WRONG ANSWERS (CRIM PRO)

A state statute provides that the crime of assault is generally punishable by a maximum of five years in prison. . The statute designates the deadly weapon element as a sentencing factor. A defendant charged with assault has pleaded not guilty and has requested a jury trial. The prosecutor has announced that she will be seeking a 10-year sentence based on the defendant's alleged possession of a deadly weapon. What finding regarding the defendant's possession of a deadly weapon is necessary for the court to impose a 10-year sentence? - A judicial finding by a preponderance of the evidence. - A jury finding by a preponderance of the evidence. - A judicial finding beyond a reasonable doubt. - A jury finding beyond a reasonable doubt.

A jury finding beyond a reasonable doubt. The Supreme Court established that due process requires the prosecution (state) to prove any fact triggering an enhanced sentence beyond a reasonable doubt, and if the defendant is entitled to a jury trial (and does not waive that right) a jury must make the finding that this enhancement was proven beyond a reasonable doubt. All other answers are inconsistent with this due process standard.

A called the police to his apartment where they found , who had apparently been shot in the heart. The police confiscated the gun lying next to the sister's body. The gardener was drunk, panicked, and crying. The police quickly determined that he was a suspect in his sister's death. The gardener was apprised of his Miranda rights and refused to answer any questions about his sister's death. When questioned by the police, other residents of the apartment complex stated that they heard a shot, and that the gardener and his sister were alone in the gardener's apartment at the time of the incident. The gardener was arrested and taken to the police station. At the police station, he was booked on murder charges. After giving the gardener several hours to sober up, the police officers moved him to an interrogation room. When the gardener was again read his Miranda rights, he waived them immediately. The gardener confessed that he shot his sister after she smacked him in the face. The gardener was not aware that his confession was being videotaped. The following day, the police asked him to sign a transcript of his taped confession. He signed it without reading it. At trial, the prosecutor sought to introduce the transcript of the gardener's confession. The gardener's attorney moves to have the transcript suppressed. How should the court rule on the gardener's motion to suppress the transcript? - Granted, because the police should have re-Mirandized the gardener before asking him to sign the transcript. - Granted, because the police impermissibly recorded the gardener without his knowledge. - Denied, because the gardener was advised of his Miranda rights before he volunteered his confession. - Denied, because the exclusionary rule does not apply to defendant testimony.

Denied, because the gardener was advised of his Miranda rights before he volunteered his confession. An individual in custody must be given Miranda warnings before being questioned. The individual must be advised of his Miranda rights and make a knowing, intelligent, and voluntary waiver of these rights in order for any statement made by the individual to be admissible against him at trial [Miranda v. Arizona, 384 U.S. 436 (1966)]. Here, the gardener was subject to a custodial interrogation and murder charges were filed against him. Thus, statements made by the gardener could not be admitted against him absent a prior knowing, intelligent, and voluntary waiver of his rights. Under the described facts, it appears that the gardener, in fact, made a knowing, intelligent, and voluntary waiver of his rights. The fact that the confession was videotaped without his knowledge has no effect on its admissibility at trial, because he had been informed before making the confession that his statements could be used against him.

A librarian and a were customers in a bar, and late in the evening, they got into a loud shouting match. After trading a number of insults, the raised his fist and shouted, !" of the teacher was a customer in the bar. The former student called out, " " The librarian then grabbed the teacher and punched him in the face several times. The librarian was subsequently convicted of battery against the teacher. If the former student is prosecuted for battery against the teacher, how should the court rule? - Not guilty, because his words alone were not sufficient to imply any agreement between him and the librarian to attack the teacher. - Not guilty, because mere presence at the scene of a crime and oral encouragement, whether or not the former student had the requisite intent, is not sufficient for conviction as an aider and abettor. - Guilty, because he encouraged the librarian to attack the teacher. - Guilty, because the former student's actions created an implied agreement with the librarian to attack the teacher.

Guilty, because he encouraged the librarian to attack the teacher. The former student is guilty as an accessory to battery, because he was physically present at the attack on a teacher and he shouted encouragement to the librarian, manifesting his intent that the librarian batter the teacher. A party who, with the requisite intent, aids, abets, or encourages the commission of a crime while at or near the scene of the crime is a principal in the second degree.

A computer hacker logged into the social networking account of a travel writer. The hacker chatted with several of the travel writer's friends and told each of them, while pretending to be the travel writer, that he'd been mugged while in Malaysia and that he only had a few minutes left on an internet cafe account to find somebody who could wire him $500, which he would pay back when he returned to the states. One of the travel writer's friends was duped into sending money to an account owned by the computer hacker. Eventually, the hacker was caught and two different states sought to prosecute him for the crime: the state where the hacker was located and the state where the duped friend was located. The computer hacker was tried and convicted in the state where he lived but when the second state attempted to take its turn at conviction, the hacker argued the defense of double jeopardy. How will the court rule? - In favor of the second state, but only if the crime in that state contains different elements unproved in the first criminal case. - In favor of the second state, because it is a separate sovereignty. - In favor of the computer hacker, because it is double jeopardy. - In favor of the computer hacker, but only if the crime in his residential state would be considered a greater offense than the one in the second state.

In favor of the second state, because it is a separate sovereignty. Double jeopardy is a constitutional defense that prevents the same authority from trying the same defendant for a crime for which he has already stood trial. The theory is to prevent harassment and undue expense. However, if a crime crosses state lines, two separate authorities can prosecute. This is known as the "separate sovereignties" doctrine and it applies when two states, or a state and the federal government, prosecute for the same crime. In this case, the defendant may be tried in both states because double jeopardy does not attach.

A boxer was suspected of a kidnapping and murder. Following an hour-long car chase, the boxer crashed into a telephone pole. When the police arrived at the car, the victim was not in the car. The boxer, however, was severely injured and in need of immediate medical treatment. The police called an ambulance and accompanied the boxer to the hospital, where he was seen by a nurse. At the hospital, a detective pulled a nurse aside and told her that the police must find out what the boxer did with the missing victim. The detective politely insisted that the nurse help the police obtain the information. The nurse agreed. The nurse returned to the boxer's room and told the boxer that she would not admit him to the ICU unless the boxer disclosed the whereabouts of the victim. The boxer then told her that the victim could be found in a shed down by the river. The nurse passed this information on to the detective. In the boxer's ensuing trial, the boxer's attorney moves to suppress the boxer's statement to the nurse. How should the court rule regarding the admissibility of the statement to the nurse? - Admissible, because the nurse was not a law enforcement officer. - Admissible, because the detective did not put the nurse in the position to obtain the statement from the boxer. - Inadmissible, because the boxer's statement was coerced. - Inadmissible, because the boxer was seriously ill at the time he consented to giving the statement.

Inadmissible, because the boxer's statement was coerced. The boxer's statement is inadmissible for a few reasons. The nurse obtained the boxer's statement by threatening to withhold medical treatment, an act that would result in the boxer's almost certain death. A statement obtained by threat of death cannot be considered "voluntary" under Miranda v. Arizona [384 U.S. 436 (1966)]. Furthermore, while the nurse herself was not a law enforcement agent, the boxer's statement was nevertheless obtained at the direction of the police and without the proper Miranda warnings.

