CrimPro Themis Questions

The defendant was charged with conspiracy to distribute drugs for his alleged involvement in a major drug-trafficking ring.  The evidence tying the defendant to the drug-trafficking ring was obtained from a warrantless search of the home of a business partner.  The defendant had been living with his business partner but recently moved out, leaving a bag filled with cocaine and his identification in the business partner's home.  The bag was discovered by police during a search of the home with the business partner's consent.  Prior to trial, the defendant filed a motion to suppress the cocaine.

How should the court rule on the defendant's motion to suppress?

Answer: Deny the motion, because the defendant does not have a privacy interest in the home.

To prevail on a motion to suppress, the defendant must first establish that he has standing to contest the allegedly unlawful Fourth Amendment search.  Standing exists when the defendant has a legitimate expectation of privacy (or an ownership/possessory interest) in the area or item searched at the time of the search.  Therefore, a defendant cannot challenge an unlawful search of a third party's premises because it infringed upon the third party's right to privacy—not the defendant's.

Here, the police discovered the bag filled with cocaine along with the defendant's identification during a search of the business partner's home.  Although the defendant once had a reasonable expectation of privacy in the home, the search was conducted after the defendant had moved out and lost that privacy interest (Choice C).*  Therefore, the defendant does not have standing to challenge the search, and the court should deny his motion to suppress.

Two officers went to a man's home to serve an arrest warrant, but no one answered the door.  As they walked around the man's house, the officers looked into his next door neighbor's window and saw the man inside the neighbor's kitchen drinking coffee.  The officers knocked on the neighbor's door, and when the neighbor answered, the officers informed the neighbor that they had a warrant to arrest the man.  The officers pushed past the neighbor into the kitchen and arrested the man.  While they were in the kitchen, the officers saw a bag of cocaine on the neighbor's counter.  The officers arrested the neighbor, and he was subsequently charged with possession of narcotics.  The neighbor moved to suppress evidence of the drugs, and the prosecution argued that the evidence was admissible under the plain view exception to the warrant requirement.

Answer: No, because the officers could not lawfully enter the neighbor's home without his consent.

Under the Fourth Amendment, an unreasonable search or seizure typically occurs when the government acts without a warrant based on probable cause.  An arrest warrant implicitly authorizes entry into the arrestee's home to serve the warrant if police have reason to believe that the arrestee is present (Choice C).  But police may only search for an arrestee in a third party's home when they have:

• a warrant authorizing the search

• exigent circumstances or

• the third party's consent to enter the home.

If none of the above requirements are met, then the exclusionary rule requires the suppression of any evidence obtained as a result of the unlawful search.

Here, the officers entered the neighbor's home to serve an arrest warrant on the man.  However, they did not have a search warrant to enter the home and the neighbor did not consent to their entry.  Additionally, when the officers unlawfully pushed past the neighbor to arrest the man, there were no exigent circumstances to justify that entry (e.g., no one cried out for help).  Therefore, the officers' entry into the neighbor's home was unlawful, and the cocaine seized therein is inadmissible against the neighbor.

A police officer received an anonymous tip that the defendant was manufacturing methamphetamine in his basement.  Based solely on the tip, the officer obtained a warrant to search the defendant's basement for drugs and related manufacturing equipment.  The officer and his partner went to the defendant's home to execute the warrant.  Believing the defendant was not home, the officers did not knock on the door, but simply opened the unlocked door.  In searching the defendant's basement, the officers found large quantities of methamphetamine, related manufacturing equipment, and a notebook that said "Ledger" across the cover.  The notebook contained a ledger, with the names of the defendant's clients and statements of their accounts.  The officers seized all these items.  The defendant seeks to suppress the evidence seized by the officers.

Answer: The warrant was invalid

To be valid, a search warrant must be based on probable cause.  Probable cause exists when there is a reasonable belief (more than mere suspicion) that evidence of a crime is located in the place to be searched.  Facts supporting probable cause may come from several sources, including information from a reliable, known informant.  However, information from an unknown informant must be independently verified by police.

Here, the police made no attempt to verify the tip from an unknown informant, so probable cause was not established.  As a result, the defendant's best argument in favor of suppressing the notebook is that the warrant was invalid.

Two undercover police officers, with probable cause to believe that the defendant was a drug dealer, entered the living room of the defendant's apartment, at the defendant's invitation, to buy cocaine.  Before the transaction could take place, the defendant shot and killed one of the officers.  After a brief struggle, the defendant was subdued by the other officer and placed under arrest for murder.  Responding to the officer's request for assistance, uniformed police officers came to the apartment, conducted a protective sweep, and took the defendant to jail.  Then the uniformed officers conducted a thorough warrantless search of the apartment, during which they uncovered a large quantity of cocaine in the mattress in the defendant's bedroom.  Based on the amount of cocaine seized, the defendant was charged with possession of cocaine with intent to deal in addition to murder.  The defendant filed a motion to suppress the cocaine as having been unconstitutionally seized.

Should the court grant this motion?

Answer: Yes, because the search was conducted without a warrant.

A motion to suppress should be granted if the contested evidence was seized during an unreasonable Fourth Amendment search.  A search is unreasonable if it was conducted without a warrant or an exception to the warrant requirement.

One such exception is a search incident to arrest.  This exception allows police to conduct a warrantless search of a person who has been lawfully arrested and the immediate surrounding areas for concealed weapons or destructible evidence.  Here, after the defendant was lawfully arrested, the police conducted a thorough search of the apartment and found cocaine in his bedroom.  Since the search went beyond areas immediately surrounding the defendant, this exception does not apply.

Another exception applies to exigent circumstances, under which police may act without a warrant when there is an immediate threat of harm to police or the public.  It allows police to conduct a protective sweep to search for injured persons and continued threats.  They also can seize illegal items that are in plain view.  But once the emergency ends, the search must end unless the police obtain a warrant or another exception applies.

Here, the murder of the undercover officer justified the protective sweep of the defendant's apartment.  However, once the emergency ended—i.e., the defendant was restrained and no other threats were located—the police were not justified in continuing the warrantless search (Choice D).  And since no other exception to the warrant requirement applies, the court should grant the defendant's motion to suppress.

While on patrol one night, two officers noticed the car of a known drug dealer in the drive-through lane of a fast-food restaurant.  Based on prior discussions with informants, the officers had probable cause to believe that the drug dealer had drugs in his vehicle since he regularly made drug deliveries from the trunk of his car.  Noticing that the drug dealer's headlight was out, the officers pulled him over once he left the restaurant and searched his car.  The officers did not find any evidence of drugs, but they did find several illegal weapons in the trunk.

Did the officers' seizure of the weapons violate the drug dealer's Fourth Amendment rights?

Answer: No, as a valid application of the automobile exception to the warrant requirement.

The Fourth Amendment protects against unreasonable searches and seizures.  An unreasonable search occurs when the government acts without a warrant based on probable cause and no exception to the warrant requirement applies.  The automobile exception justifies a warrantless search of a person's vehicle when:

• police have probable cause to believe that the vehicle contains evidence of a crime and

• the search is limited to areas where the evidence might be located.

During an automobile search, police can search any containers inside the vehicle—including the trunk and locked containers—that might contain the illegal evidence.  They can also seize any other illegal items discovered during this search.

Here, the officers had probable cause to believe that the drug dealer had drugs in his vehicle since he regularly made drug deliveries from the trunk of his car.  The trunk was an area where the drugs might be located, so the warrantless search of the trunk was reasonable.  And since the officers could seize other illegal items discovered during the search for drugs (Choice B), their seizure of the weapons did not violate the Fourth Amendment.

Exceptions to warrant requirement

Search incident to arrest Administrative search Stop and frisk Plain view Automobile exception Consent Exigent circumstance Special government purpose Mnemonic:  SAD SPACES

A grand jury is investigating a corporation for tax fraud.  The grand jury subpoenaed several types of corporate records, including emails from several of the corporation's officers and other business papers.  The subpoena was served on the corporation's chief operating officer (COO), who acted as the custodian of the corporate records.  The business papers would implicate several members of the corporation, including the COO, in criminal misconduct.  Further, many of the emails written by the COO contained statements about the officers of some of the corporation's competitors; these statements were defamatory and would likely result in civil liability if they were released.  The COO filed a motion to quash the subpoena, arguing that being forced to turn over these corporate records would violate his Fifth Amendment privilege against self-incrimination.

Should the court grant the COO's motion?

Answer: No as to both the emails and the business papers.

The Fifth Amendment privilege against self-incrimination protects suspects in criminal proceedings from being compelled to provide self-incriminating evidence that is testimonial in nature—e.g., via a grand jury subpoena (as seen here).  However, this privilege does not apply to evidence that might subject a person to civil liability.  Therefore, the court should deny the COO's motion to quash as to the emails that would subject the COO to civil liability for defamation (Choices C & D).

