Mixed Set Flashcards
A drug addict entered a pawnshop with a starter pistol that could not fire real bullets, intending to rob it so he could buy drugs. However, once inside the pawnshop, the addict was too afraid to do anything and turned to leave. He bumped into another customer who was coming in as he was going out, and the pistol fell from his coat pocket. The shopkeeper saw it and realized what the addict had intended. She chased after him and flagged down a patrol car, and he was arrested a block away.
The addict is charged with burglary, which is defined in this jurisdiction as “breaking and entering of any building for the purpose of committing a felony.”
His best defense would be which of the following?
A His pistol was inoperative.
B The pawnshop was open for business.
C He had abandoned his plan to commit the robbery.
D As a drug addict, he was incapable of forming the requisite intent.
B The pawnshop was open for business.
Because this statute requires that the defendant “break and enter,” the addict’s best defense is that, because the pawnshop was open to the public, he had not “broken” in but entered with the implied consent of the pawnshop owner. (A) is wrong because it is immaterial to the crime of robbery (the underlying felony in this burglary) that the robber was incapable of carrying out his threat of harm, as long as the victim reasonably believed that he was. (C) is not the best answer because the statute requires only that the defendant enter the building with the intent to commit a felony. The fact that the intent was abandoned after entry would not make the defendant not guilty of burglary. (D) is wrong because there is nothing in the facts indicating that the addict was incapable of realizing what he was doing, and being a drug addict in and of itself does not show that the defendant is incapable of forming an intent to commit a crime.
A homeowner decided to destroy his home by fire in order to collect the insurance. A neighbor’s house was located a short distance from the homeowner’s home. The homeowner knew that there was a strong wind blowing towards the neighbor’s home; while he did not want to burn the neighbor’s home, he nevertheless set fire to his own home. The fire department was unable to save the homeowner’s house. They did manage to put out the fire moments before it spread to the neighbor’s home, which suffered damage from smoke and soot. The jurisdiction’s arson statute covers burning one’s own dwelling as well as the dwelling of another, but is otherwise unchanged from the common law.
If the homeowner is charged with attempted arson of the neighbor’s home, is he likely to be found guilty?
A No, because he did not intend to burn the neighbor’s house.
B No, because the fire was put out before any part of the neighbor’s home was burned.
C Yes, because he intended to burn his own home and took a substantial step toward burning the neighbor’s house.
D Yes, because he acted with malice and took a substantial step toward burning the neighbor’s house.
A No, because he did not intend to burn the neighbor’s house.
The homeowner will be found not guilty because he did not have the requisite mental state. To convict a person for an attempted crime, the prosecution must establish that the defendant had an actual specific intent to cause the harm prohibited by the statute and committed an act beyond mere preparation in furtherance of that intent. Those elements-specific intent and act-are required regardless of the mental state required by the target offense. A person who took a substantial step towards commission of the crime but was only reckless with respect to the target offense could not be found guilty of attempt. The homeowner did not intend to burn the neighbor’s home. Therefore, he cannot be guilty of attempted arson of the neighbor’s home. (B) is wrong. The fact that the fire was put out before it burned any of the neighbor’s home would not preclude a conviction of attempted arson if the elements of attempted arson were otherwise established. (C) is wrong. To be guilty of attempted arson of the neighbor’s home, the homeowner must have intended to burn the neighbor’s home. The doctrine of transferred intent does not apply to attempt. (D) is wrong. A specific intent to burn the home is required for attempted arson. While malice satisfies the state of mind requirement for the completed crime of arson, it will not suffice for attempt.
A shopper at a flea market noticed a vase and asked a nearby person how much it cost. The person replied, “One hundred dollars.” The shopper paid him the money and took the vase. The person, who was not the owner of the vase but merely a bystander, absconded with the $100.
What crime at common law has the bystander committed with respect to the $100?
A Embezzlement.
B Larceny by trick.
C Obtaining property by false pretenses.
D No crime.
C Obtaining property by false pretenses.
