adapti bar crim pro

there are six exceptions to the warrant requirement, which include:

(i) search incident to a lawful arrest; (ii) automobile exception; (iii) plain view doctrine; (iv) consent; (v) stop and frisk; and (vi) exigent circumstances.

driver acting nervous

A is incorrect. A driver acting nervous is not a sufficient basis to allow for the search of the entire vehicle. Although a nervous driver may be suspicious, it does not amount to probable cause that would permit the officers to search the trunk of the vehicle. In addition, the woman gave consent for the search of the vehicle.

Here the stops have a neutral standard (although stops are executed at random, every car has the possibility of being stopped). However, the prevention of burglaries and assaults are not closely related to automobiles. Therefore, the traffic stop was improper, and evidence found as a result of the unconstitutional seizure will be suppressed.

Although the defendant's motion should be sustained, it is not because of the use of the flashlight, which is constitutionally permissible because it is not considered an unreasonable search, nor must it be based on probable cause.

Question #1479 alibi

An alibi defense is an attempt to establish reasonable doubt or innocence. Because the burden does not shift to the defendant, he does not have the burden to prove his alibi by any standard, including by a preponderance of the evidence

exception to double jeopardy #2000

An exception to double jeopardy exists if there is a manifest necessity for a mistrial. United States v. Perez, 22 U.S. 579 (1824). Examples of manifest necessity include a hung jury or misconduct by the defendant D is correct. In this case, jeopardy had attached because the jury was empaneled and sworn in. The death of the judge's wife's mother does not amount to a manifest necessity to abort the original trial. Thus, no exception applies and a second trial would violate the prohibition against double jeopardy.y

Under the automobile exception to the warrant requirement of the Fourth Amendment, the police may search a vehicle if they have probable cause to believe that it contains contraband, fruits, or instrumentalities of a crime. If the police have probable cause to search the vehicle, they may search the entire vehicle and all containers that might contain the evidence they are searching for. Therefore, if the police have reason to believe there is illegal contraband in the car, they can search the entire car for the contraband, including containers

An undercover police officer reported that the driver of the vehicle was selling marijuana and gave a description of the truck and the driver. This information gave the two police officers the probable cause needed to stop and search a vehicle matching the description. The automobile exception allows the warrantless search of the vehicle, including any container in the vehicle that may contain the evidence sought, and the belongings of the people inside the vehicle. The police were thus constitutionally permitted to search the glove compartment, the locked toolbox, and the sealed envelope for more evidence of marijuana

Question #1164 ??

An unlawful arrest is not an adequate reason to dismiss an indictment or subsequent criminal prosecution. Therefore, if the police improperly arrest a person, that violation is not a defense against the charged offense.

The defendant had a right to remain silent after her arrest as part of her Fifth Amendment right not to incriminate herself. The prosecution may not use that silence against her at trial to imply that the silence had a particular meaning. A suspect must invoke her right to remain silent to end police questioning while in custody.

In this case, the defendant did not have to specifically invoke her Fifth Amendment rights, her mere silence upon questioning is enough to not have her silence used against her in court. While the harmless error rule would be considered, using someone's silence against him or her at trial is not a mere harmless error, and therefore, reversal would likely be proper

when double jeopardy attached?

Jeopardy attaches during a jury trial at the empaneling and swearing-in of the jury. Crist v. Bretz, 437 U.S. 28 (1978). Or, in a bench trial, jeopardy attaches when the first witness is sworn in. Thus, during a preliminary hearing and/or grand jury investigation, double jeopardy has not yet attached.

Miranda warnings do not need to be given during a traffic stop.

Miranda warnings are required before interrogation when a person is in police custody for the following statements to be admissible. Custody exists when a reasonable person does not feel free to leave. Traffic stops are generally not considered custodial because they are temporary and do not present the same inherently coercive pressures as station house interrogations. Therefore, Miranda warnings do not need to be given during a traffic stop. In this case, the driver was lawfully stopped for a routine traffic stop. The police officer was not required to give Miranda warnings. Therefore, the statement of the driver is admissible

QQuestion #1242 State troopers lawfully stopped a car driver on a turnpike for exceeding the speed limit by four miles per hour. One trooper approached the car to warn the driver to drive within the speed limit. The other trooper remained in the patrol car and ran a computer check of the car's license number. The computer check indicated that there was an outstanding warrant for the driver's arrest for unpaid traffic tickets. The troopers then arrested the driver based on the warrant, and they proceeded to search the driver. During the search, they discovered a package of heroin in one of the driver's pockets. Later, it was learned that the driver had paid the outstanding traffic tickets 10 days earlier and that the warrant had been quashed, but the clerk of the court had failed to update the computer, which continued to list the warrant as outstanding. The driver was charged with unlawful possession of heroin. Her attorney has filed a motion to suppress the use of the heroin as evidence. Should the motion be granted? A: No, because the troopers could reasonably rely on the computer report and the search was incident to arrest. B: No, because troopers may lawfully search a driver incident to a valid traffic stop. C: Yes, because there was no arrest for the traffic violation and no lawful arrest could be made on the basis of the warrant. D: Yes, because there was no probable cause or reasonable suspicion to believe that the driver possessed drugs.

