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Professor Ron Wright's Fall 1995 Exam
CRIMINAL PROCEDURE SURVEY
FINAL EXAMINATION, ESSAY QUESTIONS
Fall 1995, Professor Ron Wright
Wake Forest University
Instructions
This portion of the exam, which accounts for two-thirds of the total
points on the exam, is "open book." You may consult any resource except
for another human being. However, this is not a research exercise! You
can write wonderful answers to these questions simply by reading the
question carefully, thinking about it for a while, and briefly
consulting your notes and class reading material to refresh your memory
about a couple of details. Like the rest of the legal world, I place a
premium on strong organization in writing, and exams are no exception. I
will reward a well-structured answer. I also value answers that respond
to the question. In all likelihood, a rewriting of your class notes or
course outline will not respond to the specific questions I ask. Draw on
your notes, but be sure to address the particulars of the question. Each
of the two questions indicates the number of points it will receive;
there is a strict overall page limit of 12 double-spaced pages for your
answers to the two questions combined. I will not read any portion of
your answer extending beyond page 12. Most successful answers should
occupy 8-10 pages, and a brilliant answer might be even shorter. Your
word processor must use a font with 12-point type or greater, and each
page should have one inch margins on all sides. You have the discretion
to allocate any proportion of your total pages to each of the two
answers. However, because Question Two is worth about 55% of the total
essay points (37 of 67 points), I suggest that you devote a slight
majority of your time and pages to Question Two. You must return this
exam, along with your typed answers, within 24 hours of the time that
you pick it up. Please place your exam identification number somewhere
on each page of your answers. Do not make a copy of this exam. I always
hold out the naive hope that exams can be an occasion for creativity and
learning for everyone involved. In that spirit, I wish good luck to each
of you.
QUESTION ONE (30 of 67 points)
A recurring theme in criminal procedure issues in both state and federal
systems is the choice between �objective� and �subjective� standards.
The courts periodically must decide whether to require an �objective�
standard of conduct for police or other actors (one that measures the
significance of an action based on what a person in that position
typically does or should know or intend), or a "subjective" standard
(based on what the person actually did know or intend). The following
are just a few of the many criminal procedure issues where this question
arises: Whether or not an encounter between a police officer and a
citizen amounts to a "stop" that the police officer must justify.
Whether or not police conduct in the presence of a suspect in custody
amounts to an �interrogation� requiring observance of Miranda rules.
Whether or not evidence obtained during a "good faith" violation of the
fourth amendment should be excluded from a criminal trial. Whether or
not a particular detention of a suspect by the police amounts to an
�arrest� that must be justified by probable cause. Whether or not a
police officer can make a valid stop when the officer has reasonable
suspicion of one crime, but the officer�s true motive in making the stop
is to investigate some other crime. Write an essay addressing the
following questions: (a) For at least two of the examples listed above
(or any other examples you want to discuss), describe the issue more
fully and explain the answers that the relevant institutions have
typically given to these issues. (b) Make an argument about the
propriety of using objective or subjective standards in criminal
procedure. Should the courts ordinarily use one or the other? Why? If
you believe that courts should sometimes use objective standards, while
at other times they should use subjective standards, what criteria
should they use to choose between the two types of standards?
QUESTION TWO (37 of 67 points)
What follows is a summary of the facts in a (fictional) case now pending
before the Montana Supreme Court, a summary drafted by a law clerk to
one of the justices. Please write (1) the draft of a majority opinion
deciding the case, and (2) a short draft of a dissenting opinion. Since
the final draft of your court�s opinion will ultimately adopt the facts
as summarized below by the law clerk, your draft opinions need not
recount the facts of the case, except to emphasize a few that might have
special relevance in the course of the argument. The relevant clauses of
the Montana Constitution appear in art. II, �� 10, 11, 17, and 24: � 10.
The right of individual privacy is essential to the well-being of a free
society and shall not be infringed without a showing of a compelling
state interest. � 11. The people shall be secure in their persons,
papers, homes and effects from unreasonable searches and seizures. No
warrant to search any place, or seize any person or thing shall issue
without describing the place to be searched or the person or thing to be
seized, or without probable cause, supported by oath or affirmation
reduced to writing. � 17. No person shall be deprived of life, liberty,
or property without due process of law. � 24. In all criminal
prosecutions the accused shall have the right to appear and defend in
person and by counsel �. You should not research Montana law. The point
of this exercise is to free you from the need to treat federal law as
binding. The majority opinion you write should discuss (a) any minimum
requirements of federal constitutional law on the relevant question(s),
and (b) whether the Montana court should adopt any procedural
requirements apart from those required under federal law. Answer this
second question in light of the constitutional language and the likely
impact of the rule on the criminal justice system of the state. The
dissenting opinion should take issue with the majority only in its
treatment of one issue of state law.
