Criminal procedure MBE questions

A local convenience store was robbed and the clerk on duty was shot. The next day, the police arrested a suspect and brought her into the police station for questioning. An officer read the suspect her Miranda rights, which she stated she understood. For an hour, a police officer questioned the suspect about her involvement in the robbery. The suspect did not respond to the questions, remaining silent. Learning that the clerk had died, the officer informed the suspect of the clerk's death, and told her that she should start talking if she wanted to get the best possible plea deal. She confessed to the robbery and shooting. At trial, the suspect sought to suppress her confession.Is the confession likely to be suppressed for violation of Miranda rights? A No, because the suspect waived her Miranda rights by making the statement. B No, because the suspect's statement was not made in response to a question from police. C Yes, because the suspect did not receive fresh Miranda warnings before she was told of the clerk's death. D Yes, because the suspect invoked her Miranda rights by remaining silent in the face of police questioning for over an hour.

Answer choice A is correct. A defendant may knowingly, voluntarily, and intelligently waive her Miranda rights. While silence alone is not sufficient to waive those rights, a suspect who has received and understood the Miranda warnings, and has not expressly invoked her Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. In this case, the suspect waived her rights when she confessed. Answer choice B is incorrect because Miranda applies not only to express questioning by police but also to words or actions that the police know or should know are likely to elicit an incriminating response. Consequently, the suspect confession was made in response to police interrogation. Answer choice C is incorrect because the police are not required to provide the suspect with fresh Miranda warnings where there has been no break in the interrogation. Answer choice D is incorrect because a suspect who has not expressly invoked her Miranda rights waives her right to remain silent by making an uncoerced statement.

An FBI agent was accused of killing a witness in a federal case. A U.S. Marshal who had been guarding the witness had actually killed the witness after being paid by the defense attorney to do so. The agent knew this, but because the U.S. Marshal threatened to harm the agent's family, he told no one. The agent was indicted for murder, and his lawyer counseled him about the legal elements of the crime. At the arraignment, the judge explained the nature of the charge and the applicable statutory sentences. The judge also explained that although the normal maximum penalty for the charge was capital punishment, based on the plea bargain offered by the prosecution, the prosecutor would recommend no more than life without parole if the agent pled guilty. Finally, the judge explained that by pleading guilty, the agent would waive his right to a jury trial. Fearing for the safety of his family, the agent pled guilty to the murder charge. Determining that there was a factual basis for the plea, the judge accepted the agent's plea.One month after the arraignment, the U.S. Marshal was arrested and charged with the murder of another witness. The agent, believing his family would now be safe if he disclosed the truth, subsequently filed a motion to set aside his guilty plea.What is the strongest argument in favor of setting aside the guilty plea? A The judge did not determine whether the plea resulted from force or improper threats. B The judge did not investigate whether there was any evidence that could prove the agent's innocence. C The judge did not personally explain each element of the crime to the agent on the record. D The prosecutor's plea bargain unconstitutionally coerced the agent into entering a guilty plea by threatening him with capital punishment.

Answer choice A is correct. A guilty plea is an admission of facts contained in the charging document (e.g., indictment, information). Because a guilty plea constitutes both a confession and a waiver of various constitutional rights, the plea must be both intelligent and voluntary. The record must reflect that the judge has determined that the defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea (e.g., the maximum and minimum possible sentences, possible immigration consequences), and (iii) the rights that the defendant is waiving (e.g., the right to a trial). The judge must also determine that the plea did not result from force or improper threats. Here, the judge did not ask or determine whether the agent's plea resulted from force or improper threats. Therefore, this is the best argument provided to set aside the guilty plea. Answer choice B is incorrect because a judge need not search for exculpatory evidence before accepting a plea. Answer choice C is incorrect. The judge does not personally need to explain each element of the crime. It is sufficient for the defendant's counsel to explain the nature and elements of the crime to him. Answer choice D is incorrect. A plea bargain may involve the defendant's sentence, such as a promise by the prosecutor to recommend a particular sentence in exchange for the defendant's guilty plea. A defendant's plea made in response to the prosecution's threat to bring more serious charges does not violate the protection of the Due Process Clause against prosecutorial vindictiveness, at least when the prosecution has probable cause to believe that the defendant has committed the crimes. Without more facts, there is no evidence that this plea bargain amounted to unconstitutional coercion or prosecutorial vindictiveness.

A man was properly arrested under suspicion of murder. While continuing their investigation of the case in preparation for trial, the police invited the man's brother to the station for an interview. The brother agreed and spent four hours in an interview room with two officers, sipping coffee and discussing the events surrounding the murder. The officers told the brother that they had not located the murder weapon yet. After some time, the brother said, "You seem like decent fellows, so I'm gonna tell it to you straight. I know my brother is innocent, but I also know he was scared that he would be a suspect. I know because he gave me a gun the day after the murder. He didn't tell me anything, but he didn't need to. I knew he wanted me to get rid of it, and I did." The officers immediately arrested the brother as an accomplice after the fact and read him his Miranda rights. At the brother's trial as an accomplice to murder, the defense attorney seeks to suppress the brother's statement as a violation of the brother's privilege against self-incrimination.Should the court grant the motion to suppress the brother's statement? A No, because the brother did not make the statement during a custodial interrogation. B No, because the brother waived his Miranda rights by voluntarily speaking to the officers. C Yes, because the brother's confession is inadmissible as a violation of his Miranda rights. D Yes, because the officers' interview was likely to elicit an incriminating response. SUBMIT ANSWER

Answer choice A is correct. Custodial interrogation is questioning initiated by law-enforcement officers after a person has been taken into custody. Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights. Here, the brother was not subject to custodial interrogation when he voluntarily came to the police station and decided on his own to confess. Therefore, the prosecution's use of this voluntary confession in his trial is not a violation of his Miranda rights. Answer choice B is incorrect. Although a defendant may knowingly and voluntarily waive his Miranda rights, there can be no effective waiver until the Miranda warnings are properly given. Therefore, the brother in this situation has not effectively waived his Miranda rights. Answer choice C is incorrect because the brother's confession was a voluntary statement made freely to the officers outside the context of a custodial interrogation. Therefore, it is admissible even though it was made before the brother was read his Miranda rights. Answer choice D is incorrect because an officer is permitted to ask a person questions that may elicit an incriminating response without reading the person his Miranda rights, as long as this interrogation is not occurring while the person is in custody.

