Exam guide for Psychology

CHAPTER SIXSEARCHES FOR EVIDENCE

MULTIPLE CHOICE

1. According to Supreme Court Justice Robert H. Jackson, Chief prosecutor at the Nuremberg Trials appointed by President Truman:I. uncontrolled searches and seizures are one of the first and most effective weapons of every arbitrary government.II. the right against searches and seizures is one of the most difficult to protect.III. the Fourth Amendment should be placed in a “deferred” instead of the “preferred” position by the Court.IV. Americans do not fully appreciate the importance of the Fourth Amendment protection.

a. I, II, IVb. II, IVc. I, IIId. III

ANS: A REF: 178 OBJ: 1

2. The Fourth Amendment particularity requirement for search warrants:a. does not require a specific address of the place to be searched, but the items to be

seized must be specifically describedb. requires that the warrant specifically describe the place to be searched and the

things to be seized.c. requires a specific address but gives police the discretion to search for whatever

they might consider incriminating evidenced. requires police to describe in detail their reasons for requesting a search warrant

ANS: B REF: 179 OBJ: 1

3. Which is true about containers?a. They can only be searched with probable cause and a warrant.b. No warrant is ever needed to search them, if there is probable cause to do so.c. No warrant is needed if the container is found in a car the police have probable

cause to search, and the container is a likely place where the items searched for may be found.

d. No warrant is needed if the container is found in a vehicle the police have probable cause to search, regardless of the nature of the container.

ANS: C REF: 220 OBJ: 8

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4. According to the Court of Appeals decision in United States v. Rodney:a. consent to search a person includes consent to frisk the groin area.b. consent to search a person does not include consent to frisk the groin area.c. consent to search a person includes consent to frisk the groin area only if police

specifically ask for such.d. consent to search a person includes consent to frisk the groin area as long as the

police have no reason to believe the suspect will object to such on religious grounds.


5. The following are all examples of emergency search situations except:a. following a suspect they are chasing into a home.b. searching crates off a boat after the police have received word that a shipment of

drugs will be contained in the crates.c. entering and searching a house when police have received a call for help from

someone in the house.d. entering a house on fire to search for anyone potentially inside.


6. The reasonableness of searches pursuant to search warrants depends on I. the existence of probable cause. II. the extent of the search.III. the particularity of the warrant.IV. the manner in which the police enter the place to be searched.

a. I, III, IVb. I, II, III, IVc. I, II, IVd. II, III, IV


7. In Wilson v. Arkansas, the Supreme Court unanimously decided that:a. the Fourth Amendment prohibits all “no-knock” entries.b. the Fourth Amendment does not prohibit “no-knock” entries.c. the police are never required to follow the rule of announcement when executing a

search warrant.d. ordinarily, the Fourth Amendment requires police knock and announce.

ANS: D REF: 180 OBJ: 2

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8. Generally, no-knock entries to execute search warrants are permitted if certain conditions exist. These conditions include:I. the suspect in the crime owns the place to be searched.II. a situation where the suspect might easily destroy evidence.III the seizure involves more than one suspect.IV. an announced entry would endanger the officers' safety.

a. I, IIIb. I, II, III, IVc. IVd. II, IV


9. The three countervailing law enforcement interests against “no-knock” entry requirements identified by Justice Thomas in Wilson v. Arkansas include:

I. safety of officers.II. safety of occupants.III. escape of prisoner.IV. destruction of evidence.

a. I, II, III, IVb. I, IIc. II, IVd. I, III, IV

ANS: D REF: 180-181 OBJ: 2

10. Exceptions to the search warrant requirement exist because:I. the clear rule that warrants are required is unworkable.II. officers become frustrated with the delay that getting a warrant involves.III. to enforce the requirement would lead to the exclusion of evidence in cases where police activity was reasonable.IV. they are specifically approved by the United States Constitution.

a. II, III, IVb. II, III, IVc. I, III, IVd. I, II, III

ANS: D REF: 184-185 OBJ: 2

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11. Which of the following government interests are protected by the rule that searches incident to arrest are reasonable?I. the interest in protecting law enforcement officersII. the interest in preserving evidenceIII. the interest in the suspects reasonable expectation of privacyIV. the interest in preventing the escape of suspects

a. I, II, III, IVb. Ic. I, IId. I, II, IV


12. According to the Supreme Court in Chimel v. California, involving the search of a house incident to an arrest for burglary of a coin shop:

a. it is not reasonable to search a person who is lawfully arrested.b. it is not reasonable to search an entire house incident to a lawful arrest of someone

there.c. the Fourth Amendment does not protect searches incident to lawful arrests.d. police must always have search warrants to search persons.


13. Under the holding in Chimel v. California (1969), a leading Supreme Court case on searches incident to arrest, the police must limit a thorough search incident to arrest to:

a. the arrestee's person (body and clothing).b. the arrestee's person and the area within his immediate control.c. the arrestee's person and the room in which he is arrested.d. the arrestee's person and the house or apartment where he is arrested.


14. According to the Supreme Court in New York v. Belton, involving a search of the passenger compartment of a car and its contents incident to an arrest:a. police may always search if they have probable cause to do so.b. officers must have probable cause to search the passenger compartment.c. when a police officer has made a lawful custodial arrest of the occupant of an

automobile a contemporaneous search of the passenger compartment is incident to the arrest.

d. officers may search containers found in the passenger compartment if they have reasonable suspicion the containers hold contraband or weapons.


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15. In U.S. v. Robinson (1973), the police had stopped the defendant for driving with a revoked driver's permit. The Supreme Court's ruling with respect to the legality of the search of the defendant is important because it held that:

a. a search incident to arrest may be conducted only where there is probable cause that the arrestee has weapons or evidence on his person.

b. a search incident to arrest may be conducted only where there is reasonable suspicion.

c. a search incident to a full custody arrest may be conducted regardless of the likelihood of finding weapons or evidence on the arrestee's person.

d. a search may not be conducted incident to an arrest for a traffic offense.

ANS: C REF: 194-195 OBJ: 4

16. In Knowles v. Iowa, concerning an instance where a driver had been given a citation for speeding but had not been arrested, the Supreme Court:

a. said that the officer issuing the citation could still do a search incident to arrest.b. believed that the same concern for officer safety that was present in a full custodial

arrest situation was present in every traffic stop.c. said that police could not automatically do a search incident to arrest when only a

citation is given the driver, as opposed to when an arrest occurs.d. said the police could automatically do a search incident of the driver’s person, but

not of the vehicle.


17. Concerning pretext searches:I. they are powerful investigative tools that police use to gather evidence against

suspects.II. they are used with searches incident to arrest.III. officers using them usually have probable cause to arrest for some felony.IV. the Supreme Court has decided that they do not violate the Fourth Amendment.

a. I, II, III, IVb. I, IIc. I, II, IVd. I, IV

ANS: D REF: 197 OBJ: 3-4

18. According to the Supreme Court’s decision in Whren v. U.S, concerning the use of a pretext arrest in a drug search:

a. pretext arrests violate the Fourth Amendment.b. courts should use a “balancing” test to decide the constitutionality of auto stops.c. a search incident to a lawful arrest for a traffic violation is a reasonable Fourth

Amendment search.d. pretext stops and searches incident to them should be kept at a minimum.


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19. Police ordinarily seek consent to search:a. when they do not have probable cause and cannot get a warrant.b. after a judge has refused to issue a warrant.c. when they think the person is intoxicated.d. when they are dealing with teenagers.


20. In order to conduct a consent search of a person, an officer must haveI. probable cause to believe the suspect has seizable items on his person.II. a valid warrant.III. reasonable suspicion to make a stop.IV. voluntary consent to search.

a. I, IVb. I, IIc. III, IVd. IV


21. According to the waiver test of consent:a. any search free of coercion is obtained by consent.b. those who consent need to know they have a right to refuse consent.c. once a person consents, they cannot retract their consent.d. a consent search is valid only if the person consenting voluntarily and knowingly

waives her Fourth Amendment rights.


22. According to the empirical research about consent searches:a. lower courts find that consent was voluntary in all but the most extreme cases .b. lower courts are very willing to set consent searches aside when they find they

were not voluntaryc. there are so few consent search cases that courts have had little opportunity to rule

on the issued. judges are skeptical of consent searches and critical of the police in their opinions


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23. According to the Supreme Court opinion in Schneckloth v. Bustamonte, involving a search of a car obtained by consent:I. the question of whether consent was voluntary is a question of fact to be

determined by the totality of all the circumstances.II. the government need not prove that citizens know they have a right to refuse

consent.III. probable cause is required to conduct consent searches.IV. consent searches can only be conducted if it is inconvenient to get a warrant.

a. I, II, III, IVb. I, II, IVc. I, IId. III, IV

ANS: C REF: 202-205 OBJ: 6

24. The major issue of contention between the Supreme Court majority opinion and the dissenting opinion in Schneckloth v. Bustamonte, the case involving the consent search of the defendant's car, was:

a. whether consent to search was actually obtained by the officers.b. whether the initial stop of the defendant's car was lawful.c. the coercion of the defendant to obtain the consent.d. whether the police must inform a suspect of her right to refuse consent to a consent

search.

ANS: D REF: 202-205 OBJ: 5

25. Concerning the scope of consent searches:I. consent searches are unreasonable if they exceed the scope of the consent.II. consent searches are unreasonable if they exceed the apparent authority of the

person giving the consent.III. the test to determine the reasonableness of a consent search is based on the

totality of the circumstances.IV. the test to determine the reasonableness of a consent search is whether the officers

reasonably believe that the search is within the scope of consent obtained.a. I, II, III, IVb. I, IIIc. I, II, IVd. III


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26. Who among the following can give consent for a third person?I. parents for their minor children.II. roommates, consenting to searches of the common areas, for those who share

apartments with them.III. wife consents to a search of house she shares with spouse.IV. janitor consents to a search of his suspect employer’s premises.

a. I, II, III, IVb. I, II, IIIc. II, IVd. I

ANS: B REF: 213-215 OBJ: 6

27. Concerning third party consent to search, in which of the following situations can one person consent to a search for the other person?

a. a janitor consenting to the search of the employer's premisesb. a school administrator consenting to the search of a guidance counselor's locked

desk containing confidential recordsc. a factory owner consenting to a search of items on top of an employee's workbenchd. a landlord consenting to the search of a tenant's apartment

ANS: C REF: 213-215 OBJ: 6

28. In Illinois v. Rodriguez (1990), the police conducted the consent search of the suspect's apartment based on the consent of the suspect's former girlfriend. According to the Supreme Court's opinion:

a. third party consent cannot be used to enter a person's home whether to make an arrest or search.

b. the third party giving consent to search must have actual authority over the premises.

c. the warrantless entry to search based on third party consent is valid if the officer reasonably believes that the person consenting had authority to consent.

d. search completed pursuant to an officer's reasonable but mistaken belief that a third party had authority to consent violates the Fourth Amendment.