The bystander has obtained property by false pretenses. In the crime of false pretenses, the defendant obtains title to the property by means of a false representation of a material present or past fact that causes the victim to pass title to his property to the defendant, who knows his representations to be false and intends thereby to defraud the victim. Under the circumstances, by replying that the price of the vase was $100, the bystander implied that he was its owner or was authorized to sell it, which he was not. This false representation induced the victim to pass title to his money to the bystander, who knew the representation to be false. Therefore, he is guilty of obtaining money by false pretenses and (D) is incorrect. (A) is incorrect because the bystander took title, not mere possession. Therefore, the crime is false pretenses, not embezzlement. The physical transfer of that cash without any limitations on its use was a transfer of title to the money. Therefore, the crime is the obtaining of money by false pretenses. (B) is incorrect because larceny by trick occurs when the defendant obtains possession of another’s property by lying or trickery. Here, the bystander obtained title to, rather than mere possession of, the money, and is therefore not guilty of larceny by trick.
A man asked a coworker who was a wine collector to lend him a bottle of expensive wine to put in his liquor cabinet, because he was inviting his mother over for dinner and wanted to impress her. The coworker permitted the man to take a bottle of wine worth $700 to his apartment for the dinner as long as he returned it the next morning. As he had planned all along, the man instead invited his girlfriend over for a romantic dinner, at which they drank the bottle of wine. The next day the man told his coworker that he had been mugged on his way home and that the muggers made off with the wine. Suspicious, the coworker found the empty wine bottle in the man’s trash from his apartment.
If the man is charged with theft in a common-law jurisdiction, of which theft offense is he most likely to be convicted?
A Larceny by trick.
B Larceny.
C Embezzlement.
D No crime.
A Larceny by trick.
The man can be convicted of larceny by trick. The owner of the wine gave possession of the bottle of wine to the man, but clearly did not give up ownership, because possession was transferred on the coworker’s explicit promise to return it the next day. Therefore, a theft crime of some sort was committed, but that crime is not pure common law larceny because there was no trespassory taking. If the man obtained possession of the wine by fraud or misrepresentation, then he is guilty of larceny by trick. Because it apparently was the man’s intent to drink the wine all along, the possession was obtained by fraud and the crime is larceny by trick, not embezzlement (the crime which would have occurred if he obtained rightful possession). Therefore, (D) is incorrect. (B) is incorrect because this is not a true trespassory taking; possession, even though obtained by fraud, was given. (C) is incorrect because, although the coworker had possession of the wine (which would normally indicate embezzlement), he obtained that possession by fraud (which indicates larceny by trick).
A father who was paralyzed in an accident and unable to work refused to accept financial support from relatives or the government to help him care for his family. When one of his children became seriously ill and needed medical attention, the father refused to allow the child to receive medical care at the local public health clinic because of his feelings regarding the acceptance of charity. The father thought that the child was starting to get better, but then she took a turn for the worse and died from her illness.
What crime has the father most likely committed?
A Murder.
B Voluntary manslaughter.
C Involuntary manslaughter.
D No crime.
C Involuntary manslaughter.
The father has committed involuntary manslaughter. A father has a duty to provide the necessities for his child. His failure to do so has caused the child’s death. Such an omission is criminal, so (D) is incorrect. Criminal negligence, a form of involuntary manslaughter, is an unintended killing caused by the negligence of another. Criminal negligence requires a greater deviation from the reasonable person standard than is required for civil liability, but less negligence than the reckless disregard for human life required for malice. Certainly a parent’s failure to provide medical treatment for a critically ill child is criminal negligence. Note that intent is not an element of involuntary manslaughter. (A) is incorrect because murder requires a showing of malice aforethought, which includes a reckless indifference to an unjustifiably high risk to human life (i.e., an abandoned and malignant heart). Here the facts do not appear to rise to the level of culpability required to establish malice. (B) is not correct because this is not a heat of passion killing, which would be voluntary manslaughter.
A gang member determined that he needed to avenge a recent shooting of his friend by killing a member of the rival gang responsible for the shooting. He drank heavily to build up his courage and then went to the home of the rival with a loaded gun and knocked on the door. When the rival opened the door, the gang member pointed the gun at the rival and pulled the trigger. However, due to being intoxicated, he had forgotten to release the safety, so the gun did not discharge. He was easily disarmed by the rival and arrested by the police. At his trial, he testified that he was so intoxicated that he did not remember anything that happened at the rival’s house.
The crimes below are listed in descending order of seriousness.
If the gang member’s testimony is believed, what is the most serious crime of which the defendant may be convicted?
A Attempted murder.
B Attempted manslaughter.
C Assault.
D No crime.
A Attempted murder.