A defendant is on trial for cocaine possession. The cocaine was found during a warrantless search of the defendant's car by a police officer. The search occurred immediately after the defendant was arrested for driving a car with an inoperative taillight, a misdemeanor punishable only by a fine. The defendant had been placed in a police car prior to the search. The cocaine was found inside a closed bag on the back seat of the passenger compartment of the defendant's car. The defendant now moves to suppress the cocaine.Will the defendant's motion be granted? A Yes, because the defendant was in the police car at the time of the search. B Yes, because the arrest was unreasonable and the cocaine seized was a fruit of the poisonous tree. C No, because the police may search a car without a warrant under the automobile exception. D No, because the search was a lawful search incident to arrest.

Answer choice A is correct. In order to qualify as a lawful search incident to arrest, a search of a car in which the defendant was an occupant must be made at the time that the defendant has access to the car or to uncover evidence of the crime for which the defendant was arrested. Here, neither of those circumstances is applicable. Consequently, answer choice D is incorrect. Answer choice C is incorrect because, although the automobile exception permits a police officer to search a car without a warrant, the exception only applies when the police officer has probable cause to conduct the search. Answer choice B is incorrect because a police officer's arrest of an individual for a misdemeanor that is punishable only by a fine is not unreasonable under the Fourth Amendment.

After being indicted for attempted murder, an indigent defendant was brought into the police station. While at the police station, the victim identified the defendant in a lineup. After the lineup but prior to trial, the defendant was appointed counsel. The lineup identification was admitted and used as evidence at trial. The jury found the defendant guilty of attempted murder. The defendant appealed this conviction, arguing that he was denied his right to counsel in the lineup.Can the court reverse the conviction? A Yes, because the defendant had a right to counsel upon indictment. B Yes, because a violation of the right to counsel warrants an automatic reversal of a conviction. C No, because the defendant waived his right to counsel by not invoking it. D No, because the right to counsel does not attach until trial.

Answer choice A is correct. The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. When a defendant is indigent, he is entitled to appointment of counsel. Here, the Sixth Amendment right to counsel attached immediately upon the defendant's indictment for attempted murder. As a result, the indigent defendant was entitled to the presence of appointed counsel at the post-indictment lineup. Answer choice B is incorrect. While the court can reverse this conviction, only the failure to provide counsel at trial results in automatic reversal of a conviction. At other non-trial stages, the denial of counsel is subject to the harmless-error test. Answer choice C is incorrect. Unlike the Fifth Amendment right to counsel, the defendant does not need to invoke the Sixth Amendment right to counsel. Answer choice D is incorrect. The Sixth Amendment right to counsel automatically attaches when the State initiates prosecution with an indictment or formal charge.

A man and woman who were co-workers were brought into the station house by police for questioning regarding embezzlement from their employer. Each voluntarily made a statement to police after being properly Mirandized. They were jointly tried before a jury, and both elected to testify at trial. The woman's statement to police at the station house implicated both the man and the woman in the embezzlement. The man's objection to the admission of the woman's statement at trial, which implicated him, was overruled. When the woman took the stand, she repeatedly denied making a self-incriminating statement at the police station, even under cross-examination by the man's attorney. Both were convicted of embezzlement.The man has appealed his conviction, seeking a reversal on the basis of the admission of the woman's statement at the trial. How should the appellate court rule? A Uphold the man's conviction, because the woman testified at the trial. B Uphold the man's conviction, because the man testified at the trial. C Reverse the man's conviction, because the woman denied making the statement. D Reverse the man's conviction, because admission of the woman's hearsay statement violated the Confrontation Clause.

Answer choice A is correct. The admission against a defendant of a confession that implicates the defendant made by a non-testifying co-defendant at a joint trial violates the defendant's Sixth Amendment right to confrontation. However, when the co-defendant testifies, the defendant cannot complain that this right has been denied because he could confront the witness on cross-examination. In this case, the co-defendant, the woman, testified at the trial. Accordingly, the man's Sixth Amendment rights were not violated. Answer choice B is incorrect because whether a defendant testifies at trial is irrelevant to the issue of whether the admission of a co-defendant's out-of-court statement violates the defendant's Sixth Amendment right to confrontation. Answer choice C is incorrect. Although the woman denied making the statement, she took the witness stand and was subject to cross-examination by the man's attorney. Therefore, the man's right to confront the witness has not been violated. Answer choice D is incorrect. Although the defendant has a Sixth Amendment right to confrontation that generally prevents the introduction of a hearsay statement against the defendant, the Confrontation Clause places no constraints on the use of the declarant's prior out-of-court testimonial statements when the declarant is available for cross-examination at trial.

An employee was accused of stealing money from her employer. The matter was sent to a grand jury. During the grand-jury proceedings, the prosecutor presented evidence on behalf of the State. However, the prosecutor failed to disclose that the employee would have lost her job had she not participated in the embezzlement scheme. The grand jury returned an indictment against the employee. The employee filed a motion to dismiss the indictment due to the prosecutor's failure to disclose the fact that the employee was acting under duress.Should the grand-jury indictment be dismissed? A No, because the prosecutor does not have a legal obligation to present exculpatory evidence to the grand jury. B No, because the defense of duress cannot be presented to a grand jury. C Yes, because the prosecutor has a legal obligation to present exculpatory evidence to the grand jury. D Yes, because the prosecutor's role is to advise the grand jury with respect to the law.

Answer choice A is correct. The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury. Thus, a grand-jury indictment cannot be dismissed for the prosecutor's failure to present exculpatory evidence. Answer choice B is incorrect. Although the defendant has no right to present evidence to a grand jury, this does not prevent a prosecutor from advising the jury about any possible defenses, or facts relevant to a defense, that the defendant may have. However, the prosecutor is not required to present such information. Answer choice C is incorrect because the prosecutor has no legal obligation to present exculpatory evidence to the grand jury. Answer choice D is incorrect. The prosecutor's role is to advise the grand jury with respect to the law. However, the prosecutor is not required to present exculpatory evidence. The failure to do so does not require the dismissal of the grand-jury indictment.

The criminal code of a state defines kidnapping as follows: "Kidnapping is the unlawful confinement of a person against that person's will, coupled with either the movement or the hiding of that person."At a defendant's trial for kidnapping his ex-girlfriend, the defendant, testifying in his own defense, contended that his ex-girlfriend had consented to go on a cross-country road trip with him and that she only got upset later in the trip when they had had an argument on the road.How should the trial judge instruct the jury regarding the burden of proof on the issue of the ex-girlfriend's consent to travel with the defendant? A The prosecution must prove beyond a reasonable doubt that the ex-girlfriend was moved against her will. B The prosecution must prove by clear and convincing evidence that the ex-girlfriend did not consent. C The defendant must prove the ex-girlfriend's consent by clear and convincing evidence. D The defendant must prove the ex-girlfriend's consent by a preponderance of the evidence.