SUMMARY OF FACTS
State v. Palumbo Detective Eastland was called to investigate a
homicide at 1312 Orange Road. Witnesses at the scene said that at about
6:20 p.m. a man had accused people on the block of stealing his bicycle
and had threatened to "shoot up Orange Road" until he got the bicycle
back. The man displayed what witnesses believed to be a .45-caliber
handgun and then began to fire randomly into passing vehicles on Orange
Road. Next, he walked over to Rod Redmond, who was seated on the front
step of 1312 Orange Road, and fired two rounds at Redmond, striking and
killing him. This was an unusual shooting, Eastland said, because
Redmond offered no resistance; he was a �neighborhood alcoholic� who
bothered absolutely nobody and could not flee the scene that day because
he was intoxicated and may have been passed out. After the shooting, the
shooter continued to make threats as he left the scene. Two of the
witnesses, who were outside on Orange Street that evening but did not
see the actual shooting, identified the shooter as "Joshua." Eventually,
that same evening, Detective Eastland learned that "Joshua" might
possibly be the defendant, Joshua Palumbo. Later that evening, police
were contacted by another witness who had been standing near Redmond
when the shooting occurred, and Eastland arranged to meet this witness.
Sometime between 2:40 a.m. and 2:50 a.m., this witness picked out
Palumbo's photo from a nine-photo array and positively identified him as
the shooter. At that point, Eastland believed he had probable cause to
arrest Palumbo. Eastland obtained Palumbo's address from the police
computer. Eastland then obtained an arrest warrant for Palumbo. Although
Eastland could not be sure that Palumbo would be at home, Eastland
thought that he might find Palumbo there at that time of the morning. It
took Eastland until 4:30 or 4:45 a.m. to assemble an arrest team of ten
to twelve police officers. The team arrived at Palumbo�s apartment at
about 4:50 or 4:55 a.m. Some of the officers went to the back of the
building to guard the rear window of Palumbo's apartment. According to
Eastland, the remaining officers proceeded to the locked front door of
the building, buzzed someone to gain entry, identified themselves as
police officers, and were admitted. They then went to Palumbo's
apartment, number 207, and knocked. Palumbo's mother opened the door.
The officers identified themselves and asked to speak with Palumbo,
while showing her a copy of the arrest warrant. Palumbo's mother
answered that he was in back, in his room; she pointed to the rear of
the apartment. The officers then entered the apartment and walked down
an L-shaped hallway toward Palumbo's bedroom. One of the officers on the
scene, Officer Bonneville, heard a "thump" coming from the bedroom,
which he believed might be the sound of Palumbo dropping a gun on the
floor, just before Palumbo emerged from the bedroom. Once Palumbo
appeared in the hallway, Eastland announced, "We're police officers,
stop right there," and pointed his weapon at Palumbo. The officers then
arrested Palumbo. Bonneville told Palumbo to put his hands on the
hallway wall. Bonneville quickly frisked Palumbo and felt what he
thought was a pistol magazine in Palumbo's rear pants pocket. After
telling the other officers present about the magazine, Bonneville turned
Palumbo over to a third officer at the scene, Young, who removed the
magazine from Palumbo�s pocket. Then Eastland and Bonneville went into
Palumbo's bedroom and turned on the light to make sure that no one else
was there. The officers did not have any information indicating that
there might be anyone else in that bedroom who might pose a danger to
the police. In order to check out the bedroom, Eastland said, the police
actually had to enter the bedroom, because it contained a blind corner
and a closet near the doorway. Once inside the bedroom, Eastland found
nobody in the closet, then went to the far side of the room, and noticed
a weapon hidden between the bed and the wall. There was less than six
inches between the bed and the wall. Eastland seized the weapon, which
was a .45-caliber handgun. At trial, the government introduced into
evidence the magazine, the handgun, and testimony about the eyewitness
identification on Orange Road. The defendant objected to the admission
of each of these pieces of evidence.
