Missed Practice Questions Flashcards
TRIAL: Due Process
As part of a divorce decree, a father was ordered to make monthly child support payments to his son’s mother. The father failed to make such payments. At a criminal contempt hearing regarding the father’s failure to comply with the child support order, the father’s attorney presented evidence as to the father’s inability to make such payments, which evidence was disputed by the mother. Under state law, there is a presumption that, with regard to enforcement of a child support order, the parent obligated to make child support payments has the ability to make such payments, since such ability was determined by the court at the time that the order was issued. In addition, the highest state court has ruled that, with regard to imposition of criminal contempt for a failure to make child support payments, the burden of proof as to the inability to make such payments is placed on the father. The court, finding that the father had not met this burden, held the father in criminal contempt and sentenced him to six months in prison. The father has appealed this decision as unconstitutional. Which of the following is the father’s best argument in support of his challenge to the constitutionality of this decision?
A. A presumption in a criminal trial violates the Due Process Clause of the Fourteenth Amendment.
B. The Due Process Clause of the Fourteenth Amendment does not permit the burden of proof to be placed on the person on whom the criminal penalty would be imposed.
C. The ability to make child support payments is an element of criminal contempt.
D. The father’s right to trial by jury was violated.
Answer choice C is correct. A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense. If the ability to make child support payments is an element of criminal contempt, rather than the inability to pay being an affirmative defense, the state cannot require the father to prove his inability to pay. Rather, the state is required to prove the father’s ability beyond a reasonable doubt. Answer choice A is incorrect because a presumption does not automatically violate the Due Process Clause. In order to have such effect, the presumption generally must be a mandatory presumption. Answer choice B is incorrect because the burden of proof with regard to an affirmative defense may be placed on the person on whom the criminal penalty may be imposed (e.g., the defendant). Answer choice D is incorrect because, with regard to criminal contempt, there is a right to trial by jury only if the imprisonment imposed exceeds six months. Here, the father’s sentence was six months.
FOURTH AMENDMENT - APPLICATION TO ARREST, SEARCH AND SEIZURE: Search And Seizure
A police officer saw a man who was a convicted drug dealer walking down the street. The officer temporarily detained the man based on a reasonable suspicion that the man was illegally carrying a weapon. The officer conducted a pat-down of the man and felt an indeterminate lump in the man’s jacket pocket. The officer removed the object, which turned out to be a pocket Bible. Protruding from the Bible was a plastic bag containing a white powder. The officer recognized the powder as heroin, and immediately arrested the man. Later tests confirmed that the powder was heroin. At trial, the man’s attorney moved to exclude evidence of the heroin. How should the judge rule?
A. Deny the motion, because the evidence was discovered during a valid Terry stop.
B. Deny the motion, because the officer had reasonable suspicion that the man was carrying a weapon.
C. Grant the motion, because the pocket Bible did not immediately resemble a weapon or contraband.
D. Grant the motion, because the officer did not have probable cause to stop the man and conduct a pat-down.
Answer choice C is correct. A stop (also known as a “Terry stop”) is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest. A stop is justified on the reasonable suspicion that the detainee is or was involved in criminal activity. An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat-down of the outer clothing, if she has reasonable suspicion that the suspect was or is involved in criminal activity and that the frisk is necessary for the preservation of her safety or the safety of others. Under the “plain feel” exception, if an officer conducting a valid frisk feels an object that has physical characteristics that make its identity immediately obvious as a weapon, contraband, or evidence of a crime, then the officer may seize the object. Here, the object in the man’s pocket was an indeterminate lump; consequently it was not immediately identifiable as a weapon, contraband or other evidence of a crime. Accordingly, the “plain feel” exception does not apply. Answer choice A is incorrect because evidence discovered during a valid Terry stop must satisfy the “plain feel” exception. Answer choice B is incorrect because, although the officer’s reasonable suspicion that the man was carrying a weapon justified the pat-down, the object discovered during the frisk could not be exposed or seized because it was an indeterminate lump. Answer choice D is incorrect because it misstates the law; probable cause to arrest the suspect is not necessary to conduct a limited frisk of the suspect during a Terry stop.