ANS: C REF: 215-217 OBJ: 6

29. Regarding consent searches:I. they require probable cause.II. they may be authorized by persons other than the owner of the property searched.III. the scope of the search may be limited by the person consenting.IV. according to recent case law, the consent to search may be withdrawn at any time.

a. I, II, III, IVb. II, III, IVc. II, IIId. III

ANS: B REF: 200-201 OBJ: 5

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30. Police officers at the scene of a fire:I. do not need a warrant to remain in a burned building to look for injured victims.II. do not need a warrant to remain in a burned building to investigate the cause of

the fire or explosion.III. must get a warrant to search for evidence of crime once they determine the cause

of the fire.IV. can search suspicious onlookers without a warrant.

a. I, II, III, IVb. I, II, IIIc. I, IIId. IV


31. The vehicle exception to the warrant requirement is based upon:I. the inherent mobility of the vehicle.II. the impracticality of impounding the vehicle and getting a warrant.III. convenience of the police.IV. the reduced expectation of privacy in vehicles.

a. I, IIb. I, IVc. II, IIId. II, IV

ANS: B REF: 219-220 OBJ: 7

32. In Wyoming v. Houghton, concerning the search of a passenger’s purse for drugs based on probable cause that drugs are in the vehicle, the U.S. Supreme Court declared that:

a. if police know or should know that a passenger owned the purse they cannot search it.

b. the passenger can prevent the search by identifying the container as his or her’s.c. the police must seize the purse or other container until they get a search warrant.d. the police may inspect passengers’ belongings that are capable of concealing the

object of the search.

ANS: D REF: 221-223 OBJ: 8

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33. Which of the following items may be considered containers for purposes of Fourth Amendment searches without warrants?I. a brown paper bagII. a small briefcaseIII. a sport duffel bagIV. a backpack

a. I, II, III, IVb. II, III, IVc. IId. II, IV

ANS: A REF: 220-221 OBJ: 8

34. If the police come across containers and believe that the containers contain evidence of crime:I. they can briefly detain the containers to prevent their loss or destruction.II. they can search them without a warrant or probable cause.III. they may seize and search containers when they have probable cause to believe

the containers in vehicles contain evidence of crime.IV. they cannot seize or search a closed opaque container without a search warrant.

a. I, II, III, IVb. I, IIIc. II, IIId. IV


35. In Arizona v. Gant (2009), the Supreme Court ruled:a. when a police officer makes a lawful custodial arrest of an occupant of an

automobile, he may always search the passenger compartment.b. police may search a vehicle incident to an occupant’s arrest only if the arrestee is

within reaching distance of the passenger compartment at the time of the search or it’s reasonable to believe the vehicle contains evidence related to the offense of arrest.

c. police may search a vehicle’s passenger compartment incident to a lawful custodial arrest of an occupant if they have probable cause to search.

d. police must rely on inventory searches in order to search the passenger compartment of a vehicle.

ANS: B REF: 189-191 OBJ: 8

TRUE/FALSE

1. A search warrant must specifically identify “the things to be seized.” This particularity requirement may not be met by specifying an entire class of items.

ANS: F REF: 179 OBJ: 1

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2. Law enforcement officers often prefer searches without warrants because of the time or effort it takes to get a warrant issued.

ANS: T REF: 184 OBJ: 1

3. The scope of a search incident to arrest includes the entire place where the suspect is arrested.


4. When a suspect is arrested in a car or other vehicle, police as part of the search incident to the arrest may search the vehicle’s trunk


5. The Fourth Amendment does not prohibit all “no-knock” entries.


6. The knock-and-announce rule’s origins come from English common law.


7. Most searches take place pursuant to warrants.


8. The reasonableness of a search pursuant to a search warrant does not depend on the manner in which the police enter the place which the warrant authorizes them to search.


9. Concerning arrests for minor crimes, the Supreme Court has decided to leave to police discretion whether suspects ought to be searched incident to their arrest.


10. Subjective intentions of the police play an important role in ordinary, probable cause Fourth Amendment analysis.


11. The voluntariness test for deciding when a citizen has given lawful consent to search reflects a balance between the competing concerns of lawful enforcement’s need for consent searches and citizens’ right to be free from police coercion.


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12. Frustration with the amount of time and effort it can take to get a warrant often tempts police to avoid the Fourth Amendment’s warrant requirement.


13. If police officers have probable cause to search and they reasonably believe that evidence is in imminent danger of destruction, they can search without a warrant.


14. The expectation of privacy that people have in their briefcases, purses and luggage is less than the expectation of privacy that they have in their homes, but greater than the expectation they have in their vehicles.


15. After a police officer issues a stopped motorist a citation for a traffic offense, the officer can search the stopped car without the motorist’s consent.


COMPLETION

1. The law of searches involves a three-step analysis. The first question in this analysis is “_________________________________?”

ANS: was the government action a search REF: 179 OBJ: 1

2. The second question in the law of searches analysis asks whether ____________.

ANS: the search was reasonable REF: 179 OBJ: 1

3. The third question in the law of searches asks “__________________________?”

ANS: if the search was unreasonable, should the evidence be excluded

REF: 179 OBJ: 1

4. Voluntary and knowing searches require neither a warrant nor probable cause.

ANS: consent REF: 201 OBJ: 5

5. The exigent circumstance constituting the need to apprehend a fleeing suspect is ______.

ANS: hot pursuit REF: 224 OBJ: 9

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6. A test in which the totality of circumstances is used to determine whether a consent to search was obtained without coercion, deception or promises is the ______________ test.

ANS: voluntariness REF: 201 OBJ: 5

7. A arrest occurs when an officer uses a legal justification to stop a vehicle to search for evidence of an unrelated serious crime for which he did not have the probable cause necessary to support the stop.

ANS: pretext REF: 188 OBJ: 7

8. The vehicle or automobile exception is an exception to the requirement that police have ________ before conducting a search.

ANS: a warrant REF: 219 OBJ: 7

9. The requirement that search warrants have to “particularly describe the place to be searched” is known as .

ANS: the particularity requirement REF: 179 OBJ: 1

10. The area of arrested persons themselves and the area under their immediate control is called the ______________.

ANS: grabbable area REF: 187 OBJ: 4

ESSAY

1. Identify three exceptions to the “knock and announce” rule.

There are several exceptions to the “knock and announce” rule. The first is where knocking and announcing would reasonably present a threat of physical violence to the officers executing the warrant. The second is where the officers are in “hot pursuit” of a person who retreats into his dwelling. The third is where police officers have reason to believe that knocking and announcing will result in the destruction of evidence they were coming to search for.

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2. What’s the rule regarding searches incident to arrests for minor offenses? Describe how and why the U.S. Supreme Court created and applied the rule in U.S. v. Robinson.

In United States v. Robinson, the U.S. Supreme Court held that police officers could do a search incident to a lawful arrest of anybody whom they will be placing under a full custodial arrest, regardless of the seriousness of the offense. Thus, the rule applies to felonies, misdemeanors and other minor offenses. The Court decided that police needed a “bright line” rule to follow given the quick on-the-spot judgments they must make in a particular situation. If police had to calculate every time they arrested somebody whether the person likely posed a danger or whether the offense for which the person was arrested was one which might turn up evidence by a search incident, that could create too much uncertainty for police officers. Instead, the “bright line” Robinson rule was created mainly for two reasons. The first reason was the possible danger to police officers whenever they take suspects into custody for whatever offense. The second reason was the logical impossibility of the courts reviewing every police decision whether a search incident was justified by danger to the officers, risk of escape, or risk of destruction of evidence.

3. Describe a search incident to a pretext arrest, and explain its significance.

A pretext stop or arrest occurs when police officers use the objective basis for one event, commonly a traffic offense, as a means to do a search and/or an investigation for a more serious crime that the officers believe the stopped individual may have committed but for which they do not have probable cause.

For example, police officers may believe that someone has drugs in their car. However, they do not have probable cause to search the car for drugs. The police could follow the car until the driver commits a traffic violation and then stop the car for this. If the state law allows, they could then arrest the driver for the violation and conduct a search incident to lawful arrest of the car’s interior, pursuant to Belton. If the search turns up drugs, then the driver will be arrested for that more serious offense.

4. Give examples of who can consent to a search for someone else. Explain the difference between actual and apparent authority to consent for another person.

The law gives examples of situations where one person can consent to a search for someone else. (1) One lover consents to a search of the room shared with the other lover. (2) One roommate consents to a search of an entire apartment shared with another roommate. (3) A homeowner consents to a search of a room that a house guest occupies. (4) A joint user of luggage consents to a search of the shared luggage. (5) A high school principal consents to a search of a high school student’s locker. (6) A factory manager consents to a search of items on top of an employee’s workbench.

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Actual authority to consent for another person exists when in fact one person has legal authority to consent for someone else to a search by police of the other person’s house or possessions.

Apparent authority exists when one person does not in fact have legal authority to consent to police searching another’s house or possessions but, based on the circumstances, the police reasonably believe that the consenting person does have the actual authority.

5. Identify four emergency searches, and describe why each falls under the exception to the warrant requirement.

Emergency searches in general do not require warrants based on the concept that it is sometimes impractical, and maybe even dangerous, to require police to obtain warrants before the search. Four general examples of emergency searches are to prevent destruction of evidence, to prevent the escape of a fleeing suspect, to deal with a potential immediate danger to the community, and to ensure officers’ safety.

The first two do not require warrants because it would be impractical to require them. The last two do not require warrants because of safety considerations.

CHAPTER FIVESEIZURES OF PERSONS: ARREST

MULTIPLE CHOICE

1. Stops differ from arrests in that:I. they occur in public places.II. they are shorter in duration.III. they always lead to a frisk or more invasive search.IV. they produce written records of the police action.

a. I, IIIb. II, IVc. I, IId. II, III


2. When an official takes a person into custody and holds him for anywhere between a few hours to a few days to answer for a criminal charge, the official has conducted:

a. a stop.b. a detention.c. a custodial arrest.d. imprisonment.