MULTIPLE CHOICE QUESTIONS
The Fall 1995 final examination in Criminal Procedure at Wake Forest
School of Law contained multiple choice questions, comprising one-third
of the total available points. Several examples of those questions
appear on the pages that follow. (1) In Doggett v. United States
(1992), the Supreme Court ruled that a delay of over eight years between
an indictment and a trial violated the constitutional guarantee of a
speedy trial. The defendant in that case was not able to point to any
specific ways in which the delay prejudiced his ability to present a
full defense to the charges, but the Court adopted a presumption that
the excessive delay compromised the reliability of the trial. How can
defendants in future cases qualify for this presumption of prejudice? A)
Leave the country for a number of years after an indictment to lengthen
the period of delay between the indictment and the trial. B) Present
evidence that the government was negligent in its efforts to locate the
defendant. C) Specify the witnesses for the defense who at trial were
uncertain about some events that occurred years earlier. D) Demonstrate
that he or she requested a speedy trial at the first opportunity. E) All
of the above. (2) About one hour after a murder, police
investigating the crime detained a suspect, Ogden, who was dressed in
white sneakers similar to those that the murderer was said to be
wearing. The officers told Ogden that she was not under arrest. They
transported her, handcuffed in the back seat of a police car, to the
crime scene (which was about ten blocks from where the officers had
found him) and asked a witness to the crime whether Ogden was the person
he saw near the body immediately after the murder. He replied that she
was. Will the eyewitness identification of Ogden be admissible evidence
at her murder trial? A) Yes, if the witness had an adequate opportunity
in the first place to see the person near the body and was relatively
accurate and certain in his initial description of the suspect. B) No,
because no lawyer was present at the unduly suggestive "showup"
procedure. C) No, because the police had no probable cause to arrest
Ogden when the identification took place. D) No, unless the police
officers warned Ogden of her Miranda rights. E) Yes, because the
defendant will have the opportunity to confront the witness at trial
about the circumstances of the identification. (3) Fowler, a
securities broker, is a defendant in a federal money laundering
prosecution. The government's investigative file contains a report from
an undercover agent who posed as a potential customer of Fowler and
asked him to help conceal the illegal source of the funds the customer
planned to use. Must the prosecution turn over to Fowler before trial
that portion of the report in which the agent describes how Fowler
agreed to help conceal the source of the funds? A) Yes, because the
Federal Rules of Criminal Procedure require the government to provide
the defense with any recorded statements of the defendant. B) No,
because the material is inculpatory. C) Yes, because this is Brady
material, and due process requires the government to disclose it to the
defense. D) No, unless Fowler specifically requests the document. E)
Yes, so long as the prosecutor knew of the existence of the report.
(4) A defendant who has invoked her right to counsel can be
approached later about changing her mind and waiving that right under
the following conditions: 1. After the passage of some time and a fresh
set of Miranda warnings. 2. When the officers need information from the
suspect to prevent immediate harm to the safety of another person. 3.
After the suspect has had an adequate consultation with a lawyer. A) 1
only. B) 1 and 3 only. C) 1, 2, and 3 in combination. D) Any one of 1,
2, or 3. E) None of the above. (5) A Colorado statute provides
that evidence "shall not be suppressed" if an officer conducts an
illegal search or seizure, but the illegality resulted from a "technical
violation." The statute goes on to define a "technical violation" as a
"reasonable good faith reliance upon a statute which is later ruled
unconstitutional, a warrant which is later invalidated due to a good
faith mistake, or a court precedent which is later overruled." Is this
statute currently vulnerable to a constitutional challenge based on the
Fourth Amendment to the U.S. Constitution? A) No, because the
exclusionary rule is a judicially-created remedy for illegal searches
and seizures that is not required by the constitution itself. B) Yes,
because reliance on an invalidated statute is not a basis for a "good
faith" exception under the constitution. C) No, because this statute,
like the decision in United States v. Leon, only protects investigating
police when they reasonably rely on the mistaken judgment of other
government actors. D) Yes, because because reliance on a court decision
later overturned might not be a basis for a "good faith" exception under
the constitution. E) Yes, because reliance on a warrant later
invalidated due to a mistake by a government agent such as a police
clerk might not be a basis for a "good faith" exception under the
constitution. (6) Clawson was charged in state court with drug
trafficking. The government also filed a civil complaint in state court