Answer choice A is correct. The state statute includes "against that person's will" as an element of the offense. Due process requires that the prosecution prove all of the elements included in the definition of the offense of which the defendant is charged beyond a reasonable doubt. Therefore, the state cannot shift the burden of proof on the issue of the ex-girlfriend's consent to the defendant without violating the U.S. Constitution. Answer choice B includes a standard of proof that is too low, and is therefore incorrect. Answer choices C and D are incorrect because they shift this burden away from the prosecution and violate the defendant's constitutional guarantee of due process.

A suspect was detained for questioning at a police station in connection with a murder. After being properly advised of his Miranda rights, the suspect said, "My cousin is an attorney; should I call him before we continue speaking?" The police responded by telling the suspect that he could continue speaking to them if he had relevant information to provide. In fact, the suspect's cousin had found out that the suspect had been detained, and was at the police station trying to reach him. The police continued questioning the suspect about the murder, and the suspect eventually confessed.If the suspect files a motion to exclude the confession, how should the court rule? A Admit the confession, because the suspect did not unambiguously request an attorney. B Admit the confession, because the suspect had not been arrested. C Exclude the confession, because the police did not immediately cease questioning the suspect when he asked about an attorney. D Exclude the confession, because the police did not advise the suspect that his attorney was trying to reach him.

Answer choice A is correct. To invoke the right to counsel under the Fifth Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to ask questions or clarify whether the suspect wants to invoke the right. In this case, after being properly advised of his Miranda rights, the suspect asked the police if he should request an attorney. This was a question, not an unambiguous request for counsel and did not constitute an assertion of the right to have counsel present. Accordingly, the police were permitted to continue questioning the suspect regarding the murder, and his confession is thus admissible. Answer choice B is incorrect. The suspect need not have been formally arrested in order for the Fifth Amendment right to counsel to apply. The Fifth Amendment right to counsel applies whenever a person is subject to custodial interrogation. Here, the suspect was detained (i.e., in custody) and being questioned by police (i.e., interrogated). However, the Fifth Amendment right to counsel must be specifically invoked, and the suspect's unambiguous question regarding counsel is not sufficient to invoke that right. Answer choice C is incorrect because the police did not have to cease questioning unless the suspect unambiguously invoked his right to counsel, which he failed to do in this case. Answer choice D is incorrect because the police do not have an obligation to inform a suspect that his attorney is trying to reach him.

A defendant was unaware that he had been charged with conspiring to distribute cocaine in violation of federal law. Prior to his arrest, he traveled to a foreign country. He returned to the United States a year later, and lived in the United States under his own name for more than seven years before he was arrested on the cocaine conspiracy charge of which he had been unaware. Shortly after his arrest, he filed a motion to dismiss the charge against him on the grounds that his right to a speedy trial granted by the Sixth Amendment had been violated.Upon which date is the time period for measuring the defendant's Sixth Amendment right commenced? A The date on which he was charged. B The date on which he returned to the United States. C The date on which he was arrested. D The date on which he asserted his Sixth Amendment right.

Answer choice A is correct. Under the Sixth Amendment's right to a speedy trial, the time period for measuring this right commences at the time of arrest or formal charge, whichever comes first. The defendant need not know about the charges against him for the right to attach. Answer choice B is incorrect because, while the absence of the defendant from the applicable jurisdiction is a factor to be considered in determining whether his right to a speedy trial has been violated, the time period for measuring this right commences at the time of arrest or formal charge. Answer choice C is incorrect because the time period for measuring a defendant's speedy trial right commences at the time of arrest or formal charge, whichever comes first. Here, the defendant was charged with crime of conspiracy to distribute cocaine before he was arrested for that crime. Answer choice D is incorrect because, although the defendant's assertion of his right to a speedy trial is a factor to be considered in determining whether that right has been violated, the time period for measuring this right commences at the time of arrest or formal charge, whichever comes first.

A police officer observed an individual leaving a residence where the officer had reasonable suspicion that illegal drugs were being sold. Although the officer lacked reasonable suspicion that the individual had purchased drugs at the residence, he wanted to question the individual to discover whether his suspicions were correct. He stopped the individual's car, requested the individual's identification, and upon being presented with the individual's driver's license, ran a check to see if he had any outstanding warrants. When the check, which took only several minutes, revealed that there was an outstanding arrest warrant for the individual for a minor traffic infraction, the officer arrested him. During a search of the individual's person immediately following the arrest, the officer found methamphetamine. The individual was charged with possession of a controlled substance.The individual has filed a motion in limine to suppress the evidence of the methamphetamine found on his person. How should the court rule on this motion? A Deny the motion, because the officer's detention of the individual was constitutional. B Deny the motion, because the arrest warrant attenuated the illegal stop. C Grant the motion, because the evidence did not relate to the reason for the individual's arrest. D Grant the motion, under the "fruit of the poisonous tree" doctrine.

Answer choice B is correct. Although evidence of the individual's possession of an illegal drug was directly linked to the illegal stop of the individual and therefore a "fruit of the poisonous tree" to which the exclusionary rule would usually apply, here the seizure of this evidence was attenuated by the existence of a valid warrant for the individual's arrest. The illegal stop was not effected for the purpose of arresting the individual, and the length of the stop did not constitute flagrant police misconduct. Answer choice A is incorrect because, while the police officer did have reasonable suspicion that illegal drug activity was taking place at the residence, the police officer lacked reasonable suspicion that the individual was involved in that activity. Consequently, the officer's stop of the individual was illegal. Answer choice C is incorrect because, while the illegal drugs found on the individual in no way related to the warrant for the arrest of the individual for a minor traffic offense, evidence seized pursuant to a search incident to a valid arrest is admissible. There is no requirement for a connection (or lack thereof) between the evidence seized during the search and the reason for the person's arrest. Answer choice D is incorrect because, although the temporal proximity of the illegal stop and the seizure of the methamphetamine indicates that the seizure was a fruit of the poisonous tree, the existence of the valid arrest warrant served to attenuate the illegal stop sufficiently to justify the evidence's admission.

