Second Exam Flashcards
A defendant was charged with murder. A witness testified for the prosecution that he had seen the defendant kill the victim. On crossexamination of the witness, defendant’s attorney seeks to elicit an admission from the witness that he was also charged with the same murder and that the prosecutor told him, “If you testify against the defendant, we will drop the charges against you after the conclusion of the defendant’s trial.”
Is the evidence of the prosecutor’s promise admissible?
(A) Yes, to impeach the witness.
(B) Yes, as an admission by an agent of a party opponent.
(C) No, because the law encourages plea bargaining.
(D) No, because the evidence is hearsay not within any exception.
A
A defendant was validly arrested for the murder of a store clerk and was taken to a police station where he was given Miranda warnings. When an interrogator asked the defendant, “Do you understand your Miranda rights, and are you willing to give up those rights and talk to us?” the defendant replied, “Yes.” When asked, “Did you kill the clerk?” the defendant replied, “No.” When asked, “Where were you on the day the clerk was killed?” the defendant replied, “Maybe I should talk to a lawyer.” The interrogator asked, “Are you sure?” and the defendant replied, “I’m not sure.” The interrogator then asked, “Why would you want to talk with a lawyer?” and the defendant replied, “Because I killed the clerk. It was an accident, and I think I need a lawyer to defend me.” At that point all interrogation ceased. Later, the defendant was formally charged with murdering the clerk.
The defendant has moved to suppress evidence of his statement “I killed the clerk” on the ground that this statement was elicited in violation of his Miranda rights.
Should the defendant’s motion be granted?
(A) No, because although the defendant effectively asserted the right to counsel, the question “Why would you want to talk with a lawyer?” did not constitute custodial interrogation.
(B) No, because the defendant did not effectively assert the right to counsel, and his conduct prior to making the statement constituted a valid waiver of his Miranda rights.
(C) Yes, because although the defendant did not effectively assert the right to counsel, his conduct prior to making the statement did not constitute a valid waiver of his Miranda rights.
(D) Yes, because the defendant effectively asserted the right to counsel, and the question “Why would you want to talk with a lawyer?” constituted custodial interrogation
B
Police received an anonymous tip that Tusitala was growing marijuana in her backyard, which was surrounded by a 15-foot high, solid wooden fence. Officer Boa was unable to view the yard from the street, so he used a police helicopter to fly over Tusitala’s house. Boa identified a large patch of marijuana plants growing right next to the house and used this observation to obtain a search warrant. Tusitala is prosecuted for possession of marijuana and moves to suppress use of the marijuana in evidence.
The court should
(A) deny the motion, because a warrant is not required for a search of a residential yard.
(B) deny the motion, because Tusitala had no reasonable expectation of privacy from aerial observation.
(C) grant the motion, because the only purpose of Boa’s flight was to observe the yard.
(D) grant the motion, because Tusitala had a reasonable expectation of privacy in the curtilage around her house and the police did not have a warrant
B
A plaintiff sued a defendant for libel. The plaintiff testified at trial that the defendant wrote an email to the plaintiff’s employer alleging that the plaintiff was a thief. The defendant now seeks to offer the testimony of a witness who will testify that he once saw the plaintiff steal money from a former employer.
Should the court admit the witness’s testimony concerning the prior theft?
(A) Yes, as substantive evidence to prove that the plaintiff is a thief.
(B) Yes, but only to impeach the plaintiff’s credibility.
(C) No, because character may not be shown by specific instances of conduct.
(D) No, because such evidence is more unfairly prejudicial than probative.
A
A cyclist sued a defendant corporation for injuries sustained when she was hit by a truck owned by the defendant and driven by its employee, who was making deliveries for the defendant. The day after the accident, the employee visited the cyclist in the hospital and said, “I’m sorry for what I did.” At trial, the employee testified that he had exercised due care.
Is the cyclist’s testimony relating to what the defendant’s employee said at the hospital admissible to prove negligence?
(A) Yes, as a prior inconsistent statement.
(B) Yes, as a statement against interest.
(C) Yes, as a statement by a party-opponent’s agent.
(D) Yes, as a statement of then-existing state of mind.
C
David is being tried in federal court for criminal conspiracy with John to violate federal narcotics law. At trial, the prosecutor calls David’s new wife, Wanda, and asks her to testify about a meeting between David and John that she observed before she married David.
Which of the following is the most accurate statement of the
applicable rule concerning whether Wanda may testify?
(A) The choice is David’s.
(B) The choice is Wanda’s.
(C) Wanda is permitted to testify only if both Wanda and David agree.
(D) Wanda is compelled to testify even if both Wanda and David object.
B
A defendant is charged with mail fraud. At trial, the defendant has not taken the witness stand, but he has called a witness who has testified that the defendant has a reputation for honesty. On cross-examination, the prosecutor seeks to ask the witness, “Didn’t you hear that two years ago the defendant was arrested for embezzlement?”
Should the court permit the question?
(A) No, because the defendant has not testified and therefore has not put his character at issue.
(B) No, because the incident was an arrest, not a conviction.
(C) Yes, because it seeks to impeach the credibility of the witness.
(D) Yes, because the earlier arrest for a crime of dishonesty makes the defendant’s guilt of the mail fraud more likely.
C
After a defendant was indicted on federal bank fraud charges and released on bail, his attorney filed notice of the defendant’s intent to offer an insanity defense. The prosecutor then enlisted the help of a forensic psychologist who was willing to participate in an “undercover” mental examination of the defendant. The psychologist contacted the defendant and pretended to represent an executive personnel agency. She told the defendant about an attractive employment opportunity and invited him to a “preliminary screening interview” to determine his qualifications for the job. As part of the purported screening process, the psychologist gave the defendant psychological tests that enabled her to form a reliable opinion about his mental state at the time of the alleged offense.
