MBE Tip: Dismissing Indictments

"Grant the motion to dismiss the indictment" is going to be a wrong answer in Crim Pro question. The police are going to do some very shady things. Even more shady than other questions (and they do some shady things in other questions), because the test writers want you to think the motion should be granted.

Don't grant it. Rather, the motion you should be considering is the later motion to suppress evidence at trial.

Double Jeopardy (Same Offenses)

Assume the following:

Offense 1: Elements A, B, C

Offense 2: Elements A, B, C, D Double Jeopardy requires not trying defendant for the same offense twice. Are these the same offenses? Yes. It may seem not with D in offense 2, but not in offense 1. But in order to be separate offenses there must be an element in each that is not in the other. There is no element in offense 1 that is not in offense 2. Consider a Venn Diagram. A, B, and C would fall within the intersection of the diagram, D would fall within the portion of a circle that only includes offense 2, and nothing would fall within the portion of a circle that only includes offense 1. Nothing falling only in the offense 1 circle is the tell that these are the same offenses (for this purpose).

MBE Trap: Indictments

MBE Trap:

If a Crim Pro question seems to be leading you in a definite direction ("huh, this one seems suspiciously easy") make sure to read carefully the call of the question. No matter how crazy the police act (no warrants, no miranda, no nothing), none of that matters if the call asks you whether the indictment should be dismissed. The Exclusionary Rule, to which all of the above will be very relevant, will keep a lot of evidence out of trial, but it won't affect whether the defendant will be indicted. Can indict a ham sandwich, and all that.

MBE Tip: Double Jeopardy

The Double Jeopardy Clause of the 5th Amendment states, in part, that no person shall be put in jeopardy for the same offense twice. Essential, then, is an understanding of what is meant by the same offense, because if two offenses are not the same offense, then double jeopardy does not apply. Offenses are the same offenses unless there is an element in each offense that is not in the other.

Example 1:

Offense 1
Elements: A, B, C

Offense 2

Elements: A, B, C, D

These offenses are the same offenses because, although there is an element in offense 2 that is not in offense 1 (element D), there is no element in offense 1 that is not in offense 2. 

Example 2:

Offense 1

Elements: A, B, C, D

Offense 2

Elements: A, B, C

These offenses are the same offenses because, although there is an element in offense 1 that is not in offense 2 (element D), there is no element in offense 2 that is not in offense 1. 

Example 3:

Offense 1

Elements: A, B, C

Offense 2: 

Elements: B, C, D

These offenses are not the same offenses because there is an element in offense 1 that is not in offense 2 (element A) and there is an element in offense 2 that is not in offense 1 (element D). 

The significance here is that only in examples 1 and 2 should double jeopardy be considered. In example 3, the offenses are not the same, so double jeopardy should not be considered. 

 

The Confrontation Clause

The Confrontation Clause is a topic that might show up in Criminal Procedure questions. Under this clause, prior testimonial evidence may not be admitted unless the declarant is unavailable and the defendant had an opportunity to cross examine the declarant at the time that the statement was made. An important consideration in all of these questions is to determine what is meant by "testimonial."

At a minimum, statements from a preliminary hearing, a grand jury proceeding, a former trial, or a police interrogation, are testimonial. Importantly, statements from a police interrogation intended to aid the police in responding to an ongoing emergency (911 calls, for example) are not testimonial. Those are likely among the most common non-testimonial statements tested in this area. 

Worth noting that if results of forensic lab tests are offered for proof of the matter asserted, such results are testimonial and inadmissible unless the person who did the testing is available for cross examination. 

This protection granted by the Confrontation Clause can be waived (or forfeited). A defendant is held to have forfeited a Confrontation Clause claim by wrongdoing. But not by all wrongdoing. Specifically, a Court will not find a forfeiture of the Confrontation Clause unless the wrongdoing was intended to keep the witness from testifying. So, for example, the fact alone that the defendant murdered a victim will not forfeit the defendant's right to not have a statement from the victim used against the defendant. But if the defendant murdered the victim with the intent that the victim would not then be able to testify against the defendant, forfeiture is proper. 

The 6th Amendment's Right to Counsel

Most of the Crim Pro questions on the MBE come from the 4th, the 5th, and the 6th Amendment. This post will focus on the applicable areas of the 6th Amendment's right to counsel.