FIFTH AMENDMENT RIGHTS AND PRIVILEGES: The Privilege Against Compulsory Self-Incrimination
A prosecutor convened a grand jury to bring criminal charges against a pharmaceutical corporation. The charges were related to a new drug that was linked to several deaths. The prosecutor served a subpoena on a corporate employee who oversaw the testing of new drugs and kept the records related to such testing, requiring the production of all records related to testing done on the new drug. The employee refused to produce the records on Fifth Amendment grounds, asserting that the production of the records might incriminate him personally. Is the employee likely to be required to produce the records?
A. No, because the Fifth Amendment privilege applies to corporations.
B. No, because the production of the records would incriminate the employee personally.
C. Yes, because the Fifth Amendment privilege does not apply in grand jury proceedings.
D. Yes, because the Fifth Amendment privilege does not extend to the custodian of corporate records.
Answer choice D is correct. Although the custodian of corporate records as an individual enjoys the Fifth Amendment privilege against self-incrimination, the request for production is being made to the custodian in his capacity as a corporation employee, and, as such, the Fifth Amendment does not apply. Answer choice A is incorrect because the Fifth Amendment privilege against self-incrimination applies only to individuals. Entities such as corporations do not enjoy this privilege. Answer choice B is incorrect because the request for production is being made to the custodian in his capacity as a corporate employee, and, as such, the Fifth Amendment does not apply. Answer choice C is incorrect because the privilege may be asserted in any proceeding, including a grand jury proceeding, so long as the testimony might incriminate the person testifying in a criminal proceeding.
POST-TRIAL CONSIDERATIONS: Double Jeopardy
In state court, an employee was tried and convicted of embezzling funds from her employer. Pursuant to the criminal statute, the employee was ordered to make restitution of the embezzled funds, but not otherwise subjected to imprisonment or a fine for her conduct, even though both were statutorily permitted. The employee successfully appealed her conviction due to improperly admitted evidence. Upon retrial, the employee was again found guilty. In addition to ordering the defendant to make restitution, the judge, commenting that she had wasted valuable judicial resources by appealing her prior conviction, also fined her $50,000. On appeal, the employee contends that her punishment was unconstitutional. Should the appellate court vacate her sentence?
A. Yes, because the constitutional prohibition against double jeopardy prevents the imposition of a harsher sentence upon retrial of defendant after a successful appeal of a conviction.
B. Yes, because the imposition of a fine violated the Due Process Clause of the Fourteenth Amendment.
C. No, because the constitutional prohibition against double jeopardy does not apply to fines, but only to imprisonment.
D. No, because a defendant may be retried after an appeal results in the defendant’s conviction being overturned due to trial errors.
Answer choice B is correct. The Due Process Clause prohibits the imposition of a harsher sentence upon retrial of a defendant who successfully appeals a conviction, when the harsher sentence constitutes a penalty imposed on the defendant for the exercise of her right to appeal her conviction. Here, the judge did not base the harsher sentence on factors relating to the defendant herself, such as other illegal behavior, but in retaliation against the defendant for exercising her right to appeal. Answer choice A is incorrect because the constitutional prohibition against double jeopardy does not generally prevent the imposition of a harsher sentence upon the retrial of a defendant after a successful appeal of a conviction. Answer choice C is incorrect because the constitutional prohibition against double jeopardy applies to criminal punishment whether by imprisonment or by fine. (Note, however, this constitutional protection does not extend to civil penalties.) Answer choice D is incorrect because, although a defendant may generally be retried after a successful appeal of a conviction, the employee-defendant in this case was subjected to a greater punishment in violation of the Due Process Clause.
FOURTH AMENDMENT - APPLICATION TO ARREST, SEARCH AND SEIZURE: General Fourth Amendment Principles
A wife was having an affair with her neighbor. The wife and her husband had a prenuptial agreement that prevented the wife from receiving any of the husband’s sizable fortune in the event of a divorce. The wife and her neighbor formed a plan to murder the husband and run away together with the wife’s inheritance. The neighbor shot the husband one evening, killing him instantly, then drove to a town 100 miles away and checked into a motel. Later that night, the police showed up at the motel with a valid warrant for the neighbor’s arrest. After the neighbor was arrested and placed in a police car, the police asked the motel clerk for permission to search the room, and the clerk granted the request. The police found the gun hidden in the tank of the toilet. The wife and the neighbor were each charged with first-degree murder and tried separately. At her trial, the wife sought to suppress any evidence of the gun, arguing that it was seized illegally. What is the prosecution’s strongest response to this argument?