Normally, if a search warrant is invalid for any reason, (e.g., not supported by probable cause), any search done pursuant to it will be unconstitutional. The exclusionary rule will apply and any evidence seized will likely be excluded. However, the U.S. Supreme Court has held that if the police reasonably believe that the warrant they have been issued is valid, the exclusionary rule will not apply to bar the items seized from being introduced at the trial of the person whose rights were violated by the search. See United States v. Leon, 468 U.S. 897 (1984). A search incident to a lawful arrest is a valid exception to the warrant requirement of the Fourth Amendment. Authorities may conduct a warrantless search incident to a lawful arrest as long as the scope of the search is constrained to the defendant's wingspan and performed contemporaneously with the arrest. A is correct. The motion to suppress the heroin should be denied because of the "good faith" exception to the warrant requirement. Evidence generally will not be suppressed when police officers reasonably held a good faith belief that their actions leading to the discovery of the evidence were authorized by a valid warrant. In this case, the computer check on the license number of the driver's car revealed that there was an outstanding warrant for the driver's arrest based on unpaid parking tickets. The police had no reason to believe that the warrant was invalid, so the search of the driver was proper incident to the arrest. C is incorrect. The traffic violation itself need not give rise to the arrest. Police may develop a constitutional basis for an arrest following a valid traffic stop. As explained above, evidence generally will not be suppressed when police officers reasonably held a good faith belief that their actions leading to the discovery of the evidence were authorized by a valid warrant. Here, the arrest was made based on a good faith belief that there was a valid warrant, so the fact that it had been quashed would not require suppression of the heroin.

Q#1416 ??? An improper out-of-court identification procedure may only require suppression of in-court testimony if it is unduly suggestive, producing a substantial likelihood of irreparable misidentification. However, even if an out-of-court identification procedure is unnecessarily suggestive, suppression of in-court testimony is not required if the eyewitness's identification is shown to be reliable under a multi-factor inquiry.

Once suggestiveness is established regarding the out-of-court identification procedure, the court determines the reliability by weighing "the corrupting effect of the suggestive identification" against reliability factors, including: (i) the witness's opportunity to observe the perpetrator and degree of attention paid at the time of the offense; (ii) accuracy of prior descriptions; (iii) level of certainty at the time of the confrontation; and (iv) the time between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98 (1977). D is correct. The police using only one photograph and giving the witness a leading statement to confirm the suspect's identity certainly was unduly suggestive and created a substantial likelihood of misidentification. However, the prosecution would still be able to prevail on a motion to suppress the testimony if it could show that the in-court identification by the store owner is reliable. C is incorrect. This answer reaches the correct answer with the wrong reasoning. If the prosecution could establish the reliability of the eyewitness's testimony aside from the improper out-of-court identification process, the defendant's motion to suppress would be denied. Therefore, the tainted out-of-court identification does not necessarily preclude the admission of the in-court testimony.

The Fifth Amendment privilege against self-incrimination protects only testimonial or communicative evidence, not real or physical evidence. Thus, the prosecution may require a person to produce blood samples, handwriting exemplars, or voice samples, even though such evidence may be incriminating.

The defendant's objection should be overruled because it is permissible for the prosecution to have the defendant walk in the courtroom as demonstrative evidence, as it is relevant and material to the in-court identification. The defendant walking in the courtroom, while incriminating, is not considered testimonial under the rules governing the Fifth Amendment privilege.

Question #1534 ???

The government has a duty to disclose exculpatory material to the defendant. Brady v. Maryland, 373 U.S. 83 (1963). The untimely disclosure of evidence favorable to the defense (including impeachment information), whether willful or inadvertent, is unconstitutional under the Due Process Clause. Such a Brady violation is grounds for reversal or a new trial if the defendant can prove that: (i) the evidence was favorable because it is impeaching or exculpatory; and (ii) prejudice resulted, meaning earlier disclosure of the evidence would have created a reasonable probability of a different outcome. Strickler v. Greene, 527 U.S. 263 (1999). C is correct. The court would most likely grant the defendant's motion based on the fact that there was a reasonable probability that the defendant would have been acquitted had the defense had access to the impeachment material earlie

Under FRCP 43, for a non-misdemeanor offense, the defendant must be present at every trial stage after formal proceedings have begun, including jury selection. Rule 43 states: "the defendant must be present at . . . every trial stage, including jury impanelment .

The issue here is whether the defendant had the right to be present for jury selection. FRCP 43 ensures that the defendant has the right to be present at every stage of trial following the initiation of formal proceedings, which includes jury selection. Because the defendant was not present in the judge's chambers for jury selection, his constitutional rights were violated

A guilty plea waives various rights, including the right to a jury trial under the Sixth Amendment. The court must establish that the plea is voluntary and intelligent by addressing the defendant in open court on the record. McCarthy v. United States, 394 U.S. 459 (1969).

The judge must be sure that the defendant knows and understands: (i) the nature of the charge(s) against him and the crucial elements of the crime(s); (ii) the maximum possible penalty and any mandatory minimum; and (iii) that he has the right to plead not guilty and that if he does plead guilty, he waives the right to trial. If the defendant is not fully advised of each of his constitutional rights and/or does not knowingly and voluntarily waive each of those rights, the plea will be subject to a motion to set it aside.

The Confrontation Clause requires that a defendant (here, the second defendant) be given an opportunity to crossexamine a co-defendant (here, the first defendant) whose confession is being used against him.

The limiting instruction would not preclude a constitutional violation if this confession were introduced without the opportunity for confrontation.

written testimonial communicative

The main impact of this requirement is that where a person voluntarily puts information in written form, the document is not privileged even though it is incriminating and may even be testimonial. See generally United States v. Doe, 465 U.S. 605 (1984)

standing

The marijuana plants were in plain view of the neighbors. The woman has no standing to complain of any police trespass on the neighbors' property. See Horton v. California, 496 U.S. 128 (1990).

The Due Process Clause requires that, in all criminal cases, the government prove guilt beyond a reasonable doubt

The prosecution must have the burden of proving each element of the crime charged. However, the state may impose the burden of proof upon the defendant regarding an affirmative defense, such as insanity or self-defense

protective sweep/ beyond D's wingspan

When the police enter an area pursuant to a valid warrant and make an arrest, they may make a protective sweep of the area beyond the defendant's wingspan if they believe accomplices may be present This exception is based on protecting the officers' safety. In this case, the facts indicate that the officers had probable cause to believe that the man who had committed the robberies had an accomplice. Their search inside of the basement closet was thus done in a lawful sweep, looking for that accomplice. Therefore, the cocaine will not be suppressed.