The 6th Amendment guarantees the right to the assistance of counsel in all criminal proceedings. This right is guaranteed throughout all critical stages of a prosecution once formal charges have been filed. That's not an insignificant point to note for the MBE: only once formal charges have been filed do those 6th Amendment rights kick in (as opposed to the 5th Amendment as it relates to Miranda which applies even prior to the filing of formal charges.) The police must not elicit incriminating statements from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived the right to counsel. 

Specifically, a defendant has the right to counsel at the following stages of a prosecution: post-indictment interrogation; preliminary hearings to determine probable cause to prosecute; arraignment; post-charge lineups; guilty pleas and sentencing; felony trials; misdemeanor trials when imprisonment is imposed or when a suspended jail sentence is imposed; certain recesses during trial; appeals as a matter of right; and appeals of guilty pleas. 

Just as important is to know when the right to counsel does not apply. It does not apply at the following stages: blood sampling; taking of handwriting samples; pre-charge lineups; photo identifications; preliminary hearings to determine probable cause to detain; brief recesses during the defendant's testimony at trial; discretionary appeals; parole and probation revocation proceedings (this has been tested); and post-conviction proceedings. 

Because the 6th Amendment is offense-specific, it's possible that the 6th Amendment will attach regarding a specific charge, and yet not attach on unrelated uncharged offenses. Importantly, the 6th Amendment may be waived. Like all waivers, it must be be knowing and voluntary. If the 6th Amendment has not been waived and has been violated, then the failure to provide counsel in certain circumstances will require an automatic reversal of the conviction. Other violations of the 6th Amendment outside of trial (such as at a post-indictment interrogation) may be deemed harmless error which will not require reversal. 

As is true with the 5th Amendment under Miranda, a statement obtained in violation of defendant's 6th Amendment right to counsel may be used to impeach the defendant's contrary trial testimony. In other words, even a violation of the 6th Amendment does not preclude using the statement for that specific purpose. 

Search Incident to an Arrest vs. Automobile Exception

Both a search incident to a lawful arrest and the automobile exception are exceptions to the warrant requirement. Though similar, the MBE is far more likely to test the differences.

Search Incident to an Arrest:

A valid arrest requires among other things that it is based on probable cause to believe that a law has been violated. Incident to such an arrest, the police without a warrant may search the person arrested and areas into which that person might reach either to obtain weapons or to destroy evidence. It is sometimes said that as per this exception, the police can search the "wingspan" of the arrestee. Also allowable is a "protective sweep" of the area if the police believe that accomplices may be present.

Importantly, the search must be contemporaneous in time and place with the arrest. This requirement is applied rather broadly when the arrest occurs in an automobile. The police may search the interior of an automobile even after securing a recent occupant of the automobile if the police have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested.

Contemporaneous with an arrest for intoxicated drivers, police may administer a warrantless breath test to determine the arrestee's alcohol level. In contrast, to conduct a blood test will require a warrant. Police officers may also examine a person's cell phone upon arrest but that examination does not extend to the data on a cell phone. To examine the data will require obtaining a warrant to do so.

Once at the police station, the police can make an inventory search of the arrestee's belongings pursuant to department procedures. Inventory searches of impounded vehicles are also proper. 

The Automobile Exception:

One important distinction between the automobile exception and the search incident to an arrest is that with the automobile exception the police generally can search more of the vehicle. Specifically, if the police have probable cause to believe that a vehicle contains evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item they have probable cause to search. If the probable cause extends only to the containers then only the containers in the vehicle may be searched. If a search is valid under the automobile exception, the police may tow the vehicle to the station and search it later. The search of the vehicle may extend to packages belonging to a passenger; the search is not limited to packages belonging to the driver.

Plain View:

One last consideration that would apply both to the search incident to an arrest and to the automobile exception is the exception to the warrant requirement called "plain view." In both instances, the police can make a warrantless seizure if they are in a place they are legally entitled to be and if they have probable cause to believe that items in their plain view of sight are evidence of a crime. 

Manifest Necessity (Double Jeopardy)

The concept of double jeopardy is straight-forward enough.  The aim is to prevent prosecuting a person for the same offense twice. The questions testing this topic on the MBE can be difficult, though. And one term you should be sure to know in this context is "manifest necessity."

A verdict in the first case is not required for double jeopardy to apply. Sometimes, but not always, a mistrial will be the equivalent of a verdict. And whether a mistrial is the equivalent of a verdict will depend upon whether the first trial ended due to manifest necessity.