Additionally, the privilege against self-incrimination applies only to individuals—not corporations.  This means that when a corporation is the target of an investigation (as seen here), the custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing this privilege.  This is true even if the documents would incriminate the custodian (or officer) personally.

Following the armed robbery of a local bank, the police identified the defendant as a suspect and brought him to the police station for questioning.  As soon as they sat down in the interrogation room, the police read the defendant his Miranda rights.  The defendant noted that "this seems like the kind of thing where you should have a lawyer."  The police responded that the defendant had that right.  The defendant noted that he "didn't even know a good lawyer" and dropped the issue.  In response to each question, the defendant simply repeated, "I don't know anything about it."  Frustrated, the police discontinued questioning after an hour and left the defendant in the interrogation room alone.  Three hours later, the police returned and, without repeating the Miranda warnings, told the defendant that his best friend, who was also a suspect, had already told them all about the robbery and the defendant's involvement.  In fact, the police were searching for the defendant's best friend to bring him in for questioning but had not been able to locate him.  The defendant immediately blurted out, "It was all his idea.  I didn't even want to rob that bank."

What is the defendant's best argument that his statement was taken in violation of his Fifth Amendment rights?

Answer: The defendant did not receive fresh Miranda warnings after the break in questioning.

Police must protect a suspect's Fifth Amendment privilege against self-incrimination by informing the suspect of his/her Miranda rights (e.g., the right to an attorney) prior to a custodial interrogation.  The suspect may then choose to specifically and unambiguously invoke those rights (not seen here) (Choice D).  Alternatively, the suspect who understand his/her Miranda rights may waive those rights by voluntarily speaking to the police (as seen here).

However, when the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, police should re-Mirandize the suspect prior to resuming the interrogation.  That is because the passage of time can possibly invalidate the suspect's earlier waiver, rendering any incriminating information obtained after the break in interrogation inadmissible.  Therefore, the defendant's best argument is that he did not receive fresh Miranda warnings after the break in questioning.

(Choice B)  There is no requirement that a waiver of Miranda rights be in writing.

(Choice C)  Police are allowed to lie to a suspect to obtain incriminating information.  As a result, lying about the best friend's statement did not make the defendant's statement involuntary.

The defendant was the primary suspect in a string of robberies.  At the request of the police, the defendant appeared in a line-up at the police station, and one of the victims identified him as the person who robbed him.  The police then took the defendant into custody and interrogated him, after which the defendant was released without being charged.  The following day, the defendant was arrested and appeared at an arraignment, where he entered a plea of not guilty.  After the arraignment, the defendant was appointed an attorney.  The defendant had not been represented by an attorney at any point before that time, nor had he requested an attorney.  The defendant intends to argue that he was denied his Sixth Amendment right to counsel.

At what point did the defendant's Sixth Amendment right to counsel first attach?

Answer: The defendant's right to counsel first attached at the arraignment.

The Sixth Amendment right to counsel:

• automatically attaches once formal judicial proceedings commence (e.g., indictment, filing of formal charges, preliminary hearing, arraignment) and

• guarantees that criminal defendants will thereafter have the assistance of counsel during all critical stages of prosecution (i.e., any event where the absence of counsel may prejudice the defendant's right to a fair trial).

Here, the man was not entitled to legal representation pursuant to the Sixth Amendment when he appeared in the lineup or was subject to police interrogation.*  That is because formal judicial proceedings had not commenced (Choices A & B).

Instead, the man's Sixth Amendment right to counsel automatically attached when he was arraigned because an arraignment often signals the commencement of judicial proceedings.  This event is also considered a critical stage of prosecution because it typically requires that a defendant enter an initial plea and bond is discussed.  Therefore, the man was entitled to legal representation at this point. (Choice D).

A man, who was represented by counsel, was on trial for arson of an office building.  During the trial, the police learned that computers thought to have been destroyed in the fire had instead been stolen.  The police visited the man in jail, read him his Miranda rights, which the man voluntarily waived, and questioned him about the theft.  In response to the questioning, the man confessed to the theft.

After the man was found not guilty of arson, the prosecutor charged the man with theft and informed the defense that he planned to introduce the man's statement to the police while he was in jail.  The man's attorney filed a pretrial motion to suppress the statement on the ground that the man's Sixth Amendment right to counsel had been violated.

How should the court rule on this motion?

Answer: Deny the motion, because theft and arson each require proof of an element that the other does not.

The Sixth Amendment right to counsel attaches to offenses that have been formally charged (e.g., by indictment).  In Texas v. Cobb, the U.S. Supreme Court held that this right also encompasses offenses that—even if not formally charged—would be considered the same offense as a charged offense.  Under the Blockburger test, offenses are not the same if each offense requires proof of an element that the other does not.

Here, the man had been formally charged with arson at the time of the interview, so he had a Sixth Amendment right to counsel for that crime.  However, he had not been charged with the theft.  And since arson and theft each require proof of an element that the other crime does not, the man had no Sixth Amendment right to counsel for the theft.  Accordingly, the court should deny the motion to suppress the man's statement.

(Choice A)  The man voluntarily waived his Fifth Amendment right to counsel with respect to the theft after receiving Miranda warnings.  However, he did not have a Sixth Amendment right to counsel to waive with regard to the theft at that time.

A defendant was arrested and charged with robbery.  While he was awaiting trial, an inmate in the jail in which he was housed was assaulted, and the police suspected that the defendant was involved.  They brought the defendant in for questioning about the assault and provided him with Miranda warnings.  The defendant said that he was willing to talk and did not ask for his attorney.  He proceeded to tell the police that he had provided another inmate with information about how to obtain a weapon and believed that inmate had been involved in the assault.  The defendant was later charged as a co-conspirator in the assault and sought to suppress his statement to the police.  He argued that his attorney should have been present during the interrogation.

Is the defendant's statement likely to be suppressed?

Answer: No, because the defendant did not specifically invoke his Fifth Amendment right to counsel.

The Constitution guarantees the right to counsel in two places—the Fifth Amendment and the Sixth Amendment.  The Fifth Amendment right to counsel applies when a suspect is subjected to a custodial interrogation priorto the commencement of judicial proceedings.  However, this right is not automatic.  A suspect must invoke this right by making a specific, unambiguous statement requesting counsel.  If the suspect does not do so and answers questions after being Mirandized, then this right is waived.

In contrast, the Sixth Amendment right to counsel attaches automatically upon the commencement of judicial proceedings and applies at all critical stages of prosecution.  However, this right applies only to the specific offense(s) at issue in those proceedings—not to other crimes in which judicial proceedings have yet to commence.  And though this right can be waived, a waiver cannot occur until the right has attached.

Here, the Sixth Amendment right to counsel had automatically attached to the robbery because the defendant was charged with this crime and is awaiting trial.  However, this right has not attached to the subsequent assault because judicial proceedings have not yet commenced.  This means that the defendant could not have waived this right with respect to the assault (Choices B & D).  Therefore, suppression of the statement about the assault depends on whether the defendant was denied counsel under the Fifth Amendment.

The Fifth Amendment right to counsel was implicated because the man was interrogated before the commencement of judicial proceedings for the assault.  However, he never made a statement specifically requesting counsel.  Instead, after he was Mirandized, he said that he was willing to talk and told police about his involvement in the assault.  This amounted to a waiver of his Fifth Amendment right to counsel (Choice C).  Therefore, his statement is not likely to be suppressed.

A defendant was indicted by a grand jury for making false statements to a federally insured bank to obtain a loan in violation of a federal felony statute.  After the defendant was arraigned, the federal district court granted the defendant's request for disclosure of the exculpatory portions of the grand jury transcripts.  When the defendant learned that the prosecutor had failed to present the defendant's federal tax returns in the prosecutor's possession to the grand jury even though the returns contained exculpatory evidence, the defendant moved to dismiss the indictment.

How should the court rule on the defendant's motion?

Answer: Deny the motion, because the prosecutor was not required to present exculpatory evidence to the grand jury.

In United States v. Williams, the U.S. Supreme Court held that a prosecutor is not required to present exculpatory evidence to a grand jury.  That is because the grand jury's function is merely to determine whether enough evidence exists to bring a criminal charge—not to determine guilt or innocence.  Accordingly, the grand jury need only hear evidence that supports the prosecutor's side.  Therefore, the prosecutor here was not required to present the defendant's exculpatory tax returns to the grand jury, and the defendant's motion to dismiss the indictment should be dismissed.

A defendant on trial for burglary planned to raise in his defense that his arrest was a result of racial profiling.  During voir dire, the prosecutor exercised his peremptory challenges to exclude all nonwhite jurors, not just those of the defendant's race, from the jury panel.  When the defendant objected to these challenges as discriminatory, the prosecutor responded that he was concerned that nonwhite jurors would unfairly side with the defense's argument that the police unjustly profiled the defendant.