A wife was having an affair with her neighbor. The wife and her husband had a prenuptial agreement that prevented the wife from receiving any of the husband's sizable fortune in the event of a divorce. The wife and her neighbor formed a plan to murder the husband and run away together with the wife's inheritance. The neighbor shot the husband one evening, killing him instantly, then drove to a town 100 miles away and checked into a motel. Later that night, the police showed up at the motel with a valid warrant for the neighbor's arrest. After the neighbor was arrested and placed in a police car, the police asked the motel clerk for permission to search the room, and the clerk granted the request. The police found the gun hidden in the tank of the toilet. The wife and the neighbor were each charged with first-degree murder and tried separately. At her trial, the wife sought to suppress any evidence of the gun, arguing that it was seized illegally.What is the prosecution's strongest response to this argument? A The motel clerk gave the police permission to search the room. B The wife was not staying in the motel room where the gun was found. C The gun was found in a search incident to a lawful arrest. D The neighbor did not have a reasonable expectation of privacy in the motel room.

Answer choice B is correct. Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. Here, the wife had not checked into the hotel room, was not present there, and therefore had no expectation of privacy there. Her rights were therefore not violated by the search of the neighbor's motel room, and thus the gun likely will not be suppressed in her trial. (Note that this question does not address whether the neighbor himself would have a claim based upon this search and seizure.) Answer choice A is incorrect because the search of a motel room by a government agent may be unreasonable. A motel clerk's consent to a governmental search of a room during the time it is rented is insufficient to justify the search. Answer choice C is incorrect because a lawful arrest justifies only a warrantless contemporaneous search of the arrestee's wingspan and areas immediately adjoining the place of arrest from which an attack could be launched. In this case, the search was not contemporaneous with the arrest, as it occurred when the neighbor was already in the police car, and it exceeded the scope of a lawful search incident to an arrest. Answer choice D is incorrect because an individual may have a reasonable expectation of privacy in a motel room.

A defendant met with an undercover officer and conspired with the officer to commit a bank robbery that afternoon. His conduct met the statutory requirements of criminal conspiracy in the state. When the defendant showed up at the bank an hour later, he assumed that the undercover officer had turned off the cameras and deactivated the alarms as they had planned. Instead, when the defendant drew his gun to threaten the bank teller, he was surrounded by officers and arrested. The defendant was subsequently charged with attempted robbery and went to trial. After the jury was empaneled and sworn in but before any witness was sworn in to testify, the defendant accepted a plea deal with the prosecutor. The defendant pled guilty, and the jury was dismissed. Months later, the prosecutor brought a conspiracy charge against the defendant for conspiring with the undercover officer to commit the robbery. The defendant's lawyer has moved to dismiss the charges as a violation of the defendant's constitutional protection from double jeopardy.Should the court dismiss the conspiracy charge on the grounds of double jeopardy? A No, because jeopardy attaches in a jury trial when the first witness is sworn in. B No, because attempted robbery and conspiracy each require proof of different elements. C Yes, because jeopardy attaches in a jury trial when the jury is empaneled and sworn in. D Yes, because the Double Jeopardy Clause bars successive prosecutions for lesser-included offenses.

Answer choice B is correct. The Fifth Amendment's Double Jeopardy Clause prohibits multiple criminal prosecutions for the same offense. Two different crimes committed in one criminal transaction are generally deemed the same offense unless each crime requires proof of an element that the other does not. An attempted offense and the conspiracy to commit that offense are not the same offense for double-jeopardy purposes because each requires proof of different elements. Therefore, this action is not barred by the Double Jeopardy Clause. Answer choice A is incorrect. Jeopardy attaches in a bench trial when the first witness is sworn in, but in a jury trial, it attaches when the jury is empaneled and sworn in. Answer choice C is incorrect because, although jeopardy did attach for the attempted robbery charge, an attempted offense and the conspiracy to commit that offense are not the same offense for double-jeopardy purposes because each requires proof of different elements. Answer choice D is incorrect because, although the Double Jeopardy Clause generally bars successive prosecutions for greater and lesser included offenses, conspiracy to commit a crime is always considered a separate offense from the underlying crime.

Acting alone, a 17-year-old deliberately committed a murder. More than a year later, he was tried and convicted for this crime. During the sentencing phase of the trial, the jury, in addition to evidence of mitigating circumstances, received evidence from the victim's wife as to the impact of the victim's death on his family. In addition, the prosecution presented evidence of the defendant's prior crimes. The jury determined that the death penalty should be imposed on the defendant after finding the existence of a statutory aggravating factor. On appeal, the defendant seeks to modify his sentence on the grounds that it is unconstitutional.Should the court rule in his favor? A Yes, because evidence of the defendant's prior crimes was presented during the sentencing phase of the trial. B Yes, because the death penalty may not be imposed on a defendant who was minor at the time the crime was committed. C No, because the jury found a statutorily-defined aggravating factor. D No, because a victim impact statement may be considered by the jury during the sentencing phase.

Answer choice B is correct. The death penalty may not be imposed on a defendant who was a minor at the time of the commission of the crime. To do so violates the Eighth Amendment's prohibition on cruel and unusual punishment. Answer choice A is incorrect because there is not a constitutional prohibition on the introduction of a defendant's past crimes during the sentencing phase of a trial. Answer choice C is incorrect because, even though there must be a finding of at least one statutory aggravating factor in order for the death penalty to be imposed, the death penalty may not be imposed on a minor. Similarly, answer choice D is incorrect because, although a victim impact statement may be considered during the sentencing phase of a trial, the death penalty may not be imposed on a minor.

The police obtained a warrant to arrest the defendant for the murder of his girlfriend. When they arrived at the defendant's house to serve the warrant, the defendant's neighbor informed the police that the defendant had left the previous day to visit his sister. The police drove to the sister's home. The defendant answered the front door, and the police promptly arrested him and placed him in the car. The police then asked the defendant's sister for permission to search the house, but she refused. Believing that the sister would likely dispose of any evidence, the police searched the guest room, where the defendant had been staying, without a warrant. During the search, the police found a knife that was later determined to be the murder weapon. The defendant was subsequently charged with murder, but was acquitted after he successfully pled self-defense. The girlfriend's parents later sued the defendant for wrongful death, and during those proceedings, the defendant moved to suppress evidence of the knife found during the search.What is the plaintiff's best argument that the evidence should be admitted? A The defendant was an overnight guest in his sister's home. B The current proceeding is a wrongful death action. C The search was performed incident to a lawful arrest. D There were exigent circumstances justifying the search.