As to defensive evidence that does not constitute an affirmative defense, the accused has the right under due process to introduce information to establish his innocence as to the crime charged. This does not transfer the burden of proof or persuasion to the defendant.

an alibi is not an affirmative defense but rather negates an essential element of the crime (the defendant's actual commission thereof), due process precludes imposing upon a defendant the burden of proving an alibi. As a result, this instruction is proper

exigent circumstances

includes emergencies that threaten the health or safety of someone if not immediately acted upon. This will justify a warrantless search, including situations in which the police see someone injured. The determination of whether an emergency exists is objective, from an officer's point of view Michigan v. Fisher, 558 U.S. 45 (2010).

good faith reliance and warrant

the good-faith exception to the exclusionary rule, which applies only when there is a problem with a warrant that the police reasonably believed was valid

Question #1397 -??? A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued a subpoena duces tecum requiring the suspect to produce any diary. The subpoena made clear that the grand jury was seeking only the diary and not any testimony from the suspect. The suspect refused to produce the diary, citing the privilege against self-incrimination. Under what circumstances, if any, may the grand jury compel production of the diary over the suspect's assertion of his Fifth Amendment privilege? A: It may compel production without granting immunity because the suspect was not compelled to write a diary. B: It may compel production only if the suspect is granted use and derivative use immunity from the act of production. C: It may compel production only if the suspect is granted transactional immunity. D: It may not compel production of a private diary under any circumstances. Brief Explanation B is correct. Use and derivative use immunity sufficiently protects the suspect's constitutional privilege against selfincrimination. A is incorrect. The Fifth Amendment also protects acts of production that would have testimonial significance by authenticating documents. C is incorrect. The prosecution does not need to grant the suspect transactional immunity; use and derivative use immunity sufficiently protects the constitutional privilege against self-incrimination. D is incorrect. The suspect's privilege against self-incrimination may be overcome if the suspect is granted use and derivative use immunity.

A criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant. There are two kinds of immunity that may be granted. The broader form of immunity is "transactional immunity." Transactional immunity completely protects the witness from future prosecution for crimes related to his or her testimony. "Use and derivative use" immunity is narrower - it prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. The Supreme Court has held that immunity from the subsequent use of compelled testimony is sufficient to satisfy the privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441 (1972). However, should the prosecutor acquire evidence substantiating the supposed crime, independently of the witness's testimony, the witness may then be prosecuted for the same. B is correct. A grand jury may compel the production of documents when (and only when) the suspect is given immunity from the act of production, and this answer provides that the suspect would be receiving use and derivative use immunity from the act of production. As such, the subpoena would not violate his right against self-incrimination in this scenario.

Question #1594 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. Brief

A defendant has a Sixth Amendment right to counsel at all critical stages of a prosecution, which attaches after formal proceedings have begun. Therefore, once a defendant is indicted, and the right to counsel has attached, the prosecution and/or police may not use deception to deliberately elicit statements related to the crime unless he is given access to counsel or provides a valid waiver to have counsel present. Fellers v. United States, 540 U.S. 519 (2004). C is correct. Because the defendant's right to counsel attached upon being indicted, he had a Sixth Amendment right to counsel going forward during all critical stages of the proceedings. The prosecution coordinated an effort to deliberately and covertly elicit statements by the defendant without giving him access to his attorney, absent a valid waiver, in violation of his Sixth Amendment right to have counsel present B is incorrect. The Fifth Amendment protects criminal defendants from being compelled to give self-incriminating testimony. Although the privilege against self-incrimination forbids the admission of evidence based on a psychiatric interview of a defendant not warned of his right to remain silent, it is not directly applicable to this case, where the government specifically used deception to obtain a suspect's otherwise voluntary admissions.

Defense of Alibi

A defense intended to create a reasonable doubt as to a crime's element of identification by introducing evidence that the defendant was elsewhere, or doing something else, at the time of the alleged offense.

A grand jury may hear evidence that wouldn't be otherwise admissible at trial, including hearsay. Therefore, dismissing the indictment would not be the proper remedy in this case

A grand jury may hear evidence that wouldn't be otherwise admissible at trial, including hearsay. Therefore, dismissing the indictment would not be the proper remedy in this case Even if the search of the man's home was unlawful, the exclusionary rule does not extend to grand jury proceedings, nor does it provide justification for dismissing an indictment that is valid on its face

Question #661 A man entered the police station and announced that he wanted to confess to a murder. The police advised the man of his Miranda rights, and the man signed a written waiver. The man described the murder in detail and pinpointed the location where a murder victim had been found a few weeks before. Later, a court-appointed psychiatrist determined that the man was suffering from a serious mental illness that interfered with his ability to make rational choices and to understand his rights and that the psychosis had induced his confession. The man's confession is A: admissible, because there was no coercive police conduct in obtaining the man's statement. B: admissible, because the man was not in custody. C: inadmissible, because the man's confession was a product of his mental illness and was therefore involuntary. D: inadmissible, because under these circumstances, there was no valid waiver of Miranda warnings.

A is correct. Because a statement is not considered involuntary when it is the result of mental disease, and there was no coercive police conduct in obtaining the man's statement, it should not be suppressed, and the confession is admissible.

Question #1306 - Criminal Law / Constitutional Protection of Accused Persons You correctly answered A A federal officer had probable cause to believe that a woman had participated in a bank robbery. Two days after the robbery, the woman checked into a local hotel. When the woman left her room for the evening, the hotel manager opened the hotel room door so that the officer could enter the room and look inside. The officer did not find any of the stolen money but did see, lying open on the bed, the woman's diary. The diary contained an entry describing the woman's involvement in robbing the bank. The woman was charged in federal court with bank robbery. She has moved to suppress the diary. Should the court suppress the diary? A: Yes, because the officer had no warrant. B: Yes, because admitting the diary would violate the woman's privilege against self-incrimination. C: No, because the hotel manager had actual authority to allow the officer into the hotel room. D: No, because the officer reasonably relied on the hotel manager's apparent authority to allow the officer into the hotel room.