A state legislature passed a statute providing that juries in criminal trials were to consist of 6 jurors, rather than 12, and that jury verdicts did not have to be unanimous but could be based on 5 votes out of 6 jurors. A defendant was tried for murder. Over his objection, he was tried by a jury composed of 6 jurors. The jurors found him guilty by a vote of 5 to 1, and over the defendant's objection, the court entered a judgment of conviction, which was affirmed on appeal by the state's highest court. The defendant seeks to overturn his conviction in a habeas corpus proceeding in federal court, claiming that the trial court violated his constitutional rights by allowing both a non-unanimous jury verdict and a jury composed of fewer than 12 members. How is the federal court likely to rule in this action? - It will set aside the conviction, because the jury was composed of fewer than 12 members. - It will set aside the conviction, because the 6-person jury verdict was not unanimous. - It will set aside the conviction, both because the jury was composed of fewer than 12 members and because the 6-person jury verdict was not unanimous. - It will uphold the conviction

It will set aside the conviction, because the 6-person jury verdict was not unanimous. The Constitution requires unanimity when a 6-person jury is used. The Constitution does not require 12-person juries but does require unanimity when a 6-person jury is used.

During jury selection in a criminal trial in which the defendant was accused of domestic violence against his wife, he told his attorney that he .would be more sympathetic to the victim than his client. The prosecutor objected, citing Batson. The defense attorney stated the reason above as his reason for striking the female jurors. The judge sustained the Batsonchallenge and the women were allowed back onto the panel. The defendant was convicted. The defendant has appealed that conviction, arguing that his due process rights were violated during jury selection by the court allowing the women to return to the jury. Will the defendant's conviction be overturned? - Yes, because the defendant's attorney stated gender-neutral reasons for striking the female jurors. - Yes, because the prosecution has no right to issue a Batson challenge during a criminal trial. - No, because the Batson challenge was properly sustained. - No, because there is no evidence the women on the jury affected the verdict.

No, because the Batson challenge was properly sustained. There is a three step analysis when a Batson challenge is raised [Batson v. Kentucky, 476 U.S. 79 (1986)]: (1) The party making the challenge must establish a prima facie case of discrimination; (2) The party defending the strike must then state a race or gender neutral reason for making the strike; and (3) The court must then determine whether the reasons stated are, in fact, race and gender neutral. Here, the defense attorney told the court that he was striking women because, as women, they would be more sympathetic to the female victim of domestic violence. This is not a gender-neutral reason to use a peremptory strike on a potential juror and therefore, the Batson challenge was properly sustained.

A man stopped at his friend's house to pick up an ounce of marijuana. As he was driving home, the man accidentally ran a red light, and a police officer pulled him over. After issuing the man a ticket, the officer ordered him to step out of the car. The officer searched the entire interior of the car, but found nothing. The officer then took the keys and opened the trunk, where he found the ounce of marijuana. The man identified the friend as the person that had sold him the marijuana. The friend was arrested and brought to trial. The friend's attorney filed a motion to suppress the evidence of the marijuana on the ground that the officer's search of the man's car was illegal. Should the court grant the friend's motion to suppress? - No, because the friend does not have standing to challenge the search. - No, because the man was being charged with a motor vehicle offense. - Yes, because the search exceeded the scope of an acceptable warrantless search under the automobile exception. - Yes, because the search of the car was not based on probable cause.

No, because the friend does not have standing to challenge the search. A defendant seeking to invoke the Fourth Amendment protection against unreasonable searches and seizures by government agents must first establish standing. Standing exists only where a defendant's own rights have been violated, not the rights of another person. An ownership or possessory interest in the premises searched is sufficient to establish standing. The person must have a reasonable expectation of privacy in the area to be searched. Here, as the friend had no possessory interest in the man's car or the evidence seized, nor was he present at the time of the search, nor did he have any other reasonable expectation of privacy in the car, the friend does not have standing to challenge the search of the man's car.

Two defendants were being tried together in federal court for bank robbery. The prosecutor sought to introduce testimony from the first defendant's prison cellmate. The cellmate would testify that the first defendant had admitted to the cellmate that he and the second defendant had robbed the bank. The prosecutor asked the court to instruct the jury that the cellmate's testimony could be considered only against the first defendant. Can the cellmate's testimony be admitted in a joint trial over the second defendant's objection? - No, because the first defendant made the statement without Miranda warnings. - No, because the limiting instruction cannot ensure that the jury will not consider the testimony in its deliberations regarding the second defendant. - Yes, because the first defendant's statement was a declaration against penal interest. - Yes, because the limiting instruction sufficiently protects the second defendant.

No, because the limiting instruction cannot ensure that the jury will not consider the testimony in its deliberations regarding the second defendant. The limiting instruction is constitutionally insufficient to avoid the risk that the jury will consider the incriminating statement against the second defendant, who has no opportunity at trial to confront the first defendant.

Police officers had to believe that a man had committed a series of armed bank with an accomplice. The officers obtained a valid arrest warrant for the man and went to his house to arrest him. The officers found the front door ajar and could hear a radio playing inside. They knocked on the door, identified themselves as police officers, and stated that they had a warrant. Getting no response, the officers entered the house. After the officers called the man's name several times and again identified themselves as police officers, the man emerged from the basement and was arrested. The officers went into the basement to look for the accomplice. They opened a closet door and found cocaine in plain view. They did not find the accomplice. The man was indicted for cocaine possession. He has moved to suppress the cocaine as evidence on the ground that it was obtained in violation of the Fourth Amendment. Should the court grant the motion to suppress? - No, because the officers discovered the cocaine during a lawful protective sweep of the house looking for the man's accomplice. - No, because the search was incident to the man's arrest. - Yes, because the officers did not have a search warrant. - Yes, because the officers did not have probable cause to believe that cocaine would be in the closet.

No, because the officers discovered the cocaine during a lawful protective sweep of the house looking for the man's accomplice. When police execute an arrest warrant at a suspect's home, the arrest warrant provides implicit authority to enter the home and search for the suspect to effectuate the arrest if police reasonably believe the suspect is in the home and refuses to answer the door. If the suspect is the only person police believes is in the home the scope of such a search is limited to looking for the suspect, and it terminates when the suspect is located and arrested. However, when police have reasonable suspicion that others in the home may pose a threat to them, they are authorized to conduct a cursory "protective sweep" of the home to rule out this risk. This allows them to look in locations where such a person may be, and any contraband that comes into plain view while acting within that limited scope may be seized. In this question, the officers entered the home lawfully to execute the arrest warrant. However, the reference to an "accomplice" to a series of armed robberies indicates the officers reasonably believed that: (1) the accomplice would be in the home with the suspect; and (2) the accomplice could be armed and threaten the officers in an effort to prevent their efforts to arrest the suspect. Accordingly, they were authorized to conduct a cursory protective sweep. Because the officer who found the contraband was looking in a place where the accomplice could be hiding, the contraband was discovered within the scope of the protective sweep. Because what the officer saw created immediate probable cause it was contraband, the seizure of the cocaine was lawful pursuant to the plain view doctrine.

Police received a tip from an informant that a ring of thieves were hoarding stolen property in the house owned by the ringleader's uncle. The ringleader frequented the uncle's house to sell the stolen goods out of the basement and could be found there every evening after 10:00 pm. The police obtained an arrest warrant and went to the uncle's house to arrest the ringleader the next evening. The uncle refused entry to the police, who pushed past him to find the ringleader. When police entered the living room, they observed bricks of marijuana on the table. Police arrested the uncle and the ringleader and charged them both with narcotics offenses. The uncle's motion to suppress the evidence of the drugs was granted. The ringleader files a similar motion seeking suppression of the drugs. Should the ringleader's motion be granted? - Yes, because the police did not have a valid search warrant for the uncle's house. - Yes, because there was no probable cause to believe that the drugs belonged to the ringleader. - No, because the ringleader had no standing to contest the legality of the search. - No, because the drugs were observed in plain view and there were exigent circumstances.

