CJ 440
Final exam
Question 9
Which is not a possible outcome of a jury trial in a criminal case?
A. Not guilty
B. Innocent
C. Hung jury
D. Guilty
E. They are all possible outcomes.
2. Based on the “confrontation clause” of the Sixth Amendment,
the defendant is entitled to be present at arraignment, the
preliminary hearing and all plea bargaining sessions prior to
the trial.
True or False
3. Based on the US Supreme Court case Brady v. Maryland, a
prosecutor would probably have to disclose to defense
counsel if person other than the defendant had confessed
to the crime with which the defendant is charged.
True or False
4. The Sixth Amendment guarantees a criminal defendant the
right to have an attorney represent him. He can hire counsel if he is able. If a lawyer is provided for him, the defendant
can’t choose to have a different lawyer assigned to him
just because he doesn’t like the attorney assigned to
represent him (assigned counsel or public defender).
True or False
5. The decision of the Grand Jury to indict a person for a
criminal offense must be unanimous.
True or False
6. In jury selection, a Peremptory Challenge is made without
giving a reason or justification.
True or False
7. In voir dire questioning by the judge, a prospective juror
who says he knows the Assistant District Attorney
prosecuting the case is not suitable as a juror.
True or False
8. A foundation has to be laid before a photograph can be
admitted into evidence in a trial of a criminal case.
True or False
9. Hearsay is not allowed in a trial of a criminal case.
True or False
10. A judge can dismiss the charges in a jury trial without
submitting it to the jury, but he can’t find the defendant
guilty.
True or False
11. Because of the Batson v. Kentucky case, a lawyer can’t
use a peremptory challenge for a prospective juror who
is black, if the defendant is also black.
True or False
12. In jury selection in a criminal case, there is no limit on
the number of challenges for cause which can be made
by either the prosecutor or defense counsel.
True or False
13. The prosecutor in a criminal case has to prove the
defendant’s guilt; defense counsel’s job is to prove
the defendant’s innocence.
True or False
_____________________
name
CJ 440
Final exam
Question 10
It’s 2021, and Democrats control the Congress and the White House. There is school shooting in Puerto Rico at which 24 children and 2 teachers are killed. In response, Congress passes and the President signs into law the following statute:
Section 1. In order to protect the children of the United States, assault rifles may not be possessed in any state within 100 miles of any public pre-school, primary school or elementary school. Such weapons may not be possessed within 75 miles of any public middle school, junior or senior high school.
Section 2. This statute does not apply to any religious or other non-public school.
Section 3. In view of the anticipated objections and public outcries which may create particularly hostile and dangerous situations, public protests or objections to this law may be held in any state, but only where adequate safety precautions are available, with local authorities to insure a safe environment for all. Protests may not be held in the District of Columbia.
Section 4. Violations of this law shall be punishable by up to 2 years in a Federal Penitentiary .
As expected, the NRA and others organize protest rallies in many places around the country. They are remarkably without confrontation or incident, as the thrust of the protest generates a rallying cry of “Out the door in 24!” and protesters concentrate on mobilizing voters to elect an entirely new Congress and President in 2024.
Many Kentuckians are not satisfied, however, and they form small but vocal groups of protesters, many of whom have marched in Washington, D.C. during rallies for pro-life issues and other causes. They decide to go to D.C. despite the possibility of arrest. They travel in a caravan of minivans and pickup trucks, which is identified and followed by the national news media.
Federal marshals stop 2 of the vans on Interstate 64 in West Virginia, and when the occupants all say where they are going and why, they are arrested for violation of law cited above. They go to trial at the federal courthouse in Charleston, WV. Before the trial even starts, defense lawyers move to dismiss the charges.
A. You are the judge. How do you rule, and why?
Two of the pickups make it all the way to the national mall in D.C.. They erect signs protesting the new law and hand out pamphlets to passers by urging everyone to “vote these bums out” and to support the 2nd Amendment. They are arrested by federal marshals, and taken into custody. In jail, they wait in a cell until a federal prosecutor comes in, gives them all their Miranda warnings, and asks, “Just what are you boys trying to do?” The protestors all talk at once, saying the law is wrong, that the Congress and the President should be thrown out of office, and they want everyone to know. Should those statements be usable at a trial of the defendants?
B. You are the judge. How do you rule, and why?
C. One of the DC defendants is convicted, and the case ends up in the U.S. Supreme Court. What is that court’s most appropriate ruling?