A is correct. The Fourth Amendment protects the woman's expectation of privacy in her dwelling, including her temporary hotel room dwelling. Absent exigent circumstances, which were not present in this situation, the Fourth Amendment protections require the officer to have obtained a warrant before entering the hotel room. See Minnesota v. Olson, 495 U.S. 91 (1990). Because the officer did not have a warrant to enter, the woman's motion to suppress the diary should be granted. B is incorrect. This answer reaches the correct answer with the wrong reasoning. Admitting the diary would not violate the woman's self-incrimination privilege because the woman was not compelled to write (or to produce) the diary. See United States v. Hubbell, 530 U.S. 27, 35-36 (2000).

Question #787 *** You answered B. The correct answer is A A defendant was charged with the murder of a man who had been strangled and whose body was found in some woods near his home. The defendant suffers from a neurological problem that makes it impossible for him to remember an occurrence for longer than 48 hours. After the defendant was charged, the police visited him and asked if they might search his home. The defendant consented. The police found a diary written by the defendant. An entry dated the same day as the victim's disappearance read, "Indescribable excitement. Why did no one ever tell me that killing gave such pleasure to the master?" The defendant was charged with murder. His attorney has moved to exclude the diary from evidence on the ground that its admission would violate the defendant's privilege against self-incrimination. Counsel has also argued that the defendant could not give informed consent to the search because more than 48 hours had passed since the making of the entry and hence he could not remember the existence of the incriminating entry at the time he gave his consent. There is no evidence that the police officers who secured the defendant's consent to the search were aware of his memory impairment. With regard to the diary, the court should A: admit it, because the defendant's consent was not obtained by intentional police misconduct and the defendant was not compelled to make the diary entry. B: admit it, pursuant to the good-faith exception to the exclusionary rule. C: exclude it, because the defendant was not competent to consent to a search. D: exclude it, because use of the diary as evidence would violate the defendant's privilege against self-incrimination.

A is correct. The court should admit the diary because the defendant's consent was voluntary and the writing was not compulsory. Under the Fourth Amendment, people are protected from warrantless searches, but voluntary consent to a search waives this protection. By obtaining the defendant's consent, without any evidence of duress or coercion, and unaware that he had a memory condition, the consent was voluntary. Moreover, the diary's written statement regarding the killing was freely made, not compulsory, and therefore admitting it does not violate the right against selfincrimination. B is incorrect. This answer reaches the correct answer with the wrong reasoning. The diary should be admitted as the fruit of a legal search that was consented to, not because of the good-faith exception to the exclusionary rule, which applies only when there is a problem with a warrant that the police reasonably believed was valid. Here, there was no warrant necessary because of the voluntary consent to search. C is incorrect. The defendant was competent to consent to the search. First, his lack of knowledge that they would find his diary, which contained incriminating statements, did not render him incompetent. Second, his memory condition was not known to the police, and consent will only be involuntary if obtained by duress or coercion, neither of which were present here. D is incorrect. The search that uncovered the diary was consented to, the statement in the diary was freely and voluntarily made, not the result of police compulsion. As such, the privilege against self-incrimination does not bar it as evidence against the defendant.

If a police officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect's vehicle even if the officer's ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop. Whren v. United States, 517 U.S. 806 (1996). Additionally, when a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order the occupants (driver and passengers) out of the car.

A is correct. The man and the passenger are incorrect on both grounds. First, the law provides police officers with the option to make a pretextual lawful traffic stop. Here, the vehicle was technically driving over the speed limit, which establishes probable cause to believe a traffic law was being violated. This is permissible even though the officer's ulterior motive was to investigate the drug crime. Second, ordering the passenger out of the car was constitutional because the officer's safety may be in question, and thus ordering the passenger out was permissible. D is incorrect. Neither argument presented by the man and the passenger is correct. The pretextual stop by the officer was constitutional because it was based on probable cause to believe a traffic violation had occurred, which means it was objectively justifiable. Moreover, both the driver and any passengers may be ordered to step out of the car during a lawful traffic stop.

barn unprotected , not within curtilage, no 4th amendment

A person does not have a reasonable expectation of privacy in objects held out to the public. Further, under the open fields doctrine, areas outside the curtilage (dwelling house and outbuildings) are subject to entry and search and unprotected by the Fourth Amendment. Even buildings such as barns are considered to be outside the curtilage of a house. United States v. Dunn, 480 U.S. 294 (1987).

Question #1472 ???

A trial court may properly excuse a juror for cause from serving in both the guilt and penalty phases of a capital case if a juror's views regarding the death penalty would prevent or substantially impair the juror from impartially deciding whether the death penalty is warranted in that particular case. The exclusion of such jurors does not violate the fair cross-section right of the Sixth Amendment. To establish such a violation, the defendant must show the underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right was violated

immunity Q#1521 ???