Importantly, if the first trial ends due to manifest necessity, then the mistrial will not act as a bar to a later prosecution on the same offense. In other words, double jeopardy will not apply. If the first trial does not end due to manifest necessity then the second trial on that same offense will be barred by double jeopardy. So, this idea of manifest necessity is essential in the analysis.

There are some common fact patterns on the MBE. If a defendant requests a mistrial and the judge grants it, this will almost always be considered manifest necessity and the defendant can therefore be retried later. If the judge decides that jurors have been unfairly prejudiced and that this prejudice requires that the trial be terminated, that termination will almost always be deemed to have been caused by manifest necessity and so once again double jeopardy will not act to bar the defendant from being retried. If, on the other hand, there is a mistrial because a necessary witness for the prosecution fails to appear then that mistrial is likely to be deemed not caused by manifest necessity and double jeopardy will likely bar the defendant from being retried on that same offense.

A question on the MBE had a judge granting a mistrial because a close relative of the judge died and the judge could no longer continue on as planned to hear the case. Courts here, in determining whether this amounts to manifest necessity, are likely to balance some factors. But on the MBE question, the court held that there was no manifest necessity for that mistrial (for example, the judge could have sought to have another judge appointed) and as such the double jeopardy clause barred a second trial. The defendant could not be retried on that offense.

MBE Fast Fact: Cruel & Unusual Punishment

Regarding Criminal Procedure, by far the most important amendments to understand well for the MBE are the 4th, 5th, and 6th.  But every test has its curveballs and you could likely see questions on the 8th Amendment's prohibition against cruel and unusual punishment as well.

It's tough to pin down exactly what is meant by "cruel and unusual" but a helpful definition defines it as punishment that is grossly disproportionate to the seriousness of the crime committed.  Here are some important points to keep in mind that apply this principle:

--After a conviction for murder, the death penalty can be imposed only under a statutory scheme that gives the the judge or jury enough information and guidance in making the decision.  The statute cannot be vague and all mitigating evidence must be considered.

--The death penalty cannot be imposed for the crime of rape if the rape was neither intended to result nor did result in death.  In addition, the death penalty will not be imposed upon one convicted of felony murder unless the felony murderer acted with reckless indifference to the value of human life.

--A prisoner cannot be executed if the prisoner is insane at the time of execution, even if the prisoner was sane at the time that the crime was committed.

--The death penalty cannot be imposed upon a person who is intellectually disabled.

--Execution of those who were under 18 at the time they committed the offense violates the 8th Amendment.  Similarly, a mandatory life imprisonment without the possibility of parole on a person who was a minor at the time the offense was committed would be cruel and unusual pubishment.

MBE Fast Fact: The Right to a Speedy Trial

Though not tested all that frequently in Criminal Procedure questions, the right to a speedy trial is tested enough that I recommend knowing a couple of key points here. This right attaches once a person has been formally accused of a crime by the government. If the right is violated, the result will be a complete dismissal of the charges against the accused. There is a balancing test that courts use to determine whether the right has been violated. Consider the following factors in any question testing the right to a speedy trial:

--The length of the delay
--The reason for the delay
--The defendant's assertion of his or her right to a speedy trial
--The prejudice to the defendant resulting from the delay.

Regarding that last factor, there are quite a few ways that defendant might be prejudiced by the delay.  Perhaps evidence is lost and the loss is caused by the delay. In addition, an undue delay might cause witnesses to be less able to recollect facts that will form the basis of testimony.  Even excess anxiety caused to the defendant resulting from the delay will suffice.

Confessions of Co-Defendants

A tricky issue that shows up on the MBE in the area of Criminal Procedure relates to whether the confession of one co-defendant that implicates the guilt of the other co-defendant can be used as substantive evidence as to the guilt of the non-confessing co-defendant.

This issue comes up because as per the 6th Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. And if two people are tried together and one has given a confession that implicates the other, the non-confessing defendant cannot compel the confessing defendant to take the stand for cross-examination, and so admitting the confessing defendant's statements against the non-confessing defendant would violate the 6th Amendment rights of the non-confessing defendant.

There are, however, exceptions in which the confession of one co-defedant that implicates another co-defendant will be admissible. Such a confession will be admissible if all portions referring to the non-confessing defendant can be eliminated from the confession. Further, the confession will be admissible if the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of the confession. Finally the confession is admissible if both defendants have confessed, and the prosecution wants to admit the confession of one co defendant as a means of rebutting the claim that the confession of the other co-defendant was obtained coercively. For this last exception, the jury must be informed that the confession should only be used for this specific purpose.