The most serious crime the gang member may be convicted of is attempted murder. At common law, murder is the killing of another human being with malice aforethought. Malice could be shown by the defendant’s (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) reckless indifference to an unjustifiably high risk to human life; or (iv) intent to commit a felony. Attempt requires the intent to commit the target crime plus an overt act in furtherance of such intent. Thus, even though murder is a malice crime at common law, attempted murder is a specific intent crime. As a result, voluntary intoxication, which is a defense to specific intent crimes, ordinarily will be a defense to any attempted murder charge. However, one who formed an intent to commit a crime and then drinks in order to work up his nerve to commit it cannot rely on the defense of intoxication, even though he may be too intoxicated to form that intent at the time he did the act. Here, the gang member intended to kill his rival, went to his house with a gun, and pulled the trigger when his rival opened the door. Even if the jury believes his testimony that he did not remember anything that happened at the house, the fact that the defendant had the intent to kill originally and drank to build up his courage negates intoxication as a possible defense. Without such a defense, the defendant may be convicted of attempted murder. (B) is incorrect. Manslaughter requires either a killing committed during the heat of passion or a killing committed by criminal negligence. There are no facts indicating that the defendant was acting under the heat of passion. Furthermore, one cannot be convicted of attempted manslaughter based on negligence theory, because one logically cannot have the specific intent to be negligent. (C) is also incorrect. Although the defendant almost certainly put his rival in fear of an imminent unlawful battery or took sufficient steps to be guilty of the “attempted battery” type of assault, attempted murder would be the far more serious charge of which the defendant could be convicted. (D) is incorrect because there are at least two crimes of which the defendant could be convicted-attempted murder and assault.
Suspecting that a husband had slain his wife, police detectives persuaded one of the husband’s colleagues at work to remove a drinking glass from the husband’s office so that it could be used for fingerprint comparisons with a knife found near the body. The fingerprints matched. The prosecutor announced that he would present comparisons and evidence to the grand jury. The husband’s lawyer immediately filed a motion to suppress the evidence of the fingerprint comparisons so as to bar its consideration by the grand jury, contending that the evidence was illegally acquired.
Should the motion be granted?
A Yes, because, if there was no probable cause, the grand jury should not consider the evidence.
B Yes, because the employee was acting as a police agent and his seizure of the glass without a warrant was unconstitutional.
C No, because motions based on the exclusionary rule are premature in grand jury proceedings.
D No, because the glass was removed from the husband’s possession by a private citizen and not a police officer.
C No, because motions based on the exclusionary rule are premature in grand jury proceedings.
The motion should be denied. The issue in this question is not whether the seizure of the glass was valid, but whether it is an appropriate time to raise this issue. The exclusionary rule does not apply in grand jury proceedings. According to United States v. Calandra (1974), illegally seized evidence is admissible in grand jury proceedings. A pretrial motion to suppress is the appropriate vehicle to test the constitutionality of the seizure. The grand jury is not the appropriate forum. (A) is incorrect because the function of the grand jury is to consider evidence to determine whether there is probable cause to indict. It is not the function of the judge to take this matter away from the grand jury. A pretrial motion is the appropriate vehicle to challenge probable cause. (B) is incorrect because this choice goes to the legality of the seizure, which is not the issue in this question. The issue in this question is not whether the seizure of the glass was valid, but whether it is the appropriate time to raise the legality of the seizure. (D) is incorrect because it reaches the right result for the wrong reason. This choice goes to the legality of the seizure, which is not the issue in this question, as discussed in the explanation to (B).
A driver was stopped by the police after running a red light. Her roommate was also in the car. Because the driver did not have a driver’s license, the officer lawfully placed her under arrest and put her in his squad car. At the time of the arrest, the officer saw a shopping bag in the back seat containing clothes with price tags on them. The officer asked the driver if she had made any other purchases that day, and she responded that there were additional purchases in the trunk. The officer then searched the trunk of the car, where he found additional clothes purchases along with a clear plastic bag containing what appeared to be marijuana. Later testing confirmed that it was marijuana, which the roommates had purchased that morning from a neighbor.
The two roommates were charged with possession of marijuana. Prior to her trial, the driver’s attorney moved to suppress evidence of the marijuana because it was discovered in an illegal search, and the motion was granted.
If the attorney for the other roommate who was the passenger in the car subsequently moves to suppress evidence of the marijuana at her trial, should her motion be granted?
A Yes, because the marijuana was the fruit of an illegal search.
B Yes, because the judge had suppressed this evidence at the driver’s trial.
