CRIMINAL LITIGATION

Directions

You have three(3) ways to complete the exam. You may: 1) Complete Sections I and II, and three(3) of the questions from Section III; 2) Complete either Section I or II and four (4) questions from Section III; 3) Complete five (5) of the questions from Section III. If you elect to complete it by either of the first two options, please note that you must answer a question from every fact-pattern.

True/False (1 point each)

Indicate whether the statement is true or false

1. Impossibility of completing the crime is a not a good defense to an attempt charge.

2. Officer Johnson was patrolling in a rural area and as he drove down one country road he saw what he believed was marijuana growing in a soybean field. He stopped the car and walked across the field to get a closer look. It was a large cultivated patch of marijuana. The marijuana was seized and the owner of the field was arrested on the appropriate drug charges. The owner of the property challenged the search claiming that a warrant was needed to do a legal search in these circumstances. The prosecutor disagrees. The judge will agree with the prosecutor and include the evidence.

3. Officer Bob knocked on your door late on Saturday night, told you they are investigating a kidnapping, and asked if he may come in to talk and “look around.” You hesitated a moment but when Officer Bob stated that he hates to use the warrant because it will seem like you are being uncooperative and judges hate defendants who do not cooperate, you consent to letting him enter and look around. While he was talking to you, Officer Bob casually opened the desk in your living room and found a two-ounce bag of marijuana. Officer Bob seized the drugs and arrested you for possession. The search and seizure described will not withstand judicial scrutiny under the consent exception to the warrant requirement and will instead be excluded.

4. Bert is having dinner with his associates in a private room at a local steakhouse. The room has doors that close it off to the general public. Bert had asked that once dinner was served that the doors be closed and that the wait staff not enter the room until summoned by Bert. These instructions are followed just as Bert requested and once dinner is served and the staff has left, Bert and his associates begin to discuss their human trafficking business. In the middle of the conversation, another patron, Karen, mistakenly opens the door looking for a group she is joining for dinner. Karen hastily withdraws, but as she did she heard one of Bert’s associates how much they can expect to profit from the sale of each child. Karen is shocked and calls the police. The subsequent investigation yields sufficient evidence to arrest and charge Bert and his associates. Prior to trial, Bert’s attorney challenges the use of Karen’s statement at trial claiming that Bert had a reasonable expectation of privacy which was violated when Karen opened the door and overheard the conversation. The judge will find

against Bert as Karen’s action and subsequent statements do not violate Bert’s Fourth Amendment rights.

5. Incriminating testimony can not be compelled even when the statute of limitations has run on the crime.

Section II: Multiple Choice (1 point each)

Identify the choice that best completes the statement or answers the question.

6. If an otherwise criminal act is done for religious purposes, freedom of religion can be a defense if:

a. the act does little to no harm to the community as a whole

b. the defendant is a member of a religious body

c. the act is done in good faith

d. the act is common to the community

7. Sherry lost her home and was staying in Mark’s home while she tried to get back on her feet. One night the entire household was awakened by a pounding on the door. It was the police and they came into the house and searched for drugs that they believed were there. Sherry was very angry at the police action and wants to challenge the search. Sherry can challenge the search because

a. Sherry has an ownership interest in the property.

b. Sherry was an overnight (or several nights) guest in this home

c. Sherry was a permanent resident in this home

d. Sherry has automatic standing because she was present at the time of the search

8. Sheila put some of her personal belonging in a Wal-Mart bag to carry with her while she walked through a local park. She often walked in this park even though it was known as a place where drug deals were made. As Sheila was walking, she was approached by a police officer and while he spoke with her, he casually took the Wal-Mart bag and began looking through it. Sheila protested, but the officer continued to look. The officer’s actions were a violation of Sheila’s constitutional rights because

a. Sheila objected and the officer should have honored this by stopping the search

b. shopping bags and their contents are always protected from search without a warrant.

c. both a and b

d. both b and e

e. she had a reasonable expectation of privacy in the bag and its contents

9. Sergeant Wilson was patrolling a local neighborhood when he observed two individuals standing by the doorway of a closed dry cleaning shop. The doorway was shadowed, but Wilson knew one of the men had been questioned regarding a local drug deal and knew that a lot of drug dealing occurred in that neighborhood. After a few minutes of observation, Wilson saw one man hand something to the other. Wilson then approached the two men, spoke to them, and approached them to have a conversation. One of them men turned and walked away quickly, but Wilson placed a hand on the other to detain him. Wilson then patted the man down, felt a hard object in the pocket of the man’s jacket and pulled out a weapon. The man did not have documentation or licensure for the

weapon and was arrested on a concealed weapons charge. The officer’s pat-down was based on? and will be upheld in court if challenged.

a. prior experience

b. probable cause

c. clear and convincing evidence

d. reasonable suspicion

10. Improperly obtained confessions are barred from use at trial by the

a. extradition rule

b. exclusionary rule

c. immunity rule

d. impeachment rule

Section III: Essay (5 points each)

Fact Pattern #1

One night while on routine patrol, Officer Reyna Luthor observed a red Chevy Corvette sports car with one headlight out, a clear violation of a traffic law. Luthor proceeded to execute a traffic stop and approached the driver to issue a citation. Following the standard police procedure, Luthor asked the driver for his license and registration. The license identified the driver as one Otis Wade. As Wade handed his license and registration to Luthor, he said with menace that he “would make her regret it” if she “messed” with him.