Should the court sustain the defendant's objection?

Answer: Yes, because the prosecution failed to provide a race-neutral explanation for the peremptory strikes.

A peremptory challenge is an objection to a potential juror that can be raised without any reason or explanation during the jury-selection process.  However, the Fourteenth Amendment equal protection clause prohibits striking potential jurors based solely on their race, ethnicity, or sex.  In Batson v. Kentucky, the Supreme Court set forth a three-prong test to determine if the use of a peremptory challenge was discriminatory.  That test employs the following burden-shifting scheme:

• The moving party must establish a prima facie case of discrimination (e.g., the prosecution used peremptory challenges to strike only nonwhite jurors).

• The party who exercised the peremptory challenge must then provide a neutral reason for the peremptory challenge (e.g., the strikes were based on age, not race).

• If it does so, then the burden shifts back to the moving party to prove that the other party's reason was pretextual (e.g., the prosecution struck a 21-year-old black man but not a 21-year-old white man).

Here, the defendant objected to the prosecutor's use of peremptory challenges to strike all nonwhites from the jury, which provided a prima facie showing of racial discrimination.  The burden then shifted to the prosecutor, who failed to provide a neutral reason for his challenges (Choice A).  Instead, he explained that the challenges were based on his belief that nonwhite jurors would unfairly side with the defense's argument that the police unjustly profiled the defendant.  The court should therefore sustain the defendant's objection.

Two police officers responded to a domestic-disturbance call.  When the officers arrived at the home in question, they found a man and a woman screaming at each other in the front yard.  One officer took the man aside, while the other spoke with the woman.  The woman told the officer that she had a restraining order against the man and that he was a convicted felon who often carried a gun.  The officers confirmed the restraining order and placed the man under arrest, without giving him Miranda warnings.  While the man was in the back of the police car, an officer asked the man if he owned a gun.  The man replied that he always keeps a gun in his car for self-protection.  The officer then retrieved the gun from the man's car, which was parked nearby.

The man was later charged with possession of a firearm as a felon.  At trial, the man moved to suppress his statement about always having a gun and the gun itself, arguing that he did not receive Miranda warnings prior to being questioned by the officer.

Is the man likely to succeed in having the evidence suppressed?

Answer: Yes, as to the statement only.

The Fifth Amendment requires that police provide a suspect with Miranda warnings prior to a custodial interrogation.  A custodial interrogation occurs when a defendant is in custody (e.g., under formal arrest) and subjected to interrogation.  When, as here, the police fail to provide Miranda warnings, an incriminating statement made as the result of the custodial interrogation can be suppressed at a subsequent trial.  Therefore, the man's statement about always having a gun will likely be suppressed (Choice A).

However, in United States v. Patane, the U.S. Supreme Court held that physical evidence obtained as a result of a non-Mirandized statement is admissible so long as that statement was voluntary (i.e., not coerced).  A statement was coerced if it was the product of physical force, threats, or psychological pressure by police.  Here, there is no indication that the man's non-Mirandized statement was coerced, so the gun found because of that statement will likely be admitted—not suppressed (Choices C & D).

In a jury trial, an adult defendant was found guilty of first-degree premeditated murder, a capital offense.  During the sentencing phase of the trial, the defense presented evidence of mitigating circumstances, while the prosecution presented evidence of aggravating circumstances.  The jury rendered an advisory sentence of death without specifying the factual basis for its recommendation.  The judge independently found the existence of two aggravating circumstances beyond a reasonable doubt, weighed the aggravating and mitigating circumstances, and, agreeing with the jury's advisory sentence, imposed the death sentence.

On appeal, the defendant has challenged the imposition of the death sentence as unconstitutional.

How should the appellate court rule?

Answer: For the defendant, because the jury did not find a specific aggravating circumstance that justified the imposition of the death penalty.

The due process clause guarantees a criminal defendant's right to have an impartial jury determine whether the defendant is guilty of every element of a crime beyond a reasonable doubt.  Accordingly, the U.S. Supreme Court held in Apprendi v. New Jersey that any fact that exposes a criminal defendant to a greater punishment than authorized by the jury's guilty verdict is an element that must be submitted to and found by the jury.

This holding has been applied to state capital-murder sentencing schemes that require a finding of at least one aggravating circumstance at either the guilt or penalty phase before the death penalty can be imposed.  Therefore, a capital-sentencing scheme (as seen here) violates Apprendi if it:

• allows a jury to render an advisory sentence recommending the death penalty without specifically finding an aggravating circumstance and

• permits the judge to then make that finding independently (Choices C & D).

That is because such a scheme strips the defendant of the right to have the jury make the critical findings necessary to impose the death penalty.  For this reason, imposing the death sentence here was unconstitutional and the court of appeals should rule for the defendant.

A defendant was charged with both battery and robbery of a victim.  The defendant was found guilty of battery but acquitted of the robbery charge.  Subsequently, the victim died from the injuries inflicted by the defendant.  The defendant has been charged with felony murder of the victim.  The defendant has moved for dismissal of this charge on double jeopardy grounds.

How is the court likely to rule on this motion?

Answer: Grant the motion, because the defendant was acquitted of robbery.

Felony murder is an unintentional killing during the commission of an inherently dangerous felony.  A proper conviction for felony murder requires the prosecution to prove that the defendant committed the underlying felony.  Robbery—i.e., the unlawful taking and carrying away of personal property from the victim by force or intimidation—is an inherently dangerous felony upon which a felony-murder charge can be based.

However, a felony-murder prosecution predicated upon an underlying felony for which the defendant was acquitted in a previous trial (as seen here) is improper.  That is because such a prosecution would require retrying the underlying felony in violation of the double jeopardy clause—which prohibits multiple prosecutions for the same offense.  Therefore, the court should grant the defendant's motion for dismissal because the defendant was previously acquitted of robbery.

A contractor, who is white, was indicted by a state grand jury for bribery of a public official.  All non-white jurors were intentionally excluded from the grand jury.  As a consequence, the contractor sought to quash the indictment, but she was unsuccessful.  The contractor was tried and convicted of the crime.  The contractor sought reversal of her conviction because of the intentional racial discrimination in the selection of the grand jury.  The appellate court, finding that the exclusion was harmless error with respect to the contractor's conviction, affirmed the conviction.

Was the appellate court's decision correct?

Answer: No, because non-white individuals were intentionally excluded on the basis of their race from service on the grand jury that indicted the contractor.

A grand jury determines whether probable cause exists to formally charge a person with a crime and consists of citizens who reside in the judicial district where the grand jury sits.  Inherent in the concept of a grand jury is that it is representative of the community.  As a result, the Fourteenth Amendment equal protection clause prohibits racial discrimination in the selection of grand jurors.

A defendant indicted by a grand jury that excluded members of a racial group may raise an equal protection challenge—even if the defendant is not a member of the excluded group (Choice D).  If the appellate court finds that there was deliberate discrimination in the selection of grand jurors, automatic reversal of the conviction is required.  Therefore, the appellate court's decision to affirm the conviction was not correct.

After an arson suspect was indicted and awaiting trial, the police found a potential eyewitness to the crime.  Through an acquaintance, the suspect learned that the witness was being brought to the police station for a photo array.  The suspect did not tell his attorney or object to the photo array.  The eyewitness identified the suspect in the photo array, and the prosecution plans to use the identification at trial.  Defense counsel objects on the ground that he should have been present during the identification.

Did the post-indictment photo array violate the suspect's constitutional rights?

Answer: No, because the photo array was not an in-person identification

The Sixth Amendment right to counsel:

• automatically attaches when formal judicial proceedings have commenced (e.g., indictment, preliminary hearing, arraignment) and

• guarantees that criminal defendants will have the assistance of counsel during all critical stages of prosecution—i.e., any event where the absence of counsel may prejudice the defendant's right to a fair trial.

An in-person identification is a critical stage at which a defendant has a right to counsel because suggestive lineup procedures can lead to an unreliable and prejudicial identification.  In contrast, a photo-array identification is not a critical stage because the accused is not present and is not in danger of being misled or overpowered by the police or a government attorney (Choice D).  Therefore, the photo array at issue here did not violate the suspect's constitutional rights.

A defendant was tried for felony murder.  The jury was unable to reach a unanimous verdict.  As a result, the judge declared a mistrial over the defendant's objection.  Subsequently, the state refiled the charges against the defendant.

Is the second prosecution a violation of the defendant's constitutional protection from double jeopardy?

Answer: No, because the first trial resulted in a mistrial due to a hung jury.

The Fifth Amendment double jeopardy clause bars a second prosecution for the same offense once jeopardy has attached—e.g., when the jury is impaneled and sworn in.  However, there is no bar to a second prosecution when a mistrial is declared:

• at the defendant's request or with the defendant's consent or

• due to manifest necessity—i.e., a situation rendering it impossible to continue the trial or reach a fair outcome.