No, because the ringleader had no standing to contest the legality of the search. Standing under the Fourth Amendment is personal to the defendant. Thus, in order for the ringleader to have standing to vindicate his own rights under the Fourth Amendment, he must have a reasonable and legitimate expectation of privacy in the place searched or the item seized. The ringleader does not have a legitimate expectation of privacy in someone else's home and therefore, does not have standing.

A concerned citizen approached a federal agent about her friend's husband. She worried that her friend's husband might have child pornography in his possession. The federal agent asked the concerned citizen to try to find a way to search the husband's computer or closet the next time she was at her friend's house, to see if she could locate any evidence. The next time the concerned citizen visited her friend, she asked the friend if she could use the friend's computer to check e-mail while the friend was cooking dinner. The friend agreed, and the concerned citizen discovered evidence of child pornography in a "secret" file on the computer. The citizen reported her findings to the federal agent, who obtained a warrant and seized the computer. The concerned citizen's friend and husband were charged with possession of child pornography, although the charges were later dropped against the friend. At trial, the friend's husband objected to the admission of the evidence obtained from the computer found by the concerned citizen. Should the court admit the evidence found on the computer? - Yes, because the evidence was found by a private citizen. - Yes, because the concerned citizen had permission to use the computer. - No, because the search that produced the evidence was illegal. - No, because it is "fruit of a poisonous tree."

No, because the search that produced the evidence was illegal. The concerned citizen was acting under the direction of a government agent, and therefore, her search of her friend's computer was governed by the Fourth Amendment. The concerned citizen obtained permission to use the computer to check her email. When the concerned citizen's friend agreed, it was for that limited use. Consent as a defense to a charge of illegal search has three elements: (1) the consent must be unforced and the result of an informed decision; (2) the search must not exceed the scope of the consent; and (3) the consenting party must have authority to consent. In this case, the friend had no reason to know that a search was going to be conducted, so her consent was by trick. Furthermore, the consent to use the computer was for the concerned citizen to check email. The citizen's search for secret files exceeded the scope of her permission to use the computer. As such, the search was illegal, and the evidence will be suppressed. Incorrect. No, because it is "fruit of a poisonous tree." The evidence will not be admissible, but not for this reason. Because the concerned citizen was acting at the direction of a government official, her search will be subject to the Fourth Amendment. She tricked her friend into letting her use the friend's computer, and the citizen proceeded to search the computer in ways that were in excess of the consent she had received. As such, the evidence will be suppressed. While there was a warrant, it came from an unlawful search, therefore the warrant is bad, and anything that was produced as a search stemming from that warrant will be suppressed.

A student and a teacher were arrested for armed robbery. The student and the teacher, represented by separate counsel, were arraigned and released on bond. The teacher reached an agreement with the government to appear as a witness against the student at trial in exchange for a reduced sentence. Upon the request of the district attorney, the teacher asked the student where he got the gun that he used in the robbery. The student said he got the gun from his cousin. This statement was later offered into evidence at the student's trial. The student's attorney objected. How should the judge rule on this objection? - Objection overruled, because the student's statement as related by the teacher, although hearsay, was a statement against the student's interest, and thus falls under one of the hearsay exceptions. - Objection overruled, because, based on the totality of the circumstances, the student's statement was voluntary. - Objection sustained, because the admission of the student's statement to the teacher violated the student's Fifth Amendment right against self-incrimination. - Objection sustained, because the admission of the student's statement to the teacher violated the student's Sixth Amendment right to counsel.

Objection sustained, because the admission of the student's statement to the teacher violated the student's Sixth Amendment right to counsel. Absent an effective waiver and after formal charges have been filed, the deliberate eliciting of any incriminating statements made by a defendant without the assistance of an attorney violates the Sixth Amendment right to counsel [Massiah v. United States, 377 U.S. 201 (1964)]. Inasmuch as the student had been arraigned and was represented by counsel, the deliberate elicitation by the teacher (an agent of the government) of the student's incriminating statements violated the student's right to counsel.

While the defendant was awaiting trial for murder, one of the jailers approached the defendant in lockup and accused him of being a cruel murderer whose only chance was to admit his guilt and seek forgiveness. The defendant broke down and admitted to the jailer that he killed the victim and wanted to repent. At trial, the defendant testified that he never met the victim and was not the kind of person who could commit a murder. The prosecutor intends to call the jailer to testify in the rebuttal case to the defendant's confession. The defense attorney objects to the admission of the confession. How should the court rule? - Sustain the objection, because the confession was made outside the presence of counsel in violation of the Sixth Amendment. - Sustain the objection, because the defendant was not properly Mirandized. - Overrule the objection, because the defendant assumed the risk that his confession would be admitted when made to a law enforcement officer. - Overrule the objection, because the statement was being admitted for impeachment purposes only.

Overrule the objection, because the statement was being admitted for impeachment purposes only. A defendant has an absolute right to counsel once formal charges have been brought against the defendant. Unlike the Fifth Amendment right to counsel, the defendant need not request a lawyer. The right to counsel arises automatically and the defendant cannot be questioned outside the presence of his attorney unless the defendant provides a knowing, voluntary, and intelligent waiver of the right. However, the Supreme Court has held that a statement obtained in violation of the Sixth Amendment may be used for impeachment purposes at trial where the statement contradicts the defendant's trial testimony.

A mechanic was arrested for committing a series of car thefts. At the time of the mechanic's arrest, the arresting officers read him his Miranda rights. The mechanic then told the arresting officers that he wanted to talk to his attorney before he answered any questions. The officers took the mechanic down to the police station and put him in a room for questioning. Shortly thereafter, the officers said to the mechanic, "We know you asked to talk to your attorney, and we're going to let you; but you could help yourself by sharing some information first. Why don't you tell us who was in this with you?" At that point, the mechanic gave the officers the name of the partner with whom he planned and executed the car thefts. At the mechanic's trial, the prosecution attempted to introduce the mechanic's statement in its case-in-chief, but the judge found the statement inadmissible because it was obtained in violation of the Fifth Amendment. The mechanic took the stand in his own defense and testified that he had nothing to do with the car thefts and did not know who did. During cross- examination, in order to impeach the mechanic, the prosecution attempted to introduce the statement that he made to the police. The mechanic's attorney objected. Should the objection be sustained or overruled? - Overruled, because the mechanic voluntarily made the statement after requesting to speak with an attorney. - Overruled, because statements obtained in violation of a defendant's Miranda rights can be used to impeach a defendant who testifies at trial. - Sustained, because the mechanic did not waive his right to remain silent and his right to counsel before making the statement. - Sustained, because the police officers did not repeat the Miranda warnings before they initiated the conversation with the mechanic.

Overruled, because statements obtained in violation of a defendant's Miranda rights can be used to impeach a defendant who testifies at trial. Once Miranda warnings have been given, a defendant who has requested an attorney may not be further questioned until either counsel is furnished or the defendant voluntarily initiates a discussion. Here, given that the mechanic asked to speak with an attorney before he answered the officers' questions and that he did not voluntarily initiate the subsequent discussion, the officers in fact violated the mechanic's Miranda rights when they questioned him further about his accomplices. As such, the information the officers obtained would not be admissible to prove that the mechanic had worked with that particular person to commit the car thefts. However, and more importantly, although statements taken in violation of Miranda rights may not be used substantively, they may be used to impeach a testifying defendant. Thus, once the mechanic took the stand and testified that he did not know anything about who had committed the car thefts, he opened the door for the prosecutor to introduce his prior statement for purposes of impeachment. Statements made by a defendant in violation of his Fifth Amendment rights under Miranda cannot be used as substantive evidence against him. However, they may be used for impeachment purposes, so long as the confession was not coerced.