Answer choice B is correct. The primary remedy for Fourth Amendment violations is the "exclusionary rule," which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. The remedy provided by the exclusionary rule generally applies only to criminal trials; it is not applicable to civil proceedings such as wrongful death actions. Answer choice A is incorrect because, although an overnight guest in a home does not have an ownership interest in the home, such a guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter. Answer choice C is incorrect because a lawful arrest justifies only a warrantless contemporaneous search of the arrestee's wingspan and areas immediately adjoining the place of arrest from which an attack could be launched. Here, the defendant was already in the police car, and the search occurred in the home, where he was no longer present. Accordingly, the search exceeded the scope of a lawful search incident to an arrest. Answer choice D is incorrect because the exigent circumstances doctrine would not allow the police to search the sister's home without a warrant under these circumstances. The doctrine allows police to secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. In this case, the police would have been able to secure the premises to prevent the sister from destroying any evidence; however, the police did not simply secure the premises while waiting for a warrant, but instead conducted a full search.

A defendant was charged with two separate crimes related to vandalism in a national park. Each of the crimes was punishable by a maximum of six months imprisonment and a $5,000 fine. The defendant requested a jury trial, but his request was denied. The defendant proceeded to trial before a judge in federal court, and was subsequently convicted on both charges. The judge sentenced the defendant to five months of imprisonment for each charge, to be served consecutively, as well as a fine of $5,000 for each charge. The defendant appealed his conviction, arguing that he was entitled to a jury trial.Was the defendant entitled to a jury trial? A No, because the defendant's actual sentence for each offense was less than six months. B No, because the maximum sentence for each offense was six months. C Yes, because the combined maximum sentence for the offenses was 12 months. D Yes, because the sizeable fine makes each crime a serious offense.

Answer choice B is correct. There is a right to a jury trial for offenses that carry an authorized sentence of more than six months, regardless of the actual penalty imposed. In this case, the maximum sentence for each offense was only six months, and thus the right to a jury trial was not triggered. Answer choice A is incorrect because the actual sentence imposed is irrelevant in determining whether the right to a trial by jury attaches; rather, the right hinges on the maximum authorized sentence. Answer choice C is incorrect because the maximum prison term for each offense cannot be aggregated. Thus, there is no right to a trial by jury for multiple petty offenses that carry a combined total maximum term exceeding six months. Answer choice D is incorrect because a maximum fine of $5,000 in addition to six months imprisonment does not convert the crime into a serious offense.

A police officer obtained a valid warrant to arrest a woman for felonious credit card fraud. Having probable cause to believe that the woman was spending the afternoon at a friend's house, the officer went to the friend's house to serve the warrant. No one responded to the officer's knocking or to his identification of himself as a police officer. The officer, finding the door unlocked, opened the door and entered the house. Once in the house, the officer did not find the woman, but, while searching for her, did find illegal drugs in plain view on a kitchen counter. The friend was charged with the possession of illegal drugs. The friend challenged the officer's seizure of the drugs as unconstitutional.Will the court deny the challenge? A Yes, because the officer was attempting to serve a valid arrest warrant and had probable cause to believe that the woman was at the house. B Yes, because the officer saw the drugs in plain view. C No, because the officer's search of the house was unreasonable. D No, because the woman did not have a valid privacy interest in the friend's house.

Answer choice C is correct because an officer cannot rely on an arrest warrant to effect the arrest in the home of a third party. The officer may enter the home only with a warrant to search for the person named in the arrest warrant or under a valid warrant exception, such as consent or exigent circumstances. Probable cause alone is not sufficient justification for an officer to search for a person in the home of another. For this reason, answer choice A is incorrect. Answer choice B is incorrect because, although the officer did see the drugs in plain view while searching for the woman, the officer did not have the authority to be in the friend's house searching for the woman. Answer choice D is incorrect because, although a person does not generally have a privacy interest in a third party's dwelling, the defendant in this case is the third party whose dwelling was searched.

The Chief Financial Officer (CFO) of a company was indicted by a grand jury on charges of criminal fraud stemming from certain accounting practices she had approved. Prior to indicting the CFO, the grand jury had spent two years hearing and reviewing evidence. A key piece of evidence that resulted in the indictment was a set of computer disks that the police had illegally seized from the CFO's office without a warrant. The prosecutor knew that this evidence had been illegally seized, but did not mention this fact when he showed the evidence to the grand jury. The prosecution turned over copies of all of the evidence that was shown to the grand jury to the CFO following the indictment. The CFO's attorney has filed a motion to quash the indictment based on the fact that the grand jury considered illegally obtained evidence.The court should: A Grant the motion because a grand jury may not consider illegally obtained evidence. B Grant the motion because the prosecutor was required to tell the grand jury that the evidence had been illegally seized. C Deny the motion because a grand jury is permitted to consider illegally obtained evidence. D Deny the motion because the prosecution turned over the evidence to the defense following the indictment.

Answer choice C is correct. A grand jury is not restricted to hearing evidence that would be admissible at trial, and an indictment may be based on illegally obtained evidence. Answer choice A is therefore incorrect. Answer choice B is incorrect, as there is no requirement that the prosecution tell the grand jury that evidence it is considering was obtained illegally. Answer choice D is incorrect, as the fact that the prosecution turned over the evidence following the indictment is irrelevant.

A defendant was convicted of aggravated assault. His attorney appealed the conviction, and the first verdict was overturned based on the judge's finding that after viewing the evidence in the light most favorable to the prosecution, no reasonable fact finder could have voted to convict. The prosecution now seeks to retry the defendant for the same crime. The defendant's attorney objects to the retrial on double jeopardy grounds.Should the retrial be allowed? A Yes, because a defendant waives any double jeopardy rights by filing an appeal of his conviction. B Yes, because the Double Jeopardy Clause only prevents retrial when a defendant has been acquitted or when the prosecution dismisses its case. C No, because retrial after reversal of a conviction due to insufficiency of evidence is barred by the Double Jeopardy Clause. D No, because retrial after a reversal of a conviction on any grounds is prohibited by the Double Jeopardy Clause.

Answer choice C is correct. A reversal of a conviction based on insufficiency of evidence is warranted when, as here, the evidence, when viewed in the light most favorable to the prosecution, would not support a conviction by any reasonable fact finder. When a conviction is reversed on these grounds, jeopardy is implicated, and the prosecution is barred from retrying the defendant for the same offense. Answer choice A is incorrect because, although a defendant who successfully appeals a conviction may generally be retried, a defendant does not waive his double jeopardy rights by filing an appeal. Answer choice B is incorrect because the Double Jeopardy Clause also prohibits retrial of cases overturned due to insufficiency of evidence or if the prosecution asks for a mistrial because of an inability to locate a witness. Answer choice D is incorrect because retrials after appeals on the basis of an error made at trial or after reversal due to weight of evidence are not barred by the Double Jeopardy Clause.

