MBE Crim Pro

Question 1

For statements obtained in violation of Miranda to be used at trial, they need to be

Answer 1

1) VOLUNTARY
and
2) TRUSTWORTHY

Question 1

What must a defendant show in order to attack the truthfulness of an affidavit supporting a facially valid search warrant?

Answer 1

“False Affidavits Intentionally Know Reckless PC”

Burden: by a Preponderance of the Evidence

that

1) affidavit contained FALSE statements made by affiant intentionally, knowingly, or recklessly as to their truth;
AND
2) those FALSE statements were NECESSARY for a finding of PROBABLE CAUSE

Question 2

Elements of a VALID search warrant

Answer 2

1) Issued by NEUTRAL + DETACHED Magistrate;
2) Based on Probable Cause;
3) Supported by Affidavit or Oath;
4) Describing w/ Particularity place + items to be searched/seized

Question 3

When is a warrantless search of a vehicle permitted as a search incident to a lawful arrest?

Answer 3

Law enforcement must demonstrate:

1) ARRESTEE is WITHIN REACHING DISTANCE or Passenger compartment, and may pose an actual + continuing threat to officer’s SAFETY OR need to PRESERVE EVIDENCE from being TAMPERED by Arrestee

OR

2) That it is REASONABLE that evidence of the offense of arrest might be found in the vehicle

Question 4

Name the (5) situations where the GOOD-FAITH exception to the exclusionary rule does NOT apply

Answer 4

“Reasonable Officers would not rely on Facially Defects and FRAUD”

“Judges don’t Wholly Abandon”

“Improper Execution”

1) No REASONABLE officer would rely on the affidavit underlying the warrant;
2) The warrant is DEFECTIVE on its face;
3) The warrant was obtained BY FRAUD;
4) The Magistrate “WHOLLY ABANDONED HIS JUDICIAL ROLE”;
OR
5) The warrant was IMPROPERLY EXECUTED

Question 5

Transactional Immunity vs. Use & Derivative Use Immunity

Answer 5

Transactional a/k/a BLANKET –> Protects witness from future prosecution for crimes related to Witness’s testimony

*Use & Derivative Use –> Protects witness from Prosecution using Witness’s testimony or evidence derived from the testimony against the witness

*Only Use & Derivative Use immunity is constitutionally required to compel a witness to testify
*Testimony compeled by promise of immunity is considered coerced and involuntary and therefore not admissible for impeachment or substantive purposes

Question 6

When does a defendant have a right to a jury trial?

Answer 6

In Federal System –> 6th Amendment

In States –> 14th Amendment provides jury trials in CRIMINAL cases involving NON-PETTY offenses (i.e. those that carry an authorized sentence of more than 6 months of imprisonment, regardless of actual penalty imposed)

Question 7

May law enforcement randomly stop vehicles on public roadways?

Answer 7

No.
Not w/o a reasonable, individualized suspicion of a violation of the law,

unless based on neutral, articulable standards

Question 8

When is a search of an automobile permitted as an exception to the search warrant requirement?

Answer 8

When cops have P/C –> Can search anywhere in the car they believe there to be contraband including Trunk + Closed containers

*Only extends to compartments and containers cops that reasonably could hold the evidence they are looking for

Question 9

What is the court required to find in order to accept a criminal defendant’s guilty plea?

Answer 9

Judge MUST find the plea is is 1) Intelligent and 2) Voluntary

Intelligent– defendant 1) understands nature and elements of charges against him; 2) consequences of the plea; 3) the rights he is waiving

Voluntary–plea is not forced, based on improper threats, or promises other than those in the plea agreement

Question 10

How can the Sixth Amendment right to counsel be waived?

Answer 10

“Mike VIK waived the 6”

So long as waiver is Voluntary, Knowingly, and Intelligent

Question 11

What is the exclusionary rule?

Answer 11

Evidence obtained in violation of a Defendant’s constitutional rights under the 4th, 5th, or 6th amendment cannot be admitted at trial to prove guilt (unless an exception applies, e.g. good-faith exception)

Question 12

What are the seven exceptions to the exclusionary rule?