A barber was in jail awaiting trial on assault charges. He kept a journal in a notebook, which he wrote in weekly. Occasionally, he wrote about the crime he was accused of committing. The barber knew that his cell and belongings could be searched by prison guards at any time. One day, his cell was searched by prison guards. One of the guards flipped open the notebook and saw the following sentence: "My dog told me to stab her at least 15 times." At trial, the barber testified that he had nothing to do with the assault he was accused of committing. The prosecution offered the statement the barber made in his journal into evidence in order to impeach his testimony. The barber objected on Fourth Amendment grounds. Should the barber's objection be sustained or overruled? - Sustained, because the prison guards conducted a warrantless search of his cell. - Sustained, because the barber had a reasonable expectation of privacy in his journal. - Overruled, because the barber made the statement voluntarily, knowing he had no expectation of privacy. - Overruled, because the prosecution offered the statement for impeachment purposes.

Overruled, because the barber made the statement voluntarily, knowing he had no expectation of privacy. To have a Fourth Amendment right against unreasonable search and seizure, a person must have a reasonable expectation of privacy regarding the place searched or the items seized. In this case, the barber did not have a reasonable expectation of privacy in his cell or with regard to the personal property in his cell, and he was aware of this fact. Given that he nevertheless made this voluntary statement in his journal, the statement is admissible. Absent a reasonable expectation of privacy, the Fourth Amendment warrant requirements did not apply, and the search of the barber's cell did not violate his constitutional rights. Guards do not need a warrant to search a jail or prison cell. Nothing in a jail cell is private.

The exclusionary rule generally provides that evidence illegally obtained by government authorities is not admissible as substantive evidence to prove the guilt of the accused in a criminal proceeding. In which of the following proceedings is the illegally obtained evidence inadmissible against the accused? - Police lawfully arrest a defendant for murder, question him without Miranda warnings, and the defendant voluntarily informs the police that he shot the victim. The defendant's statement is offered to impeach his trial testimony. - Police illegally search the defendant, who is a known parolee, and find cocaine in his pocket. The cocaine is introduced at the defendant's parole revocation hearing. - Police enter a defendant's residence with a warrant to search for drugs, find heroin; but at a hearing regarding a motion to exclude, the judge finds that the police failed to properly knock and announce before entering the property. - Police receive an anonymous telephone tip that a defendant is standing on a particular street corner and has a .38 caliber gun in the red jacket that he is wearing. Police approach the defendant, the only person standing on that corner wearing a red jacket, frisk him, and seize a .38 pistol. The pistol is introduced at the defendant's trial for illegal possession of a gun.

Police receive an anonymous telephone tip that a defendant is standing on a particular street corner and has a .38 caliber gun in the red jacket that he is wearing. Police approach the defendant, the only person standing on that corner wearing a red jacket, frisk him, and seize a .38 pistol. The pistol is introduced at the defendant's trial for illegal possession of a gun. The exclusionary rule would apply to exclude the gun found in the defendant's jacket. In Florida v. J. L. [529 U.S. 266 (2000)], the Supreme Court ruled then that an uncorroborated anonymous tip cannot be used to justify the search of a suspect for weapons. The court, however, noted that "there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient reliability to provide the necessary reasonable suspicion to make a Terry stop-and-frisk'" [Id.; see also Alabama v. White, 496 U.S. 325 (1990) (sufficient corroboration of anonymous tip to justify the stop of a woman leaving an apartment building)].

A state statute provides as follows: "In all criminal cases, 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 allows." The same state defines the crime of burglary as the "breaking or entering of the dwelling house of another at night with the intent to commit a felony or theft therein. If the dwelling house belongs in part to the defendant, that shall be a complete defense to the crime of burglary." At a defendant's trial for burglary, he testified that the residence was partially his own, because he had resided there with the victim. How should the trial judge instruct the jury regarding the issue of ownership as a defense? - The burden of proving ownership, by a preponderance of the evidence, rests on the defendant. - The burden of proving ownership, by clear and convincing evidence, rests on the defendant. - The burden of proving ownership, by proof beyond a reasonable doubt, rests on the defendant. - The burden of proving ownership, by proof beyond a reasonable doubt, rests on the prosecution.

The burden of proving ownership, by proof beyond a reasonable doubt, rests on the prosecution. The statute above provides that an element of the crime of burglary is the dwelling house "of another." Therefore, because it is an element of the offense, the burden rests with the prosecution to prove it beyond a reasonable doubt. That burden can never shift to the defendant as that would violate the defendant's due process rights.

Robert was unhappy about turning 40. His friend Ryan tried to cheer him up by hosting a surprise birthday party. After the party, Robert decided to walk home. When Robert was two blocks from his house, Larry approached him and asked for spare change. Robert responded, "Get away from me, you monster." Robert then hit Larry, knocking him to the ground. Larry died from his injury. At Robert's trial, it was determined that Robert suffered from a severe mental disease, which had been previously undiagnosed, and that although Robert knew that it was wrong to kill another human, he thought Larry was a monster at the time of the incident. Robert sought to use the insanity defense. The jurisdiction uses the M'Naghten test. What is the likely outcome of Robert's trial? - Guilty, because he knew it was wrong to kill another human being. - Guilty, because Robert intended to kill Larry. - Not guilty, because at the time of his act, Robert believed that Larry was a monster, not a human being. - Not guilty, because his mental condition prevented him from controlling his conduct.

The correct answer is: Not guilty, because at the time of his act, Robert believed that Larry was a monster, not a human being. Discussion of correct answer: Under the M'Naghten test for insanity, a defendant is relieved of criminal responsibility upon proof that at the time of commission of the act, he was laboring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he was doing or, if he did know it, he did not know that what he was doing was wrong. "Disease of the mind" includes all mental abnormalities, but not a psychopathic personality. Here, the facts state that Robert suffered from an undiagnosed severe mental disease, one which caused him to believe that, at the time of the incident, Larry was a monster, and not a human being. Thus, while Robert knew that killing another human being was wrong, his mental disease caused him to believe that he was attacking a monster instead. Because he believed that Larry was a monster and not a human being at the time as a result of his severe mental disease, the insanity defense could apply. Incorrect. Guilty, because he knew it was wrong to kill another human being. The facts state that, while Robert knew that it was wrong to kill another human being, he thought that Larry was a monster. Thus, Robert's severe mental disease resulted in Robert not knowing the nature and quality of the act he was doing, in that he believed he was attacking a monster and not a person. Therefore, while the M'Naghten test has been satisfied and Robert will be successful in raising the defense of insanity. Incorrect. Guilty, because Robert intended to kill Larry. Because of his severe mental disease, Robert believed that Larry was a monster at the time that Robert attacked him. As such, Robert would have a valid insanity defense, because his mental disease meant that he did not know the nature and quality of the act he was doing. Even if this were not the case, the facts do not make it clear that Robert acted with the intent to kill Larry, just the intent to hit him. Incorrect. Not guilty, because his mental condition prevented him from controlling his conduct. Under the M'Naghten test, a defendant is relieved of criminal responsibility upon proof that at the time of commission of the act, he was laboring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he was doing or, if he did know it, he did not know that what he was doing was wrong. The M'Naghten test does not have an irresistible influence component. Thus, this answer misstates the test to be applied. Furthermore, it is not clear from the facts that Robert was unable to control his conduct.

