terms, the Fourth Amendment is limited to “persons, houses, papers and effects”; it does not extend to open fields. Whether a location is an open field does not turn on whether the owner of the field has taken measures to keep it private, but on whether such expectations of privacy are objectively reasonable. For activities conducted outdoors, a person generally has no reasonable expectation of privacy.

Question 38

Unconstitutional investigatory stop + learns there is a valid arrest warrant + arrests the suspect + seize incriminating evi during the search incident to arrest + evidence admissible?

Answer 38

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

Question 39

Automobile checkstop for sobriety

Answer 39

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards, and its purpose is closely related to an issue affecting automobiles.

Question 40

After 6th AMD attaches. May poilce initiate a non-custodial interrogation?

Answer 40

yes. Even after a defendant’s Sixth Amendment right to counsel has attached, the police may initiate non-custodial interactions with the defendant outside the presence of his lawyer if the defendant waives that right and the waiver is voluntary, knowing, and intelligent. There is no presumption that a knowing waiver of the right to have counsel present for the interaction is involuntary.

Question 41

IAC

Answer 41

There is a two-part test for establishing ineffective assistance of counsel: (i) the representation of a defendant by the defendant’s attorney must fall below an objective standard of reasonableness, and (ii) the attorney’s deficient performance prejudiced the defendant.

Question 42

Grand jury evidence

Answer 42

a grand jury is not restricted to hearing evidence that would be admissible at trial;

Question 43

grand jury and race

Answer 43

The grand jury may not exclude members of minority races, regardless of whether they are the same race as the defendant. Such exclusion will lead to a reversal of the indictment without regard to the harmlessness of the error.

Question 44

Burden to prove ‘against the persons will’ for kidnap charge.

Answer 44

The state statute includes “against that person’s will” as an element of the offense. Due process requires that the prosecution prove all of the elements included in the definition of the offense of which the defendant is charged beyond a reasonable doubt.

Question 45

Double jeopardy and blockburger test

Answer 45

Under the Fifth Amendment Double Jeopardy Clause that is applicable to the states through the Fourteenth Amendment, a person may not be prosecuted for the same offense after being acquitted of that offense. The Blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense. A lesser-included offense is one that does not require proof of an element beyond those required by the greater offense. In this case, false imprisonment is a lesser-included offense of kidnapping.