search the site using Google™

 

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. 
 

 
 
© 2007 Marc L. Miller & Ronald F. Wright