A. The motel clerk gave the police permission to search the room.
B. The wife was not staying in the motel room where the gun was found.
C. The gun was found in a search incident to a lawful arrest.
D. The neighbor did not have a reasonable expectation of privacy in the motel room.
Answer choice B is correct. Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. Here, the wife had not checked into the hotel room, was not present there, and therefore had no expectation of privacy there. Her rights were therefore not violated by the search of the neighbor’s motel room, and thus the gun likely will not be suppressed in her trial. (Note that this question does not address whether the neighbor himself would have a claim based upon this search and seizure.) Answer choice A is incorrect because the search of a motel room by a government agent may be unreasonable. A motel clerk’s consent to a governmental search of a room during the time it is rented is insufficient to justify the search. Answer choice C is incorrect because a lawful arrest justifies only a warrantless contemporaneous search of the arrestee’s wingspan and areas immediately adjoining the place of arrest from which an attack could be launched. In this case, the search was not contemporaneous with the arrest, as it occurred when the neighbor was already in the police car, and it exceeded the scope of a lawful search incident to an arrest. Answer choice D is incorrect because an individual may have a reasonable expectation of privacy in a motel room.
FOURTH AMENDMENT - APPLICATION TO ARREST, SEARCH AND SEIZURE: Arrest - Unreasonable Seizure of Persons
A police officer obtained a valid warrant to arrest a woman for misdemeanor theft. Having probable cause to believe that the woman was spending the afternoon at a friend’s house, the officer went to the friend’s house to serve the warrant. No one responded to the officer’s knocking or to his identification of himself as a police officer. The officer, finding the door unlocked, opened the door and entered the house. Once in the house, the officer found the woman hiding in a bedroom closet. The woman was properly charged with misdemeanor theft. She sought dismissal of the case against her due the manner of her arrest.
Should the court dismiss the charges against the woman?
A. No, because the officer arrested the woman pursuant to a valid arrest warrant.
B. No, because the woman was properly charged with misdemeanor theft.
C. Yes, because the officer’s arrest of the woman at her friend’s house was illegal.
D. Yes, because the officer could not arrest the woman for a misdemeanor unless the misdemeanor occurred in the officer’s presence.
Answer choice B is correct. An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested. While evidence seized as a consequence of an illegal arrest may be suppressed under the fruit of the poisonous tree doctrine, and the charge may be thrown out if such evidence is necessary for conviction, that is not the case under these facts. Answer choice A is incorrect because, although the woman was arrested pursuant to a valid arrest warrant, the arrest was illegally effected because the officer arrested the woman at the home of her friend. Since the officer did not have a warrant to search for the woman at her friend’s home, his arrest of the woman there was illegal. Answer choice C is incorrect because, although the arrest was illegal as noted in answer choice B, the illegal arrest does not prevent the prosecution of the woman for misdemeanor theft. Answer choice D is incorrect because, since the officer had an arrest warrant, he could arrest the woman for a misdemeanor that did not occur in his presence.
FOURTH AMENDMENT - APPLICATION TO ARREST, SEARCH AND SEIZURE: Search and Seizure
A police officer sought from an independent magistrate a warrant to search a liquor store owned by the defendant for evidence of a murder. The affidavit submitted by the officer specified the premises to be searched and the items to be seized, and established probable cause on the basis of a reliable informant’s tip that such evidence would be found on those premises. The warrant issued by the magistrate set forth the premises to be searched, but neither identified the items to be seized nor made reference to the affidavit. Evidence seized by the officer during the search conformed to the evidence specified in the affidavit. The defendant was charged with murder. The defendant moved to suppress the items seized by the police officer on the grounds that the warrant was constitutionally defective.
How should the court rule?
A. Grant the motion, because the warrant lacked the particularity required by the Constitution.
B. Grant the motion, because probable cause cannot be based on an informant’s tip.
C. Deny the motion, because the search was reasonable.
D. Deny the motion, because as a highly regulated business, a liquor store may be searched without a warrant.
Answer choice A is correct. The Fourth Amendment requires that a search warrant state with particularity the items to be seized. The warrant in this case failed to do so. Answer choice B is incorrect. Probable cause may be based on an informant’s tip where the officer’s affidavit also establishes the informant’s reliability or other justification for relying on the tip. Answer choice C is incorrect because, although the magistrate was aware of the items to be seized at the time that the magistrate issued the warrant and the police officer only seized an item specified in the affidavit, the dictates of the Fourth Amendment warrant requirement were not satisfied. Consequently, the search was by definition unreasonable. Answer choice D is incorrect because, although a liquor store is a highly regulated business that may be subject to an administrative search without a warrant, a search of the store for criminal activity, such as a murder, is subject to the warrant requirement.