Answer 12

“GAII KIN arent excluded”

G/f
Attenuation
Independent
Inevitable

Knock and announce
In court ID
Negligence (police) Isolated

(1) INEVITABLE discovery rule - the evidence would’ve been inevitably discovered in the SAME condition through LAWFUL means

(2) INDEPENDENT source doctrine - the evidence was discovered in part by an INDEPENDENT source UNRELATED to the tainted evidence

(3) ATTENUATION principle - the chain of causation between the primary taint and the evidence has been so ATTENUATED, by time and/or intervening events, as to “purge” the taint

(4) GOOD-FAITH exception - police officers acted in g/f on either a FACIALLY VALID warrant or an EXISTING LAW later declared unconstitutional

(5) ISOLATED police NEGLIGENCE - the police conduct was not SUFFICIENTLY DELIBERATE such that the exclusionary rule could deter it

(6) KNOCK & ANNOUNCE - the search was a violation of the ““knock and announce”” rule

(7) IN-COURT ID - the evidence is a witness’s in-court identification of the defendant

Question 13

Checkpoint requirements

Answer 13

finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as:

1) primary purpose is to elicit evidence to help them APPREHEND OTHERS, not the vehicle’s occupants;

2) the stop advanced a PUBLIC concern to SIGNIFICANT degree; and

3) APPROPRIATELY TAILORED to fit important criminal investigatory needs and to minimally interfere with 4th Amendment protected-liberties

Question 14

(3) requirements for Statutory Scheme imposing Death Penalty to be constitutional

Answer 14

1) clear + objective standards;
2) specific + detailed guidance;
3) opportunity for rational review of the process;

Question 15

What is the privilege against self-incrimination, and to what evidence and proceedings does it apply?

Answer 15

– applies to TESTIMONIAL evidence only
– applies in criminal proceedings
– applies in any proceedings if answers provide some reasonable possibility of incriminating the witness in future proceedings

Question 16

How is the right to remain silent invoked under the Fifth Amendment, and what is the effect of invoking this right?

Answer 16

– Defendant must Specifically and Unambiguously invoke it; mere silence does not invoke it

– Police must “Scupulously Honor” the request

– Even if not invoked; Post-Arrest silence by Defendant after given Miranda warnings cannot be used against Defendant as impeachment or substantive evidence w/o violating Defendant’s right to Due Process

Question 17

What is the good-faith exception to the exclusionary rule?

Answer 17

The exclusionary rule does not apply to police officers who act in good faith on either

(i) a facially valid warrant later determined to be invalid

or

(ii) an existing law later declared unconstitutional

Question 18

Plain-view doctrine and when it applies

Answer 18

(1) Items may be seized w/o a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public

(2) Police may seize the item as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item

Question 19

When are the fruits of a non-Mirandized confession admissible?

Answer 19

non-Mirandized confession cannot come in

But derivative PHYSICAL evidence obtained as a result of the statement/confession is admissible, so long as the statement/confession was not coerced

Question 20

What are (3) exceptions to the Miranda requirements?

Answer 20

1) Public Safety;
2) Routine booking questions;
3) Undercover police

Question 21

How is a prima facie case for absence of a representative cross-section in a jury established?

Answer 21

By showing that:

(i) The group allegedly excluded is a “distinctive” group in the community;

(ii) The group was not fairly represented in the venire from which the jury was chosen; and

(iii) The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process

Question 22

What is the proper remedy if a right to counsel under the Sixth Amendment is denied at a non-trial proceeding?

Answer 22

The denial is subject to HARMLESS-ERROR analysis on appeal

Question 23

When does “hot pursuit” constitute an exigent circumstance that excuses the SEARCH WARRANT requirement?

Answer 23

When the police have P/C to believe suspect committed a FELONY and are pursuing him to arrest him

If the police have P/C to believe suspect committed a MISDEMEANOR, then police may act w/o waiting for a warrant if the totality of the circumstances shows an emergency

Question 24

Inconsistent verdicts are those that are logically incompatible.

E.g. a jury that finds a defendant not guilty of one offense but guilty of another that was predicated upon commission of the first offense has rendered an inconsistent verdict

In such circumstances, the guilty verdict can or cannot be challenged solely on verdict inconsistency?

Answer 24

CANNOT be challenged based solely upon the inconsistency

The rationale behind this rule is that the jury may have reached its decision to acquit through mistake, compromise, or leniency and that its decision should not be disturbed*

*While a challenge based solely on verdict inconsistency is not permitted, a criminal defendant may still challenge the conviction on the ground that the evidence was LEGALLY INSUFFICIENT to convict

Question 25

If detainee invokes his right to counsel, can the cops ask his parents to speak with him and put them in a room with a recording device, recording the convo, then use any obtained confession in court?

Answer 25

NOPE.

It becomes a deliberate attempt by the police to elicit incriminating statements, in direct violation of suspect’s previously-invoked right to counsel.