A man committed a rape. Although the victim reported the crime immediately and the police promptly gathered DNA evidence as to the perpetrator of the crime, the police were unable to determine that the man was the perpetrator until 10 years after the event. At that time, the man's conviction for a different crime resulted in the taking of a sample of his DNA and the subsequent match of his DNA with the DNA of the perpetrator of the rape. Shortly thereafter, the man was charged by the state with rape, and due to his indigence, provided with a court-appointed public defender. Attributable solely to this attorney, the trial was delayed for over a year, despite the defendant's protests that he be tried immediately. Eventually, the court replaced the public defender with another attorney. That attorney filed a motion to dismiss the rape charge on the basis that the man's constitutional right to a speedy trial was violated. The state does not have a statute of limitations in which a rape charge must be brought.Should the court grant the motion? A Yes, because there was a delay of over ten years in bringing charges against the defendant. B Yes, because, since the defendant's trial was delayed due to a court-appointed public defender, such delay is attributable to the state rather than the defendant. C No, because the state was not responsible for the delay in trying the defendant. D No, because the right to a speedy trial does not apply where there is no statute of

Answer choice C is correct. Delay in proceeding to trial attributable to the defendant's attorney is not allocated to the state simply because the attorney was provided by the state to the defendant. Instead, as with delay attributable to a defendant-supplied attorney, delay attributable to a public defendant is generally treated as caused by the defendant rather than the state. Consequently, since none of the post-arrest delay is attributable to the state, the defendant's right to a speedy trial was not violated. Answer choice A is incorrect because the time begins to run with respect to the right to a speedy trial only once the defendant is arrested or charges are brought against the defendant. Answer choice B is incorrect because, as noted with respect to answer choice C, the court appointment of the defendant's attorney does not mean that delay in proceeding to trial which is attributable to that attorney is allocated to the state, rather than the defendant. Answer choice D is incorrect. A statute of limitations dictates when charges must be brought in relationship to the commission of the crime. As noted with regard to answer choice C, the right to a speedy trial is not triggered until the defendant is charged or arrested. Moreover, the absence of a statute generally does not determine whether a constitutional right exists.

A police officer had probable cause to believe that a defendant was involved in a robbery. The officer obtained a valid arrest warrant and went to the defendant's apartment to execute it. The officer decided to go to the defendant's apartment right when he believed the defendant would be home from work, so he could search the defendant's apartment before he had a chance to hide the stolen goods. When the officer arrived at the defendant's apartment, the door was ajar, but nothing else seemed out of the ordinary.The officer slowly opened the door and entered the apartment. He walked toward the back of the apartment, and when he heard the defendant in a bedroom, pushed open the door, loudly told the defendant to freeze, and arrested him.Did the officer properly execute the arrest warrant? A Yes, because the officer went to the defendant's home when he had a reasonable belief that the defendant would be home. B Yes, because the officer obtained a valid arrest warrant, which gives the officer the right to arrest the defendant in his home. C No, because the officer failed to "knock and announce" before he entered the defendant's apartment. D No, because the officer had no consent to enter the defendant's apartment.

Answer choice C is correct. Even with a warrant, most states and federal law mandate that a police officer who is making an arrest in a home must generally knock and announce his purpose before entering the home. Answer choice D is incorrect because a police officer does not need an individual's consent to enter his apartment, if he has a valid arrest warrant and a reasonable belief that the individual is home. Answer choice A is incorrect because, while having a reasonable belief that the individual is home is a requirement to entering an individual's home to arrest him, that is not enough, and the officer would still need to knock and announce. Answer choice B is incorrect, again, because absent exigent circumstances, an officer must knock and announce before entering an individual's apartment.

A defendant was in jail for an aggravated assault charge after his attorney was unable to post bail for that offense. The police believed that the defendant had also been involved with other criminals in executing an unrelated series of bank robberies, and they placed an undercover officer in the jail to pose as the defendant's cellmate. They hoped to acquire information that might prevent further robberies from occurring. One afternoon, the undercover officer mentioned that he knew the victim of the assault with which the defendant had been charged. The defendant said that the victim had a beating coming to him, and that he was glad he had been the one to complete that task. The next day, the undercover officer mentioned the bank robberies. The defendant began bragging that he had a substantial amount of cash waiting for him once he got out of jail, noting that "all those bankers would hardly miss it."Which of the defendant's statements to the undercover officer are admissible against him at trial? A The statements regarding the assault and the bank robbery are both admissible. B The statement regarding the assault is admissible, but the statement regarding the robbery is not admissible. C The statement regarding the robbery is admissible, but the statement regarding the assault is not admissible. D Neither the statement regarding the assault nor the statement regarding the bank robbery is admissible.

Answer choice C is correct. Once the Sixth Amendment right to counsel attaches, statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements without the assistance of counsel. In this case, the police created a situation likely to induce the defendant into making a statement about the assault without the presence of counsel; that statement would thus be inadmissible. That protection would not apply to the statement about the robbery, however. Under the Sixth Amendment offense-specific standard, the requirement for counsel to be present applies only to interrogations about the offense charged. In this case, the defendant's Sixth Amendment right to counsel did not apply to questioning about the bank robberies. Moreover, the Fifth Amendment protections are implicated only in the context of a custodial interrogation, and not in the case of questioning by an undercover police officer, as long as the suspect does not know that the interrogator is a police officer. Thus, the statement about the robberies would be admissible. Answer choice A is incorrect because the statement about the assault was taken in violation of the defendant's Sixth Amendment right to counsel, and it would thus be inadmissible. Answer choice B is incorrect because the statement regarding the robbery did not violate the defendant's Sixth Amendment right to counsel as related to the robbery. However, he had been charged with assault and had an attorney for that offense, so attempting to induce him to make statements about the assault without his attorney present did violate his rights. Answer choice D is incorrect because the statement about the robbery was not taken in violation of the defendant's rights and would thus be admissible.