3. Whether Fourth Amendment seizures are stops or arrests depends on:

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I. duration.II. invasiveness.III. location.IV. officer’s subjective intent.

a. I, II, III, IVb. I, II, IIIc. I, IId. II, IV


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4. Which of the following hardships are characteristic of an arrest?I. It may last for hours or even days.II. It produces written documents that become part of a person's record.III. It can produce fear and anxiety that are an emotional stress on the suspect.IV. It can interfere with the suspect earning a living.

a. I, II, IIIb. I, II, III, IVc. I, IId. II, III


5. Probable cause to arrest:I. requires enough facts to lead a police officer to the reasonable belief that the

person arrested has committed a crime.II. is a subjective standard.III. involves the subjective belief of the police officer making the arrest.IV. is an objective standard.

a. I, I, IIIb. I, IVc. II, IIId. I


6. According to the Supreme Court opinion in Draper v. U.S., involving the warrantless arrest of a suspect for transporting illegal drugs, based on an informant's information:I. hearsay is not legally competent information and can never be used to determine

probable cause.II. hearsay information alone can always be used to establish probable cause.III. hearsay information verified by the officer's own observations amounted to

probable cause to arrest Draper.IV. hearsay information verified by the officer's own observations amounted to

reasonable suspicion to stop Draper but not probable cause to arrest him.a. II, IIIb. II, IVc. IIId. I

ANS: C REF: 144-145 OBJ: 6

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7. According to the Supreme Court in Draper v. U.S., involving a narcotics arrest based on an informant's description of a suspect:

a. hearsay cannot be used to determine probable cause.b. magistrates must determine probable cause before officers make arrests.c. police officers must have warrants in order to make arrests.d. hearsay can be used to determine probable cause.

ANS: D REF: 144-146 OBJ: 6

8. Probable cause deals with:a. hunches and suspicions.b. an exact degree of probability.c. factual and practical considerations of everyday life.d. having a specified number of facts


9. Which of the following firsthand facts and circumstances may an officer use to develop probable cause to arrest a suspect?I. furtive movements by the suspectII. an attempt by the suspect to destroy evidenceIII. evasive answers by the suspectIV. the suspect resisting the officer

a. II, IVb. I, II, III, IVc. I, II, IIId. I, III


10. Which of the following types of information do courts refuse to accept alone as sufficient information to establish probable cause to arrest?I. anonymous tipsII. victim informant's informationIII. direct information of officersIV. citizen informant's information

a. Ib. I, IVc. I, II, IVd. I, II, III, IV


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11. In building probable cause, police officers may rely on what they:I. see.II. hear.III. smell.IV. taste.

a. I, IIb. I, II, IIIc. I, II, IVd. I, II, III, IV


12. In building probable cause, police officers may rely on:I. direct informationII. hearsayIII. corroborated anonymous tipsIV. tips from informants

a. I, IIb. I, II, IIIc. Id. I, II, III, IV

ANS: D REF: 142-144 OBJ: 6

13. Examples of direct evidence that police can use to build probable cause include:I. tip from a reliable informant.II. DNA profile.III. suspect fleeing an officer.IV. suspect making furtive movements.

a. II, III, IVb. III, IVc. IId. II, III

ANS: A REF: 142-143 OBJ: 6

14. Arrests involve which of the following characteristics?I. short in durationII. need probable cause to support themIII. usually involve removal to a police stationIV. are followed by HIV testing

a. Ib. II, III, IVc. III, IVd. II, III


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15. The majority of arrests:a. do not require a warrant to make the arrest reasonable as long as there is probable

cause to arrest.b. require a warrant based on probable cause.c. occur in the home but still do not require a warrant.d. occur after stops and frisks


16. In regard to seizures, the Supreme Court in Payton v. New York held that the Fourth Amendment:a. requires an arrest warrant to enter a home in exigent circumstances.b. requires an arrest warrant to enter a home when officers are in hot pursuit.c. usually requires a warrant to enter a private home to arrest a citizen.d. requires a warrant to arrest a suspect in a public place.


17. The case of Payton v. New York (1980) dealt with the authority of police to make arrests at a suspect's home. The United States Supreme Court held that a police officer ordinarily: I. may enter into a suspect's home under any circumstances to make an arrest with

or without a warrant.II. may enter into a suspect's home without an arrest warrant to make an arrest if the

arrest is for a felony.III. may make an entry into the home of a suspect to make a warrantless arrest if there is evidence beyond a reasonable doubt that the suspect is guilty.IV. is prohibited from making a warrantless, non-consensual entry into a suspect's home to make a routine felony arrest unless exigent circumstances excuse the lack of a warrant.

a. I, II, III, IVb. II, IIIc. II, IIId. IV


18. Which of the following constitute exigent circumstances that would allow police to enter a home without a warrant to arrest a suspect?I. reasonable belief the suspect in the home is armedII. likelihood the suspect would escape if not arrested quicklyIII. police are chasing a fleeing felon who enters a homeIV. police have reason to believe the suspect is dangerous to others in the home

a. I, II, III, IVb. I, IIc. I, II, IVd. IV

ANS: A REF: 151-152 OBJ: 7

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19. In order to be valid, arrest warrants must satisfy certain requirements; these requirements include:

I. a neutral magistrate to determine probable cause to arrest.II. a sworn statement of facts supporting probable cause.III. identification of the specific time when the person will be arrested.IV. specific identification of the person to be arrested.a. I, II, III, IVb. I, IIc. I, II, IVd. I, IV

ANS: C REF: 148-149 OBJ: 4

20. A study of probable cause determinations by magistrates, conducted by Professor Abraham Goldstein, found that:

I. most magistrates devote very little time to appraising the affidavit's sufficiency.II. the police often engaged in “magistrate shopping.”III. magistrates never called witnesses other than the police officer seeking the warrant.IV. magistrates often asked officers questions about the information presented in the warrant

application and affidavit.a. I, II, IIIb. I, II, III, IVc. IVd. II


21. The crime of perjury is defined as:a. violating one’s official duties.b. lying to a magistrate.c. lying under oath.d. violating professional ethics.


22. Federal law enforcement officers can phone or radio their affidavits seeking warrants to federal magistrates under the:

a. Federal Criminal Code.b. Federal Rules of Evidence.c. Federal Code of Regulations.d. Federal Rules of Criminal Procedure.


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23. Most cases demand that arrest warrants identify the person to be arrested:a. with absolute certainty.b. in sufficient detail so that it leaves nothing to the discretion of the arresting officer.c. with reasonable certainty.d. by name.


24. The vast majority of arrests:a. are made with deadly force.b. are made without the use of any force.c. are made with the use of nondeadly force.d. are made with the use of unreasonable force.


25. According to the Supreme Court opinion in Tennessee v. Garner, involving the use of deadly force to apprehend a fleeing burglary suspect, deadly force:

a. is not a Fourth Amendment seizure.b. to prevent the escape of all felony suspects is constitutionally reasonable.c. is a Fourth Amendment seizured. can never be used for a property crime.


26. The landmark Supreme Court case of Tennessee v. Garner (1985) involved the authority of police to use deadly force to stop fleeing felons. In this case, the Supreme Court held that:

a. deadly force could be used only if the officer using deadly force had probable cause to believe the fleeing felon posed a physical danger to himself or others.

b. the Constitution does not address such a situation.c. deadly force could be used only if the officer using it had reasonable suspicion that

the fleeing felon posed a physical danger to himself or others.d. deadly force could be used by the officer only if there was no other means

reasonably available to stop the fleeing felon.

ANS: A REF: 156-157 OBJ: 8

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27. In Tennessee v. Garner, involving the death of a citizen due to the use of deadly force by the police, the Supreme Court ruled that:I. apprehension by the use of deadly force is a seizure subject to the reasonableness

requirement of the Fourth Amendment.II. the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.III. a police officer may not seize an unarmed, non dangerous suspect by shooting him dead.IV. evidence seized from illegal use of deadly force is not admissible in criminal cases.

a. I, II, III, IVb. I, IIIc. I, II, IIId. I, IV

ANS: B REF: 156-157 OBJ: 8

28. In Graham v. O'Connor (1989), involving the arrest of a diabetic who was suffering from an insulin reaction, the Supreme Court held that claims of excessive force in the course of making an arrest are to be analyzed under:

a. a substantive due process standard.b. the Fourth Amendment's “objective reasonableness” standard.c. a “malicious and sadistic” standard.d. a subjective standard that focuses on the intentions of the officer making the arrest.


29. In Graham v. O’Connor (1989), involving the arrest of a diabetic who was suffering from an insulin reaction, the Supreme Court indicated that:

a. the use of excessive, non-deadly force in making arrests is not covered by the Constitution.

b. the reasonableness of a particular use of force must be judged based on the benefit of hindsight.

c. the question in excessive force cases is whether an officer’s actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to his underlying intent.

d. asking whether an officer’s actions were “malicious and sadistic” is an important inquiry.

ANS: C REF: 158-160 OBJ: 8

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30. In Brigham City Utah v. Charles Stuart and Others (2006), involving police entering a home without a warrant where teenagers were partying, drinking, and officers observed an altercation occurring inside the home, the Supreme Court ruled that:

a. the officers’ entry of the home without a warrant violated the Fourth Amendment.b. the officers had a right to enter without a warrant because they feared the teens

would flee from the house if they waited.c. the officers had the right to enter without a warrant because they had an objectively

reasonable basis for believing someone in the home was seriously injured or being threatened with imminent injury.

d. the officers should have called an ambulance and let the EMTs enter without a warrant.

ANS: C REF: 152-155 OBJ: 7

31. Which of the following actions may a police officer take immediately after an arrest?I. search the suspectII. use force to subdue unruly suspects to prevent escapeIII. conduct a search of the suspectIV. interrogate the suspect

a. II, IVb. I, II, IVc. IId. I, II, III, IV


32. After an arrest, which of the following do the police not commonly do?a. take DNA samples from the arrested personb. fingerprint the suspectc. interrogate the suspectd. search the suspect


33. In the U.S. Supreme Court case Atwater v. City of Lago Vista, the Court decided that:a. the arrest was reasonable because the offense was repeated and serious.b. the arrest was unreasonable because the offense was not serious.c. the decision to arrest should be left to officer discretion.d. the arrest was unreasonable since Atwater was not a flight risk.

ANS: C REF: 166-171 OBJ: 10

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34. In the U.S. Supreme Court case Atwater v. City of Lago Vista, the Court:I. decided the arrest was unreasonable because it was not supported by probable

cause.II. decided the arrest was reasonable because state law allowed it.III. decided the arrest was reasonable because the offense was serious.IV. decided the arrest was unreasonable because Atwater was not a flight risk.

a. IVb. I, IIc. IId. II, III

ANS: B REF: 166-171 OBJ: 10

35. In Atwater v. City of Lago Vista, the Supreme Court ruled that:a. the Fourth Amendment does not prohibit a warrantless arrest for a minor offense,

including a traffic misdemeanor violation.b. the Fourth Amendment prohibits a warrantless arrest for a minor offense,

including a traffic misdemeanor violation.c. the Fourth Amendment prohibits a warrantless arrest for a traffic misdemeanor

violation.d. the Fourth Amendment requires that in order to effect an arrest for a traffic

misdemeanor violation there should be reasonable suspicion that the suspect has also committed a felony.