C No, because she has no standing to object to an illegal search.
D No, if she admits that she owns the marijuana.
C No, because she has no standing to object to an illegal search.
The roommate’s motion should be denied. The roommate has no standing to challenge the search of the trunk because the search did not violate her reasonable expectation of privacy. Merely being a passenger in someone else’s car does not create a reasonable expectation of privacy with regard to a search of the car. Something more is needed to have standing to challenge the search, such as if the roommate owned the car (not indicated by the facts). Thus (A) is incorrect. (Note also that, while each passenger in a car stopped by the police has standing to challenge the stop because each person was seized along with the driver, the stop here was clearly proper: The police may validly stop a car for traffic violations, and here the driver ran a red light. Thus, the roommate’s standing to challenge the stop is irrelevant.) (B) is incorrect because the judge’s actions at the previous trial are irrelevant here. Whether the roommate has standing to challenge the search and seizure depends on her own reasonable expectation of privacy, regardless of whether the driver’s rights were violated. (D) is incorrect. Essentially, it is an argument that, if the roommate admits that she owned the marijuana, she admits her guilt on the possessory charge, so her motion to suppress is irrelevant. However, at a suppression hearing, if a defendant charged with a possessory offense asserts a privacy (i.e., ownership) interest in the item seized, that testimony cannot be used against her at trial. [Simmons v. United States (1968)]
A drug smuggler had just returned home after smuggling in a large quantity of cocaine in the false bottom of his suitcase. As he was about to leave his house again to deliver the cocaine to his contact in the city, a police officer arrived with a trained drug-sniffing dog and asked him if he could come in and ask him some questions. The smuggler declined but the officer stepped into the doorway, and the dog immediately caught the scent of the cocaine and pulled the officer toward the suitcase in the hallway. Based on the dog’s clear indication that the suitcase contained narcotics, the police officer opened the suitcase and found the cocaine. The smuggler was then arrested and the cocaine and suitcase seized.
At a pretrial hearing, should the judge grant the smuggler’s motion to suppress evidence of the cocaine in the suitcase?
A Yes, because a warrantless search and seizure of items within the defendant’s home is not permissible absent exigent circumstances.
B Yes, because the search and seizure required a warrant.
C No, because the cocaine was seized as a search incident to a lawful arrest.
D No, because there is no reasonable expectation of privacy in the smell of one’s suitcase.
B Yes, because the search and seizure required a warrant.
The motion should be granted because the search and seizure required a warrant. To have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized or must prove that there was a physical intrusion into a constitutionally protected area. In the instant case, the place searched was the defendant’s home, which clearly is a place in which a person has a reasonable expectation of privacy. Even the entry to a home is within the curtilage and protected against unreasonable searches. A police officer nevertheless has an implied license to approach the door of a home and knock, just like anyone else. However, the Supreme Court has held that bringing a drug-sniffing dog along violates the license. Since the presence of the dog at the doorway was a physical intrusion into a constitutionally protected area, the whole episode was unreasonable under the Fourth Amendment. Moreover, consent to enter was not granted and no other exceptions apply, so evidence of the cocaine should be suppressed. (A) is incorrect because it is too broad of a statement. A warrantless search and seizure of items in one’s home may be based on other grounds, such as consent or plain view. (C) is incorrect because the search occurred prior to the arrest and thus was not a search incident to a lawful arrest (even assuming the arrest was lawful). (D) is incorrect. Although it has been held that one does not have a privacy interest in the smell of one’s luggage, here the luggage was located in the defendant’s home. The fact that the cocaine was still in the defendant’s luggage, rather than in some other location within the house, is irrelevant. The search occurred within the defendant’s home, which was not permissible under the facts.
A man beat his live-in girlfriend and fled. The girlfriend called the police and told them about the beating. She also told them that the man likely fled to his best friend’s house. The police quickly obtained a valid arrest warrant for the man and went to the friend’s house a few hours after the beating. On arriving, the police noticed that a car registered to the man was parked nearby. They knocked and the friend answered the door. The friend told the police that the man was not there. The police pushed past the friend and began searching for the man. They found the man hiding in a closet and arrested him. On searching the man after his arrest, police found cocaine in a small metal box in the man’s pants pocket.
The man was charged with assault and possession of cocaine. In a pretrial motion, the man moved to suppress the cocaine, claiming that it was the fruit of an unconstitutional arrest.