On the basis of an eyewitness description, a student was arrested in connection with the murder of a security guard who was killed during a protest at a college. The police brought the student to the police station and gave him his Miranda warnings. The student then asked to speak with his attorney. Before the attorney could arrive, the eyewitness walked into the station, saw the student, and told the police that this was the person she had seen kill the security guard. The prosecution sought to introduce at trial evidence of the eyewitness identification. The defense moved to have evidence of the identification suppressed.The court should: A Grant the motion because the student's Sixth Amendment rights were violated. B Grant the motion because this was a corporeal identification procedure. C Deny the motion because there was no Sixth Amendment violation. D Deny the motion because this was a non-corporeal identification procedure.

Answer choice C is correct. The Sixth Amendment right to counsel does not apply to any pre-indictment eyewitness identification. This identification was pre-indictment and therefore the motion to suppress should be denied. Answer choice A is incorrect for the reason just stated, that this was a pre-indictment identification to which the Sixth Amendment does not apply. Answer choice B is incorrect because even though this was a corporeal identification procedure in that it was an in-person identification, it occurred pre-indictment. Answer choice D is incorrect factually, as this was in fact a corporeal identification.

A police officer spotted a disheveled middle-aged male sitting on a bench in a public park. The officer did not recognize the man, but was aware that the park was frequently used as a site for illegal drug transactions. The officer approached the man who remained seated on the bench. The officer asked the man for his name. When the man refused, the officer arrested him. Under state law, it is a misdemeanor for an individual to intentionally refuse to give his name to a police officer who, having lawfully detained the person, has requested it. Although a search of the man revealed that he did not possess any drugs, he was charged with violating the law and fined. The man challenged his conviction as a violation of both the federal and state constitutions. The highest court in the state upheld the conviction as valid under both. The man sought review of his conviction in federal court on the grounds that it violated his federal constitutional rights.Should the federal court rule in favor of the man? A No, because there was adequate and independent state grounds for upholding the conviction. B No, because the state identification requirement did not violate the Fifth Amendment privilege against self-incrimination. C Yes, because the officer lacked reasonable suspicion to detain the man. D Yes, because the man did not possess any illegal drugs.

Answer choice C is correct. The officer, at the time the officer approached the man, lacked reasonable suspicion that the man had committed a crime. As a consequence, under the Fourth Amendment, the encounter was not a valid Terry stop. Therefore, by the terms of the statute, the man was not lawfully detained. Answer choice A is incorrect. The state's highest court did not overturn the man's conviction on adequate and independent state grounds, but upheld it. The state court, by upholding the conviction, at least tacitly determined that the officer had lawfully detained the man. Such a ruling violated the man's Fourth Amendment right against unreasonable searches and seizures because the officer lacked reasonable suspicion to detain the man. Answer choice B is incorrect because a statute that requires a person to identify himself does not violate his Fifth Amendment right against self-incrimination, at least where the person does not have a reasonable belief that, by doing so, the person would be incriminating himself. Answer choice D is incorrect because it is irrelevant. At issue was whether the police officer had reasonable suspicion that the man possessed illegal drugs, not whether the man actually did. In addition, the man was not charged with drug possession, but with refusing to identify himself.

A computer programmer for a local software company was upset by the loud parties held in the apartment next door by a college student whenever her father, with whom she was living for the summer, went out of town. One day, while no one was home, the programmer broke into the apartment and installed a video camera. Operating the camera from his apartment, the programmer recorded the college student's next party. The recording contained evidence of the sale and use of illegal drugs by the college student. The programmer provided that recording to the police, who arrested the college student for the distribution of illegal drugs. The college student has moved to suppress the recording as a violation of her Fourth Amendment rights.How should the court rule? A Grant the motion, because the programmer illegally gained access to the college student's apartment. B Grant the motion, because the college student had a reasonable expectation of privacy in the apartment. C Deny the motion, because the recording establishes that the college student was distributing illegal drugs. D Deny the motion, because the police had no role in making the recording.

Answer choice D is correct. Since the recording was not made by or at the behest of the police but by a private individual, the Fourth Amendment does not prohibit the government's use of the recording at the college student's trial. Answer choice A is incorrect because, while the college student has a private cause of action against the programmer for trespass and invasion of privacy, the illegality of the programmer's acts to not prevent the use of the recording at trial. Because the recording is not the product of police conduct or conduct engaged in by a private citizen under the direction of the police, the Fourth Amendment does not require its suppression. Answer choice B is incorrect because, while even a temporary resident of a dwelling has a reasonable expectation of privacy in the dwelling, here the recording was produced by the programmer, a private citizen, and not by the police. Answer choice C is incorrect because the relevance of the recording to charges brought against the college student would permit the recording, if properly authenticated, to be introduced at trial; however, relevancy is not at issue in this motion. Instead, the issue is whether the recording was produced in violation of the college student's Fourth Amendment rights, which it was not.

A reliable informant gave police a tip that she had witnessed two men dealing drugs out of a car in a grocery store parking lot ten minutes earlier. She gave the police a detailed description of the men and their car, a white sedan. The police sent a cruiser to the grocery store. About ten minutes later, the patrol officers saw a white sedan like the one the informant had described. Both of the occupants of the car fit the general description that the informant had given. The police pulled the white sedan over.One officer searched a locked steel box in the trunk and found bags of cocaine. The other officer then arrested the driver and searched the driver's pockets and coat. In the driver's coat pocket, he found a bag of marijuana.At his trial for drug possession, the driver's attorney moves to suppress evidence of both the marijuana and the cocaine. How should the court rule on the motion? A Grant the motion as to both the marijuana and the cocaine. B Grant the motion as to the marijuana, but deny it as to the cocaine. C Deny the motion as to the marijuana, but grant it as to the cocaine. D Deny the motion as to both the marijuana and the cocaine.

Answer choice D is correct. The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. So long as they have probable cause to do so, the police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers that could reasonably hold the evidence sought. In this case, because the informant was reliable, the police had probable cause to believe that a drug deal had occurred and that there were drugs in the car. Therefore, they could search the driver and the locked box in the trunk. Answer choices A and C are incorrect, as they exclude the cocaine found in the trunk. Answer choice B is incorrect. The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. Because the arrest of the driver was lawful due to the discovery of the cocaine in the trunk, the marijuana found in the subsequent search of the driver's pocket is admissible.