ANS: A REF: 166-171 OBJ: 10

TRUE/FALSE

1. Arrests produce written documents that become part of a person’s record.


2. Arrests are usually shorter in duration than stops.


3. Full custodial arrest is not the most invasive type of arrest.


4. An officer’s subjective, honest belief that a crime has been committed is enough to support probable cause to arrest.


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5. Police can never arrest someone for a minor traffic offense.


6. In determining probable cause, police officers must rely solely on direct information.


7. Victims and witnesses are the source of most hearsay information the police obtain.


8. In Draper v. United States, the Supreme Court found that information that may not be admissible at trial to prove guilt could still be used to establish probable cause.

ANS: T REF: 144-146 OBJ: 6

9. There is a bright line difference between an arrest and a stop.


10. Probable cause alone is not enough to make an arrest a reasonable Fourth Amendment seizure.


11. Deadly force can never be used to make an arrest.


12. The Fourth Amendment requires that magistrates base their probable cause determination on information sworn to under oath.


13. According to the U.S. Supreme Court, so long as officers have probable cause, they do not need to obtain prior judicial approval to make an arrest in a public place.


14. Unless the police are in hot pursuit of a suspect, the Fourth Amendment usually requires a warrant to enter a private home to make arrests.


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15. Whether police used excessive force in making a nondeadly force arrest is measured by an objective standard.


COMPLETION

1. The objective basis necessary for a police officer to make an arrest is ____________.

ANS: probable cause REF: 142 OBJ: 4

2. Information received by the police from third persons is called ______________.

ANS: hearsay REF: 143 OBJ: 6

3. A written, sworn statement submitted to a magistrate by a police officer seeking an arrest or search warrant is called a(n) .

ANS: affidavit REF: 148 OBJ: 4

4. The main sources of hearsay information used to establish probable cause in most arrests that rely on hearsay are ________________________.

ANS: professional informants REF: 143 OBJ: 6

5. Facts and circumstances which lead a reasonable officer to believe a crime has been, is being, or is about to be committed constitutes ____________________.

ANS: probable cause to arrest REF: 142 OBJ: 4

6. All arrests must be supported by ____________________.


7. Information known by police based on what they see, hear and smell is ______________.

ANS: direct information REF: 142 OBJ: 6

8. The reasonableness of an arrest depends on the existence of ____________ and the __________ in which the arrest is made.

ANS: probable cause, manner REF: 141 OBJ: 4

9. Police can arrest a suspect in the suspect’s home without a warrant if there are __________ circumstances that would justify such an arrest.

ANS: exigent REF: 151 OBJ: 7

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10. The U.S. Supreme Court has ruled that a warrant is necessary to effect a routine arrest of a suspect in their _____________.

ANS: home REF: 151 OBJ: 7

ESSAY

1. Identify the characteristics of a full custodial arrest and contrast it with a stop. Why do we call arrests a zone and not a point?

A full custodial arrest, i.e., one that lasts for a substantial period of time and is usually accompanied by a trip to a police station or jail, must first of all be based on probable cause. Secondly, the duration of a full custodial arrest can last from several hours to a few days. The location of full custodial arrest begins on the street or other public or private places but ultimately usually results in removal to a police station. Besides being removed to a police station, the arrested person also suffers other invasion of privacy. They are usually fingerprinted, booked, photographed, interrogated and also possibly subjected to some identification procedures.

Full custodial arrests differ from stops in two important respects. The first is duration. Stops are measured in minutes; full custodial arrests can last hours and sometimes even days. The second respect in which the two differ is location. Stops begin and end on the streets and in other public places. Arrested people are taken to the isolated and intimidating surroundings of local police departments and jails.

Not all arrests are equally invasive. Full custodial arrests are the most invasive of all arrests, but less invasive seizures are also arrests. An arrest begins when a stop ends and the individual is still detained, and continues through full custodial arrests where the person is usually placed into a squad car, taken into a station house, subjected to a search, photographed, booked and fingerprinted, interrogated and ultimately locked up for a substantial period of time. Arrests are a zone because not all of the above may happen to a person who is arrested.

2. Compare the definition of reasonable suspicion with probable cause. What two interests does probable cause balance?

Probable cause to arrest means that there are enough facts and circumstances to lead police officers in light of their experience to reasonably believe that the person arrested has committed, is committing, or is about to commit a crime. Reasonable suspicion only requires that officers based upon the information that they have seen or learn from reasonably trustworthy source, reasonably suspect that a person may has or is about to commit a crime.

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Probable cause to arrest lies on a continuum between reasonable suspicion on one end and proof beyond a reasonable doubt on the other. Reasonable suspicion is needed to justify a stop, the least intrusive activity subject to the Fourth Amendment. Probable cause is needed to justify an arrest, which is more intrusive than a stop as it lasts longer and usually requires a removal from the place stopped. The highest burden of proof is proof beyond a reasonable doubt. This is the proof needed to convict and imprison someone for crime that can lead to a punishment from some part of a year to life.

The probable cause requirement balances the societal interest in crime control against the individual right of locomotion, the freedom to come and go as we please.

3. Make a list of facts officers can take into account in building probable cause. What use can officers make of hearsay in building probable cause?

Police can use both direct information and/or hearsay in building probable cause. Direct information is first hand information known to arresting officers by what they see, hear, feel, taste, and smell. Some examples of direct information would be flight, furtive movements by a suspect, hiding, attempts to destroy evidence, resisting officers, giving evasive answers, giving contradictory explanations, fingerprints, hair samples, blood samples, and DNA information.

Hearsay is information that officers get second hand from victims, witnesses, other police officers and professional informants. To help in the probable cause determination, this hearsay must be reliable.

Officers can use hearsay in order to build probable cause.

4. Identify and provide details about the three elements of arrest warrants that satisfy the requirements of the Fourth Amendment warrant clause.

The three elements of arrest warrants that satisfy the Fourth Amendment warrant clause are as follows: (1) a neutral magistrate who decides whether probable cause exists; (2) a sworn statement made by somebody who swears under oath to the facts and circumstances amounting to probable cause; and (3) the name of the person to be arrested, i.e. the warrant must identify specifically the persons the officers are going to arrest.

As for the first requirement, that of a neutral magistrate, this requires the police to get approval from a neutral magistrate, who will fairly and accurately review the warrant before it is issued. Studies have shown that most magistrates devote little time to reviewing a warrant’s sufficiency. They assume that the person swearing to it is being honest and they tend to ask no questions about the warrant.

As for the second requirement of a sworn statement, also known as an affidavit, the Fourth Amendment requires that magistrates base their probable cause determinations on information sworn to under oath. The pain of perjury encourages truthfulness. If the affidavit establishes probable cause, the magistrate usually issues the warrant.

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The final requirement, naming the persons to be arrested, is part of the Fourth Amendment’s particularity requirement. Thus the warrant should contain the name of the person to be arrested or, if the person’s name is not known, a description by which the person can be identified with reasonable certainty.

CHAPTER FOURSTOP AND FRISK

MULTIPLE CHOICE

1. The objective basis for stops and frisks is:I. the same as for arrests.II. higher than for arrests.III. lower than for arrests.IV. the same as for full searches of a person.

a. Ib. IIc. IIId. IV


2. In regard to the official actions taken by police known as stop and frisk:I. they take place on the street before any official documentation initiates the

process.II. they affect far more people than other police investigative actions.III. they are the most superficial intrusions and deprivations.IV. they require the least factual basis to make them reasonable.

a. I, II, III, IVb. II, IVc. I, II, IIId. II, IV


3. The first question to ask in Fourth Amendment cases is:a. whether the government action was a search or seizure.b. whether the government action was unreasonable.c. whether the fruit of the government action (what is obtained from its action)

should be excluded.d. whether the government was investigating a serious crime.


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4. The approach used by the Supreme Court to interpret the Fourth Amendment known as the “conventional Fourth Amendment approach”:I. views the warrant and reasonableness clauses of the Fourth Amendment as firmly

connected.II. views all searches not based on both warrants and probable cause as

unreasonable.III. gives more power to the government to conduct searches and seizures than the

“reasonableness Fourth Amendment approach.”IV. views the reasonableness and warrant clauses of the Fourth Amendment as

separate and distinct.a. I, IIIb. I, II, IIIc. I, IId. III, IV


5. The Supreme Court balancing approach to stop and frisk requires weighing:a. individual privacy rights and the value of controlling crimeb. Fourth Amendment rights and Fifth Amendment rightsc. efficient use of police resources and individual libertyd. public opinion about crime and privacy rights


6. Which of the below is/are an example of direct information on which reasonable suspicion can be based?

I. flightII. attempting to destroy evidenceIII. evasive answersIV. hidinga. I, II, III, IVb. I, IIIc. I, IVd. I


7. The balancing approach to reasonableness:a. requires courts to weigh the degree of intrusion against the government’s need for

the intrusion.b. prohibits the police from making intrusions simply to prevent crimes that may

happen.c. does not require the court to weigh the degree of intrusion so long as there is a

factual foundation for it.d. does not require a factual foundation to support stops involving serious crimes.


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8. The Supreme Court has adopted which of the following readings of the Fourth Amendment regarding stops and frisks? The Amendment:

a. protects only full arrests and searches.b. equates stops and arrests.c. equates frisks and searches.d. requires a lesser quantum of proof or suspicion for stop than for arrest.


9. According to the Supreme Court opinion in Terry v. Ohio, involving a police stop and frisk of a citizen on a street to investigate a possible robbery:

a. in dealing with dangerous situations on city streets, police need an escalating set of flexible responses.

b. police cannot stop citizens without probable cause to believe that crime is afoot.c. in any instance where the police can stop someone, they can also frisk that person.d. police cannot stop citizens without clear and convincing evidence that crime is

afoot.

ANS: A REF: 89-93 OBJ: 2

10. According to the Supreme Court opinion in Terry v. Ohio involving the stop and frisk of a citizen on the street to investigate a robbery:

a. a stop is conduct outside the purview of the Fourth Amendment because the action does not rise to the level of a seizure.

b. whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.

c. a stop is not a serious intrusion upon the sanctity of the person and may be taken lightly.

d. the personal security and privacy of the individual always outweighs the government’s interests in detecting crime.