Should the court grant the motion?
A No, because the police found the cocaine after executing a valid arrest warrant.
B No, because the search of the friend’s house was valid under the community caretaker exception.
C Yes, because the police entered the house without a search warrant or consent.
D Yes, because the small metal box could not have felt like a weapon or contraband.
A No, because the police found the cocaine after executing a valid arrest warrant.
The court should not grant the motion. The police may search a person after making a valid arrest. The arrest here was valid because the police had a valid arrest warrant. While the police should have obtained a search warrant to search for the man in the friend’s home, the man does not have standing to complain of the illegal search. One may not raise a violation of another’s constitutional rights at a Fourth Amendment suppression hearing. A person generally does not have standing to complain about a warrantless search of another’s home unless the home was also his home or he was at least an overnight guest in the home. Here, the facts say that the man lived with his girlfriend, fled to the friend’s house, and had been there a few hours. Thus, he lacks standing to complain about the warrantless search. (B) is incorrect. The community caretaker exception to the warrant requirement is not applicable here. The exception applies when police are acting to protect a person from imminent physical harm. Here, the beating had ended several hours before and the police had no reason to believe that anyone was in danger in the house. Therefore, the community caretaker exception does not apply. (C) is incorrect for the reasons stated above. While the police should have obtained a warrant to search the friend’s home, the man lacks standing to complain about the warrantless search. (D) is incorrect because it is irrelevant. Incident to arrest, police may perform a full search. Only a pat down conducted during an investigatory detention is limited to revealing weapons or items immediately recognizable as contraband.
A police officer received an anonymous tip that the defendant was at a particular street corner selling drugs. Based solely on the tip, the officer went to the corner, saw the defendant talking with someone, and immediately stopped and frisked the defendant. The officer found an illegal gun as a result of the stop and frisk and arrested the defendant. Prior to trial, the defendant moves to suppress the gun.
Should the motion be granted?
A No, because the anonymous tip gave the officer probable cause to stop and frisk the defendant.
B No, because the defendant would have been arrested after completing a drug sale, so it was inevitable that the gun would be discovered.
C Yes, because an anonymous tip, without more, is insufficient to stop and frisk a suspect.
D Yes, because Miranda warnings were not given.
C Yes, because an anonymous tip, without more, is insufficient to stop and frisk a suspect.
The motion to suppress the gun should be granted. Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. To make such a stop, police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime. When the source of suspicion of criminal activity is an informant’s tip, the tip must be accompanied by indicia of reliability sufficient to make the officer’s stop reasonable. Here, the stop was based solely on an informant’s tip. Because the tip was anonymous and included nothing more than an accusation that a person standing on a certain street corner was selling drugs, it was not sufficient to justify the search. It needed to include more detail (e.g., predicting incriminating movement) to corroborate the accusation. Thus, (A) is incorrect, and the gun should be suppressed under the exclusionary rule as fruit of the poisonous tree. (B) is incorrect. Under the inevitable discovery exception to the exclusionary rule, evidence may be admissible if the police inevitably would have discovered the evidence whether or not they acted unconstitutionally. However, here it is just speculation that the officer would have had grounds to arrest the defendant; this is not sufficient to apply that exception. (D) is incorrect because Miranda warnings are required for custodial police interrogation, not before a stop and frisk.
The sheriff’s department received an anonymous tip that a farmer was growing marijuana on his rural property. Investigators flew low over the farmer’s property in a small plane belonging to the sheriff’s department and took aerial photos of the property. Once developed, the photos indicated that the area in the center of the farmer’s fields contained marijuana plants. That afternoon, four officers went to the perimeter of the farmer’s property. Using wire cutters, they cut their way through the farmer’s barbed wire fence and walked to the center of the field and found the marijuana plants. The officers then obtained a warrant to search the farmer’s house. On arrival, they produced the search warrant and searched the farmer’s house, finding large quantities of marijuana packaged and ready for sale.
The marijuana was seized and the farmer was charged with numerous drug offenses. Prior to trial, the farmer’s attorney moves to suppress evidence of the marijuana seized from the house.
Should the marijuana seized from the farmer’s house be suppressed?
A Yes, because it is the fruit of the poisonous tree, since the officers did not have a warrant when they entered the farmer’s property through the fence.
B Yes, because the police had no right to rely on anonymous information to search the farmer’s property.
C No, because the police had probable cause to obtain a warrant.