A grand jury indicted a politician on charges of corruption. After the indictment, the politician learned that the prosecutor had tried to indict the politician the previous year on the same charges, but that the first grand jury had refused to return an indictment. The prosecutor had gathered new evidence before attempting the second indictment, and this evidence was presented to the second grand jury. The new evidence included physical evidence seized in violation of the politician's Fourth Amendment rights, as well as hearsay testimony from the politician's chief-of-staff. The politician has moved to dismiss the charges.Is the politician likely to succeed in having the charges against him dismissed? A Yes, because the prosecutor presented hearsay evidence to the grand jury. B Yes, because the prosecutor presented illegally obtained evidence to the grand jury. C No, because a grand jury indictment may not be dismissed by a judge. D No, because there are no grounds upon which to dismiss the indictment.

Answer choice D is correct. The grand jury is not restricted to hearing evidence that would be admissible at trial; rather, an indictment may generally be based on hearsay or illegally obtained evidence. Moreover, because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does not apply to grand jury proceedings. Answer choice A is incorrect because the grand jury may hear hearsay evidence. Answer choice B is incorrect because illegally obtained evidence may generally be presented to the grand jury. Answer choice C is incorrect because a judge could dismiss a grand jury indictment if there was a procedural defect that substantially affected the grand jury's decision to indict.

Two police officers stopped a car for a minor traffic violation. While one of the officers dealt with the driver and the traffic violation, the other officer talked with the passenger. Seeking to question the passenger about gang involvement, but lacking reasonable suspicions of criminal activity, the officer ordered the passenger out of the car. As the passenger exited the car, the officer saw a bulge in the passenger's coat which the officer suspected might be a gun. Upon patting down the passenger, the officer felt the handle of a revolver and removed the gun. The passenger, who was a convicted felon, was charged with the possession of a gun by a prohibited possessor. Prior to trial, the defendant sought to suppress the gun as evidence, contending that its seizure was unconstitutional.Should the court suppress the gun as evidence? A Yes, because, since the car had been stopped for a traffic violation, the officer could not order the passenger, who had not committed the violation, to exit the car. B Yes, because, since the officer lacked reasonable suspicion that the passenger was engaged in criminal activity, the officer could not pat down the passenger. C No, because a valid traffic stop gives an officer the right to pat down a passenger. D No, because the gun was discovered as a consequence of a valid Terry stop and frisk.

Answer choice D is correct. The traffic violation gave the police officers a valid reason for stopping the car. As part of the stop, the police officer could order the passenger to exit the vehicle. As the passenger did so, the police officer gained a reasonable suspicion that the passenger was armed and dangerous. Consequently, the officer could pat down the passenger for weapons. Answer choice A is incorrect because the police may order a passenger to exit a car that is legitimately stopped for a traffic violation, even though the passenger is not responsible for the traffic violation. Compelling the passenger to exit the car constitutes a de minimis additional intrusion. Answer choice B is incorrect because the officer's justification for ordering the passenger to exit the car arose from the traffic violation. The fact that the officer also had another reason for doing so that was not supported by a reasonable suspicion as constitutionally required does not prevent the officer from ordering the passenger to exit the car. Answer choice C is incorrect because an officer may not conduct a pat-down as a consequence of a valid traffic stop. The officer must have a reasonable suspicion that the passenger is armed and dangerous.

A defendant was tried for theft of a motor vehicle and found guilty. As permitted by state law as a matter of right, he sought to appeal his conviction. His attorney, whom the defendant had hired, timely filed a notice of appeal. However, the appellate court dismissed the appeal due to his attorney's failure to file the necessary supporting documentation required by state law. The defendant subsequently challenged the action of the appellate court on the grounds of ineffective assistance of counsel.Will the defendant's challenge likely be successful? A No, because the attorney timely filed a notice of appeal. B No, because there is a presumption that an attorney's representation of a client was constitutionally adequate. C No, because the protection against ineffective assistance of counsel only applies to state-provided counsel. D Yes, because the attorney's unreasonable conduct prevented the defendant from pursuing his appeal.

Answer choice D is correct. There is a two-part test for establishing ineffective assistance of counsel: (i) the representation of a defendant by the defendant's attorney must fall below an objective standard of reasonableness, and (ii) the attorney's deficient performance prejudiced the defendant. Although there is no constitutional right to appeal, when a lawyer's deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant is presumed with no further showing from the defendant of the merits of his underlying claims. Here, although the attorney took the necessary first step of filing a notice of appeal, the attorney unreasonably failed to take the second step of filing the necessary document. As a consequence, the defendant was prejudiced (i.e., his appeal was dismissed without a hearing). Answer choice A is incorrect because, although the defendant's attorney did timely file a notice of appeal, the attorney's failure to file the documentation necessary to pursue the appeal was unreasonable. Answer choice B is incorrect because, although there is a presumption that an attorney's representation of a client was constitutionally adequate, this presumption may be overcome. Answer choice C is incorrect because the protection against ineffective assistance of counsel extends to an attorney hired by a defendant as well as to court-appointed counsel.

A defendant was charged with theft of a motor vehicle and convicted primarily on an identification of the perpetrator by the individual who purchased the stolen automobile from the defendant. The police did not reveal to the prosecutor that the buyer was serving as a paid police informant with regard to traffic in stolen vehicles. Since the prosecutor was unaware of this information, the prosecutor did not reveal it to the defendant's attorney. The defendant's attorney did not make a discovery request of the prosecutor for evidence favorable to the defendant. Subsequently, upon learning of the buyer's role as a paid police informant, the defendant challenged his conviction on the grounds that the prosecution's failure to reveal such information violated the defendant's due process rights.Among the following, which is the strongest argument that the state can make to uphold the defendant's conviction? A The withheld evidence does not exculpate the defendant, but only impeaches the buyer's testimony. B A prosecutor has no duty to reveal information of which the prosecutor is unaware. C The defendant made no request for disclosure of such evidence. D The defendant was not prejudiced by the nondisclosure of the information.

Answer choice D is correct. While, under the Brady rule, a prosecutor has an affirmative duty to disclose to the defendant any material evidence favorable to the defendant, nondisclosure of such evidence does not violate the defendant's due process rights unless the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant's conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant). Since the buyer's identification of the defendant as the perpetrator of the crime was key to the defendant's conviction, the failure to disclose evidence that called into question the validity of that identification could arguably constitute prejudice. Answer choice A is incorrect because the Brady rule applies to impeachment evidence as well as exculpatory evidence. Answer choice B is incorrect because the Brady rule may apply to evidence of which the police or other state actor is aware, even though the prosecutor is not aware of such evidence. Answer choice C is incorrect because the Brady rule requires the prosecutor to voluntarily provide the defendant with evidence, despite the absence of a request by the defendant for such information, where such evidence is material.