The Top Five: The Privilege Against Self-Incrimination

We're just a few weeks away from the July exam. Here are five things to know going into the exam about the privilege against self-incrimination:

(1): A person may assert the privilege against self incrimination in any proceeding in which an answer to a question might tend to incriminate him. Any answer choice which limits the privilege to criminal cases is incorrect.

(2): Though the privilege can be waived, it is not waived merely by taking the witness stand. The privilege, however, must be claimed in a civil proceeding to prevent the privilege from being waived in a later criminal prosecution.

(3): The privilege may only be claimed by natural persons. An answer choice on the exam that purports to allow the privilege for corporations or partnerships is incorrect.

(4): Only a criminal defendant can use the privilege to avoid taking the witness stand. For all others, the privilege does not permit a person to avoid taking the stand; instead, the person must take the stand, listen to the question, and then invoke the privilege.

(5): This privilege only applies to testimonial or communicative evidence rather than real or physical evidence. In other words, one cannot claim the privilege against self-incrimination to avoid producing documents (as part of discovery) that might tend to incriminate, as such documents are not considered to be testimonial, and are therefore not covered by the privilege.

Cell Phones and the 4th Amendment

The Supreme Court will hear arguments this week as to whether the police should be required to obtain a search warrant prior to searching the cell phone of a person under arrest. Much will likely depend upon whether the arrestee has a reasonable expectation of privacy in the data contained within the phone. And similar issues are likely to show up on the MBE.

To have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the item seized. Whether a person has a legitimate expectation of privacy has traditionally been determined by examining the totality of the circumstances, including whether the item seized was owned by the person from whom it was seized. The Supreme Court has ruled that individuals generally maintain a reasonable expectation of privacy in their bodies, clothing, and personal belongings. In contrast, no expectation of privacy is maintained for property and personal effects held open to the public.

There are two components to analyze: the first is subjective, and the second objective. Specifically, it must be determined whether the person claiming a Fourth Amendment violation subjectively expected that the item seized, and the information therein, would remain private. But a subjective expectation of privacy is not enough; it's also required that the expectation of privacy held by that person be objectively reasonable.

I'm probably better at assisting students to prepare for the bar exam than I am at predicting Supreme Court cases, but I'll go ahead and predict that a cell phone will be deemed an item of property that can be searched only upon obtaining a valid warrant from a neutral magistrate who grants permission to conduct the search.

MBE Fast Fact: Delinquency Proceedings

The rights of the accused is a common topic for MBE questions in the subject of Criminal Procedure, and that topic includes the rights of juveniles. Though there isn't all that much to know on this topic, the following is important in preparing for potential questions:

A child is entitled to the following rights during a delinquency proceeding:

--Written notice of the charges with sufficient time to prepare a defense.

--The assistance of counsel. A child is entitled the same 6th amendment rights as an adult.

--The opportunity to confront and cross-examine witnesses.

--The right not to testify if testifying might subject the child to self-incrimination.

--The right to have guilt established beyond a reasonable doubt.

On the opposite end, it's important to note that the Supreme Court has held inapplicable to delinquency proceedings the right to trial by jury.

MBE Fast Fact: Arrests

An interesting issue that comes up in Criminal Procedure questions involves the police following the defendant into his home after an arrest, and then seizing evidence found in the home using as the rationale an exception to the warrant requirement such as the Plain View Doctrine. The twist here is that generally the police need a warrant to enter the home, and so if the police are not in the home legally, then the Plain View Doctrine does not apply, and any evidence seized as a result of the illegal entry could be suppressed at trial.

But the result is otherwise. It is well established that the police may accompany the defendant into the home following his arrest so that the defendant may obtain identification, retrieve his belongings, etc. Once inside the home, certain safety precautions can be employed by the police. So, for example, if the defendant after his arrest is accompanied by an officer and the officer looks in the closet prior to allowing the defendant to retrieve clothing, the Plain View Doctrine will apply if the officer then views evidence of a crime. The evidence is admissible even though the officer did not have a warrant to enter the home.

There are important limitations here, however. The officer would not have reasonable grounds for doing a protective sweep (ie., looking throughout) the entire home unless the officer had reasonable and articulable suspicion that accomplices were hiding throughout the home and might pose a danger.

The Fourth Amendment is all about balancing the rights of the accused with the need for effective law enforcement. The questions can get very tricky but, as always, learn from each question the relevant rule of law, as you can be sure it'll be tested again.