A witness may be compelled to answer questions if granted adequate immunity from prosecution. The U.S. Supreme Court has held that granting "use and derivative use" immunity is sufficient to extinguish the privilege. Kastigar v. United States, 406 U.S. 441 (1972). Use and derivative use immunity guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness. The other type of immunity that may be given is "transactional" immunity, which guarantees immunity from prosecution for any crimes related to the testimony of the witness

Question #1600 A police officer had a hunch, not amounting to probable cause or reasonable suspicion, that a man was a drug dealer. One day while the officer was on highway patrol, her radar gun clocked the man's car at 68 mph in an area where the maximum posted speed limit was 65 mph. The officer's usual practice was not to stop a car unless it was going at least 5 mph over the posted limit, but contrary to her usual practice, she decided to stop the man's car in the hope that she might discover evidence of drug dealing. After she stopped the car and announced that she would be writing a speeding ticket, the officer ordered the man and his passenger to step out of the car. When the passenger stepped out, the officer saw that the passenger had been sitting on a clear bag of what the officer immediately recognized as marijuana. The officer arrested both the man and the passenger for possession of marijuana. At their joint trial, the man and the passenger claim that their Fourth Amendment rights were violated because the officer improperly (1) stopped the car for speeding as a pretext for investigating a hunch rather than for the stated purpose of issuing a traffic ticket and (2) ordered the passenger to step out of the car even though there was no reason to believe that the passenger was a criminal or dangerous. Are the man and the passenger correct

A: No, as to both the stop of the car and the officer's order that the passenger step out of the car.

Forced entry into a home, with a valid search warrant, is permissible when the person is believed to be inside and no response occurs. See United States v. Banks, 540 U.S. 31 (2003). When the police have a valid arrest warrant, however, they are not authorized to forcibly enter the home unless there is probable cause to believe the person named is on the premises.

Although forcible entry into a home with a valid search warrant is permitted, this is only the case when the police actually have reason to believe that the named person is on the premises. Here, the arrest warrant would have authorized forcible entry only if the officers had reason to believe that the woman was at home at the time of the entry. The officers knew that the woman was not at home. The court should grant her motion to suppress the use of the shotgun as evidence

Question #1531 ??? Using a non-testifying co-defendant's inculpatory statement against the accused at trial presumably violates the accused's Sixth Amendment right to confrontation. In co-defendant confession cases, the Confrontation Clause requires that an original defendant be given the opportunity to cross-examine a co-defendant whose confession is being used against the original defendant.

Federal Rule of Evidence (FRE) 105 states: "If the court admits evidence that is admissible against a party or for a purpose - but not against another party or for another purpose - the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly."

Question #749 ??? Question A statute provides: A person commits the crime of rape if he has sexual intercourse with a female, not his wife, without her consent. A man is charged with the rape of a woman. At trial, the woman testifies to facts sufficient for a jury to find that the man had sexual intercourse with her, that she did not consent, and that the two were not married. The man testifies in his own defense that he believed she consented to sexual intercourse and that she was his common-law wife. At the conclusion of the case, the court instructed the jury that in order to find the man guilty of rape, it must find beyond a reasonable doubt that he had sexual intercourse with the woman without her consent. The court also instructed the jury that it should find the defendant not guilty if it found either that the woman was the man's wife or that the man reasonably believed that the woman had consented to the sexual intercourse, but that the burden of persuasion as to these issues was on the defendant. The jury found the man guilty, and the man appealed, contending that the court's instructions on the issues of whether the woman was his wife and whether he reasonably believed she had consented violated his constitutional rights. The man's constitutional rights were A: violated by the instructions as to both issues. B: violated by the instruction as to whether the woman was his wife, but not violated by the instruction on belief as to consent. C: violated by the instruction on belief as to consent, but not violated by the instruction as to whether the woman was his wife. D: not violated by either part of the instructions.

B is correct. In the absence of an affirmative defense, the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubt. Therefore, the jury instruction placing the burden upon the defendant to prove that the woman was his wife violated his constitutional rights. However, the defendant presented an affirmative defense of consent, which shifts the burden of establishing consent to him. As such, his constitutional rights were not violated by the instruction on reasonable belief of consent. In a criminal case, the prosecution must prove each element of a crime beyond a reasonable doubt. The burden of persuasion only shifts to the defendant when he claims an affirmative defense. B is correct. In this case, the prosecution must prove three things: (i) that the man had sexual intercourse with a woman; (ii) that was not his wife; and (iii) it was without her consent. All three elements must be proven by the prosecution beyond a reasonable doubt. Therefore, the burden of persuasion about whether the woman was the man's wife must be on the prosecution. The burden of persuasion only shifts to the defendant when he claims an affirmative defense. Here, the defendant did assert a reasonable belief that the woman had consented, which is an affirmative defense because it does not go to any element of the crime. Thus, placing the burden on the defendant to show that he reasonably believed that the woman had consented would not violate his constitutional rights.

Question #1222 - Question Police officers received a tip that illegal drugs were being sold at a certain ground-floor apartment. They decided to stake out the apartment. The stakeout revealed that a significant number of people visited the apartment for short periods of time and then left. A man exited the apartment and started to walk briskly away. The officers grabbed the man and, when he struggled, wrestled him to the ground. They searched him and found a bag of heroin in one of his pockets. After discovering the heroin on the man, the officers decided to enter the apartment. They knocked on the door, which was opened by the woman who lived there. The officers asked if they could come inside, and the woman gave them permission to do so. Once inside, the officers observed several bags of heroin on the living room table. The woman has been charged with possession of the heroin found on the living room table. She has filed a pretrial motion to suppress the heroin on the ground that it was obtained by an illegal search and seizure. Should the woman's motion be granted? A: No, because the tip together with the heroin found in the man's pocket provided probable cause for the search. B: No, because the woman consented to the officers' entry. C: Yes, because the officers' decision to enter the house was the fruit of an illegal search of the man. D: Yes, because the officers did not inform the woman that she could refuse consent

B is correct. In the absence of an exception, the Fourth Amendment requires that police have both probable cause and a search warrant before they are able to enter a private dwelling. In this case, no such warrant existed. However, police may conduct a valid warrantless search if they have voluntary and intelligent consent to do so. Here, the facts do not indicate that the police improperly obtained the woman's consent. The woman's consent justified the officers' entry. Once inside, the police properly seized the heroin because it was in plain view. Police may make a warrantless seizure when they are legitimately on the premises and discover evidence that is in plain view that they have probable cause to believe is evidence or a fruit or instrumentality of crime. The woman's consent gave the police legitimate authority to be inside the building, they discovered the heroin on a living room table, and the criminal nature of the heroin was readily apparent. A is incorrect. This answer correctly states that the woman's motion to suppress the heroin should not be granted, but it misstates the legal basis for this conclusion. Even assuming there was probable cause to search the home, a warrant would have been required for entry had the woman not consented. The woman's consent justified the officers' entry, and the heroin was properly seized because it was in plain view.