FOURTH AMENDMENT - APPLICATION TO ARREST, SEARCH AND SEIZURE: Search and Seizure
A rash of home burglaries occurred in a single neighborhood, all occurring during the week around lunchtime. Multiple neighbors of the burglary victims reported seeing a blue SUV with a cracked windshield parked outside of the residences, with someone in the driver seat of the vehicle who appeared to be acting as a look-out. Because of the increase in burglaries, the police were looking for a vehicle that matched this description. A police officer, while patrolling the neighborhood around lunchtime, spotted a blue SUV with a cracked windshield parked outside a residence with the defendant sitting in the driver’s seat. The officer approached the vehicle and asked the defendant to get out. The officer then began to question the defendant about his activities. The defendant admitted that he was a look-out for his friend, who was in the residence stealing valuables. Both the defendant and his friend were arrested for burglary.
At trial, the defendant moved to suppress his confession.
Should the defendant’s motion to suppress be granted?
A. No, because the police officer had probable cause to question the defendant.
B. No, because the police officer had reasonable suspicion the defendant was involved in criminal activity.
C. Yes, because the police officer did not have probable cause to detain the defendant.
D. Yes, because the police officer did not read the defendant his Miranda rights before questioning him
Answer choice B is correct. A “Terry stop” is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest. A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainee is or was involved in criminal activity. Reasonable suspicion requires more than a vague suspicion, but is less than probable cause and does not need to be based on a police officer’s personal knowledge. Police may stop the person and question him for a limited period of time. Here, the officer had reasonable suspicion that the defendant was involved in criminal activity. He was present in the neighborhood in which burglaries had recently taken place and at the same time of day as those burglaries had occurred. In addition, the vehicle in which the defendant was setting matched the description given by the neighbors of recent burglary victims. Therefore, the officer’s brief questioning of the defendant was lawful and the defendant’s confession should not be suppressed. Answer A is incorrect. Although the defendant’s confession should not be suppressed, the reason for the suppression is that the police officer had reasonable suspicion, not probable cause of the defendant’s involvement in the robberies. Answer C is incorrect because the police officer conducted a “Terry stop”, which does not require probable cause. Answer D is also incorrect. A police officer does not need to read the defendant his Miranda rights before questioning him during a “Terry stop.”
FIFTH AMENDMENT RIGHTS AND PRIVILEGES: The Fifth Amendment in a Police Interrogation Context
A police officer saw an automobile parked on the right side of a major highway with its hazard lights blinking. Upon approaching the vehicle, the officer found a man sitting behind the steering wheel holding the vehicle’s keys. The man told the officer that the vehicle had run out of gas, that he had just returned from obtaining gas, and that he was now ready to leave. The officer believed that the man’s appearance and behavior were consistent with the use of the stimulant methamphetamine and therefore asked the man for his driver’s license and registration. The man was able to produce a valid license, but no registration, claiming that the vehicle had been borrowed from a friend. The officer then asked the man if he would consent to a search of the vehicle and the man agreed to the search. The officer ordered the man to step out of the vehicle and stand with his hands on the hood of the officer’s police cruiser while he conducted the search of the vehicle. The search revealed a small plastic bag under the driver’s seat that the officer believed to contain methamphetamine. On questioning by the officer, the man admitted that the bag belonged to him and was immediately arrested. At no point during this exchange did the officer provide the man with Miranda warnings. The bag was subsequently found to contain methamphetamine and the man was charged with criminal possession of a controlled substance.
On the man’s pre-trial motion to suppress his admission about the bag belonging to him, the court should find that the statement:
A. Should not be suppressed because the man consented to the search of the vehicle.
B. Should not be suppressed if the police officer had probable cause to search the vehicle.
C. Should be suppressed if it is found that the plastic bag was not in “plain view” of the police officer.
D. Should be suppressed if the man is found to have been in custody for purposes of the Fifth Amendment at the time he was questioned by the officer about the bag.