What is the strongest basis for a defense objection to the psychologist’s testimony regarding the defendant’s mental state?
(A) The Fourth Amendment prohibition against unreasonable searches and seizures.
(B) The Fifth Amendment privilege against compelled self-incrimination.
(C) The Sixth Amendment right to the assistance of counsel.
(D) The federal common law privilege for confidential communications between psychotherapist and patient.
C
A defendant was charged with the crime of defrauding the federal agency where he worked as an accountant. At trial, the court allowed the defendant to call his supervisor at the large corporation where he had previously worked, who testified about the defendant’s good reputation in the community for honesty. Over objection, the defendant then sought to elicit testimony from his former supervisor that on several occasions the corporation had, without incident, entrusted him with large sums of money.
Should the testimony be admitted?
(A) No, because the testimony is extrinsic evidence on a collateral matter.
(B) No, because good character cannot be proved by specific instances of conduct unless character is an essential element of the charge or defense.
(C) Yes, because it is evidence of a pertinent character trait offered by an accused.
(D) Yes, because it is relevant to whether the defendant was likely to have taken money as charged in this case.
B
A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive furtrimmed coat and then presented the latter for purchase at the cash register. The defendant testified in her own behalf that the tag must have been switched by someone else. On crossexamination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud in the defrauding of a retailer by the same means of switching the price tag on a fur-trimmed coat.
Is the question about the convictions for the earlier crimes proper?
(A) It is not proper either to impeach the defendant or to prove that the defendant committed the crime.
(B) It is proper both to prove that the defendant committed the crime and to impeach the defendant.
(C) It is proper to impeach the defendant, but not to prove that the defendant committed the crime.
(D) It is proper to prove the defendant committed the crime, but not to impeach the defendant.
B
A plaintiff sued a defendant for negligence arising out of an automobile accident. At trial, a bystander testified on behalf of the plaintiff. The defendant later called a witness, who testified that the bystander had a reputation in the community for being untruthful.
On cross-examination of the witness, the plaintiff’s attorney asks, “Isn’t it a fact that when you bought your new car last year, you made a false affidavit to escape paying the sales tax?”
Is this question proper?
(A) Yes, because it bears on the witness’s credibility.
(B) No, because character cannot be proved by specific instances of conduct.
(C) No, because one cannot impeach an impeaching witness.
(D) No, because the act in question did not result in a criminal conviction.
A
A defendant was tried for the homicide of a girl whose strangled body was found beside a remote logging road with her hands taped together. After the defendant offered evidence of an alibi, the state calls a witness to testify that the defendant had taped her hands and tried to strangle her in the same location two days before the homicide but that she escaped.
Is the evidence admissible?
(A) Yes, as tending to show that the defendant is the killer.
(B) Yes, as tending to show the defendant’s violent nature.
(C) No, because it is improper character evidence.
(D) No, because it is unfairly prejudicial.
A
While Defendant was in jail on a procuring charge, his landlord called the police because rent had not been paid and because he detected a disagreeable odor coming from Defendant’s apartment into the hallways. The police officer who responded to the call knew that Defendant was in jail. He recognized the stench coming from Defendant’s apartment as that of decomposing flesh and, without waiting to obtain a warrant and using the landlord’s passkey, entered the apartment with the landlord’s consent. The lease to these premises gave the landlord a right of entry, at any reasonable hour, for the purpose of making repairs. The police officer found a large trunk in the bedroom which seemed to be the source of the odor. Upon breaking it open, he found the remains of Rosette, Defendant’s former mistress.
The landlord’s consent to the police officer’s search of Defendant’s apartment is
(A) a waiver of Defendant’s Fourth Amendment rights, because a landlord has implied consent to enter a tenant’s apartment.
(B) a waiver of Defendant’s Fourth Amendment rights, because the lease gave the landlord express authority to enter the premises.
(C) not a waiver of Defendant’s Fourth Amendment rights, because the landlord lacked probable cause to believe a crime was then in the process of commission.
(D) not a waiver of Defendant’s Fourth Amendment rights, because the landlord had neither actual nor apparent authority to permit the entry.
D
Donna was arrested and taken to police headquarters, where she was given her Miranda warnings. Donna indicated that she wished to telephone her lawyer and was told that she could do so after her fingerprints had been taken. While being fingerprinted, however, Donna blurted out, “Paying a lawyer is a waste of money because I know you have me.”
At trial, Donna’s motion to prevent the introduction of the statement she made while being fingerprinted will most probably be
(A) denied, because fingerprinting is not a critical stage of the proceeding requiring the assistance of counsel.
(B) denied, because the statements were volunteered and not the result of interrogation.
(C) granted, because of the “fruit of the poisonous tree” doctrine.
(D) granted, because Donna’s request to contact her attorney by telephone was reasonable and should have been granted immediately
B
A plaintiff sued a defendant, alleging that she was seriously injured when the defendant ran a red light and struck her while she was walking in a crosswalk. During the defendant’s case, a witness testified that the plaintiff had told him that she was “barely touched” by the defendant’s car.
On cross-examination, should the court allow the plaintiff to elicit from the witness the fact that he is an adjuster for the defendant’s insurance company?
(A) No, because testimony about liability insurance is barred by the rules of evidence.
(B) No, because the reference to insurance raises a collateral issue.
(C) Yes, for both substantive and impeachment purposes.
(D) Yes, for impeachment purposes only.
D