11. A proper “frisk” under the stop-and-frisk rules established by Terry v. Ohio:a. is limited to a pat-down of the suspect’s outer clothing unless something that could

be a weapon is felt during the pat-down.b. may not be conducted unless there is no doubt in the mind of the officer that the

suspect has a weapon.c. may include a search of an area within one hundred yards of the suspect if the pat-

down results in the feeling of an object which could be a weapon.d. may not even extend to a pat-down unless the officer has probable cause to believe

the suspect has a weapon.


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12. According to the Supreme Court opinion in Terry v. Ohio, involving the stop and frisk of a citizen on the street to investigate a robbery:I. A police officer may in appropriate circumstances approach a person to

investigate possible criminal behavior even though there is no probable cause to make an arrest.

II. When an officer is justified in believing that the individual whose suspicious behavior he is investigating is armed, the officer may conduct a limited search for weapons.

III. An officer must be absolutely certain in believing that the individual whose suspicious behavior he is investigating is armed before conducting a limited search for weapons.

IV. In determining whether the officer acted reasonably in conducting a stop and frisk, weight must be given to unparticularized suspicions and hunches as well as specific inferences based on the officer’s experience.

a. I, II, IVb. I, III, IVc. II, IIId. I, II


13. According to the Supreme Court opinion in Terry v. Ohio, a stop justified at its beginning can:

a. be justified on mere hunches alone.b. only be done for violent crimes.c. become unjustified by being too extensive in scope.d. have any scope the stopping officer wants.


14. Which of the following constitutes a stop?a. A person approaches an officer and says, “I saw a man run out of that building

with a knife dripping blood.”b. Police approach a person and ask, “Did you just leave that building?”c. A person walks up to an officer and volunteers, “I just killed my enemy.”d. Officers investigating a robbery that just happened approach a person who fits the

description given by the victim, asking who they are where they were at the time of the crime.


15. Which of the following is not a seizure?a. chasing a fleeing suspect who gets awayb. arresting someonec. physically grabbing someone to check suspiciond. using such a show of force that a reasonable person does not leave


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16. Which of the following will not support stopping vehicles at a roadblock?a. Driver’s license and vehicle safety checksb. General checks to see if drivers may be committing any crimec. Sobriety checkpointsd. Agricultural inspection stops


17. Police can establish reasonable suspicion to conduct a forcible stop from:I. hearsay information from anonymous informants.II. hearsay information from paid informants.III. facts that officers acquire from their senses.IV. hearsay information from victims.

a. IIIb. III, IVc. II, III, IVd. I, II, III, IV

ANS: D REF: 99-100 OBJ: 2

18. According to the Supreme Court opinion in Illinois v. Wardlow, which of the following can constitute a reasonable basis for a stop and frisk?I. presence in high crime areaII. refusal to stop and answer questions when requested to do so by policeIII. unprovoked flight after seeing policeIV. refusal to identify oneself when asked to do so

a. I, IIb. I, IIIc. II, IIId. I, II, IV


19. Reasonable suspicion needed to make a stop:a. requires more than probable cause.b. requires a preponderance of the evidence.c. requires only a hunch.d. requires some minimum level of objective justification.


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20. Which of the following circumstances have been found sufficient by themselves to amount to reasonable suspicion?

a. A driver double-parked within ten feet of a pedestrian in a drug trafficking area.b. A passenger leaving an airplane appeared nervous in the presence of officers.c. A driver failed to look at a patrol car late at night.d. At 2:15 a.m., a person approached an officer in his police vehicle in a high crime

area and told him that a person seated in a nearby car had illegal drugs and a gun at his waist.

ANS: D REF: 126-127 OBJ: 2

21. According to the Supreme Court opinion in Alabama v. White:a. an anonymous tip can never justify a Terry stopb. an anonymous tip can justify a Terry stop if an officer’s later direct observations

confirm the informant’s informationc. a Terry stop can be based on information from a known informant with a history of

providing reliable informationd. an anonymous tip can justify a Terry stop if officers found a weapon on the person

they stopped based on the tip


22. Categorical suspicion:a. can be sufficient in itself to amount to reasonable suspicionb. can be sufficient as long as the category in which the suspect falls is not based on

race or ethnicityc. can be one of the factors in the entire picture of reasonable suspiciond. is sufficient in itself if officers can establish the stop occurred in a high crime area

ANS: C REF: 100-101 OBJ: 3

23. In U.S. v. Sokolow, involving the stop of a suspected drug smuggler based on a “drug courier profile,” the Supreme Court held that:

a. drug courier profiles are unconstitutionalb. drug courier profiles must be supported by a showing of probable causec. some of the reasonable suspicion can be based on a drug courier profile as long as

the totality of circumstances supports such suspiciond. reasonable suspicion is always supported if a suspect falls within a drug courier

profile


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24. Which of the following elements are used to determine the reasonableness of a stop?I. durationII. invasivenessIII. locationIV. freedoma. I, II, III, IVb. I, II, IIIc. I, IIId. I


25. According to the Supreme Court opinion in U.S. v. Sharpe, concerning a determination of how long police officers can detain suspects during lawful stops:

a. a “bright line” rule of one hour is used to determine whether an investigative detention is reasonable.

b. Any stop more than twenty minutes, without an arrest, is unreasonable.c. Officers can detain suspects, without arresting them, for twelve hours.d. In evaluating whether an investigative stop is unreasonable, a flexible approach

using common sense and ordinary experience must govern.


26. In Maryland v. Wilson, the case where police removed and detained a passenger from a lawfully stopped vehicle, the Supreme Court held:

a. that the officer’s ordering the passenger out of the car was an unreasonable seizure.b. that the practice of ordering all drivers and passengers stopped in traffic stops out

of their vehicles as a matter of course was reasonable.c. that the officer’s ordering him out of the car was too great an intrusion into the

driver’s liberty.d. that they must have articulable suspicion of danger to order the passenger out of

the vehicle.

ANS: B REF: 122-125 OBJ: 3

27. According to the Supreme Court in U.S. v. Montoya de Hernandez, involving a detention at the border for drug investigation:

a. even routine customs searches at the border require reasonable suspicion.b. any detention at the border that lasts more than 15 minutes is unreasonable.c. detention beyond the scope of a routine customs search and inspection is always

unreasonable.d. the Fourth Amendment’s balance of reasonableness is qualitatively different at the

international border than in the interior of the country.

ANS: D REF: 128-131 OBJ: 7

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28. According to the Supreme Court’s opinion in U.S. v. Montoya de Hernandez, involving the detention of a traveler at the border, the standard of evidence necessary to detain a traveler at the border, beyond the scope of a routine custom search and inspection is:

a. probable cause.b. no evidence at all, the Fourth Amendment does not apply at the border.c. a clear indication of illegal activity.d. reasonable suspicion.

ANS: D REF: 128-131 OBJ: 7

29. According to the Supreme Court in Michigan v. Sitz, involving sobriety checkpoints, detaining a car briefly at a sobriety check point:

a. is not a stop.b. is a stop, but it is not covered by the Fourth Amendment.c. is a stop to which the Fourth Amendment applies.d. requires probable cause to think that someone in the car has committed a crime.

ANS: C REF: 132-135 OBJ: 7

30. According to the Supreme Court in Michigan v. Sitz, involving sobriety checkpoints, detaining a car briefly at a sobriety checkpoint:

a. requires reasonable suspicion to think that the driver is driving under the influence.b. requires probable cause to think that the driver is driving under the influence.c. requires clear and convincing evidence to think that the driver is driving under the

influence.d. requires no individualized suspicion because of the importance of the State’s

interest in addressing the drunk driving problem.


31. According to the Supreme Court:I. frisks require separate justification from that of stops.II. frisks and stops are distinct law enforcement actions.III. a lawful stop is a prerequisite for any frisk.IV. officers cannot automatically frisk all citizens they stop.

a. I, II, IVb. I, II, IIIc. I, II, III, IVd. III

ANS: C REF: 116-117 OBJ: 1

32. Which of the following are legitimate purposes for frisks?a. to protect officersb. to preserve evidencec. to find illegal drugsd. to convince suspects they should respond to an officer’s questions


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33. Frisks:a. are the most invasive type of search.b. are not considered invasions of privacy.c. are always allowed following a stop.d. are the least invasive type of search.


34. Which of the following does not implicate the Fourth Amendment?a. show of force with submissionb. friskc. briefly grabbing a suspect to check suspiciond. asking questions of potential witnesses at the scene of a robbery


35. The Supreme Court has ruled that a state statute which permits police to require a suspect disclose his identity during a Terry stop or face prosecution for failing to answer:

a. is unconstitutional because people are not obliged to respond to an officer’s questions.

b. is unconstitutional because it violates the Fifth Amendment privilege against self-incrimination.

c. is constitutional because it is rationally related to the purpose and practical demands of a Terry stop.

d. is constitutional only if the state supreme court has ruled that it is.


TRUE/FALSE

1. Stop and frisks affect a greater number of people than those actually arrested.


2. Since stops and frisks take place in public, they may shape the public view of police power more than more intrusive invasions such as arrest and searches that take place out of sight.


3. Outer clothing pat-downs do not constitute Fourth Amendment searches.


4. Stops and frisks are more invasive than arrest.


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5. According to the Supreme Court, police can take no action against a citizen until they `have probable cause.


6. Information received from anonymous informants is always considered equal in quality to that received from known informants in providing reasonable suspicion for a stop.


7. Profiles are neither direct observation nor hearsay.


8. Frisks are searches.


9. Police officers can automatically frisk all citizens whom they stop.


10. The purpose of a frisk is to protect officers or other people from death or injury.


11. According to the Supreme Court opinion in Illinois v. Wardlow, a person’s mere presence in a high crime area can supply the objective basis needed for a stop.

ANS: F REF: 103-107 OBJ: 2

12. A suspect’s race alone cannot constitute reasonable suspicion for police action.


13. An officer conducting a protective pat-down search can never seize any items other than weapons.


14. The U.S. Supreme Court has held that fitting a drug courier profile is itself alone enough to furnish reasonable suspicion.


15. Reasonable suspicion can never be based on hearsay information.


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COMPLETION

1. Stop and frisk law focuses on the application of the _________ Amendment to law enforcement practices.

ANS: Fourth REF: 84 OBJ: 1

2. A brief detention that enables law enforcement officers to freeze a situation for the purpose of investigating suspicious persons is a/an .