A defendant noticed his neighbor driving around in a vintage hot rod that he had recently purchased, and was determined to get his hands on the hot rod for himself. In which of the following factual scenarios is the defendant most likely to be found guilty of the crime of false pretenses? - The defendant offers to trade his truck, which he describes as the "fastest truck in the entire state," to the neighbor for the hot rod. The neighbor agrees, and they sign over the respective titles to one another, but the neighbor soon learns that there are other trucks in the state that are faster. - The defendant tells the neighbor that he would like to borrow the car to show it to the children at the school where he volunteers. The neighbor agrees. The defendant finds the title in the hot rod's glove apartment and signs it over to himself. - The defendant, a mechanic, offers to examine the hot rod for free. The neighbor agrees. The defendant tells the neighbor that the motor is shot and will be very expensive to replace, which is a lie. The defendant offers to buy the hot rod for less than it is worth, and the neighbor agrees, signing over title in exchange for the defendant's cash offer. - The defendant offers to take care of the car while the neighbor is on vacation. The defendant pours sand into the hot rod's gas tank. When the neighbor returns, he cannot figure out why the hot rod is malfunctioning. He offers to sell it to the defendant at a greatly reduced cost, and the defendant accepts. The neighbor passes title to the defendant.

The correct answer is: The defendant, a mechanic, offers to examine the hot rod for free. The neighbor agrees. The defendant tells the neighbor that the motor is shot and will be very expensive to replace, which is a lie. The defendant offers to buy the hot rod for less than it is worth, and the neighbor agrees, signing over title in exchange for the defendant's cash offer. Discussion of correct answer: A defendant is guilty of false pretenses where he makes a false representation of fact causing the victim to pass title to him. Even though the defendant paid money for the car, he is nonetheless guilty of false pretenses as he made a fraudulent statement in order to pay less than the car is worth and receive title. Discussion of incorrect answers: Incorrect. The defendant offers to trade his truck, which he describes as the "fastest truck in the entire state," to the neighbor for the hot rod. The neighbor agrees, and they sign over the respective titles to one another, but the neighbor soon learns that there are other trucks in the state that are faster. A false pretenses conviction requires that a defendant make a false representation of material fact that causes the victim to pass title, but mere "puffery" will not suffice. Here, stating that the truck was the fastest truck in the state would fall under the heading of puffery, as such superlatives are often used in marketing without there being an expectation of absolute accuracy. Incorrect. The defendant tells the neighbor that he would like to borrow the car to show it to the children at the school where he volunteers. The neighbor agrees. The defendant finds the title in the hot rod's glove apartment and signs it over to himself. The crime of false pretenses requires a false representation that causes the victim to pass title to the defendant. Here, the neighbor allowed the defendant to have possession but did not pass title to him; the neighbor's finding the title in the glove compartment is different from the neighbor passing title to him. Incorrect. The defendant offers to take care of the car while the neighbor is on vacation. The defendant pours sand into the hot rod's gas tank. When the neighbor returns, he cannot figure out why the hot rod is malfunctioning. He offers to sell it to the defendant at a greatly reduced cost, and the defendant accepts. The neighbor passes title to the defendant. Although the defendant here may be guilty of conversion, he did not make a false representation of material fact which caused the defendant to pass title. As such, he would not be guilty of false pretenses in this scenario. Think Like a Lawyer Obtaining property by false pretenses means telling an intentional lie in order to get legal title to something fraudulently. Step by Step WalkthroughStep 1: Obtaining property by false pretenses involves: (1) a false representation of present or past material fact made by the defendant; (2) which causes the victim to pass title to the defendant; (3) who knows the representation is false; and (4) who intends thereby to defraud the victim. Step 2: Here, the best scenario is where the defendant, a mechanic, offers to examine the hot rod for free. The neighbor agrees. The defendant tells the neighbor that the motor is shot and will be very expensive to replace, which is a lie. The defendant offers to buy the hot rod for less than it is worth, and the neighbor agrees, signing over title in exchange for the defendant's cash offer. Step 3: Select this answer. Notice that there was a false statement of fact made by the defendant. It caused the neighbor to pass title. The defendant knew he was lying to get the car. The defendant intended to defraud the neighbor out of the car. Step 4: Note that the three incorrect choices do not meet all the elements of the crime. One involves exaggeration (puffery) rather than a false statement of fact. One involves stealing the title, rather than having the neighbor give title. Finally, one involves vandalism rather than telling an intentional lie.

Police were called to the scene of a shooting. The victim lay on the ground outside of a convenience store with a gunshot wound. The victim told the police that the defendant had shot him during a robbery and ran away with the gun in his hand. The police pursued the defendant and eventually caught him. The victim died from his injuries. During the trial, the prosecutor asked the responding officers what the victim had told them. The defense attorney objected, citing Sixth Amendment Confrontation Clause rights of his client. Will the court admit the statement of the victim? - No, because the victim's statement was testimonial and there was no opportunity to cross examine the victim prior to his death. - No, because the victim's statement was not a dying declaration. - Yes, because the victim's statement was an excited utterance and therefore, fits into a well-established hearsay exception. - Yes, because the statement was obtained by the police in order to respond to an ongoing emergency.

The correct answer is: Yes, because the statement was obtained by the police in order to respond to an ongoing emergency. Discussion of correct answer: These are essentially the facts from Michigan v. Bryant [562 U.S. 344 (2011)], which held that the victim's statements were not testimonial because they had a primary purpose to enable the police to meet an ongoing emergency. The court found the fact that the defendant still had a weapon meant there was a real danger to the public. Discussion of incorrect answers: Incorrect. No, because the victim's statement was testimonial and there was no opportunity to cross examine the victim prior to his death. Although the U.S. Supreme Court did not lay out what testimonial means in Crawford v. Washington [541 U.S. 36 (2004)], subsequent caselaw has helped to define it. In Davis v. Washington [547 U.S. 813 (2006)] and Hammon v. Indiana [547 U.S. 813 (2006)], both domestic violence cases, the Court explained that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation's] primary purpose...is to enable police assistance to meet an ongoing emergency," but they "are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the [interrogation's] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution" [547 U. S., at 822]. Because the victim's statements here were made to enable the police to meet an ongoing emergency, they were not testimonial. Incorrect. No, because the victim's statement was not a dying declaration. Whether or not the statement was a dying declaration or not would be important to analyzing the admissibility of this statement if an analysis of the testimonial nature of this statement had already been performed. However, without examining whether this statement was testimonial or not, the question of a valid hearsay exception need not be reached. Incorrect. Yes, because the victim's statement was an excited utterance and therefore, fits into a well-established hearsay exception. A well-established hearsay exception reflects the language of Ohio v. Roberts, which was overturned by Crawford v. Washington [541 U.S. 36 (2004)] and therefore, no longer reflects the state of the law. Therefore, a threshold question of whether the defendant's Confrontation Clause rights are implicated is crucial to the analysis. Think Like a Lawyer The right to confrontation does not necessarily exclude all hearsay statements. Step by Step Walkthrough Step 1: The Sixth Amendment to the United States Constitution provides that a person accused of a crime has the right to confront the witnesses against him. This right includes the right to be present at trial and to cross-examine the prosecution's witnesses. The introduction of out-of-court statements must not deny the defendant his right of confrontation, but hearsay statements are not automatically excluded. Rather, the prosecution must demonstrate that the witness is unavailable after good-faith efforts have been made, and the hearsay statement is trustworthy. Step 2: Trustworthiness is shown when the hearsay statement: (1) falls within one of the recognized hearsay exceptions; or (2) is made under oath, and the defendant had the opportunity to cross-examine the witness at the time it was made. Out-of-court statements that are testimonial in nature, such as statements made to the police or 911 after an emergency has ceased, are inadmissible under the Confrontation Clause, even if such statements would be considered to be excited utterances. Statements, however, are considered nontestimonial and admissible when made in the course of police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Step 3: Here, the victim died after saying that the defendant shot him during a robbery. The defendant had not yet been apprehended and still had a gun. This was an ongoing emergency. Thus, the statement was nontestimonial and admissible. Select the answer stating that the will court admit the statement of the victim, because the statement was obtained by the police in order to respond to an ongoing emergency. Step 4: Discard the option saying that the victim's statement was testimonial, of course.Step 5: Discard the option saying that the victim's statement was not a dying declaration. This is unknown but, even if not a dying declaration, it was nontestimonial, so no hearsay exception is needed. Step 6: Finally, discard the option saying that the victim's statement was an excited utterance, because the U.S. Supreme Court has held that an excited utterance would be insufficiently trustworthy.