Answer choice D is correct. Any statement obtained as the result of “custodial interrogation” may not be used against the suspect at a subsequent trial unless the police provided Miranda warnings. If the court determines that the man was “in custody” for purposes of the Fifth Amendment at the time he was questioned by the officer about the bag, Miranda warnings should have been given by the officer prior to the questioning and the subsequent statement should therefore be suppressed. Answer choice A is incorrect because it is irrelevant for purposes of the Fifth Amendment interrogation whether the man consented to the search of the vehicle. The consent is relevant for purposes of the Fourth Amendment search, but the main issue here, since consent to the search was given, is the admissibility of the man’s admission in response to the police officer’s interrogation. Answer choice B is incorrect, as the plain view doctrine is not relevant to the question asked. It deals with the issue of search and seizure, not custodial interrogation. Answer choice C is incorrect, as it does not matter for purposes of the admissibility of the man’s statement whether the officer had probable cause to search the vehicle. The officer had the man’s explicit consent.
FIFTH AMENDMENT RIGHTS AND PRIVILEGES: The Fifth Amendment in a Police Interrogation Context
A police officer received an anonymous tip that a teenager who lived in an apartment complex with his mother was the perpetrator of a recent rash of burglaries in the complex. The officer, together with another officer, went to the teenager’s apartment in order to speak with him. After seeing the officers’ uniforms and badges, the teenager, indicating that his mother was at work, invited the officers into the apartment. Once inside, one of the officers gave the teenager, who had a low IQ, a Miranda warning. The teenager responded that he didn’t need an attorney and that the police could ask him all the questions they wanted. After almost an hour of questioning, the teenager confessed to the burglaries. The teenager was charged with the burglaries. Prior to trial, his attorney filed a motion to suppress the confession, contending that the teenager’s waiver of his Miranda rights was invalid.
On which party is the burden to establish the validity of the waiver and what is that burden?
A. The burden is on the prosecution to establish the validity of the defendant’s waiver beyond a reasonable doubt.
B. The burden is on the prosecution to establish the validity of the defendant’s waiver by clear and convincing evidence.
C. The burden is on the prosecution to establish the validity of the defendant’s waiver by a preponderance of the evidence.
D. The burden is on the defendant to establish that the waiver was invalid by a preponderance of the evidence.
Answer choice C is correct. The prosecution bears the burden of establishing that a defendant has waived his Miranda rights by a preponderance of the evidence. Answer choices A and B are incorrect because, while they correctly state that the prosecution bears the burden of proof, they both articulate the wrong standard of proof. Answer choice D is incorrect because the defendant does not bear the burden.
FIFTH AMENDMENT RIGHTS AND PRIVILEGES: The Fifth Amendment in a Police Interrogation Context
Police officers were engaged in the investigation of a bank robbery. Based on the circumstances of the robbery, they believed that the robbery was an “inside job,” and that a senior employee was likely involved in planning the robbery. 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?
A. No, because the police may not intentionally employ a “question first, warn later” approach to elicit a confession.
B. No, because the vice-president was not allowed time to contact his attorney before waiving his rights.
C. Yes, because the officers provided the vice-president with the required Miranda warnings.
D. Yes, because the taint of an illegal, unwarned interrogation may be cured by providing the suspect with Miranda warnings.
Answer choice C is correct. 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 he is not free to leave or is otherwise deprived of his freedom in any significant way. 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.
FIFTH AMENDMENT RIGHTS AND PRIVILEGES: The Fifth Amendment in a Police Interrogation Context
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?
A. Suppress both the confession and the gun.
B. Suppress only the confession.
C. Suppress only the gun.
D. Suppress neither the confession nor the gun.
Answer choice D is correct. 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.
FIFTH AMENDMENT RIGHTS AND PRIVILEGES: Fifth Amendment in the Trial Context
A mother was subpoenaed and appeared before a grand jury. She was asked where she had been at a certain time on a specified night when a murder had occurred. The mother invoked her Fifth Amendment privilege against self-incrimination and refused to answer the question. The prosecutor believes that the mother’s son committed the murder, and wants the mother’s testimony in order to discredit her son’s alibi. The prosecutor does not believe that the mother is guilty of the murder, but believes she may have committed other crimes.
How can the grand jury compel the mother to answer the question?
A. It may compel her testimony without granting immunity, because the mother cannot invoke the Fifth Amendment privilege at a grand jury proceeding unless she is a suspect under investigation.