ANS: stop REF: 84 OBJ: 1

3. Pat-downs of suspects to protect officers against the danger of concealed weapons are __________.

ANS: frisks REF: 84 OBJ: 1

4. The objective basis required for making a lawful stop is .

ANS: reasonable suspicion REF: 87 OBJ: 2

5. Barricades set up for stopping vehicles and questioning the occupants are known as __________.

ANS: roadblocks REF: 131 OBJ: 7

6. The patting down of a suspect’s outer clothing to check for weapons is the type of search called a __________.

ANS: frisk REF: 84 OBJ: 1

7. The two elements to the scope of a reasonable stop are and ____________________.

ANS: short duration, on the spot location of the investigation

REF: 113 OBJ: 2

8. When police learn facts not from their observation but from what other people tell them, this is called ________________.

ANS: hearsay information REF: 99 OBJ: 2

9. Another name for the totality of circumstances test is the __________________.

ANS: whole picture test REF: 99 OBJ: 2

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10. The method of analysis that considers the Fourth Amendment’s two clauses as being separate and addressing different problems is the ______________________.

ANS: reasonableness Fourth Amendment approach

REF: 87 OBJ: 1

ESSAY

1. Identify the three possible alternatives for applying the Fourth Amendment to stops and frisks, and explain why the U.S. Supreme Court adopted alternative three.

There are three possible interpretations of the Fourth Amendment that could be applied to stops and frisks. Under the first interpretation, the Fourth Amendment would only apply to full searches and arrests, so what officers do in other situations, including stops and frisks, would be totally left to their discretion. The second possible interpretation takes the exact opposite view. Under this interpretation, even brief stops are arrests, and a pat-down or frisk is a search. Since the Fourth Amendment requires that these be supported by probable cause, the police can’t do anything as far as stopping and frisking a person unless probable cause exists.

Finally, the third interpretation admits that stops and frisks are searches and seizures, thus subject to the Fourth Amendment. However, a stop and frisk would be viewed as a minor search or seizure, far less intrusive than an arrest or a full-blown search. Thus, officers still have to justify making a stop and frisk with facts, but since the intrusion is lesser, fewer facts are needed to conduct a stop and frisk than would be to make an arrest and/or do a search.

The Supreme Court chose the last alternative. Under this alternative the Court felt that the Fourth Amendment gave police enough power to freeze suspicious events and detain people briefly to find out if criminal activity may be going on. The amendment also gives officers the ability to protect themselves by frisking some of the people they stop. But officers can’t freeze an event or frisk a person on a mere hunch: stops and frisks have to be “reasonable.”

How is reasonableness determined? First, there must be a careful balancing process. The need to control crime has to outweigh the invasion against an individual’s right in a particular situation. Second, police can’t stop and frisk a person on mere suspicion. They still need facts, not just as many as would amount to probable cause, but still enough so that later on a neutral judge can review an officer’s decision to see if they would be justified.

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2. Does unprovoked flight + high-crime area = reasonable suspicion? Explain.

Unprovoked flight from police officers in a high-crime area can amount to reasonable suspicion, according to the United States Supreme Court decision in Illinois v. Wardlow. A person’s presence in a high crime area alone is not enough to support reasonable suspicion. However, police can take into account the relevant characteristics of a location in determining whether circumstances warrant further investigation. Likewise, courts have recognized that nervous, evasive behavior is relevant in determining whether reasonable suspicion exists. Wardlow declared that headlong flight is the ultimate act of evasion. The Court conceded that flight may not necessarily indicate that a person is engaged in wrongdoing. However, it is certainly suggestive of such. Conduct justifying a stop can be ambiguous and possibly susceptible to an innocent explanation.

Wardlow declared that Terry v. Ohio accepted the risk that allowing a stop based on reasonable suspicion will mean that police officers may sometimes stop innocent behavior. Likewise, not all persons arrested on probable cause turn out to have committed a crime. The Fourth Amendment does not require absolute certainty, only a sufficient level of justification for the governmental action required.

3. Does an anonymous tip amount to reasonable suspicion? Explain.

An anonymous tip can provide reasonable suspicion. However, it will not automatically do so. In one case, Alabama v. White, police received an anonymous tip claiming that a person would leave a particular apartment carrying cocaine, get into a certain car, and drive to a certain location. If the police acted on the tip alone this would not have justified a Terry stop. However, their observation corroborated the information given by the anonymous informer. Therefore, the police were justified in believing that the informant had inside information about the suspect and thus crediting his claim that she possessed cocaine.

However, in Florida v. J.L., the Court found that an anonymous tip that was corroborated did not provide reasonable suspicion. The tip in this case said that a young black man standing at a particular bus stop and wearing certain clothing was carrying a gun. Since this tip did not predict future activity that could be corroborated, it did not provide a reasonable enough basis for believing that the informant had knowledge of the criminal activity.

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4. When can profiles be used in building reasonable suspicion?

Government agents can rely on profiles to decide whether reasonable suspicion exists. Profiles are neither direct observation by the officer nor hearsay information from a second hand source. Direct observation and hearsay are based on individualized suspicion. That is, either the officer observes firsthand or obtains information from somebody who claims to have first-hand knowledge about particular facts pointing to individual suspects. Profiles, on the other hand, are derived from suspicion based on gross statistical data that put individuals into a category. The U.S. Supreme Court has never ruled on whether a profile by itself can amount to reasonable suspicion. However, in United States v. Sokolow, the Court found that whether a person fit into the so-called drug courier profile could be used along with other facts to determine reasonable suspicion.

5. Why is it reasonable to remove a passenger from a stopped vehicle when there’s no suspicion the passenger may be involved in a crime?

It’s reasonable for police to remove a passenger from a stopped vehicle, even when there’s no suspicion the passenger may be involved in a crime. The police can do this for their own safety. The Supreme Court has found that talking to a driver while an officer is exposed to traffic puts the officer in danger. Removing the driver from a car is but a trivial invasion, because the driver has already been stopped. Balancing the possible danger to an officer against the trivial invasion of removing a driver from the car, the Court believed a request by the police for drivers to step out of their cars is reasonable. In applying the same balance to passengers that had been applied to drivers, the Court found that a request for a passenger in a stopped vehicle to step out of the car is reasonable. In one sense, that of personal liberty on the part of the passenger, the case is weaker than that for drivers. Drivers had been stopped, because they had committed traffic offenses, but usually there is no reason to stop or detain a passenger. However, as a practical manner, the passengers are stopped by virtue of the vehicle stop. The only change in the circumstances that would result from ordering them to leave the car is that they would be outside of, rather than inside of, a stopped car. This promotes the interest in officer safety. Outside the car, passengers would be denied access to any possible weapons that may be concealed in the vehicle’s interior.

The Court recognizes that traffic stops possess the possibility of violent encounters. This does not stem from violation of the traffic laws, but from the fact that occupants of a vehicle may fear that evidence of a more serious crime might be discovered during the stop. A passenger would have the same motivation to employ violence to prevent arrest for a more serious crime as a driver would. Like with the driver, the additional intrusion imposed by the order to leave the car would be considered minimal, thus doing so is reasonable.

CHAPTER THREETHE DEFINITION OF SEARCHES AND SEIZURES

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MULTIPLE CHOICE

1. Law enforcement has to rely on involuntary methods to get information. Those methods include:I. searches and seizures.II. interrogation.III. identification procedures.IV. confessions.

a. I, II, IIIb. IV.c. I, I, IVd. II, III


2. Police searches and seizures serve several purposes; these purposes include:I. gathering information in order to control crime.II. harassing potential criminals in order to prevent crime.III. protecting police officers while they apprehend suspects.IV. protecting the property of detained suspects.

a. Ib. I, III, IVc. I, II, III, IVd. I, II


3. In Illinois v. Caballes, the Supreme Court ruled that:a. Drivers of automobiles have a reasonable expectation of privacy that protects them

from the use of drug-sniffing dogs without a warrant.b. Drug-sniffing dogs can only be used if there is reasonable suspicion the driver has

narcotics.c. Drug-sniffing dog searches are prone to many errors and are so intimidating that

officials must have probable cause to use them.d. The use of well-trained drug-sniffing dogs to expose contraband items that would

remain hidden in a routine traffic stop, does not intrude on a driver’s reasonable expectation of privacy and the Fourth Amendment does not apply.


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4. Which of the following questions is/are part of the three step analysis used to determine whether the government has complied with the Fourth Amendment?I. Did the government action emphasize results over process?II. Was there a physical intrusion into a protected place?III. Was the government action a “search” or “seizure”?IV. If the action was a search, was it an “unreasonable” search?

a. I, III, IVb. I, IIc. I, II, III, IVd. III, IV


5. If it’s determined that the police have not engaged in a search or seizure:a. the Fourth Amendment applies only in part to the officer’s actions.b. the due process clause has been violated.c. the police actions are not subject to the Fourth Amendment’s requirements.d. according to the exclusionary rule, the search or seizure is inadmissible.


6. General warrants were used in England to:I. discover evidence of seditious libels.II. protect the government against foreign invasion.III. enforce the tax laws on certain articles.IV. enforce the laws granting the king certain royal prerogatives.

a. I, II, III, IVb. I, IIIc. I, III, IVd. I


7. General warrants, or writs of assistance, as they were known in Britain and in the American colonies:

a. gave officers blanket authority to completely search a particular shop or home.b. found favor in the American colonies because they were more restrictive than a

warrantless search.c. gave the person with the writ authority to enter any house for the entire life of the

monarch.d. were repealed in the American colonies by the Stamp Act.


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8. The Fourth Amendment protects values essential to the quality of life in a free society. Among these values are:I. privacy.II. crime control.III. liberty.IV. commerce.

a. II, IIIb. I, IIIc. I, III, IVd. I, II, III, IV


9. Under the trespass doctrine, a search:I. requires a physical intrusion into a constitutionally protected place.II. protects only places named in the Fourth Amendment.III. does not itself include the observation of a suspect’s physical circumstances.IV. must violate a reasonable expectation of privacy.

a. I, II, III, IVb. I, II, IIIc. I, IVd. II


10. According to the Supreme Court in Katz v. U.S., involving an electronic listening and recording device attached to the outside of a public telephone booth:

a. the Fourth Amendment protects people, not places.b. a subjective expectation of privacy confers the Fourth Amendment’s protection.c. there is no search unless there has been a physical intrusion into a place.d. eavesdropping on a public phone booth is not a search.