CJ 440
Final Exam
Question 11
There is a raging controversy in Grass County over the widespread use of marihuana. The District Attorney opposes its use because “its against the law” and because he firmly believes it leads to the use of other drugs.
There is a vocal group of local citizens who are pushing for the complete legalization of marihuana, and most of them drive cars with a bumper sticker that says, “It’s time to legalize pot”.
About half of the local police and sheriffs are solidly in the DA’s camp, and are always on the lookout for violations of the law restricting the sale or use of all drugs, but especially marihuana. Most of the rest of law enforcement personnel don’t really care that much about the personal use of marihuana, and a few make jokes about working in “Grass County”.
The DA has arranged with a friend he knows through the state District Attorneys’ Association from a distant county to send 2 undercover officers to live in Grass County, to infiltrate the robust marihuana culture, and secretly to identify and to set up for arrest anyone growing, selling or using marihuana. He has also obtained funding from a statewide nonprofit organization, Police Officers Opposing Narcotics (P.O.O.N.), for a canine unit in the sheriff’s department. With their help he has acquired a dog trained to find marihuana, but no other drugs.
For 3 straight weekends, the sheriff has set up a check point at which some cars are stopped and the driver is asked to produce a license and proof of insurance. The POON dog is always at the checkpoints, and is brought close to the driver’s door when the driver’s window is down and the driver is engaged in conversation with the officer. Not all cars are stopped, but all cars with the “legalize pot” bumper stickers are stopped.
One of those stopped is one of the loudest voices pushing for the legalization of “pot”, one Hudgey DeRobertus. The POON dog reacts at Hudgey’s window, and he is told to step out of his vehicle, which he does. He is asked by the deputies if they can search his car, and he politely declines. At that point the dog rubs up against Hudgey’s leg, dislodging a bag of marihuana from his pocket. Hudgey is placed under arrest, and his car is searched. More marihuana is found in the back seat area along with an illegal handgun. Hudgey is arrested for illegal possession of the gun.
About this time several marihuana users get arrested under circumstances that suggest someone is providing sensitive information to the DA. As luck would have it, one of the group, Vincent “Vinnie” DelVermo, works as a cleaner in the county building where the DA’s office is located. One night he sees on the DA’s secretary’s desk a file marked “Undercover Agents”. He opens it and sees the names and local addresses of the 2 undercover agents now working in Grass County. Seeing who they are opens his eyes as to how the cops are making so many busts. Infuriated, he takes the file home.
The next day Vinnie takes the file to Thomas Paine, who publishes a local paper known as “It’s Common Sense not to Trust the Government”, a monthly rag in which he rants away at all kinds of failures and shortcomings he sees in all levels of government. The local citizenry is mildly amused, pays little attention, and sees him as harmless. They figure someone must be bankrolling his efforts, but they don’t have any idea who it might be.
Vinnie takes the file to Paine, who pays Vinnie $200.00 for it. Paine puts out a special edition of his paper, finding all manner of faults with the conduct of the DA’s office and police tactics. He also prints an article entitled “Know Your Local Narc”, which gives the names and addresses of the 2 under cover agents. That day Paine walks into the DA’s office, gives the file back to the secretary and says with a smirk, “You must have lost this”.
Four drivers who have the “legalize pot” bumper stickers who were charged with possession of marihuana at a traffic stop move to dismiss the charges. What should the court do, and why?
Is the the first arrest of Hudgey for possession of marihuana valid? Why, or why not?
Is the arrest of Hudgey for possession of the gun valid? Why, or why not?
Is Vinnie guilty of burglary? Burglary is defined as follows:
A person is guilty of burglary when he knowingly enters
or remains unlawfully in a building with intent to commit
a crime therein.
Why, or why not?
E. Is Thomas Paine guilty of Criminal Possession of Stolen Property? Criminal Possession of Stolen Property is defined as follows:
A person is guilty of criminal possession of stolen
property when he knowingly possesses stolen property with intent to secure for himself a pecuniary benefit therefrom, or to impede the recovery thereof by a rightful owner.
Why, or why not?
CJ 440
Question 12
Following a large drug bust at a seedy off campus apartment near a highly respected Christian University, various suspects are taken to the local Sheriff’s office for questioning.
A deputy approaches suspect number 1, one Hudgey DeRobertus, and tells him, “You have the right to remain…”
“Silent!” interrupts DeRobertus, “Yeah, I know all about my Mirandez rights. But I ain’t saying nothing!”
“Well, then, did you see any drugs in there tonight?”, asks the deputy.