D No, because the open fields doctrine applies.
C No, because the police had probable cause to obtain a warrant.
The marijuana should not be suppressed. The search of the farmer’s house, which led to the seizure of the marijuana, was based on probable cause and a valid warrant. Therefore, the evidence will not be suppressed. The United States Supreme Court has held that a person does not have a reasonable expectation of privacy in any land or field not a part of the curtilage. Neither has the Court found such places to be constitutionally protected. Thus, there is no Fourth Amendment protection in such areas. Therefore, the police did not violate the Fourth Amendment when they took pictures or when they cut through the fence and entered the field. All evidence obtained through those activities could be the basis for a warrant to search the farmer’s house, and a search of a home based on a valid warrant will be considered reasonable under the Fourth Amendment. (A) is wrong because “open fields,” even if they are fenced in, are not protected by the Fourth Amendment, and so a warrant to enter the lands was not necessary. The police may have committed a tort or perhaps violated the state criminal code when they cut the fence and entered onto the land, but the Fourth Amendment was not violated. (B) is wrong because the police could rely on anonymous information when deciding to investigate the farmer. The search of the house, which led to the marijuana, was based on a warrant and facts observed by the police. (D) is not as good an answer as (C) even though it is true that the open fields doctrine applies to the fields that the officers entered. Here, the motion to suppress relates to the marijuana taken from the house; for that, a warrant is required.
A police officer who stopped a driver for speeding noticed that the driver resembled the description of a hit-and-run driver who had struck and killed a nine-year-old boy two days before. The officer examined the driver’s car and found recent dents. The driver was arrested for the hit-and-run offense and read his Miranda rights. However, the officer failed to inform him that the child struck in the hit-and-run accident had subsequently died. On the way to the police station in the squad car, the driver blurted out, “You got me. I was the hit-and-run driver. I just hope the kid is okay.” The officer still failed to inform him that the child had died. At the station house, the arresting officer said to the driver, “Look, you’ve already confessed. How about writing it down?” The driver replied, “I don’t think I should write or sign anything without a lawyer, but I’ll talk.” He again admitted that he was the hit-and-run driver. The officer made a tape recording of his confession.
In addition to speeding, the driver has been charged with leaving the scene of an accident and involuntary manslaughter. At the driver’s trial, the prosecution seeks to admit both the first confession (in the squad car) and the second confession (in the station house). The driver’s attorney moves to suppress both confessions.
How should the court rule on the motion?
A Granted as to the first confession; denied as to the second.
B Granted as to the second confession; denied as to the first.
C Granted for both confessions.
D Denied for both confessions.
D Denied for both confessions.
The driver’s motion to suppress both confessions will be denied because the facts do not indicate a violation of his constitutional rights. Under the exclusionary rule and the fruit of the poisonous tree doctrine, a confession will be suppressed if it resulted from a violation of the defendant’s constitutional rights or the Miranda rule. Here, an argument that the arrest was unconstitutional will fail. Under the Fourth Amendment, police officers may make a warrantless arrest in a public place if they have probable cause (i.e., facts that would cause a reasonable person) to believe a felony was committed by the arrestee. The officer here had probable cause because the driver matched the description of a hit-and-run driver and his car had recent dents. And there were no Miranda violations. The Miranda rule requires police officers to advise a detainee of certain rights and consequences before conducting a custodial interrogation, including the right to remain silent, the right to counsel, and the fact that any statements made can be used as evidence against the detainee. The term interrogation includes any conduct by police officers that they reasonably should know would likely elicit an incriminating response. The detainee may make a knowing and voluntary waiver of these rights. If the warnings are given, the rights will be deemed waived unless the detainee explicitly and unambiguously asserts his rights. There was no violation of Miranda as to the driver’s first confession. While he was in custody (i.e., he was arrested and in the back of a police car), there was no interrogation-the driver blurted out his statement without any kind of prompting by the police officer. Moreover, the officer had given the driver Miranda warnings. Neither was there a Miranda violation as to the second confession, although this conclusion is not as clear cut as in the first confession. Again, the driver was clearly in custody because he was under arrest at the stationhouse. There also was an interrogation (“How about writing [your confession] down”). While the police officer did not give the driver Miranda warnings immediately before this interrogation, warnings were given in the police car and it appears not much time had passed. Neither does it matter that the driver was not told that the victim had died. While the Court requires waiver of Miranda rights to be knowing and voluntary, the police do not have to inform the detainee of possible charges to meet this standard; it is sufficient that the warnings were given. Neither does it matter that the driver does not seem to have understood that spoken confessions are as admissible in evidence as written confessions (since he was willing to talk but not write his confession). Finally, merely saying that he would not write or sign anything without a lawyer was not an explicit or unambiguous request to remain silent or for counsel. Thus, both confessions are admissible and (A), (B), and (C) are incorrect.