B. It may compel her testimony only if the mother is granted immunity from any future use against her of her grand jury testimony or any evidence derived from it.
C. It may compel her testimony only if the mother is granted immunity from any future prosecution for any crime she might disclose in the course of her testimony.
D. It may not compel her testimony under any circumstances because she cannot be coerced to incriminate herself in the murder or any other crimes.
Answer choice B is correct. “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. A witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted use and derivative-use immunity. Answer choice A is incorrect because the mother cannot be compelled to provide potentially incriminating testimony unless she is granted use and derivative-use immunity. A witness called to appear before a grand jury may invoke her Fifth Amendment privilege against self-incrimination in response to questions posed by the grand jury or the grand jury’s prosecutor. Answer choice C is incorrect because, although the mother cannot be compelled to provide potentially incriminating testimony unless the mother is granted immunity, the mother need not be granted transactional immunity. Answer choice D is incorrect because use and derivative-use immunity sufficiently protects the mother’s constitutional privilege against self-incrimination in this situation.
SIXTH AMENDMENT - Applicability: Right to Counsel
An indigent defendant was convicted of violating a state statute prohibiting vagrancy. The defendant unsuccessfully challenged his conviction in a state appellate court on the grounds that the law is unconstitutionally vague on its face. Seeking discretionary review of the appellate court’s decision in the state’s highest court, the indigent has sought to retain the counsel provided by the state for his trial and initial appeal to prepare this appeal.
Is the state constitutionally required to provide the indigent with counsel for this appeal?
A. Yes, because the criminal statute is allegedly unconstitutional on its face.
B. Yes, because denial of appointed counsel to an indigent defendant violates the Equal Protection Clause.
C. No, because the appeal is discretionary.
D. No, because an indigent defendant is not entitled to appointed counsel to pursue any appeal.
Answer choice C is correct. A state is not constitutionally required to provide an indigent defendant with counsel in order to pursue a discretionary appeal. Answer choice A is incorrect because, while an allegation that a statute is unconstitutional on its face can affect whether a person may pursue an appeal, such an allegation is irrelevant to the issue of whether an indigent defendant is entitled to the appointment of counsel. Answer choice B is incorrect because, although the Equal Protection Clause compels the state to provide an indigent defendant with an attorney for an appeal as of right, this clause does not require the state to provide an attorney for a discretionary appeal. Answer choice D is incorrect because, where a state does provide that a defendant may appeal a conviction as a matter of right, the Equal Protection Clause does compel the state to provide an indigent defendant with an attorney.
SIXTH AMENDMENT: Remedies for Denial of Counsel
A defendant in a robbery case was awaiting trial, though his attorney had negotiated with the prosecution to allow him to be under house arrest while awaiting trial, instead of sitting in jail. The police had been unable to find the gun that the defendant purportedly used to commit the robbery, and knew that finding the gun would greatly help the prosecution make its case. One of the police officers decided to visit the defendant at his home. After talking with the officer for about 30 minutes, the defendant decided to confess to the robbery. The defendant also admitted that the gun was hidden in a random office building downtown, which the police had never thought to search. Based on the confession, the officer got a warrant to search the building and found the gun. The prosecutor plans to introduce both the confession and the gun into evidence at the defendant’s trial.
On a motion by the defense to suppress the confession and the gun, how should the court rule?
A. Grant the motion as to the confession, but deny it as to the gun.
B. Grant the motion as to both the confession and the gun.
C. Deny the motion as to the confession, but grant it as to the gun.
D. Deny the motion as to both the confession and the gun.
Answer choice B is correct. The evidence should be suppressed because there were both Fifth and Sixth Amendment violations. The defendant’s Sixth Amendment rights were violated because he was represented by counsel in the matter at issue and there was no effective waiver of that right. Evidence obtained in violation of a defendant’s Sixth Amendment rights may not be introduced at trial. This is the case for both statements of a defendant and any evidence derived from such statements. In addition, the defendant’s Fifth Amendment rights were violated. Since the defendant here was under house arrest, he was in “custody.” A reasonable person would not believe that he was free to leave under such circumstances. Since there were no Miranda warnings given, the confession is inadmissible. (Note that the lack of Miranda warnings would not necessarily preclude admission of the gun.) Answer choice A is incorrect because it would allow for admission of evidence derived from such a confession. Answer choices C and D are incorrect because they would allow for admission of an illegally obtained confession.