One example of manifest necessity is a hung jury—i.e., a jury that cannot reach a unanimous verdict after deliberation.

Here, jeopardy attached to the defendant's felony-murder trial when the jury was impaneled and sworn in.  But since the jury was unable to reach a verdict, the court declared a mistrial based on manifest necessity.  As a result, the second prosecution for felony murder does not violate the double jeopardy clause (Choices C & D).

A defendant agreed to help a friend with a burglary by transporting the friend to the scene of the burglary, keeping watch outside the residence while the friend committed the burglary, and then driving the friend away from the scene.  The friend believed that no one would be home at the time of the burglary, so the friend told the defendant that he would be unarmed.  The friend lied, and instead carried a gun on his person into the residence.  After waiting for several minutes, the defendant got cold feet and drove away from the residence, abandoning his friend.  Shortly thereafter, the friend encountered an occupant inside the residence.  Panicking, the friend shot and killed the occupant.

The defendant has been charged with felony murder in a jurisdiction that permits capital punishment by lethal injection for felony murder.

Can the death penalty be imposed on the defendant?

Answer: No, because the defendant did not kill, attempt to kill, or intend to kill the occupant.

Felony murder is a killing that occurs during the commission or attempted commission of an inherently dangerous felony (e.g., burglary).  An accomplice to the underlying felony may also be convicted of felony murder.  But if the accomplice did not kill, attempt to kill, or intend to kill, then the death penalty cannot be imposed on the accomplice unless the accomplice:

• significantly participated in the commission of the underlying felony and

• acted with reckless indifference to human life.

Here, the defendant was an accomplice to a burglary during which a killing occurred, so he can be convicted of felony murder (Choice D).  However, he did not kill, attempt to kill, or intend to kill.  Nor did he significantly participate in the commission of the burglary or act with reckless indifference to human life.  The defendant, believing that the friend was unarmed, merely drove the friend to the burglarized residence, waited outside, and left before the killing occurred.  Therefore, the death penalty cannot be imposed on the defendant.

A witness was subpoenaed to testify before a grand jury investigating a large-scale identity-theft operation.  The witness was accompanied by his attorney, but the prosecutor refused to let the witness's attorney into the grand jury room.  The witness then asked to call another individual as a witness to corroborate his alibi.  The prosecutor denied this request as well.  After speaking with his attorney outside the grand jury room, the witness decided to testify.  The witness was later indicted by the grand jury for identity theft.

The witness has moved to dismiss the indictment as violating his constitutional rights to counsel and to present witnesses.

Should the court dismiss the indictment?

Answer: No, because the witness was not denied any constitutional rights.

An indictment is a written statement by a grand jury that formally charges a person with a crime after a finding of probable cause.  In determining whether to issue an indictment, the grand jury may subpoena witnesses to testify—including persons whom the grand jury has reason to believe committed the illegal act(s) being investigated.  But since a grand jury only has the investigatory power to indict (not the judicial power to convict), witnesses do not enjoy the full complement of constitutional protections during grand jury proceedings.

For example, a grand jury witness may consult with an attorney outside the grand jury room.  But there is no constitutional right to have counsel inside the grand jury room—even when the witness is the target of the grand jury investigation (Choice C).  There also is no constitutional right to present witnesses at a grand jury proceeding (Choice D).  As a result, the court here should not dismiss the indictment because the witness was not denied any constitutional rights.

Police arrested an 18-year-old defendant at her home that she shared with her parents as an accomplice to a robbery.  Before leaving the home, the police asked the defendant whether she was present during the robbery.  She indicated in the affirmative.  As the police were leaving the home with the defendant, the defendant's mother returned.  The mother inquired about the defendant's arrest and urged the defendant to "come clean to the police."  The defendant did not respond, and the police took her to the police station.

At the station, after the defendant was given Miranda warnings and signed a Miranda waiver, she was questioned in a noncoercive manner by police.  Feeling compelled to follow her mother's advice, the defendant confessed to her involvement in the robbery.  The prosecution sought to introduce the defendant's confession at trial over the objection of her attorney.

Will the court likely sustain the objection?

Answer: No, because the defendant waived her Fifth Amendment right to remain silent.

To safeguard the Fifth Amendment privilege against self-incrimination, police must Mirandize a suspect before a custodial interrogation.  If police fail to do so, any statements made without Miranda warnings cannot be used against the suspect at a subsequent trial.  Here, the police did not give the defendant Miranda warnings before asking if she was present during the robbery, so her affirmative response is not admissible at trial.

However, that Miranda violation does not automatically require the suppression of the defendant's later confession, which was made after she received Miranda warnings.  In Oregon v. Elstad, the U.S. Supreme Court held that admissibility of such statements turns on whether, given the totality of the circumstances, the later statement was voluntary.

Here, the circumstances indicate that the defendant's later confession at the police station was voluntary.  The confession was made after she received Miranda warnings, signed a waiver of Miranda rights, and was questioned in a noncoercive manner.  The confession is therefore admissible at trial, and the court is not likely to sustain her attorney's objection.

An undercover officer infiltrated a gang by posing as a gang member.  While working undercover, the officer heard that a member of the gang had shot and killed one of the leaders of a rival gang.  The undercover officer coordinated with the police department's gang unit to conduct a sweep whereby each gang member, including the undercover officer, would be taken into custody on minor charges.  The officer made sure that he and the gang member suspected of the murder were placed in the same cell.  While in the cell, the officer brought up the shooting, indicating that he was very impressed by whoever had the courage to kill the rival gang leader.  The gang member, taking the bait, bragged that he had shot the rival gang leader but told the officer to keep the information secret.  The gang member was arrested for the murder and the prosecution sought to introduce the statement made to the undercover officer.

Is the statement likely to be admitted?

Answer: Yes, because the gang member did not know that the undercover officer was a police officer.

The Fifth Amendment protects suspects from compelled self-incrimination.  To protect this privilege, police must give a suspect Miranda warnings before a custodial interrogation.  A custodial interrogation occurs when a person is:

• in custody – placed under formal arrest or restrained in his/her freedom of movement to such a degree that a reasonable person would not feel free to terminate the encounter and

• subjected to interrogation – questions, words, or actions directed at a suspect that an officer knows or should know are likely to elicit an incriminating response.

If police fail to issue Miranda warnings when they are required, any statements made by the suspect during the custodial interrogation cannot be used against the suspect at trial.  However, in Illinois v. Perkins, the U.S. Supreme Court held that Miranda warnings are not required when a suspect does not know that the interrogator is a police officer.

Here, the gang member was subjected to interrogation while he was in custody (jail cell) because the officer knew or should have known that his words were likely to elicit an incriminating response (Choice D).  But since the gang member did not know that he was talking to a police officer, Miranda warnings were not required (Choice A).  Therefore, the gang member's statement is likely to be admitted.

A condominium association filed an action under a federal statute in federal district court against the original developer of the condominium.  The association's complaint sought to void an agreement between the association and the developer that gave the developer the right to use an office in the condominium building rent-free.  The complaint also contained a demand for a jury trial.  The developer timely filed a motion to strike this demand.  The federal statute that created this cause of action is silent as to whether an action filed under it may be heard by a jury.

Which standard should the court apply in ruling on this demand?

Answer: Whether the relief sought is equitable or legal in nature.

The Seventh Amendment guarantees the right to a jury trial in federal civil cases where the amount in controversy exceeds 20 dollars (Choice A).*  This right applies only to legal claims—i.e., claims that seek a monetary remedy to compensate for loss (e.g., damages).  It does not apply to equitable claims—i.e., claims that seek a nonmonetary remedy (e.g., injunction).  Therefore, the court should determine whether the relief that the association seeks is equitable or legal in nature in ruling on its demand for a jury trial.

A seller of goods received two negotiable promissory notes from a buyer as consideration for a single sale of goods.  One of the notes was for $80,000, and the other was for $100,000.  Both were due one year from the execution of the notes.  The parties anticipated that the seller would sell one of the notes at a discount shortly after their transaction in order to meet the operating needs of the seller.  Instead, due to an unforeseen increase in revenue, the seller retained both notes.

When the buyer defaulted on payment of the notes, the seller sued the buyer in a federal court of competent jurisdiction for failure to pay the $80,000 note and secured a final judgment against the buyer.  Later, the seller sued the buyer in the same court as the first lawsuit for failure to pay the $100,000 note.  The buyer contends that the seller's claim arising from the $100,000 note is barred by the seller's failure to include it in the prior action.

How should the court rule on the buyer's defense to this action?

Answer: For the seller, because the failure to pay each note constitutes a separate, distinct cause of action.