A suspect was arrested on a charge of bank robbery. After formal charges had been filed, the suspect was scheduled for a lineup identification procedure. The suspect’s attorney was notified of the lineup and arrived at the station prior to the scheduled lineup. He was directed to wait in the hallway outside the lineup room. When the suspect was escorted into the lineup room, the officer acknowledged the attorney but did not motion for him to follow them into the lineup room. The attorney remained seated in the hallway. Inside the lineup room, the six members of the lineup, including the suspect, stood on one side of the one-way mirror in full view of the witnesses gathered on the other side in the viewing area. The lineup members stepped forward one by one for a closer inspection. After the first two lineup members had been presented, an officer realized that the suspect’s attorney was not present and immediately escorted him to the viewing area. The attorney arrived in time to witness the presentation of the suspect and the remaining three members of the lineup. Two witnesses then identified the suspect as the robber.
At trial, if the defense objects to the introduction of the lineup evidence, should the objection be granted?
A No, because the attorney’s absence from the lineup procedure was the product of a good faith mistake.
B No, because the attorney was present when the suspect was presented in the lineup for identification by the witnesses.
C Yes, because the right to have counsel present at a post-charge lineup includes the right to have counsel present for the entire lineup.
D Yes, unless the witnesses are unavailable at trial.
C Yes, because the right to have counsel present at a post-charge lineup includes the right to have counsel present for the entire lineup.
The objection should be granted. A post-charge lineup is a critical stage of the prosecution at which a defendant has the right to counsel. Once the government has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a lineup. This right attaches as soon as the accused is within sight of a potential identification witness. Here, the attorney was not present in the room until after the lineup had commenced. (A) is incorrect because the requirement that counsel be present during a post-charge lineup has never turned on a showing of government bad faith, or even government error. The government has an affirmative obligation to ensure counsel’s presence at a post-charge lineup. (B) is incorrect because the fact that the attorney was present when the suspect was asked to step forward does not remedy the constitutional violation. The accused is entitled to have counsel present at all times during the lineup procedure when the accused is visible to the witnesses. Because the suspect was visible at all times during the lineup, not just when he stepped forward for closer viewing, he was entitled to counsel at all times during the lineup procedure. (D) is incorrect. It is true that, if the witnesses are unavailable at trial, their “prior identification” testimony may be admissible under the Federal Rules of Evidence. However, the evidence is inadmissible regardless because of a violation of the right to counsel.
Two men were arrested while riding in a stolen automobile. They were taken to the police station, booked, and fingerprinted. They were then taken to an interrogation room. After the detective gave them their Miranda warnings, one of the men said, “Forget it. As soon as you check for outstanding warrants, you’ll find out that I escaped from prison. Since I am going back anyway, it’s a farce to deny that we stole that car.” The other man said nothing, and the first man proceeded to write and sign a full confession.
The man who remained silent pled not guilty to the charge of grand theft auto. At his trial the prosecutor seeks to introduce evidence to show that he did not deny that he stole the automobile when the other man told the police in front of him that he was a party to the theft.
Should the court hold that this evidence is proper?
A Yes, because silence in this situation is indicative of guilt and is an implied admission.
B Yes, because the man who confessed had voluntarily waived his right to remain silent.
C No, because an accomplice’s evidence is inherently unreliable and unduly prejudicial.
D No, because under this circumstance, the man who remained silent had no duty or responsibility to deny the allegation.
D No, because under this circumstance, the man who remained silent had no duty or responsibility to deny the allegation.
The court should hold that this evidence is improper because the man who remained silent had no duty to deny the allegation here. A defendant in custody has no duty to speak at all, and the exercise of this constitutional right cannot be used against a defendant to show probable guilt. The Miranda warnings carry an implicit assurance that silence will carry no penalty. Thus, (A) is incorrect. (B) is immaterial, because the question only refers to the silent defendant’s conduct and not the confessing defendant’s statement. (C) suffers from the same problem, in addition to being a misstatement of the law.