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11. According to the Supreme Court in Katz v. U.S., involving the use of an electronic listening device on the outside of a public telephone booth by the police:I. the Fourth Amendment did not create a general constitutional right to privacy.II. protection of a person’s general right to privacy is left largely to the law of the individual states.III. what a person knowingly exposes to the public is not subject to Fourth Amendment protection.IV. what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

a. I, II, III, IVb. I, IIIc. II, III, IVd. IV


12. Justice Black, in his dissenting opinion in Katz v. U.S., claimed that:I. the Fourth Amendment’s words did not support the majority.II. the Court was expanding the meaning of the Fourth Amendment to keep up with the times.III. the Fourth Amendment created a general right of privacy.IV. the Fourth Amendment was meant to protect against eavesdropping.

a. I, IIb. III, IVc. IVd. II, III


13. What is needed to establish that government action is a search?I. societal recognition that a personal expectation of privacy is reasonableII. actual physical trespass into an areaIII. mere governmental intent to conduct a searchIV. the exhibition of a personal subjective expectation of privacy

a. II, IIIb. I, IVc. II, IVd. All the above


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14. The Supreme Court has held that citizens have no reasonable expectation of privacy in which of the following?

a. telephone conversations.b. bank records.c. private papers.d. letters given to the post office.


15. According to the Supreme Court in Smith v. Maryland (1979), a person does not have a reasonable expectation of privacy in:

a. his or her personal diary.b. telephone conversations.c. the telephone numbers that they dial.d. the briefcase they carry in a public place.


16. In California v. Greenwood (1988), the Supreme Court held:a. there is no reasonable expectation of privacy in the trash we place in the waste

baskets located in our homes.b. there is no reasonable expectation of privacy in the trash we place in bags/cans we

place outside for pick-up on the front curb of our homes.c. there is a reasonable expectation of privacy in the trash we place on the front curbs

outside our homes because the trash is still on our property.d. there is no reasonable expectation of privacy in trash unless we have shredded it.


17. According to the Supreme Court opinion in U.S. v. White (1971), involving a friend wired for sound to the police:

a. a defendant has a constitutionally protected expectation that a person he is conversing with will not reveal the conversation to the police.

b. a person contemplating illegal activities must realize and risk that his friend may be reporting to the police.

c. a suspect’s friend may relate the substance of conversations between the two without violating the Fourth Amendment, but the amendment is violated if the friend records those conversations for the police without a warrant.

d. anytime electronic devices are used to obtain evidence, a search warrant is required.

ANS: B REF: 62-63 OBJ: 7

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18. In U.S. v. White, involving incriminating statements heard by law enforcement because of warrantless electronic eavesdropping of defendant White’s co-conspirator, the Supreme Court held that:I. White had no reasonable expectation of privacy in his conversation with the co-conspirator.II. live participant monitoring was reasonable under the Fourth Amendment, but electronic eavesdropping was not.III. three-party bugging jeopardizes our sense of security and therefore was unreasonable.IV. the use of government informants in the respondent’s home violated the Fourth Amendment.

a. I, IIb. Ic. I, II, III, IVd. III, IV


19. According to the plain view doctrine:a. plain view is an exception to the search warrant requirement.b. plain view is not a Fourth Amendment search.c. plain view observations always fall outside of the Fourth Amendment restrictions.d. once in plain view, an item may be searched to confirm that it is seizeable.


20. An officer who smells marijuana as he drives by a car with an open window:a. cannot compel the driver to stop the car so he can investigate without a warrant.b. is limited to noting the license plate number of the vehicle and initiating a stake-

out of the owner’s home in order to gather additional evidence.c. is authorized to stop the car to investigate without a warrant or probable cause

because it is a plain search and outside the scope of the Fourth Amendment.d. is authorized to stop and investigate because he has probable cause under the

Fourth Amendment.


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21. An officer who uses a flash light to look inside the front seat of a locked, illegally parked automobile on a public street and notices a bag of marijuana on a front seat:

a. has conducted an illegal search because he enhanced his normal senses with a flashlight.

b. has conducted an illegal search because he looked into the windows of a locked car.

c. has not conducted a search at all and his actions are not in violation of the Fourth Amendment because the marijuana was in plain view.

d. has conducted a legal search because under the Fourth Amendment he can use a flashlight.


22. In California v. Ciraolo (1986), a case involving the police using a plane to fly 1000 feet over Ciraolo’s yard to see if he was growing marijuana, the Supreme Court ruled:

a. the plane enhanced the police officer’s natural vision and, therefore, the Fourth Amendment was implicated and the officers should be held to the probable cause and warrant requirements.

b. the plane enhanced the officer’s vision but they had probable cause based on other evidence.

c. the plane didn’t enhance the officer’s vision, therefore it was a plain view search outside the purvey of the Fourth Amendment.

d. the Fourth Amendment restricts officers from using airplanes to search for drugs.


23. Police used a thermal imager to scan Kyllo’s home because they had information that he was growing marijuana in his home. Officers did not have a warrant and claimed the search was in plain view. The Supreme Court ruled that:

a. use of a thermal imager did not alter the fact that the officers observed the marijuana in plain view.

b. use of a thermal imager to explore details of a home that in the past would have been unknown without a physical intrusion into the home is a search and subject to Fourth Amendment requirements.

c. thermal imagers are common devices and, therefore, the search was in plain view.d. the use of a thermal imager is always illegal.


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24. According to the Supreme Court, a police officer is permitted to use drug sniffing dogs during a routine stop for a traffic violation:

a. because the driver of the car does not have a reasonable expectation of privacy while lawfully stopped.

b. only if the officer can establish probable cause that the drive has contraband in the car.

c. only if the officer has probable cause and a search warrant.d. only if the driver has consented to the search.


25. Which of the following places is/are not likely to be considered part of the curtilage?I. garagesII. pools III. warehouses on the same propertyIV. porches

a. I, II, IVb. II, IVc. IIId. I


26. Which of the following criteria are used by the Supreme Court to determine whether an area falls within the curtilage of a house?I. presence of no trespassing signsII. distance from houseIII. use or purposes of the areaIV. measures taken to prevent public view

a. II, III, IVb. I, II, IVc. I, II, III, IVd. II, IV


27. The special protection accorded by the Fourth Amendment to persons, places, papers, and effects does not include protection for:

a. telephone calls.b. curtilage.c. offices.d. open fields.


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28. The Fourth Amendment does not protect what the senses perceive in public places. Public places do not include:

a. public parks.b. private businesses open to the public.c. streets.d. employees-only areas of private businesses.


29. Which of the following is not an example of abandoned property?a. A man throws away an empty soda can after finishing the drink inside it.b. A woman closes her purse but in doing so unknowingly drops her wallet out of it.c. A person being chased by the police throws away a gun.d. A person places notes for a letter in a basket to be sent to the paper shredder.


30. In order to establish that property has been abandoned, it must be shown that:I. the owner physically gave up possession of the property.II. the owner announced he or she was abandoning the property.III. the owner intended to give up any expectation of privacy in the property.IV. the property had been altered in such a way that it could not be used for its

intended purpose.a. I, II, IIIb. I, IIc. I, IVd. I, III


31. The Supreme Court has adopted a ____________________ test to determine the whether throwing away an item of property proves the intent to give up a reasonable expectation of privacy.

a. totality of the circumstancesb. per sec. abandoned beyond a reasonable doubtd. abandoned by clear evidence


32. The point at which an actual seizure occurs is when police:a. physically grab a person with the intent to keep them from leaving.b. display their authority by ordering a suspect to stop.c. draw their weapons and announce that the person is under arrest.d. stop an individual and hand-cuff them.


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33. According to the plurality opinion of the Supreme Court in U.S. v. Mendenhall involving an airport investigation of possible drug law violations:

a. voluntary co-operation is determined by whether the agents actually tell citizens they are free to leave.

b. seizure is determined by whether reasonable persons, under the circumstances, would feel or honestly believe they are not free to go.

c. a person is seized whenever they are moved from the place where the encounter with the police occurs.

d. a person is not seized unless the officer tells the person he or she has been arrested.


34. According to U.S. Supreme Court Justice White’s plurality opinion in Florida v. Royer, seizure by police occurs when:a. police officers approach an individual on the street and asks her to answer some

questions.b. the officer identifies himself as a police officer and asks the citizen to answer some

questions.c. a reasonable person would not feel free to leave.d. when an officer in plainclothes approaches a citizen and asks questions about a

crime without identifying himself as an officer.


35. In California v. Hodari D. (1991), the Supreme Court ruled:a. a seizure cannot occur if the suspect does not yield.b. a show of authority stop by police is sufficient to establish a seizure occurred.c. a show of authority is sufficient to establish that a suspect is not free to leave.d. a warning shot is required to establish a seizure occurred and the suspect continues

to flee.


TRUE/FALSE

1. In practice, searches and seizures sometimes serve to protect police officers.


2. The Fourth Amendment only protects against invasions that amount to unreasonable searches and seizures.

ANS: T REF: 50-51 OBJ: 5

3. The US. Supreme Court has held that citizens have a reasonable expectation of privacy in the telephone numbers they call.

ANS: F REF: 58-59 OBJ: 7

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4. According to the privacy doctrine, the Fourth Amendment protects places, not persons.


5. The discovery of evidence by means of a law enforcement officer’s ordinary senses in any place where the officer has a lawful right to be is not a search.


6. The plain view doctrine does not allow the use of ordinary technological enhancements that are widely available, i.e. flashlights or magnifying glasses.


7. The open fields doctrine protects land from intrusion where owners have put up “no trespassing” signs.


8. The police have heard vague rumors of unknown reliability that Smith is growing marijuana in a field on his farm. The field is not visible from Smith’s house or from any public road. To reach the field, the police climb over a fence with “No Trespassing” signs on it. They find marijuana growing in a field on Smith’s farm. They had no search warrant. This search is constitutional under the open fields doctrine.


9. The Fourth Amendment does not afford protection against what can be perceived by the senses in a public place.


10. According to the Supreme Court opinion in California v. Greenwood involving incriminating evidence found in defendant’s trash, citizens have a reasonable expectation of privacy in their trash.


11. A Fourth Amendment seizure occurs when the suspect feels a moral duty to cooperate with police.


12. According to the Supreme Court in California v. Hodari D, involving a young man who threw away a rock of crack cocaine just before an officer physically apprehended him, a seizure occurs when an officer approaches someone with an intent to seize the person.


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13. The Fourth Amendment protects abandoned property.


14. The US Supreme Court has held that a citizen can have a reasonable expectation of privacy in telephone conversations.


15. Justice Black, dissenting in Katz v. United States, argued that the Fourth Amendment was meant to only extend protection to tangible things and places.


COMPLETION

1. The rule that detection by means of the ordinary senses is not a Fourth Amendment search is known as the .

ANS: plain view doctrine REF: 68 OBJ: 9

2. The value sometimes called the right to be let alone from government invasions is __ _.

ANS: privacy REF: 52 OBJ: 4

3. The Fourth Amendment protects against unreasonable searches and seizures by _______.

ANS: the government REF: 50 OBJ: 5

4. The statement that the Fourth Amendment protects persons, not places, when those persons have a reasonable expectation of privacy describes the ____________ doctrine.