seeking forfeiture of the car he allegedly used to drive alone between
two downtown meeting places during the negotiations for the sale of
narcotics, the cash he allegedly offered in exchange for narcotics, and
his condominium where the final transaction allegedly took place. After
an ex parte hearing, the prosecution obtained a court order freezing the
assets targeted in the forfeiture action. Clawson can prove that he has
no other assets available to pay an attorney to represent him during the
criminal proceedings. Will the court grant his motion to unfreeze
sufficient assets to pay reasonable attorneys fees? A) No, because under
the "relation back" doctrine, the defendant does not have legal title to
the contraband at issue here and is attempting to spend the government�s
money. B) Yes, because most state courts have concluded that the right
to counsel under their state constitution requires an exemption from
forfeiture for assets legitimately used to retain criminal defense
counsel. C) No, because the court has no way to prevent Clawson from
using sham payments to the attorneys as a way of shielding assets from
forfeiture. D) Yes, at least until there has been an adversarial
determination in the civil action that the government has probable cause
to believe the assets are forfeitable. E) No, because Clawson�s chosen
attorney will probable still agree to handle this case even if Clawson
currently does not have liquid assets to pay a retainer. (7)
Which of the following items would be in "open view," as opposed to
�plain view�? 1. Garbage in plastic trash bags, set beside the curb for
pickup. 2. Marijuana plants visible through binoculars from a helicopter
flying 500 feet above private property. 3. A pistol wedged between a car
seat and floorboard, noticed when a police officer is impounding the
car. A) 1 only. B) 2 only. C) 3 only. D) 1 and 2. E) 2 and 3. (8)
Many state legislatures have passed statutes dealing with the power of
police officers to make arrests in domestic abuse settings. The most
common characteristic of these statutes is A) their endorsement of the
common law definition of the arrest power. B) their irrelevance in light
of police department policies and practices that supplement any
statutory requirements. C) their elimination of the police officer�s
discretion in choosing whether or not to make an arrest. D) their
authorization of arrests for misdemeanors committed outside the presence
of the police officer. E) their reliance on social science data to
support the prescribed use of the arrest power. (9) Most state
courts do not invalidate a stop if it was supported by reasonable
suspicion to believe that a crime was being committed, even if the
officer intended to use the stop to investigate some completely
different crime. Why do states typically turn aside complaints about
these "pretextual" stops? A) An inquiry into what an officer �would
have� done in the absence of the pretextual motive requires an intrusive
examination of the officer�s past practices. B) An inquiry into what an
officer "could have" done on the basis of the reasonable suspicion
allows the officer to justify a stop after the fact. C) A prohibition on
pretextual stops would give the greatest protection to those wrongdoers
who are suspected of further wrongdoing. D) Pretextual stops are a
reliable way of increasing the amount of drugs and weapons the police
will discover. E) A showing of two different reasonable suspicions would
be duplicative. (10) Most states define probable cause A) by
statute or court rule. B) from the perspective of the reasonable police
officer. C) to mean something less than a preponderance of the evidence.
D) in a way consistent with all of the above statements. E) in a way
consistent with none of the above statements. (11) Escalante was
murdered in her home during a robbery in which some furs were stolen. A
week later, Lyman was arrested for the murder, taken to the precinct
station and, after having been read his Miranda rights, declined to
answer any questions. While being held in a detention cell, he asked
Detective Leota whether he could speak to a District Attorney. When
Leota replied that he first had to reveal to Leota what he wanted to
talk about, he said nothing further. Leota left and returned with the
stolen furs, obtained from a codefendant's apartment, placing them in
front of Lyman�s cell without any verbal communication with Lyman. Lyman
then repeated to Leota his desire to speak to a District Attorney. When
Leota promised to "pass along" to the D.A. anything Lyman might want to
say, Lyman made several incriminating statements. Will these statements
be admissible at trial? A) Yes, because placing the fur in front of the
cell was likely to elicit incriminating information. B) Yes, because
Lyman initiated the conversation with Leota. C) No, because Miranda
warnings were not repeated anew to defendant before the furs were placed
in front of his cell. D) Yes, because Lyman originally invoked his right
to remain silent rather than his right to counsel; therefore, the
government could approach Lyman again about the possibility of waiving
his rights. E) No, because Miranda states that defendants may not be
"threatened, tricked or cajoled" into waiving their rights.
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