At that point Hudgey begins to talk, and does he ever talk. He says he saw people smoking crack and doing meth, and others shooting up with heroin. He names names. He also says there were some there just drinking beer, as far as he could tell. He was asked if he did any drugs, and he says he only smoked some “grass”: some guy he never saw before was passing out “joints”of “grass”. Hudgey says he was given a handful, “Which was too much for me so I gave most of it to other people. It was wild in there. We were also passing several crack pipes around. A real party!”
Hudgey is charged with Criminal Possession of Marihuana in the 3rd degree, Criminal Sale of Marihuana in the 3rd degree, and Criminal Possession of Cocaine in the 4th degree. The drug laws include:
A person is guilty of Criminal Possession of Marihuana
in the 3rd degree when he knowingly possesses one or
more preparations, compounds, mixtures or substances
containing marihuana with an aggregate weight of more
than 8 ounces.
A person is guilty of Criminal Sale of Marihuana in the 3rd
degree when he knowingly and unlawfully sells one or
more preparations, compounds, mixtures or substances
containing marihuana.
A person is guilty of Criminal Possession of Cocaine in the
4th degree when he has Cocaine on his person or under
his immediate control, and is not involved in law
enforcement.
A person is guilty of Criminal Possession of Cocaine in the
4th degree when he knowingly participates with others in
use of cocaine in any form and by any means.
For purposes of this law, “others” means a group
of 3 or more persons.
“Unlawfully” means any sale not conducted by a licensed
research facility pursuant to the Public Health Law.
“Sell” means to sell, exchange, give or dispose of to
another, or to offer or agree to do the same.
Based on the foregoing facts,
Is the deputy justified in charging Hudgey with Criminal Possession of Marihuana in the 3rd degree? Why, or why not?
B. Is the deputy justified in charging Hudgey with Criminal Sale of
Marihuana in the 3rd degree? Why, or why not?
C. Is the deputy justified in charging Hudgey with Criminal Possession of Cocaine in the 4th degree? Why, or why not?
D. If any of these charges go to trial, can Hudgey’s statements
to the deputy be introduced by the prosecution? Why, or
why not?
Suspect #2, John Stewbing, while being taken to the station, is recognized by one of the deputies, Barney Fife, who played football with Stewbing at the University only 2 years previously. Stewbing asks deputy Fife if he can go home, if he promises to come to the sheriff’s office “in the morning”. Fife cuts him a break and tells him he can leave, but then asks him if he used any drugs at the party.
“Well, some guy passed a joint around, and several of us took a few hits on it, but I just drank a lot of beer”, says John.
John comes to the sheriff’s office a little after noon the next day. He’s nervous, and confides to Fife, “I was thinking. A bunch of us did share a crack pipe last night. After a few hits, I gave it to a girl I was trying to hook up with, but she walked off and gave to some guy”.
If any charges are brought against Stewbing, can any of his statements to Fife be introduced by the prosecution? Why, or why not?
B. Is Stewbing guilty of violating any of the statutes set forth above?
If so, which one(s) , and why?
CJ 440
Final Exam
Question 13
Reasonably intelligent people make foolish decisions when their thinking is affected by the consumption of alcohol.
For example, Jose Miranda is a police officer of twenty-six years experience. His captain is retiring, and the majority of off duty police, sheriff’s deputies, and state troopers have gathered for an “ox roast” on a farm owned by Jimmy Green, a rookie sheriff’s deputy.
Jose is hoping for a promotion to captain, and he’s been told by many police officers and others that he deserves to be the next captain.
Everything is fine for a few hours, as the gathered policemen are enjoying a great party, including all the food they bought, the roasted “ox”, and two kegs of beer.
Nobody is sure what really happened, but somehow Jose got the impression that Jimmy made some comments that a “real American” should be the next captain, and soon the two were arguing and then came the pushing and shoving. Jose was very proud of his American heritage, especially of his grandfather who had been injured on Iwo Jima in World War II. In addition, Jose didn’t take too kindly to all the Confederate flags Jimmy and his family had on their car bumpers and mail boxes.
The fight ended when Jimmy got punched so hard he lost consciousness. Jose stormed off and tried to get in his Jeep, but three of his friends took his keys and put him in the passenger seat to cool down. A few minutes later, he passed out.
Jimmy came to, and got up angry. When he saw Jose’s Jeep still parked on his property, he lost his temper, went over to it and kicked in a side panel.
Criminal charges were brought against Jose for assault, and against Jimmy for criminal mischief. Jose was suspended and brought in for questioning by the captain, who was exasperated by the whole affair and was handling the cases strictly by the book.