Luthor took the license and registration back to her car and began writing a citation. As she was preparing it, she heard a police APB (all-points bulletin) on the radio to BOLO (be on the lookout) alert for a red sports car driven by a male, about 5’8″ tall, 150 pounds, clean-shaven, with dark hair, and wearing glasses, dark pants with a pink puff-sleeved shirt unbuttoned down to the navel. This person was wanted for robbery of Kate Mettler, whose purse had just been taken. Wade was actually 5’9″ tall, 160 pounds, clean-shaven, with dark hair, and wore glasses, blue trousers and a rose-colored, puff-sleeved shirt buttoned up to the neck.

Luthor placed Wade under arrest for robbery and read him his Miranda warnings. Wade invoked his rights to remain silent and to counsel. Luthor turned Wade over to other police officers who had arrived at the scene. She then searched Wade’s car and discovered a purse under the seat.

One hour after Wade was arrested, Mettler identified Wade as the robber in a one-on-one confrontation at the police station. Wade did not have an attorney present at the identification. Mettler said that she was positive in her identification. She also identified the purse found in Wade’s car as hers. Wade was again given Miranda warnings. This time he waived his rights and confessed to the robbery, and was then formally charged with robbery and is awaiting trial.

11. How should the court rule on Wade’s pretrial motions to exclude his statement to Officer Luthor at the scene of the arrest, the identification of Wade by Mettler at the police station, as well as the purse seized from Wade’s car?

12. How should the court rule on Wade’s pretrial motions to exclude his confession at the police station? If Wade’s confession is ruled inadmissible at trial because of a violation of the Fifth Amendment, and he testifies at trial, will the Fifth Amendment violation preclude use of the confession to impeach the testimony that Wade gave on either direct or cross-examination?

Fact Pattern #2

Two male university students (Abe and Chris) are on Spring Break. They meet a young woman named Mary whom they lure back to their hotel room. The two young men make repeated sexual advances to Mary. She rebuffs the sexual advances from Chris, but says she will have sex with Abe.

Abe says, “If Mary isn’t willing to have sex with both of us, then we’ll have to force her. Are you with me?” Chris nods his assent. Mary objects and says she wants to leave. Abe locks the door so Mary can’t get out, and begins plying more alcohol on Mary to calm her down.

Mary, terrified and drunk, drinks more alcohol and eventually passes out.

Abe decides that since Mary had said she wanted to have sex with him, it was OK and he proceeds to have sexual intercourse with the unconscious Mary.

Chris, who is very drunk, then says “I’m going to force her to have sex with me too.” He takes his clothes off and gets up on the bed. However, before he actually has intercourse with Mary, Chris also passes out.

Mary wakes up and, finding both Abe and Chris passed out, quietly dresses and leaves the room, going directly to the police.

The next morning, the police arrest both students.

13. Of what, if anything, can Abe be charged?

14. Of what, if anything, can Chris be charged?

Fact Pattern #3

Anna and Barbara are pro-life activists who are picketing Dr. Cirona’s women’s health clinic, where, among other services, legal abortion services can be obtained. They and their group of several hundred activists have picketed Dr. Cirona’s clinic for several months, and Dr. Cirona has been doused with red paint, had her car damaged, and received death threats over the phone, as well as by letter to her home address. She has also received a flood of threatening emails. Thus far none of the activists have entered the clinic.

Frightened and exhausted by her experiences, Dr. Cirona purchases a small-caliber hand-gun to protect herself.

One night, Barbara notes that Dr. Cirona is working late, and enters the waiting room of the clinic after business hours, breaking through the front door. She runs back into the back lab, chanting and shouting. Dr. Cirona is napping on a cot she keeps in her office when she hears the commotion. She gets to her feet groggily, takes her pistol out of her purse, and opens the door between her office and the back lab. Barbara, unarmed, turns suddenly at her appearance, and Dr. Cirona shoots and kills Barbara.

The police arrest Dr. Cirona, and Anna is convinced that as a soldier of God in the war against abortion she is compelled to do something. The very next night, Anna sets the clinic on fire, killing a sanitation worker who is cleaning the lab after hours.

15. With what, if anything, can Dr. Cirona be charged? What defense(s), if any, can Dr. Cirona raise?16. With what, if anything, can Anna be charged? What defense(s), if any, can Anna raise?