The doctrine of claim preclusion (i.e., res judicata) provides that a valid final judgment on the merits precludes identical parties from relitigating identical claims.  Claims are identical if they (1) arise from the same transaction, occurrence, or series thereof and (2) could have been raised in the first action because the claim existed and could have been joined.  Factors considered in determining what constitutes the same transaction or series include:

• whether the facts are related in time, space, origin, or motivation

• whether the facts form a convenient trial unit and

• whether treating the facts as a unit conforms to the parties' expectations.

Here, the facts may have formed a convenient trial unit since both notes were given for a single sale of goods (Choice A).  However, the buyer gave the seller two separate notes because the buyer knew that the seller intended to sell one of the notes.  Had that actually occurred, the purchaser of the note could then have enforced it independent of the other note.

This shows that the parties anticipated that the notes could be enforced independently, so treating them as a single transaction would not conform to their expectations.  Accordingly, the seller's claim involving the $100,000 is not barred by the seller's failure to include it in the prior action.  Instead, the failure to pay each note constitutes a separate cause of action that can be independently pursued.

A plaintiff filed a complaint in state court based on a negligence claim arising from an accident.  Before the defendant responded to the complaint, the plaintiff voluntarily filed a notice of dismissal.  Subsequently, the plaintiff filed a complaint in federal district court based on diversity jurisdiction, asserting the same claim.  The defendant filed a motion to dismiss for improper venue, and the court denied this motion.  Before the defendant filed an answer to the complaint, the plaintiff again voluntarily filed a notice of dismissal.

Can the plaintiff later pursue this claim through an action filed in federal court?

Answer: No, because the second dismissal was with prejudice.

A plaintiff may voluntarily dismiss a suit without a court order.  This can be done by filing (1) a notice of dismissal before the opposing party serves an answer or a summary-judgment motion or (2) a stipulation of dismissal signed by all parties.  A voluntary dismissal is generally without prejudice, which allows the plaintiff to sue the defendant again on the same claim.  But a voluntary dismissal is with prejudice when specified in a court order, notice, or stipulation OR the two-dismissal rule applies.  This rule applies when:

• the plaintiff's first action was voluntarily dismissed without a court order in state or federal court and

• the plaintiff brought a second action on the same claim in federal court and filed a notice of voluntary dismissal.*

Here, the plaintiff voluntarily dismissed the first action in state court.  The plaintiff then dismissed the second action in federal court by voluntarily filing a notice of dismissal.  Since these actions asserted the same claim, the second dismissal was with prejudice (Choice C).  Therefore, the plaintiff cannot pursue this claim a third time through an action filed in federal court.

A plaintiff brought a defamation action in federal district court based on diversity jurisdiction.  Following the presentation of all evidence in the case, the court submitted the case to the jury.  The jury, after being properly instructed, was supplied with a verdict form that contained both specific interrogatories and a general verdict.  In answering the interrogatories, the jury found that the plaintiff was a public figure and that the defendant did not act with actual malice.  The jury's general verdict awarded the plaintiff $200,000 in damages.  Based on the jury's answers to the specific interrogatories, the court concluded that, by law, the plaintiff could not be awarded damages and approved for entry by the clerk a judgment in favor of the defendant.

Is the court's action proper?

Answer: Yes, because it is in accordance with the jury's answers to the special interrogatories.

A verdict is the jury's determination of factual issues in a case.  There are three types of verdicts—general verdicts, special verdicts, and general verdicts with special interrogatories—and the judge has the discretion to choose which verdict to use (Choice A).  If the judge selects a general verdict with special interrogatories and the jury's answers are inconsistent with the verdict, the judge must:

• order a new trial

• direct the jury to further consider its answers and verdict or

• disregard the jury's verdict and enter a judgment consistent with the answers provided.

Here, the judge selected a general verdict with special interrogatories by instructing the jury to find in favor of a particular party and answer specific questions related to the factual issues in the case.  The jury found that the plaintiff was a public figure and that the defendant did not act with actual malice.  The jury's answers were inconsistent with the verdict for the plaintiff because actual malice is required for defamation of a public figure.  Therefore, the judge properly disregarded the verdict and entered judgment in favor of the defendant.

A decedent's spouse properly brought a wrongful death action against the defendant in federal district court based on diversity jurisdiction.  The defendant then properly impleaded a third party, alleging that the third party caused the decedent's death and must indemnify the defendant if the defendant is found liable to the spouse.  The spouse sought leave to amend her complaint to include a negligence claim against the third party for causing the decedent's death.  The third party, noting that the spouse and the third party are citizens of the same state, has challenged the amendment for lack of subject-matter jurisdiction.

How should the court respond to the third party's challenge?

Answer: The court must deny the spouse leave to amend because the court lacks both diversity and supplemental jurisdiction over her claim against the third party.

Impleader allows a defendant to add a nonparty (i.e., third-party defendant) to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim.  When this occurs, the plaintiff may assert his/her own claim against the third-party defendant only if that claim:

• arises out of the same transaction or occurrence that is the subject matter of the plaintiff's claim against the defendant in the original complaint and

• satisfies original subject-matter jurisdiction on its own (see image above).

Here, the defendant properly impleaded the third party for indemnity (Choice C).  The spouse then sought leave to amend her complaint to add a claim against the third party for negligence.  Although the spouse's claim against the third party arises out of the decedent's death, the spouse and the third party are citizens of the same state (Choice D).  Therefore, the court lacks diversity (and subject-matter) jurisdiction over the claim.

However, when a claim falls outside a court's original jurisdiction, the court may exercise supplemental jurisdiction if the supplemental claim and the original claim share a common nucleus of operative facts (as seen here).  But when the original claim is based on diversity jurisdiction, supplemental jurisdiction is barred if the supplemental claim:

• is made by (1) existing plaintiffs against parties added through joinder, intervention, or impleader or (2) persons seeking to join as plaintiffs through compulsory joinder or intervention and

• would violate the requirements of diversity jurisdiction (e.g., contaminate diversity of citizenship).

Here, the spouse seeks to assert a claim against the third party added to the suit through impleader.  But since that claim would contaminate diversity of citizenship, the court cannot exercise supplemental jurisdiction over her claim (Choice A).  Therefore, the court must deny the spouse leave to amend her complaint.

A farmer filed an action in federal district court based on diversity jurisdiction seeking damages attributable to a malfunctioning irrigation system of which four different defendants had participated in the design, manufacture, and installation.  The farmer advanced three alternative theories of liability against the defendants: breach of contract, breach of warranty, and negligence.

Prior to trial, the court required the parties to submit requests for jury instructions.  Each party submitted such instructions.  Prior to the close of evidence, the court held a charge conference to discuss the form of the verdict and related jury instructions.  Due to the number of defendants and variety of theories of liability against each, the court determined that a special-verdict form would be used.

After the close of evidence, the defendants requested additional jury instructions because they were concerned that the special-verdict form failed to clearly indicate that, if the jury found for the farmer, the farmer was limited to a single recovery of his damages.

Should the court permit the defendants' request for these instructions?

Answer: Yes, because the defendants could not reasonably have anticipated the need for such instructions prior to seeing the special-verdict form.

A court must provide jury instructions that advise the jurors on their deliberation procedures and the applicable law.  These instructions can be formulated by the court or the parties, and FRCP 51 permits a party to request specific jury instructions (Choice A).*  These requests can be filed before or at the close of evidence unless the court sets an earlier, reasonable deadline—e.g., by the start of trial (as seen here).  Additionally, a request may be filed after the close of evidence if:

• the request relates to an issue that the party could not have reasonably anticipated by the deadline or

• the court permits a late submission that relates to any issue.

Here, the defendants submitted jury instructions prior to the start of trial, which was the deadline set by the court (Choice B).  The defendants then requested additional jury instructions after the close of evidence because they were concerned that the special-verdict form used by the court failed to clearly indicate that the farmer was limited to a single recovery of his damages.  Since the defendants could not have reasonably anticipated the need for such instructions prior to seeing the special verdict form, the court should permit the defendants' request.

Under color of legal authority, a district director of the Internal Revenue Service (IRS) domiciled in State A wrongfully collected federal unemployment taxes from an employer domiciled in State A.  After relocating to and becoming domiciled in State B, the employer filed suit against the director in the federal court in State B for a refund of the federal unemployment taxes.  State A and State B have one federal judicial district each, and all the relevant events on which the claim is based took place in State A.  The director has timely filed a motion to dismiss the action for improper venue.

Should the court grant this motion?

Answer: No, because the director was acting under color of her legal authority.

Venue refers to the federal judicial district where a case may be heard.  When a plaintiff sues a federal officer or employee, proper venue depends on whether the defendant is sued for acting in (1) his/her individual capacity or (2) an official capacity or under color of legal authority.

When an officer or employee is sued in an individual capacity, the general venue statute applies.  But when an officer or employee is sued in an official capacity or under color of legal authority, the special venue rules apply and venue is proper only where:

• any defendant resides (residency-based venue)

• a substantial portion of the events giving rise to the suit occurred (events-based venue) or a substantial part of the property at issue is located (property-based venue) or

• the plaintiff resides, if no real property is involved.