A real estate agent was arrested for forgery and identity fraud after creating a series of false mortgage documents and signing them with other people's names. By the date of arrest, the real estate agent had illegally taken possession of more than 80 properties. Directly after arrest, the real estate agent was read Miranda warnings and subjected to a custodial interrogation. The real estate agent made a full and thorough confession. Just prior to trial, the defense attorney made a motion to argue for the suppression of the confession in its entirety. What is the burden of proof in determining the admissibility of the confession? - The prosecution must prove each element as well as the absence of mitigating factors. - The prosecution must prove each element beyond all doubt. - The prosecution must show enough evidence as to tip the balance in favor of the fact. - The prosecution must show evidence that supports a finding that the fact is significantly more likely to be true than not true.

The prosecution must show enough evidence as to tip the balance in favor of the fact. This answer provides the definition for the lowest standard of persuasion--preponderance. Upon any motion to suppress, the government must show admissibility of the proffered evidence by a preponderance of the evidence. Here, the motion is dealing with the voluntariness of the real estate agent's statements to police in a custodial interrogation. This would be the correct burden of proof. The prosecution must prove each element as well as the absence of mitigating factors. This is the "beyond a reasonable doubt" standard. It requires that any doubt that exists in the mind of the either the jurors or the judge would not affect a reasonable person's belief that the fact is true. Although it may be tempting to select this answer because this is the burden of proof for conviction, the burden of proof for determining the admissibility of evidence (such as a confession) is lighter than the burden of proof for conviction. The prosecution must show evidence that supports a finding that the fact is significantly more likely to be true than not true. This answer choice articulates the clear and convincing standard. This standard demands that the evidence support a finding that the facts are significantly more likely to be true than to not be true. Another way of stating this would be that the evidence presented has a high probability of truth. This is generally used as the stricter standard in civil cases such as fraud, disbarment issues, and in determining whether a deed or will is valid. It would be too strict a standard to apply in determining whether a confession is valid.

Jack and Jill were dating and coming home from a New Year's Eve party in Jack's car and Jack was driving. Jack, who was very responsible and safety conscious, did not drink at the party and was completely sober. Jack noticed that there were several officers standing on either side of the road conducting a DUI checkpoint. He watched as the officers wave about 25 cars through the checkpoint without stopping them. When Jack pulled up, however, he and Jill are stopped. The officers approached on either side and asked Jack and Jill to get out of the car. Jack tried to explain that they were at a party but that he hadn't been drinking but the officers began searching the car anyway. When the officers searched the backseat of the car, they found a clear plastic bag with "Jill" written on the front. Without opening the bag, the officers could see marijuana and a glass pipe inside. Jill was charged for possession. Her attorney had researched the stops and citations that occurred during the New Year's Eve checkpoint and found that 97% of the people cited belong to the minority group that both Jack and Jill identify with. Jill's attorney also believed that the search was invalid. Jill's attorney filed a motion to suppress the marijuana on the grounds that the stop was illegal and search was not supported by probable cause and violated Jill's constitutional rights. Will Jill's attorney be successful? - No as to the stop, because officers have discretion in deciding who they stop and cite. - No as to the search, because Jill lacks standing. - Yes as to the stop, because every car has to be stopped in order for a DUI checkpoint to be valid. - Yes as to both, because Jill has standing to object to the stop and the checkpoint was invalid.

Yes as to both, because Jill has standing to object to the stop and the checkpoint was invalid. A passenger has standing to object to the seizure of a vehicle, because when the car is seized, all occupants are considered seized. Jill thus has standing to object to the seizure of the vehicle. This seizure is unlawful for two reasons. First, the police exceeded the scope of a valid DUI checkpoint by requiring everyone to exit the car and then searching the interior with neither consent nor an individualized suspicion of wrongdoing. Second, the checkpoint is invalid because officers on scene have the discretion to choose who to stop. Because the stop and seizure of the car was invalid, the search and evidence found as a result were the fruit of an illegal stop and seizure.

A defendant, a 14-year-old male, was tried as an adult for an armed robbery and was convicted. No one had been physically harmed during the robbery. In light of the defendant's lengthy juvenile criminal history, which included violent offenses, and the fact that armed robbery is a crime of violence, he was sentenced to life in prison without the possibility of parole. Did the life-without-parole sentence violate the Eighth Amendment ban on cruel and unusual punishment? - No, because a juvenile may be sentenced to life without parole if release would pose a danger to the community. - No, because the Eighth Amendment does not apply outside the context of capital punishment. - Yes, because a life-without-parole sentence is not permissible for a juvenile defendant convicted of a non- homicide offense. - Yes, because a life-without-parole sentence is not permissible for an adult or juvenile defendant convicted of a nonviolent offense.

Yes, because a life-without-parole sentence is not permissible for a juvenile defendant convicted of a non- homicide offense. The Eighth Amendment prohibits infliction of cruel and unusual punishment. In Miller v. Alabama, the Supreme Court held that sentencing juveniles to life without the possibility of parole violates the Eighth Amendment, even if the offense is murder. The Court concluded that children are constitutionally different from adults for sentencing purposes. Their lack of maturity and underdeveloped sense of responsibility indicates their actions are less likely to be evidence of irretrievable depravity. The Court rejected the states' argument that courts and prosecutors sufficiently consider a juvenile defendant's age, background and the circumstances of his crime, when deciding whether to try him as an adult.

A S.W.A.T. team surrounded the home of a man suspected of human trafficking and were preparing to execute a valid arrest warrant. Officers had been calling the suspect and using a loudspeaker to try and negotiate with the suspect and get him to voluntarily exit the house and surrender. The suspect had not responded to any of the officers' attempts at communication. Two- man teams approached all the doors and windows of the house and at exactly 5:30 A.M., all of the officer simultaneously entered the house through their assigned posts. None of the officers knocked and declared that they were about to enter. Was the entry proper? - Yes, because law enforcement officials are not required to take futile action. - Yes, because law enforcement officials do not have to make their presence known if they are executing a valid warrant. - No, because proper execution of a warrant requires law enforcement officials to always knock-and-announce prior to entering a home. - No, because the suspect never responded to officers' attempts to reach him.