“Jose,” said the captain, “you have the right to remain…”
Jose interrupted him, “Captain, I feel terrible about this. I was way out of line, and it was supposed to be a nice time honoring you. And, I know my Miranda rights. I’ve advised hundreds of suspects of the Miranda rights over the past twenty-five years. Besides, my name is Miranda”, he added with a smile.
“I hit him. I assaulted him. I’m truly sorry”, Jose said with his hand on his forehead.
The captain finished reading the Miranda warnings from his card, and Jose made a full written confession.
Jimmy was also duly and properly warned, and, upon being questioned, he said, “Well, everybody says I kicked his car, but, honestly, I don’t remember anything after that punch until the next morning. I might have done it, and I’m not going to dispute any of those witnesses, but, wow, Jose has quite a right- – or left, whatever he hit me with!”
Which, if any, of the statements made by Jose can be used against him at trial? Why?
B. Can any of Jimmy’s statements be part of the case against him?
Why, or why not?
Time passes, and the fight is now just a bad memory. Jose and Jimmy have become better friends than before, and each wants to help the other.
Jimmy moves for a dismissal of the charges against him in the interest of justice, and Jose submits an affidavit supporting Jimmy’s application; Jose also moves for a dismissal of the charges against him in the interest of justice, and Jimmy joins in his application.
C. Should the District Attorney oppose either or both of those of those motions, should the D.A. consent to either or both applications, or should the D.A. take no position on either, and advise the judge that she is “leaving up to the sound discretion of the Court”?
Explain your answer.
D. How should the judge rule on each motion if the D.A. takes no position?
CJ 440
Question 14
Emmett is 17, living with Dolly, 17 in an upstairs apartment in a small city. Every 2 weeks or so, he drinks a 12 pack of Milwaukee’s Best. This time, he becomes angry and violent, throwing the dinner at Dolly, including her full cup of hot coffee. She has finally had enough, tells him off, grabs her coat, and heads for the door. He chases her, and catches her as she reaches the stairs. He grabs at her and she falls down the stairs, breaking her arm and 3 vertebrae in her neck.
Under the criminal law, he has committed the crime of felony assault (due to the broken vertebrae). You are the District Attorney in charge of the case. (A) Do you prosecute Emmett as an adult for the felony? Why or why not?
(B) Should he be prosecuted at all? Why or why not?
(C) Should he be referred to family court as a juvenile?
Why or why not?
(D) Would you agree to him going to drug court, with a favorable result if he completes successfully? Why or why not?
(E) Would you want him to go to a domestic violence court? Why or why not?
(F) With respect to (A), (B), and (C), what additional information, if any, would you want to know before making any decision?
2. This is a classic domestic violence case. Mary has a Protective Order directing that John stay away from her and her home, and refrain from any illegal acts against her, such as stalking, assault, menacing and reckless endangerment, and he is to have no contact with her by phone, text, email or social media. John is obsessed with Mary.
Everyday he posts on his Facebook page, in various poems, phrases and quotes from Hallmark cards, his true love for Mary.
Every month or so for about 2 years, Mary has an extra glass of wine, and starts to get the feeling she wants to see John one more time. As the alcohol takes effect and her inhibitions are reduced, she calls John and invites him over. He can tell she’s probably intoxicated, and he heads over to her place. They have a nice time for a while, then an argument starts over something minor. In a short time, they’re yelling and screaming, and the downstairs neighbor calls the police. John gets arrested for violating the court order.
You are the DA in a pretrial conference with the same judge who heard all previous cases. The judge is disgusted. You are disgusted. The defense counsel is nervous. You all want this nonsense to stop.
A. Would you consider having Mary arrested as an accomplice to the violation case because she initiated the contact? Explain your decision.
B. Would you tell the police not to arrest John if a similar situation occurs in the future? Explain your decision.
C. Would you consider just not prosecuting the case even if the police make an arrest? Explain your decision.
D. Is this a case for drug court for John or Mary or both? Why or why not?
E. Assuming John has served jail time for previous convictions, do you see any benefit to seeking jail time for the current case? Why or why not?
3. In ROPER v. SIMMONS, the U.S. Supreme Court held in a 5 – 4 decision that executing a minor for any crime was “cruel and unusual punishment” in violation of the 8th Amendment. Is there any situation which would justify capital punishment of any person before his or her 18th birthday? (Assume that capital punishment is appropriate for an adult for purposes of this question.)
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