Here, the special venue rules apply because the employer (plaintiff) sued the director (defendant) for acting under color of legal authority.  Venue is therefore proper in the judicial district in State B because that is where the employer resides and no real property is involved.  Accordingly, the director's motion to dismiss should be denied.

A homeowner sued a company in federal district court for negligence on the basis that it was vicariously liable for a tort committed by one of its employees.  The homeowner's complaint included a request for $80,000.  At the conclusion of the trial, the judge gave the jury a verdict form that instructed the jury to determine which party should prevail and to answer specific questions related to each factual issue.  When asked whether the employee's tort was committed within the scope of his employment, the jury answered "No."  The jury's general verdict awarded the homeowner $80,000 in damages.  The company requested that the jury be polled, and each juror confirmed the verdict as his or her own.  Before the jury was discharged, the company requested that the judge resubmit the case to the jury.

Can the judge grant this request?

Answer:
Yes, because the jury's answers and verdict were inconsistent.

A verdict is the jury's determination of factual issues in a case.  There are three types of verdicts—general verdicts, special verdicts, and general verdicts with answers to special interrogatories—and the judge has the discretion to choose which verdict to use.  Here, the judge asked the jury to return a general verdict with answers when he instructed the jury to (1) determine which party should prevail and (2) answer specific questions on each factual issue.

If the jury's answers and verdict are consistent, then the judge must enter a judgment consistent with those determinations.  But when the jury's answers and verdict are inconsistent, the judge must:

• order a new trial

• direct the jury to further consider its answers and verdict or

• disregard the jury's verdict and enter a judgment consistent with the answers provided (Choice A).

Here, the jury found that the employee's tort was committed outside the scope of his employment, so the employer is not vicariously liable for its employee's tortious conduct.  Therefore, the jury's answer was inconsistent with the verdict for the homeowner, and the court can grant the company's request to resubmit the case to the jury for further consideration.

An insurer issued a homeowner's policy that covered collectible historical documents.  The documents, valued at and insured for $70,000, were lost in a fire that destroyed the home.  Prior to paying the homeowner, the insurer received a demand from a third party that the insurer pay the $70,000 to the third party.  The third party contended that the documents had been stolen from the third party.  The insurer and the third party were citizens of the same state, while the homeowner was a citizen of a different state.

The insurer would like to file a federal statutory interpleader action to initiate a suit between the homeowner and the third party to determine which of them has the superior claim to the insurance payout.  The insurer would like to file the action in the federal district court for the state of which the homeowner is a citizen.  Although this state has a long-arm statute, neither that statute nor the general service-of-process rules would permit service of process on the third party.  The insurer does not wish to deposit the $70,000 with the court or post a bond pending resolution of this matter.

Of the following, which is a valid reason for advising against the filing of a federal statutory interpleader action in the federal district court?

Answer: The insurer does not wish to deposit the $70,000 with the court or post a bond pending resolution of the matter.

Interpleader is available when multiple persons (i.e., claimants) claim an interest in the same property (i.e., the stake).  It allows the possessor of the stake (i.e., the stakeholder) to force potential claimants into a single lawsuit to determine who has a right to the property.  There are two types of interpleader: statutory interpleader and rule interpleader.  The insurer would like to file a statutory interpleader action, which must satisfy special requirements for:

• subject-matter jurisdiction – requires an amount in controversy of at least $500 and minimal diversity of citizenship between at least two claimants

• personal jurisdiction – exists over any claimant who is served with process anywhere within the U.S.

• venue – proper in any judicial district where any claimant resides and

• deposit – requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court

Here, the insurer does not wish to deposit $70,000 with the court or post a bond, so the requirements of statutory interpleader cannot be satisfied.  Therefore, this is a valid reason to advise against filing a statutory interpleader action in federal court.

A convicted murderer was serving a life sentence in federal prison.  He had kept in touch with some old associates who occasionally sent him contraband drugs.  The murderer hid these drugs in his prison cell until he used them or sold them to other inmates.  One afternoon, while the murderer was in the exercise yard, prison guards searched all of the cells in the murderer's cell block, without the permission of the inmates or a warrant.  The prison guards found a bag of cocaine in the murderer's prison cell.

The murderer was prosecuted for drug possession.  At a pretrial hearing, he moved to suppress the cocaine found in his prison cell.

Should the cocaine be suppressed?

Answer: No, because a prison inmate has no reasonable expectation of privacy in his cell.

The Fourth Amendment is violated when the government conducts an unreasonable search or seizure—i.e., when police act without a warrant and no exception applies.  However, convicted inmates have no reasonable expectation of privacy in their cells and no possessory interest in the items therein that would entitle them to Fourth Amendment protections.*  That is because prisons must maintain institutional security and preserve internal order and discipline.  Therefore, the guards' warrantless search of the murderer's cell did not violate the Fourth Amendment, and the court should not suppress the cocaine found in his cell.

A police officer obtained a valid warrant to arrest a woman for misdemeanor theft.  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 found the woman hiding in a bedroom closet.  The woman was properly charged with misdemeanor theft.  She sought dismissal of the charge against her due the manner of her arrest.

Should the court dismiss the charge against the woman?

Answer: No, because the woman was properly charged with misdemeanor theft.

An arrest warrant implicitly authorizes entry into the arrestee's home to serve the warrant if police have reason to believe that the arrestee is present.  But police may enter a third party's home to execute an arrest warrant only when they have:

• a warrant authorizing the search of the home

• exigent circumstances or

• the third party's consent to enter the home.

Absent one of the above conditions, an arrest in a third party's home is illegal.  But that illegal arrest does not prevent the subsequent prosecution of the arrestee—so long as the arrestee was properly charged.*

Here, the arrest of the woman in her friend's home was illegal because the police did not have a warrant to search the friend's home, exigent circumstances, or the friend's consent to enter the home.  However, that illegal arrest will not prevent the subsequent prosecution of the woman for misdemeanor theft since she was properly charged (Choice D).  Therefore, the court should not dismiss the charge against the woman.

An employee of a storage company informed police that the owner of the company was involved in a conspiracy to steal goods and then sell them.  According to the employee, the owner permitted the storage of the stolen goods in his warehouse, typically only overnight, before the goods were transported elsewhere for resale.  Acting on reliable information from the employee that the warehouse was due to receive a shipment of stolen goods that evening, a police officer immediately filed an affidavit in support of a warrant to search the warehouse upon the arrival of the stolen goods.  A warrant authorizing the search was subsequently issued by a neutral and detached magistrate, but the warrant did not specify the condition that had to occur before the search was authorized by the warrant.  Properly executing the warrant, the police seized the stolen goods.

The owner of the storage company was charged with conspiracy to commit larceny and possession of stolen goods.  The owner sought to suppress the evidence of the stolen goods on the ground that the seizure was unconstitutional.

Should the court suppress this evidence?

Answer: No, because the warrant satisfied the probable cause requirement of the Fourth Amendment.

When police seek the issuance of an anticipatory search warrant, the probable cause requirement is met if (1) at the time of issuance, there is probable cause to believe the triggering condition will occur and (2) if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found.

A search warrant must (1) be issued by a neutral and detached magistrate based on probable cause, (2) be supported by a sworn oath or affidavit, and (3) describe the place to be searched and the items to be seized with particularity.  When police seek the issuance of an anticipatory search warrant—i.e., a warrant that becomes effective only upon the occurrence of a triggering condition—the probable cause requirement is met if:

• at the time of issuance, there is probable cause to believe that the triggering condition will occur and

• if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found at the place to be searched.

In United States v. Grubbs, the Supreme Court affirmed the constitutionality of anticipatory search warrants.  The Court held that these warrants are not void for lack of particularity when they fail to state the triggering condition if the supporting affidavit provides sufficient information to evaluate both prongs of the probable cause requirement.

A defendant has been charged with embezzlement for allegedly failing to return a car the defendant rented from a vehicle rental company.  At trial, the prosecutor requested that the judge instruct the jury on the following presumption: A person who willfully and intentionally fails to return a rented vehicle within five days after the rental agreement has expired shall be presumed to have intended to defraud the owner of the vehicle.

Is the instruction proper?

Answer: No, because mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime.

The law distinguishes between:

• permissible inferences – which allow the fact finder to reach a conclusion once a party proves an underlying fact or set of facts and

• mandatory presumptions – which compel the fact finder to reach a conclusion from basic facts unless and until it is rebutted.

Mandatory presumptions cannot be used against a criminal defendant to establish an element of the charged crime.  Such use would violate the defendant's due process rights by relieving the prosecution of its burden to prove every element of the charged crime beyond a reasonable doubt.