Question 26

During an investigatory detention (i.e., Terry Stop) police may:

Answer 26

*REASONABLE SUSPICION REQUIRED

1) BRIEFLY STOP & QUESTION the person to confirm or dispel their suspicions about the criminal activity

AND

2) FRISK (pat down) the person’s outer garments to search for weapons IF THEY REASONABLY SUSPECT that the person may be armed and dangerous

And under the “plain feel” doctrine, an officer conducting a valid frisk who feels an OBJECT that is IMMEDIATELY IDENTIFIABLE as a WEAPON, CONTRABAND, or EVIDENCE OF A CRIME, may seize the object (e.g. a “Pocket Bible” would not satisfy this)

Question 27

Due process requires that the government prove every element of a criminal offense (e.g., criminal contempt) beyond a reasonable doubt.

This means that the burden of proof may not

Answer 27

be placed upon a defendant to negate an element of the offense (unless it is an AFFIRMATIVE DEFENSE)

Question 27

What do people not have a “Reasonable Expectation of Privacy” in?

Answer 27

1) Bank records
2) Things exposed to public view (e.g., open fields, abandoned property)
3) Physical characteristics (e.g., handwriting, vocal sound)
3) Conversations with undercover officers & informants
4) Pen registers (i.e., records of dialed telephone numbers)
5) Smells emanating from cars & other items
6) Prison inmate’s cell
7) Automobile’s vehicle identification number (VIN)

Question 28

Due process prohibits the imposition of a harsher sentence upon retrial of a defendant who successfully appealed a conviction when

Answer 28

successfully appealed a conviction when the harsher sentence is punishment for exercising the right to appeal

Question 29

Does a warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant?

Answer 29

Yes, IF the police have PROBABLE CAUSE to believe that the arrestee is present

(e.g. the officer had a valid arrest warrant for the woman, went to her address, and heard a woman’s voice inside the house… coupled with a man’s statement that no woman was in the house)

Question 30

An indigent defendant was indicted for driving under the influence of alcohol, a misdemeanor. The lawyer who had been appointed to represent the defendant suffered a fatal heart attack on his way to the courthouse on the day scheduled for the trial. In discussing the absence of the defendant’s lawyer with the defendant, the trial judge learned from the defendant that he intended to plead guilty. The judge indicated that, in exchange for the defendant’s guilty plea, the defendant would not serve time in prison. The defendant agreed and was sentenced to two months in prison, with the sentence suspended.

The defendant appealed his conviction, contending that he was denied his Sixth Amendment right to counsel at trial.

Should the judge reverse the defendant’s conviction?

Answers:

A) No, because the defendant was convicted of a misdemeanor.
B) No, because the defendant’s prison sentence was suspended.
C) Yes, because the defendant was convicted of a crime for which a sentence of incarceration was imposed.
D) Yes, because the defendant was convicted of a crime that was punishable by imprisonment.

Answer 30

C) Yes, because the defendant was convicted of a crime for which a sentence of incarceration was imposed.

Why not D?

Answer choice D is incorrect because assistance of counsel is not required for a crime that is punishable by imprisonment as long as that punishment is not imposed. (I.e. Judge agrees not to incarcerate)

Question 31

If the defendant is indicted, placed in a cell, and the prosecution places an informant to get information/confessions about the crime that is the subject of the indictment, is there a constitutional violation?

Answer 31

Yes. 6th amendment. Defendant had a right to counsel at all critical stages of the proceeding—during the period of arrest—and any attempt by the police to directly elicit incriminating statements, including through the use of an informant while he was in his cell, violates his right to have counsel present during interrogation.

*Had it been for a different crime than the one indicted, no.

*Had it been 5th amendment, no.

Question 32

Grand Jury Investigations / Constitutional Protections / 4th Amendment

True or False:

Any witness, even a target of the grand jury’s investigation, is not protected by the FOURTH AMENDMENT from complying with a grand jury subpoena.

Question 33

When does the failure to provide counsel result in AUTOMATIC REVERSAL of a conviction?

Answer 33

Only the failure to provide counsel AT TRIAL results in automatic reversal

At other NON-TRIAL stages, the denial of counsel is subject to the HARMLESS-ERROR test –> eg. “no reasonable possibility” test… Under this test, error is harmless only if there is no reasonable possibility that the error contributed to the verdict.

Question 34

Can officers gain entry into a home through deceit (i.e. undercover cop)?

Answer 34

Yes. See Lewis v. U.S.

Question 35

Does Due Process preclude requiring a defendant to prove a self-defense claim in a criminal case by a preponderance of the evidence?

Answer 35

No. It is an affirmative defense and the State can require the Defendant to prove it by a Preponderance of the Evidence