Question #790 The Eighth Amendment prohibits the imposition of a penalty that is grossly disproportionate to the seriousness of the offense committed. The death penalty may not be imposed as a punishment for felony murder upon an accomplice who "did not take or attempt or intend to take life, or intend that lethal force be employed." Enmund v. Florida, 458 U.S. 782 (1982). However, an accomplice to felony murder may be given the death penalty, even if he did not kill or intend to kill, if he participated in a major way in the underlying felony that resulted in murder and acted with reckless indifference to the value of human life. Tison v. Arizona, 481 U.S. 137 (1987)

B is correct. The defendant's aiding and abetting the friend by agreeing to drive the getaway car, driving the friend to the bank, and knowing that the friend intended to rob it, makes him guilty of the felony murder charge. However, the defendant's lack of intent to kill, his driving off after dropping the friend off, and his turning himself in after the fact, indicate that a sentence of death would be disproportionate and therefore unconstitutional.

six amendent attorney and cell mate

By placing an informant in the defendant's cell to elicit information about the bank robbery, the prosecution violated the defendant's Sixth Amendment right to counsel because it was a situation likely to induce the defendant into making incriminating statements absent counsel. See United States v. Henry, 447 U.S. 264 (1980).

A state may grant broader rights under its own constitution than are granted by the U.S. Constitution, as long as those rights do not infringe upon any federal constitutional rights. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). Specifically, states may provide greater protections in their criminal justice system than required by the federal Constitution. See California v. Ramos, 463 U.S. 992, 1013-14 (1983).

C is correct. Even if there was no violation of the U.S. Constitution, the state has the right to offer broader protections to its citizens. Because the highest state court would have found, under clear precedent, that the conduct of the police in making the recording violated the employee's rights under the state constitution, excluding the recording is the proper remedy. A is incorrect. Even if there was no violation of the employee's rights under the U.S. Constitution, his rights under state constitutional law were, in fact, violated. Ramos allows states to offer greater protection than the federal government, and therefore, the clearly established state precedent would ensure that the employee's motion was granted.

In order to be granted post-conviction relief on the grounds of ineffective assistance of counsel, the defendant must show: (i) deficient performance by counsel that fell below an objective standard of reasonableness; and (ii) prejudice, defined as a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 (1984).

C is correct. In order to sustain the defendant's ineffective assistance of counsel claim, the trial court must find a reasonable probability that, had the attorney objected, the outcome of the trial would have been different. In other words, "but for" the attorney's ineffective assistance, the defendant would have prevailed (this is also referred to as "prejudice"). The facts do establish deficient performance in that the attorney failed to object. But an ineffectiveness claim requires the second prong, "prejudice," to be shown as well. D is incorrect. This answer states the incorrect standard for granting an ineffectiveness claim during the postconviction stage. As explained above, the correct standard is that there is a reasonable probability the outcome would have been different, as established by Strickland, not "clear and convincing evidence."

standing and the apparent authority

C is correct. The woman, as the driver and sole person in the vehicle, had standing and the apparent authority to consent to the search of the vehicle, even if she did not own the vehicle. By obtaining the woman's consent to search the vehicle, the police acted reasonably, and the evidence should be admitted

The Sixth Amendment guarantees an accused person a fair trial. That right includes the right to an impartial jury, which is a jury free from unfair influences. A violation of this protection occurs if a jury or any of its members is pressured or influenced in a way that could impair their judgment. Judges, who, in jury instructions, generally instruct on standards of proof and applicable law, may not instruct the jury regarding which verdict to return.

D is correct. A defendant's right to an impartial jury includes a jury free from unfair influences or pressures, which the judge plainly did here. By directing the jury to come back with a guilty verdict, the judge rendered the jury no longer impartial. As a result, the defendant's conviction should be reversed on the grounds that he was denied his constitutional right to a trial by jury

Q#1159 double jeopardy The Fourth Amendment protects the woman's expectation of privacy in her dwelling, including her temporary hotel room dwelling. Absent exigent circumstances, which were not present in this situation, the Fourth Amendment protections require the officer to have obtained a warrant before entering the hotel room. See Minnesota v. Olson, 495 U.S. 91 (1990). Because the officer did not have a warrant to enter, the woman's motion to suppress the diary should be granted

D is correct. The motion should be denied on both grounds. First, the manslaughter charge is not a violation of double jeopardy because it does not amount to the "same offense" as reckless driving. Reckless driving is a moving violation, whereas manslaughter involves the death of another. Each crime contains an element that the other does not. Second, the motion should also be denied on the statute of limitations basis because the death occurred less than three years before the manslaughter charge was brought

Question #1312 ? Question A state statute provides as follows: "In all criminal cases, whenever the Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits." The same state defines the crime of forcible rape as follows: "Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape." At a defendant's trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him. How should the trial judge instruct the jury regarding the burden of proof on the issue of consent? A: The defendant must prove by a preponderance of the evidence that the victim consented. B: The defendant must prove by clear and convincing evidence that the victim consented. C: The defendant must prove beyond a reasonable doubt that the victim consented. D: The prosecution must prove beyond a reasonable doubt that the victim did not consent

D is correct. The state statute here includes the lack of consent as an element of the offense. Accordingly, the burden of proving this element cannot shift to the defendant by a preponderance of the evidence or any other standard. The burden of proving that the victim did not consent must rest on the prosecution. A is incorrect. The issue here is not the level of proof required, but whether the burden can be properly shifted to the defendant in the first place. Shifting the burden to the defendant to prove any element of the charged offense, even if by a preponderance of the evidence, violates due process, as stated above

Question #1331??? There was no Fourth Amendment violation because the stop, frisk, and questioning were permissible under Terry v. Ohio, 392 U.S. 1 (1968), based on reasonable suspicion

D is correct.. in this case, there was neither a Fourth Amendment violation nor a Miranda violation. There was no Fourth Amendment violation because the stop, frisk, and questioning were permissible under Terry v. Ohio, 392 U.S. 1 (1968), based on reasonable suspicion. There was no Miranda violation because warnings are not required for Terry stops. See Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984).