Here, the prosecutor requested a jury instruction that "a person who willfully and intentionally fails to return a rented vehicle within five days after the rental agreement has expired shall be presumed to have intended to defraud the owner of the vehicle."  This instruction constitutes a mandatory presumption that would relieve the prosecution of its burden to establish the defendant's intent to defraud—an element of the charged embezzlement—beyond a reasonable doubt.  As a result, the instruction is improper.

Police executed a valid warrant to search for heroin in the defendant's residence.  Finding the defendant at home, the police detained him in handcuffs for the duration of the search.  The police found a small amount of heroin in the defendant's bedroom during the search.  Upon the completion of the search, the police arrested the defendant for possession of heroin.  The police then searched the defendant's person and found a larger quantity of cocaine.  At his trial for possession of cocaine, the defendant sought to suppress the cocaine as having been unconstitutionally seized from his person.

Should the court suppress the cocaine?

Answer: No, because the cocaine was found pursuant to a search incident to a valid arrest

A court should suppress evidence obtained during an unreasonable Fourth Amendment search.  An unreasonable search occurs when the government acts without a warrant based on probable cause and no exception to the warrant requirement applies.  The "search incident to a lawful arrest" exception to the warrant requirement allows police to conduct a warrantless search of:

• a person who has been lawfully arrested and

• the areas within that person's immediate reach.

The rationale for this exception is that, following an arrest, an immediate search is necessary for officer safety and to prevent the arrestee from destroying nearby evidence.

Here, the police obtained a warrant to search for heroin in the defendant's residence.  While executing the warrant, police found a small amount of heroin in the defendant's bedroom and lawfully arrested him.  The police then searched the defendant's person incident to that arrest and found cocaine.  Since the search was permissible, the defendant's motion to suppress the cocaine should be denied.

(Choice C)  Police may use reasonable force to detain the occupant(s) of a premises while searching the premises pursuant to a valid warrant.  Since the use of handcuffs during such a detention is not per se unreasonable, this is not a basis to grant the defendant's motion to suppress the cocaine.

A liquor store was robbed, and the robber made off with cash and a fifth of a particular, popular brand of whiskey.  After the robbery, the liquor store clerk called the police.  The clerk identified a frequent customer as the robber.  The clerk described the shirt the robber was wearing as a red and white plaid shirt.  The clerk also identified the type of weapon used by the robber as a pistol.

The police obtained a valid warrant to search the customer's apartment.  The search warrant, in describing the items to be seized, listed only "a pistol used in the robbery as well as other fruits and instrumentalities of that crime."  The officer who applied for the warrant, although aware of the plaid shirt, made a conscious decision not to list it on the warrant due to other pressing matters.  Two police officers executed the search warrant.  The officer who had interviewed the store clerk spotted a red and white plaid shirt in plain view on a table in the customer's apartment and seized it.  The police officers did not find the pistol or any other fruits or instrumentalities of the robbery.

The customer was charged with robbery.  He has moved to suppress the use of the plaid shirt as evidence.

Should the court grant the motion to suppress the plaid shirt?

Answer: No, because the shirt was lawfully seized under the "plain view" doctrine

Under the Fourth Amendment, a search warrant confers authority to search only the places and persons named therein.  However, the "plain view" doctrine gives an officer properly executing a warrant the authority to seize evidence not particularly described therein if:

• the officer is lawfully on the premises

• the incriminating character of the item is immediately apparent and

• the officer has lawful access to the item.

Here, the red and white plaid shirt allegedly worn by the customer during the robbery was not particularly described in the search warrant.  However, the officer who seized the shirt was the same officer who had received the store clerk's description of the robber's shirt.  Therefore, the incriminating character of that red and white plaid shirt was immediately apparent to the officer.  And since the officer was lawfully at the customer's apartment and had lawful access to the shirt, it was lawfully seized under the "plain view" doctrine.

A college student was robbed at gunpoint on the way to his car after leaving a local tavern.  A police detective showed the college student a photo array that included an old photograph of the defendant, who had previously been convicted of two similar robberies.  The college student looked at the photo array and responded that he was not sure.  The detective tapped the defendant's photo and said, "Look closely again at this guy."  The college student then responded, "Yes, that's the man who robbed me."

At the defendant's trial for robbery, the college student identified him as the robber in court.  The defendant's counsel objected to the college student's testimony, but after the prosecution was able to show that the in-court identification was reliable, the court overruled the objection.

Did the court err in allowing the college student's testimony?

Answer: No, because the prosecution demonstrated that the in-court identification was reliable.

Due process requires the suppression of unreliable testimony identifying the defendant as the perpetrator of the charged crime since it may inhibit the defendant's right to a fair trial.  In-court identification testimony may be unreliable if it stems from unnecessarily suggestive out-of-court identification procedures arranged by police.  Therefore, such in-court identification testimony is admissible only if the prosecution demonstrates that it is sufficiently reliable—i.e., poses no substantial likelihood of misidentification.

Here, the police detective showed the college student a photo array that included the defendant and pointed to the defendant when the college student expressed uncertainty.  After this unnecessarily suggestive out-of-court identification procedure, the college student identified the defendant as the robber.  Therefore, due process would typically require the suppression of the college student's in-court identification.  But since the prosecution was able to show that the in-court identification was nevertheless reliable, the court did not err in allowing that testimony.

A school district had a strict policy that prohibited the nonmedical possession, use, and sale or other distribution of any drug on school grounds.  Administrators at a middle school in the district were informed by a student that other students had talked about bringing prescription medications from home to school to take at lunchtime for recreational use.  One day the following week, the same student gave a school administrator a pill, which the school nurse determined contained prescription-strength medication.  The student stated that he had been given the pill by another student that morning.

As a threshold matter, what standard does the administrator need to satisfy in order to conduct a search of the other student's person for possession of prescription medications?

Answer: Reasonable suspicion that the student is hiding prescription medicine on his person.

The Fourth Amendment prohibits unreasonable governmental searches, including searches of students conducted by public school officials.  But to help maintain a safe learning environment, the level of suspicion needed to justify a search is relaxed in school settings.  Therefore, school officials acting independent of law enforcement need only reasonable suspicion that a student is violating (or has violated) the law or school rules—not a warrant or probable cause—to conduct a search of that student (Choice C).

The reasonable-suspicion standard applies to all types of searches (Choice D).  Therefore, as a threshold matter, the administrator must have a reasonable suspicion that the other student is hiding prescription medication on his person to conduct a search of that student.  And the methods used to conduct the search must be (1) reasonably related to the objective of the search and (2) not excessively intrusive considering the student's age, sex, and the nature of the infraction.

A reliable informant called police and told them that a man driving a green compact car was transporting a large quantity of heroin to a neighboring county.  The informant described the man, told police that the man was traveling alone, and gave them the route that the man would be taking.  When the police sent a cruiser to that area, they saw a green compact car driving slowly on the shoulder of the road.  The driver and vehicle matched the informant's description.  A woman was riding in the back seat as a passenger.

As the police watched, the car stopped and the woman got out and started walking along the shoulder.  The car pulled away, and the woman raised her arm to hail a taxi.  The police quickly stopped the green car and searched it.  In the trunk of the car, they found several kilograms of heroin.  They then approached the woman, searched her without her consent, and found a small bag of marijuana in her pocket.  The police arrested the woman for possession of marijuana.

At the woman's trial, should the judge allow the prosecution to introduce evidence of the marijuana?

Answer: No, because the fact that she had been in the car was not enough to support the search.

The Fourth Amendment prohibits unreasonable searches and seizures.  A search or seizure is unreasonable unless conducted pursuant to a warrant based on probable cause (not seen here) or an exception to the warrant requirement.  The automobile exception allows officers to conduct a warrantless search of a vehicle if:

• there is probable cause to believe that the vehicle contains evidence of a crime and

• the search is limited to areas where the evidence might be located.

During an automobile search, police can search any containers inside the vehicle—including locked containers—that might contain the evidence.  But probable cause to believe that a vehicle contains evidence of a crime does not justify a warrantless search of a person who is, or had been, a passenger in the vehicle.  Police must have probable cause to believe that evidence is on the passenger before searching the passenger.

Here, police spotted a car and driver matching the informant's description.  This established probable cause to stop the car and search it (Choice B).  But the fact that the woman had been in the car did not justify the warrantless search of her person (Choice C).  And police lacked probable cause to believe that she was involved in transporting the heroin because she was not mentioned by the informant and had exited the car.  Therefore, the search was unreasonable, and the judge should exclude the marijuana found in her pocket.

A defendant was charged with burglary.  At the preliminary hearing, the magistrate responsible for determining whether there was probable cause to believe that the defendant had committed the offense heard testimony from prosecution witnesses and found that there was not.  Accordingly, the magistrate dismissed the charge.  Two weeks later, the prosecutor called the same witnesses before a grand jury and secured an indictment against the defendant for the same burglary.