Yes, because law enforcement officials are not required to take futile action. Generally, in order to properly execute a valid warrant where the officers will be entering a home, officers must knock and announce their presence before going into the house. However, if the officers have a reasonable belief that knocking will be futile, they are not required to take such action. Here, officers had been using both a phone and a loudspeaker to try and contact the suspect and he did not respond. It is likely that knocking at that point would be a futile effort since it does no more to give notice than a loudspeaker and cell phone. Thus, this is the correct answer.

A murderer on death row was being held in one of the state's oldest prisons. The prison had a very small exercise yard, no hot water, and there was frequently a three-week wait for soap and toothpaste. Vermin were present throughout the prison. The murderer had complained about the conditions but was routinely told that the state has no money to send to the prison and the prison officials were doing the best they can with what is given to them. Will the murderer be able to make a successful Eighth Amendment claim? - No, because the state lacks funding to improve the prison. - No, because the prison officials are aware of the problem but are unable to do anything about it. - Yes, because the state must adequately fund its prisons. - Yes, because the conditions are so poor that the punishment is cruel and unusual.

Yes, because the conditions are so poor that the punishment is cruel and unusual. The Eighth Amendment prohibits cruel and unusual punishment. The Supreme Court has held that if a defendant is being deprived of basic human needs in the course of his punishment, the punishment is cruel and unusual. This includes things like access to hot showers, soap, toothpaste, and an environment that is not infested with vermin. Here, the conditions are so poor that the punishment is cruel and unusual. Additionally, it is no excuse that the prison lacks funding. A prison has to maintain certain standards or the punishment may be cruel and unusual.

An attorney represented both the President and the Chief Financial Officer of a company on charges of mail fraud. The CFO later decided to cut a deal with prosecutors and agreed to testify against the President at his trial. The attorney continued to represent the President at trial. After the President was convicted he appealed his conviction on the grounds that the attorney had a conflict of interest and could not effectively cross-examine the CFO because of the attorney client privilege between the attorney and the CFO. Should the appellate court reverse the President's conviction? - Yes, because the conflict violated the President's Sixth Amendment right to counsel. - Yes, because the conflict of interest tainted the cross-examination. - No, because the President failed to object to the representation in a timely manner. - No, because the conflict was harmless error.

Yes, because the conflict violated the President's Sixth Amendment right to counsel. The Supreme Court discourages multiple representation of defendants in the same case because if one defendant later decides to cooperate and testify against the co-defendant, the attorney must be disqualified in both cases, due to the fact that the attorney-client privilege will prevent the attorney from using information obtained during the representation to zealously cross examine the cooperating defendant [Wheat v. United States, 486 U.S. 153 (1988)]. The Sixth Amendment requires zealous representation. Yes, because the conflict of interest tainted the cross-examination. This answer is correct but too narrow. Not only is the cross-examination tainted, but the Sixth Amendment right to counsel is violated.

A state statute required a defendant to prove mental incompetency by clear and convincing evidence. Defendant's attorney objected to the constitutionality of the statute. Should the court rule that the statute is unconstitutional? - No, because a defendant has the burden of coming forward with the evidence on all affirmative defenses at trial. - No, because the defendant is in the best position to elicit proof on his own mental competency. - Yes, because the constitutional standard for establishing competency to stand trial is a preponderance of the evidence. - Yes, because the prosecution has the burden to prove the defendant's competency to stand trial by clear and convincing evidence.

Yes, because the constitutional standard for establishing competency to stand trial is a preponderance of the evidence. When attempting to prove mental competency (or incompetency), the burden of proof may be placed on either party. However, the Supreme Court has ruled that the standard of clear and convincing evidence may not be employed, because it may result in the trial of a defendant who is, more likely than not, incompetent [Cooper v. Oklahoma, 517 U.S. 348 (1996)]. The constitutional standard for establishing competency to stand trial is a preponderance of the evidence. A defendant must be able to understand the nature of the charges against him and have the capacity to consult with his lawyer in preparing his defense. Competency to stand trial cannot be waived. Competency is determined by a defendant's mental condition at the time of trial, not at the time of the crime (as insanity is), and may be raised after the completion of the trial. The burden of proof in all courts for competency to stand trial is a preponderance of the evidence, pursuant to 18 U.S.C. § 4241 and its interpretive case law. The state may place the burden of proof on the defendant when determining competency, but for due process reasons, it cannot increase the level of evidence required to be proved.

A police officer developed a crush on his neighbor. One afternoon while the neighbor was at work, the officer entered her apartment through a window and searched the entire place. In a bedroom closet, the officer discovered a small, locked box with a name written across the top. The officer recognized the name as a crystal meth dealer that the department had been tracking for years. The officer broke off the lock and opened the box, in which he found five kilograms of meth. The officer then petitioned for and received arrest warrants for both the neighbor and the meth dealer. The meth dealer moved to suppress the contents of the box. Should the court grant the dealer's motion? - No, because the dealer did not have standing to challenge the search. - No, because the officer acted in good faith considering the reputation of the box's owner. - Yes, because the box was not seized at the dealer's home. - Yes, because the dealer had a reasonable expectation of privacy in the locked box.

Yes, because the dealer had a reasonable expectation of privacy in the locked box. For a defendant to assert Fourth Amendment rights against unreasonable search and seizures, he must first establish standing. To establish standing, the defendant must show that he had a legitimate expectation of privacy in the items seized or in the premises searched. Here, the dealer had a reasonable expectation of privacy in the box, which had been locked, was clearly identified as his, and was left at the neighbor's. Thus, a search warrant based on probable cause was needed to seize the box, and none was provided.

A reliable informant was called into the police station to provide information about gang street violence. The informant told detectives that six months prior he had witnessed a meeting between three rival gangs. The gang members discussed a cache of weapons located in the defendant's basement. The informant also observed the gang members in possession of weapons at the meeting. The detective prepared an affidavit and obtained a search warrant for the basement. The search turned up the arsenal of unregistered weapons as described by the informant. The defendant was arrested and charged with unlawful weapons possession. If the defendant files a motion to suppress the weapons based on a lack of probable cause to secure the warrant, will the court grant the motion? - No, because the weapons seized matched the informant's description. - No, because the tip was from a reliable informant who witnessed the matters described in the affidavit. - Yes, because the informant's information was stale. - Yes, because the police never observed the weapons in the basement and the tip was based solely on a hearsay account.

Yes, because the informant's information was stale (устаревшая). Under Illinois v. Gates [462 U.S. 213 (1983)], the judicial officer issuing the warrant must determine if there is a "substantial basis" for concluding that the evidence of criminality will be at the particular place described on the warrant application. The informant's observations were made six months prior to the warrant application and the likelihood that the guns are still in the basement is diminished because the information is stale.

A football player and his were driving home from a party one night when the football player, who was driving, veered off the highway and slammed the car into a ditch. When the police officers arrived they found the teammate unconscious. The teammate died that night at the hospital. The state charged the football player with manslaughter after several witnesses came forward and complained that the football player, whose last name and jersey number were on his license plate, was swerving in and out of traffic and driving over 100 miles per hour that night. He was indicted for manslaughter and the state began its case-in-chief. The first witness called at the trial is one of the people who had complained of the speeding and erratic driving. Two days into the witness's testimony, the state learned that the football player's blood sample from the night of the accident, which had come back negative for drugs and alcohol, had been accidentally switched with someone else's blood sample. A hair follicle found in the car, however, tested positive for high levels of cocaine. Is it proper for the state to seek a separate indictment for driving while intoxicated? - Yes, because the offenses are separate and distinct. - Yes, because the football player wasn't charged with a DWI. - No, because the DWI had to be filed with the manslaughter charged. - No, because the same facts would establish both charges.