MBE Fast Fact: Speedy Trial

The right to a speedy trial is far from the most common issue tested within Criminal Procedure questions. But it does come up, and the best way to analyze these questions (in determining whether the right has been violated) is a strict analysis of the elements. The questions that do pop up often deal with whether so long a period has elapsed between arrest and indictment that the defendant's right to a speedy trial has been violated. The elements in determining whether a delay amounts to a constitutional violation are as follows:

(1): The length of the delay

(2): The good faith and justification for the delay

(3): Whether the defendant has asserted his/her right to a speedy trial

(4): Prejudice to the defendant caused by the delay


The above elements should all be considered in balancing whether the delay was unreasonable, and therefore unconstitutional. The MBE requires definite answers, so if a question requiring the above analysis were to show up, it's likely that the balance will lie heavily one way or the other.

MBE Fast Fact: Separate Sovereigns

What exactly is meant by "separate sovereigns" as the term is used in the context of Double Jeopardy questions? The Fifth Amendment to the U.S. Constitution provides, in part, the following:

"No person shall be subject for the same offense to be twice put in jeopardy of life or limb."

In any Double Jeopardy question on the MBE, it's important to first determine whether the defendant is being tried for the same offense twice, and whether the first case was decided on the merits. If both elements are satisfied there is an issue of Double Jeopardy to consider.

But another focus should be to determine whether there are separate sovereigns involved. For example, the Fifth Amendment does not prevent a defendant from being tried in federal court for an offense even if the defendant has been acquitted in state court. Nor does Double Jeopardy prevent a defendant from being tried in state court if the defendant has been acquitted in another state. Similarly, if defendant is tried in a court outside of the federal power (for example, a Tribal Court), this, too, will not prevent a subsequent case in federal court concerning the same offense.

Something to think about when these types of questions pop up.

Grand Juries

The following was e-mailed to me by a reader of the blog:

"What should we know about grand juries for the MBE?"

Response:

Not too much actually. You should know the purpose of grand juries, and the distinctions between a grand jury proceeding and a trial.

The idea here is that defendants accused of federal felonies, and some state-court defendants as well, are entitled to a grand jury indictment. Before going to trial there has to be a determination as to whether there is probable cause to prosecute, and that determination will be made (when applicable) by a grand jury. If the grand jury determines there is enough evidence, and therefore finds probable cause to prosecute, an indictment will be issued.

For the MBE, you should note that the 5th Amendment right against self-incrimination does apply to grand juries, but there is no 6th Amendment right to an attorney (formal charges have not yet been filed at this point,) and the exclusionary rule does not apply (even illegally obtained evidence can be used). In addition hearsay is allowed during a grand jury proceeding.

Note also that there is no right to confront adverse witnesses during a grand jury proceeding, and, as such, no right to cross-examination. Without that right of cross examination (or developing the witness's testimony,) testimony provided at a grand jury proceeding cannot be used for the purposes of the former testimony exception to the rule against hearsay during trial.

Sentencing

The following question was asked by a reader of the blog:

I know there are some differences between the sentencing and the trial, but what should we know for the MBE?

Response:

There are some differences to keep in mind certainly, along with some similarities. As during trial, defendant has a right to effective counsel. An important difference here is that a defendant does not have a 6th Amendment right to confront adverse witnesses during sentencing which means that there is no right to cross-examination, and the sentence may even be based on hearsay. Note, however, that a defendant in a death penalty case must have more opportunity for confrontation than is otherwise required in sentencing proceedings for non-capital cases.

You should also note that if a judge imposes a greater sentence on appeal than was imposed during the initial trial, the judge will, generally, need to set forth in the record the reasons for the harsher sentence. This ensures that defendant has not been penalized for exercises his right to appeal.

MBE Fast Fact: Informants

The MBE writers can go a few ways when testing how informants influence the validity of a search warrant. In other words, warrants are issued if there is probable cause to believe that evidence will be found on the person or premises at the time the warrant is executed. An affidavit is submitted by the police to the magistrate setting forth circumstances allowing the magistrate to determine if this standard has been satisfied. But what if the information on the affidavit is entirely the result of information learned from an informant, and one whose credibility is questioned?

In fact, an affidavit can be sufficient even though the informer’s credibility is questioned, provided that the totality of the circumstances indicate that the affidavit presents reliable and credible information.

Note also that there is no requirement that the informer’s identity be revealed.