The Fifth Amendment has been interpreted to protect defendants against compelled self-incrimination under Miranda v. Arizona, 384 U.S. 436 (1966). Warnings given pursuant to Miranda and a valid waiver of those rights are prerequisites to the admissibility of any confession made during custodial interrogation. Whether a defendant is in custody is determined by examining: (i) whether a reasonable person under the circumstances would feel free to terminate the interrogation and leave; and (ii) whether the environment offers "the same inherently coercive pressures" as were present at the station house in Miranda. See Howes v. Fields, 132 S. Ct. 1181 (2012). Regarding the interrogation requirement, this refers not only to express questioning but also to any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291 (1980). However, Miranda does not apply to spontaneous statements not made in response to interrogation, although officers must give warnings before following up with questions.

Her voluntary, spontaneous statement in the vehicle to the © Copyright 2003 - 2021 AdaptiGroup LLC. This product is covered by U.S. Patent No. 8,340,568. All rights reserved. 117 officer should not be suppressed on the ground that the officer failed to give her the Miranda warnings. Merely hoping for incriminating statements is insufficient action by the officer to be considered an interrogation for Miranda purposes. The officer did not ask any questions, he did not deliberately elicit any statement, and the statement was knowingly and voluntarily made.

#2015 The Eighth Amendment prohibits punishment that is disproportionately excessive in relation to the committed crime. The U.S. Supreme Court has held that it is a violation of the Eighth Amendment to impose mandatory life in prison without the possibility of parole on a person who was a minor when the crime was committed. Miller v. Alabama, 567 U.S. 460 (2012).

Here, the defendant was under the age of 18 when he committed the crime and convicted of armed robbery. Therefore, sentencing this defendant to a mandatory life sentence without parole was unconstitutional

Sixth Amendment right to confrontation

In co-defendant confession cases, the Confrontation Clause requires that an original defendant be given the opportunity to cross-examine a co-defendant whose confession is being used against the original defendant

effectively assert his right to counsel/unambiguous

The defendant did not effectively assert his right to counsel because such an assertion must be unambiguous. The defendant's statement, "Maybe I should talk to a lawyer" is not an unambiguous request for counsel. In addition, the defendant unequivocally waived his Miranda rights prior to making this statement

C is correct. There is no constitutional requirement that all known charges against an accused be brought in the same prosecution. Furthermore, armed robbery and murder are separate offenses because they each require at least one additional element that the other does not require, even though both crimes are based on the same conduct. Therefore, they can be tried at separate prosecutions and the motion to dismiss should be denied

The Fifth Amendment protects criminal defendants against double jeopardy for the same offense. Once jeopardy attaches, the defendant may not be retried for the same offense. Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Blockburger v. United States, 284 U.S. 299 (1932). Finally, there is no constitutional requirement that all known charges be brought against the accused in the same prosecution

5th amendment/deception

The Fifth Amendment protects criminal defendants from being compelled to give self-incriminating testimony. Although the privilege against self-incrimination forbids the admission of evidence based on a psychiatric interview of a defendant not warned of his right to remain silent, it is not directly applicable to this case, where the government specifically used deception to obtain a suspect's otherwise voluntary admissions.

Question #1235 ???

The Fifth Amendment provides the right to be free of double jeopardy for the same offense. Once jeopardy attaches, a defendant may not be tried for the same offense twice. Jeopardy attaches during a jury trial at the empaneling and swearing-in of the jury. Crist v. Bretz, 437 U.S. 28 (1978). Or, in a bench trial, jeopardy attaches when the first witness is sworn in. Thus, during a preliminary hearing and/or grand jury investigation, double jeopardy has not yet attached A is correct. In this case, no jury had been empaneled, nor had a bench trial begun. As a result, jeopardy had not yet attached. Because there is no jeopardy during preliminary hearings or grand jury investigations, the prosecution acted properly and the motion should be denied. D is incorrect. As stated above, jeopardy does not attach until, in a jury trial, the jury has been empaneled, or during a bench trial, when the judge begins to hear evidence. Bringing the evidence before a second grand jury is within the prosecution's power because double jeopardy does not bar a grand jury from returning an indictment a previously impaneled grand jury refused to do so. See United States v. Williams, 504 U.S. 36, 49 (1992).

Question #1426 ??? C is correct. Because the proceedings had only gone so far as the preliminary hearing, and no witness had been sworn or jury empaneled, jeopardy had not yet attached. As a result, there are no double jeopardy protections against being indicted by the grand jury after it was dismissed during the preliminary hearing. A is incorrect. The first charge was dismissed by a judge during a preliminary hearing. No jury had been empaneled and no witness sworn in for purposes of trial, and therefore, jeopardy had not yet attached. Subsequently, any further prosecution as the result of a grand jury indictment is not barred.