Yes, because the offenses are separate and distinct. Both offenses are related to the drug use, because the cocaine is likely a contributing factor to the speed and erratic driving which caused the teammate's death. However, a different set of facts is required to prove each of these charges; manslaughter does not require that the defendant be intoxicated, and the DWI charge does not require that the victim die as a result. Because the offenses are separate and distinct, the state can subsequently bring the DWI charge. As such, this answer choice is correct.

Two police officers received a call from a landlord that a violent struggle was taking place between a man and a woman in one of his apartments. The officers responded to the scene. They knocked on the door of the apartment. Getting no response, the landlord used his key to open the door of the apartment. The officers discovered a woman's dead body, which had several stab wounds. The officers conducted a quick sweep of the apartment to search for the perpetrator. When one of the officers searched the kitchen, she noticed a spot of blood on the collar of the sink drain. The officer opened the cabinet under the sink and found a pipe wrench. The officer used the wrench to open the sink pipe. There, the officer discovered a slim knife with blood on it. The blood later tested to be the woman's blood. The police subsequently arrested the woman's husband and charged him with murder. At trial, he moved to exclude the knife from evidence. Will the court grant the motion? - No, because the woman's blood was in plain view. - No, because of the crime-scene exception to the search warrant rule. - Yes, because the search was unlawful. - Yes, because the crime-scene exception does not apply.

Yes, because the search was unlawful.There is no exception (as suggested in the other answers) to the warrant requirement for searches at the scene of a crime [Mincey v. Arizona, 437 U.S. 385 (1978)]. At a murder scene, police may conduct a sweep of the scene to discover other bodies or the killer and, under the plain-view doctrine, evidence discovered in that search that the police immediately recognize as incriminating will be admissible. However, in this question, the officer merely saw a spot of blood near the sink drain, which led the officer to open the pipe to the sink, where she found the murder weapon. This search was constitutionally invalid, and under the "fruit of the poisonous tree" doctrine, the knife should be excluded from evidence. Yes, because the crime-scene exception does not apply. This answer is simply a red herring. There is no such thing as a "crime-scene exception" to the warrant requirement. Under Mincey v. Arizona [437 U.S. 385 (1978)], the police may conduct a sweep of the scene of a crime in order to search for: (1) other victims; or (2) a remaining killer. That does not give them constitutional permission to conduct a general search for evidence.

The defendant was arrested and charged with murder. At his preliminary hearing, the magistrate dismissed the charges finding that the proof was insufficient to establish probable cause to bind the defendant over for trial. The prosecutor walked across the hallway on the same day and presented the case to the grand jury which voted to indict the defendant on the same charge of murder. At his trial, the jury was unable to agree on the verdict and the court declared a mistrial. Three months later the defendant was tried again on the same murder charge. The jury acquitted the defendant. The prosecutor then re-filed the same murder charge, and after the third trial the jury returned a guilty verdict. On appeal, should the appellate court reverse the conviction based on a violation of the double jeopardy clause? - Yes, because the second trial ended in an acquittal. - Yes, because the defendant was put in jeopardy after the magistrate made a finding of no probable cause - No, because a defendant can be retried after a mistrial. - No, because the jury found the defendant guilty beyond a reasonable doubt.

Yes, because the second trial ended in an acquittal. Step by Step WalkthroughStep 1: The Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Generally, this means that a defendant cannot be tried twice for the same crime, if he was acquitted the first time. Step 2: Here, the defendant got a hung jury at his murder trial, and the trial court declared a mistrial. Three months later he was tried again, and won an acquittal. Step 3: The prosecutor then re-filed the same murder charge, and after the third trial the jury returned a guilty verdict. However, this is impossible. The prosecutor cannot re-file the same murder charge after an acquittal. There could be no third trial.

A devoted daughter had not heard from her elderly father for several days. Concerned, the daughter decided to check on him. She entered her father's house and found him on the kitchen floor, unconscious, with a large bruise on his temple. She called 911, and the father was transported to the hospital for treatment. As she was leaving her father's house, the daughter noticed that the television and DVD player that she had given her father for Christmas were missing. The daughter contacted the police and reported the theft of the items. Two days later, police officers came to a suspect's home with a warrant for his arrest on drug charges. When the police entered the suspect's apartment, they immediately saw a television and DVD player in the middle of the living room. The television and DVD player were identified as belonging to the father, and the police arrested the suspect, who was subsequently charged with burglary and battery. At trial, the suspect claimed that he had found the television and DVD player in a trash can in an alley. Because the father had not seen his attacker's face, he was unable to identify the suspect as his attacker, and there was no physical evidence connecting the suspect to the incident. . A short time later, the father, who had never fully recovered from the attack, died from a blood clot caused by the injury, and the suspect was charged with felony murder. At trial, the suspect moved for dismissal of the case on the ground that the felony murder charge violated the Double Jeopardy Clause. Should the suspect's motion be granted? - No, because the suspect had not yet been convicted of any charges related to the burglary of the father's home. - No, because the father's death had not yet occurred at the time that the suspect was tried on the burglary charges. - Yes, because the suspect was acquitted of the burglary charge. - Yes, because burglary and felony murder do not constitute the same offense.

Yes, because the suspect was acquitted of the burglary charge. The Fifth Amendment prohibition on double jeopardy forbids a defendant from being tried twice for the same crime arising from the same set of facts. It incorporates the concept of collateral estoppel--a defendant may not be tried for a different crime arising out of the same criminal conduct if a previous prosecution necessarily determined factual issues required for conviction in the defendant's favor. For instance, for a defendant to be guilty of felony murder, the defendant must be found guilty of the underlying felony. Thus, in this case, for the suspect to be convicted of felony murder relating to a burglary, the prosecution would need to re-litigate facts pertaining to the underlying burglary charge. Given that these facts that had already been determined in the suspect's favor during his trial for burglary and battery, the felony murder charge violates the prohibition against double jeopardy and should be dismissed.

A woman and a man were co-defendants who had been arrested for murder. Both gave statements implicating themselves and each other to the police. The woman later asserted that her statement was the product of coercion, and sought to have it suppressed. Both co-defendants were tried together and the prosecution introduced both the statements of the woman and the man in the trial. Both attorneys objected. The court held a hearing out of the presence of the jury and determined that the statements were voluntary and admitted them. The woman testified in her own defense, denied any culpability, and claimed again that her statements were the product of coercion. Both defendants were convicted. On appeal, the woman contended that her conviction should be overturned because of the man's statements being admitted against her. Will the woman prevail on appeal? - Yes, unless the man testified at trial. - Yes, regardless of whether the man testified at trial. - No, because the woman testified on her own behalf. - No, because the woman's statement was properly admitted.

Yes, unless the man testified at trial. The Sixth Amendment Confrontation Clause rights extends to co-defendants in a criminal trial. The woman did not have the opportunity to cross-examine the man and therefore, his statements should not have been admitted against her. The proper remedy for this would be to sever the trials and use only the woman's confession against her and only the man's confession against him. A jury instruction to consider the man's statement only against the man and not the woman would not have cured this [Bruton v. United States, 391 U.S. 123 (1968)].