The defendant filed a motion to quash the indictment on the ground of double jeopardy, which the court denied.

Did the court err?

Answer: No, because jeopardy has not yet attached, so the protection against double jeopardy has not been triggered

An indictment should be quashed (i.e., dismissed) if it violates the Fifth Amendment double jeopardy clause.  Double jeopardy protects criminal defendants from undue harassment and expense by forbidding multiple punishments and a second prosecution for the same offense.  This protection attaches once the defendant is in jeopardy of a conviction—i.e., when:

• the jury is impaneled and sworn (jury trial) or

• the first witness is sworn in (bench trial).

But if a criminal charge is dismissed before the defendant is put on trial before a trier of fact (judge or jury), then jeopardy does not attach and the defendant can later be prosecuted for the same offense.

Here, the defendant's burglary charge was dismissed at the preliminary hearing, so double-jeopardy protections did not attach.  The prosecution was therefore free to pursue a grand jury indictment for the same offense, and the court properly denied the motion to quash that indictment.

(Choice B)  Double-jeopardy protections are triggered as soon as the defendant is put on trial—before a guilty plea, conviction, or acquittal.  Therefore, an indictment can be quashed on double-jeopardy grounds even when the defendant has not been convicted or acquitted of the offense.

A defendant was tried for burglary of a jewelry store.  At trial, a witness for the prosecution testified that he saw the defendant loitering outside the jewelry store on the night of the burglary.  A defense witness, the defendant's employer, then testified that the defendant was working the night shift across town on the night of the burglary.  On cross-examination, the prosecutor confronted the employer with a statement she had given the police in which she said that she could not remember who was working on the night of the burglary.  The employer acknowledged the statement but testified that she was mistaken when talking to the police.

As to the defendant's alibi, which of the following instructions would be proper?

Answer: If you have reasonable doubt as to whether the defendant was present at the jewelry store on the night of the burglary, you must find him not guilty.

Due process requires that the government prove every element of a criminal offense beyond a reasonable doubt.  Therefore, when the defendant asserts a defense (e.g., alibi) that negates an element of the crime, the burden of proof must remain on the prosecution to prove that element.  In other words, the burden may not be shifted to the defendant to disprove the element (Choices A & C).  To be proper, a jury instruction must reflect this constitutional requirement.

Here, the defendant asserted an alibi defense, which would negate the element of identity—i.e., that the defendant was the perpetrator.  But due process requires that the burden of proof remain on the prosecution to establish beyond a reasonable doubt that the defendant was, in fact, present at the jewelry store on the night of the burglary.  Therefore, the proper instruction is the one that reflects this requirement.

A man was formally charged with murder.  An attorney was appointed due to the man's indigence.  The man consulted with his attorney.  Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to elicit incriminating statements about the crime from the man.  In response to the informant's prompting, the man confessed to killing the victim.

At trial, the man testified that, while present at the scene of the murder, he did not participate in the killing.  The prosecution then sought to call the informant as a witness to testify as to the man's prior contradictory confession.  The defense attorney objected on the ground that the confession had been obtained in violation of the man's constitutional rights.

Should the court sustain this objection?

Answer: No, because the confession was to be used for impeachment purposes

The Sixth Amendment right to counsel:

• automatically attaches once judicial proceedings have commenced (e.g., upon formal charges) and

• guarantees a defendant access to an attorney at every critical stage of the proceedings—i.e., events where the absence of counsel may prejudice the defendant's right to a fair trial, including interrogations.

An interrogation occurs when an officer or undercover informant engages in conduct designed to deliberately elicit an incriminating response from the defendant.  Statements taken in violation of a defendant's Sixth Amendment right to counsel cannot be used directly in deciding guilt or innocence.  But such statements can be used for the limited purpose of impeaching the defendant's inconsistent testimony.

Here, after the man had been formally charged (commencement of proceedings), police placed an informant into his cell to elicit incriminating statements about the murder (interrogation).  As a result, the man's subsequent confession to killing the victim was obtained in violation of the man's Sixth Amendment right to counsel (Choice D).  This means that the confession is inadmissible as direct evidence of the man's guilt.  But since the man testified contrary to his prior confession at trial, his prior confession is admissible for impeachment purposes.

The police obtained information from a reliable, known informant that the owner of a small tavern was dealing heroin out of the tavern and was expecting a shipment the following day.  Based solely on this information, the police obtained a warrant to search the tavern and the owner's person on the following day after delivery of the shipment.  The warrant provided for the police to seize narcotics and related contraband, as well as other fruits, instrumentalities, and evidence of the crime at the time unknown.

When the police arrived at the tavern, they found the owner behind the bar and a few patrons scattered throughout.  The defendant, whom the police did not recognize, was sitting in a booth near the bar.  One officer searched the patrons.  The search of the defendant uncovered a handgun with an obliterated serial number, which the officer seized.  It was later revealed that the handgun was stolen, that the defendant was a convicted felon, and that the gun was possessed illegally.  The defendant was charged with crimes related to possession of the handgun.  The defendant has moved to suppress evidence of the handgun, arguing that it was illegally seized.

What is the defendant's best argument that the handgun should be suppressed?

Answer: The police did not have independent justification to search the defendant.

When executing a warrant, police may not lawfully search a person who is on the premises—but is not named in the warrant—without independent justification for that search.  Independent justification may come from:

• reasonable suspicion that the person is armed, which allows officers to pat down the person's outer garments or

• probable cause to believe that the person committed, is committing, or is about to commit a crime.

Here, while executing the warrant, police searched the defendant—who was a tavern patron and not named in the warrant—and found a handgun.  But there are no facts to support (1) reasonable suspicion that the defendant was armed or (2) probable cause to believe that the defendant had committed, was committing, or was soon to commit a crime.  Therefore, the defendant's best argument that the handgun should be suppressed is that the police lacked independent justification to search him.

The police, in conducting a search of a murder victim's home, found an unsigned, handwritten note that contained a threat against the victim's life.  The defendant was indicted for the murder, and an attorney was appointed to represent the defendant.  While the defendant was in jail awaiting trial, a police officer came to the jail and demanded that the defendant provide the police with a handwriting exemplar, the text of which was based on the contents of the note found in the victim's home.  Although the officer did not have a warrant to collect the exemplar, the defendant complied, feeling that he had no choice but to obey the officer.

Prior to trial, the defendant's attorney filed a motion to prevent the prosecution from introducing the exemplar as evidence at the trial because the taking of the exemplar violated the defendant's constitutional rights.

Should the court grant this motion?

Answer: No, because the officer's taking of the exemplar was not a violation of the defendant's constitutional rights.

Evidence should be suppressed when it was obtained in violation of a defendant's constitutional rights—including the Sixth Amendment right to counsel.  That right:

• automatically attaches once judicial proceedings commence (e.g., upon indictment) and

• applies to all critical stages of prosecution (i.e., any event where the absence of counsel may prejudice the defendant's right to a fair trial).

The taking of a handwriting exemplar is not a critical stage of prosecution.  This is because the defendant still has opportunities to meaningfully confront the government's handwriting experts through cross-examination and to present his/her own experts.

Here, the Sixth Amendment right to counsel had attached since the defendant had been indicted.  But because the taking of a handwriting exemplar is not a critical stage of prosecution, that right was not violated (Choice B).  However, two additional constitutional protections are implicated here.

A defendant sought the services of an out-of-state attorney to represent her against a charge of felony animal abuse.  This attorney was erroneously denied pro hac vice admission by the trial court.  The defendant then hired an in-state attorney to represent her.  The defendant was convicted of the crime, even though the in-state attorney provided the defendant with competent, adequate representation.  On appeal, the defendant challenged her conviction on the basis that she was denied her Sixth Amendment right to counsel.

How should the appellate court rule on this challenge?

Answer: Reverse the conviction, because the trial court erroneously denied the defendant representation by the counsel of her choice

The Sixth Amendment right to counsel protects non-indigent criminal defendants' right to choose the attorney who will represent them.  This right to choose counsel includes the option to have an out-of-state attorney admitted to practice before the court hearing the defendant's case pro hac vice—i.e., for the defendant's case only.  However, the right to counsel is not absolute.  For instance, a court may deny a defendant of the choice of counsel if the desired attorney has a conflict of interest (e.g., is representing a codefendant).

On the other hand, the erroneous denial of a defendant's choice of counsel (as seen here) constitutes structural error—i.e., an error that affects the entire framework of a criminal trial, rendering it fundamentally unfair.  Structural errors are not subject to review for harmlessness and require automatic reversal of the defendant's conviction (Choice A).  As a result, the appellate court should reverse the defendant's conviction.

The Sixth Amendment right to counsel protects non-indigent criminal defendants' right to choose the attorney who will represent them.  The erroneous denial of a defendant's choice of counsel constitutes structural error and requires automatic reversal of the defendant's conviction.