The Fifth Amendment provides the right to be free of double jeopardy for the same offense. Once jeopardy attaches, a defendant may not be tried for the same offense twice. Jeopardy attaches during a jury trial at the empaneling and swearing-in of the jury. Crist v. Bretz, 437 U.S. 28 (1978). Or, in a bench trial, jeopardy attaches when the first witness is sworn in. Thus, during a preliminary hearing and/or grand jury investigation, double jeopardy has not yet attached.

mental disease/confession/coercion

The Fourteenth Amendment protects suspects from involuntary confessions. However, only official coercion or compulsion will cause a confession to be involuntary. A confession is not considered involuntary simply because it is the product of a mental disease that prevents the confession from being of the defendant's free will. Colorado v. Connelly, 479 U.S. 157 (1986). C is incorrect. In order to find that the confession was inadmissible based on involuntariness, there must have been some sort of coercion by the police to induce the statement. The exclusionary rule does not reserve the right to make statements only when rational and properly motivated. Moreover, the Court in Connelly held that a confession is not involuntary just because it is made as a result of mental illness. A is correct. Because a statement is not considered involuntary when it is the result of mental disease, and there was no coercive police conduct in obtaining the man's statement, it should not be suppressed, and the confession is admissible.

A grand jury witness does not have a constitutional right to counsel inside a grand jury room. See Connecticut v. Gabbert, 526 U.S. 286, 292 (1999).

The Fourth Amendment exclusionary rule does not apply to federal grand juries and is not a basis upon which a federal indictment can be dismissed. See United States v. Calandra, 414 U.S. 338 (1974).

Some evidence rules, including allegations of privilege, do apply to grand jury proceedings

The attorney-client privilege applies indefinitely and extends not only to discussions between the attorney and the client, but also to any representatives of the attorney who are advised of confidential information at the direction of the attorney, including consultants and investigators

The customer had a reasonable expectation of privacy in a department store fitting room, which was private and could only be seen by the detective when she was concealed at a vantage point above the rooms. A person has a reasonable expectation that they will not be watched in a place that is closed from public view such as the fitting room. The customer had an expectation of privacy in the fitting room, and that expectation is one that society has recognized as justified.

The second issue to determine is whether the search was conducted by a state actor. The detective was working for the police department which was conducting surveillance. The detective was clearly a state actor. Finally, there is no exception to the warrant requirement that would allow for the search. The fitting room was not in plain view; the detective had to conceal herself above the fitting room to be able to see in, which is not a place visible in plain view. Therefore, the customer's motion to suppress should be granted because her reasonable expectation of privacy was violated by the detective's search

Question #1312 ??? Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Patterson v. New York, 432 U.S. 197 (1977). See also Mullaney v. Wilbur, 421 U.S. 684 (1975). This ensures that the burden to prove every element of the charged offense beyond a reasonable doubt lies with the prosecution. Shifting the burden to the defendant to prove any element of the offense is unconstitutional under due process, regardless of whether the burden of proof is preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt. Shifting the burden is unconstitutional, irrespective of the level of proof required

The state statute here includes the lack of consent as an element of the offense. Accordingly, the burden of proving this element cannot shift to the defendant by a preponderance of the evidence or any other standard. The burden of proving that the victim did not consent must rest on the prosecution.

consent /plain view

The woman's consent justified the officers' entry. Once inside, the police properly seized the heroin because it was in plain view. Police may make a warrantless seizure when they are legitimately on the premises and discover evidence that is in plain view that they have probable cause to believe is evidence or a fruit or instrumentality of crime

6th amendment/ deception to deliberately elicit statements

Therefore, once a defendant is indicted, and the right to counsel has attached, the prosecution and/or police may not use deception to deliberately elicit statements related to the crime unless he is given access to counsel or provides a valid waiver to have counsel present. Fellers v. United States, 540 U.S. 519 (2004).

flash light search stopped automobile

This answer reaches the correct answer with the wrong reasoning. The use of a flashlight to illuminate the interior of a vehicle, if the vehicle is properly stopped, does not constitute an unreasonable search, and does not need to be accompanied by probable cause. Had the defendant's vehicle been properly stopped, the officer would have been able to use the flashlight to see what was in plain view in the vehicle.

auto stop / passenger

Under the automobile exception to the warrant requirement of the Fourth Amendment, the police may search a vehicle if they have probable cause to believe that it contains contraband, fruits, or instrumentalities of a crime. An automobile stop constitutes a seizure not only of the automobile's driver, but also of any current passenger

consent obtained by deceit

Undercover officers utilizing deceit to gain consent for entry is permissible. According to Lewis v. United States, "a government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant." 385 U.S. 206 (1966). Here, although the officer used deceit to gain entry, he would not be violating the woman's Fourth Amendment rights and the evidence would not be suppressed on these grounds.

cross-examine a co-defendant

Using a non-testifying co-defendant's inculpatory statement against the accused at trial presumably violates the accused's Sixth Amendment right to confrontation. In co-defendant confession cases, the Confrontation Clause requires that an original defendant be given the opportunity to cross-examine a co-defendant whose confession is being used against the original defendant. A is correct. The man's confession was inadmissible against the woman because she did not have the opportunity to cross-examine the man about his confession. Unless the man testifies and the woman is given the opportunity to confront him with the substance of his confession, using it against her would violate the Confrontation Clause. Even though the two defendants were tried together and the man was present at the trial, he did not testify and cannot be forced to testify because that would violate his Fifth Amendment rights. But his invocation of his right not to testify rendered his confession against the woman inadmissible under the Confrontation Clause.

protective sweep/ search warrant in a home

When executing a warrant in a home, police officers are allowed to conduct a protective sweep of the residence that they are searching to protect themselves from other possible accomplices in the residence, even if the object of the warrant has already been found. See Maryland v. Buie, 494 U.S. 325 (1990). However, in the course of a protective sweep, officers may only look in areas where a person could be hiding. A is correct. Although police are permitted to conduct a sweep of a residence to protect themselves from other accomplices who may pose a danger to them, that right does not extend to smaller containers where no person could be hiding. As such, their opening of the box exceeded the scope of the protective sweep and the motion to suppress should be granted.