ANS: privacy REF: 53 OBJ: 4

5. According to the open fields doctrine, the protected and immediately surrounding area around a house is known as .

ANS: curtilage REF: 71 OBJ: 9

6. Looking through abandoned property is not a Fourth Amendment search. For property to be considered abandoned, there must be ________________ and ___________________.

ANS: intent to throw the property away, acts that prove this intent

REF: 72 OBJ: 9

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7. The concept that a search requires a physical invasion into a constitutionally protected area is called the ____________________.

ANS: trespass doctrine REF: 53 OBJ: 4

8. For Fourth Amendment purposes, privately owned land not in included within the area immediately surrounding the home is called .

ANS: open fields REF: 71 OBJ: 9

9. When a police officer grabs a citizen with the intent to stop that person, that is called a(n) ___________.

ANS: actual seizure stop REF: 73 OBJ: 10

10. The right of citizens to come and go as they please is called ________________.

ANS: liberty or the right of locomotion REF: 52 OBJ: 4

ESSAY

1. Compare the trespass doctrine with the privacy doctrine in defining Fourth Amendment searches.

Until the late 1960s, the Supreme Court defined searches under what was called the Trespass Doctrine. According to this doctrine, to be a search, officers had to physically invade a “constitutionally protected area.” Constitutionally protected areas were the places named specifically in the Fourth Amendment: persons, houses, papers, and effects. Nontangible items not falling within the places named in the Fourth Amendment were not protected under the Trespass Doctrine.

In 1967, the Trespass Doctrine was replaced with the Privacy Doctrine. According to this doctrine, the Fourth Amendment protects persons, not places, whenever the persons have an expectation of privacy that society is prepared to recognize as reasonable. Thus, under this doctrine, the Supreme Court decided that a telephone conversation could be the subject of an unreasonable search and seizure, a position previously rejected by the Trespass Doctrine.

2. Why can plain-view searches be called nonsearches? Identify and describe the situations when the three conditions of the plain-view doctrine apply.

Anything an officer discovers by means of the ordinary senses is not protected by the Fourth Amendment. Citizens can not realistically have any expectation of privacy in what they have exposed.

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Plain-view searches are really nonsearches because in them, officers discover by means of their ordinary senses information that citizens have openly exposed to the public.

According to the text, the plain view doctrine only applies if three conditions are met at the time evidence is discovered. First, the officers must have a legal right to be where they are at the time. Second, the officers cannot enhance their ordinary senses with advanced technology. Finally, the officers’ discovery of the evidence to be seized must be by chance.

3. Why is there no reasonable expectation of privacy in open fields? Why does the open fields doctrine apply even when owners post a “No Trespassing” sign?

For a property to fall within the category of “open fields” where there is no reasonable expectation of privacy, these areas must not provide settings for the intimate activities that the Fourth Amendment was designed to protect from government interference or surveillance. The Fourth Amendment protects people in their “persons, houses, papers, and effects.” Thus, even looking at the Amendment in a pure textual sense, it is easy to see that it was not meant to protect open, privately-owned land.

Posting a “No Trespassing” sign does not mean that the open field doctrine may not apply and exclude the posted property from protection of the Fourth Amendment. The Supreme Court has decided that if this was all that was needed to give owners a reasonable expectation of privacy in an area where they could not otherwise expect such, police officers would have to guess before every search as to whether owners have posted a sufficient number of warnings or posted them in adequate places to protect the property. This would make the job of the police very difficult, as they must be able to know with a reasonable degree of certainty what is protected by the Fourth Amendment and what is not.

4. Identify and give an example of each of the two elements that determines whether property is abandoned for Fourth Amendment purposes.

There are two elements to determining whether property is abandoned for Fourth Amendment purposes: a physical and a mental element. For the physical element, a person must physically give up possession of an item. For the mental element, a person must intend to give up the expectation of privacy in an item.

A common example of abandoned property may be small pieces of trash. After people eat their fast food sandwiches, they then discard the wrappers in which the sandwiches came by throwing them away. They have both physically given up possession of the wrapper and did so with the intent to abandon any expectation of privacy in it.

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5. Identify the two conditions that each turn an encounter with the police into a Fourth Amendment seizure.

There are two conditions that can turn an encounter with the police into a Fourth Amendment seizure. First, the officer can physically grab a person with the intent of keeping that person from leaving. Secondly, as an alternative, the officer can make a display of authority and a person can submit to that authority.

CHAPTER TWOCRIMINAL PROCEDURE AND THE CONSTITUTION

MULTIPLE CHOICE

1. The major differences between the United States Constitution and other documents that courts interpret include:I. the Constitution always binds the government.II. the Constitution cannot be changed by government.III. the Constitution is the expression of the whole people.IV. the Constitution is a higher form of law.

a. I, II, III, IVb. III, IVc. I, III, IVd. IV


2. Criminal procedure refers to the:I. methods the government can use to investigate criminals.II. methods the government can use to prosecute criminals.III. methods the government can use to convict criminals.IV. methods the government can use to punish criminals.

a. I, IIb. II, IIIc. Id. I, II, III, IV


3. The sources of American criminal procedure law include:I. the United States Constitution.II. United States Supreme Court decisions.III. Federal rules of criminal procedure.IV. State court opinions.

a. Ib. I, II, III, IV

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c. I, IId. I, II, III

ANS: B REF: 26 OBJ: 1-2

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4. Which of the following is not a source of Criminal Procedural law?a. state court opinionsb. Model Code of Pre-arraignment Procedurec. administrative agency regulationsd. state rules of criminal procedure


5. The criminal procedure provision(s) in the body of Constitution, as opposed to the Bill of Rights is/are:

I. habeas corpus. II. privilege against self incrimination. III. right to confront witnesses. IV. trial by jury in the community where the crime allegedly occurred.a. Ib. II, IVc. I, IIId. I, IV


6. Most criminal procedure provisions in the Constitution are found in the: I. Fourth and Fifth Amendments. II. Fourteenth Amendment. III. Fourth, Fifth, Sixth, Eighth Amendments. IV. Fourth, Sixth, and Fourteenth Amendments.a. Ib. II.c. III.d. II, III


7. The Supremacy Clause of the U.S. Constitution:a. explicitly provides for judicial review.b. vests final government authority in the U.S. Constitution.c. only applies to the federal government.d. does not apply to state court decisions.


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8. The U.S. Supreme Court has the power to manage how the lower federal courts conduct their business. This is called the Court’s:

a. power of judicial review.b. due process standard.c. supreme power.d. supervisory power.


9. A decision of the U.S. Supreme Court that is based on an interpretation of a provision of the U.S. Constitution is:

a. binding on all lower federal courts only.b. binding on state courts only.c. binding on both state courts and lower federal courts.d. binding on all other U.S. courts but only for the next twenty years.


10. The United States Constitution:a. sets minimum national constitutional standards.b. sets the highest possible constitutional standards, but only for the federal

government.c. sets the highest possible constitutional standards both for state and national

governments.d. prescribes detailed rules for police officers to follow when arresting citizens.


11. The term “parallel rights” refers to:a. rights guaranteed by a state constitution that are similar to the rights guaranteed by

the U.S. Constitution.b. rights guaranteed by a state constitution that include rights not guaranteed by the

U.S. Constitution.c. rights guaranteed by state statute that are similar to the rights included in the state

constitution.d. state rights that have been replaced by federal rights.


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12. The Fourteenth Amendment: I. was enacted after the Civil War. II. helped establish federal supremacy over states’ rights. III. embodied the idea that all are entitled to equal rights. IV. contains a due process clause.a. I, II, III, IVb. I, III, IVc. I, II, IVd. II, III, IV


13. With respect to the Fourteenth Amendment due process clause:a. the Supreme court has defined it differently over time.b. it applied initially to the federal government only.c. courts did not extend its protection to state criminal justice during the

twentieth century.d. due process is synonymous with equal protection.


14. The term “due process revolution” refers to:a. the Supreme Court’s expansion of individual rights in the 1960s.b. the Civil unrest that swept the U.S. in the 1960s.c. the passage of the Fourteenth Amendment.d. the adoption of the fundamental fairness doctrine by the Court in the 1930s.


15. Which of the following is not involved in a criminal procedure course?a. Equal Protection of the lawb. Criminal lawc. Procedural due processd. Fundamental fairness


16. In Hurtado v. California (1884), involving the murder by Hurtado of his wife’s lover, the Supreme Court ruled that the Fourteenth Amendment due process clause:

a. requires jury trials in all state courts.b. requires states to provide a grand jury indictment in capital cases.c. does not forbid states to use the death penalty because it does not define

defendants of a “fundamental right” in capital cases.d. does not require states to provide a grand jury indictment in capital

cases.


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17. The First World War and the rise of fascism:a. gave rise to a stronger faith in government in America.b. had little or no effect on American criminal procedure.c. led to calls for the abolition of the Fourteenth Amendment.d. revived traditional American fears of arbitrary government.


18. According to the Supreme Court in Powell v. Alabama, the famous “Scottsboro Case” of 1932 involving several black youths accused of raping two white girls on a train,:

a. the entire Bill of Rights applies to state criminal procedure.b. the due process clause requires states to follow all of the federal government’s

rules of criminal procedure.c. all criminal defendants are entitled to a lawyer in every criminal case free of

charge.d. in the severe circumstances of this case—young, ignorant, illiterate defendants

facing the death penalty in a hostile environment far from their family and friends—the state was required under the federal Constitution to provide counsel for the defendants.


19. The fundamental fairness doctrine of due process requires states to provide: I. notice to defendants of the charges against them. II. an attorney at state expense if they cannot afford one. III. a grand jury proceeding. IV. a hearing on the facts before conviction and punishment.a. I, II, IIIb. I, IVc. III, IVd. I, III, IV


20. In Palko v. Connecticut (1937), the Supreme Court ruled that:a. the double jeopardy clause does not apply to state criminal proceedings.b. the double jeopardy clause does apply to state criminal proceedings.c. the fundamental fairness doctrine is no longer applicable.d. selective incorporation is the prevailing doctrine.


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21. Both the fundamental fairness and incorporation doctrines promote similar interests. Nonetheless, they differ in several respects. These differences include:

I. they define due process differently. II. the extent to which they require uniform treatment by the states.

III. the incorporation doctrine relies on natural law and the fundamental fairness doctrine relies on the Bill of Rights.IV. The fundamental fairness doctrine derives its meaning independent of the Bill of Rights while incorporation derives its meaning from the Bill of Rights.

a. Ib. II, IIIc. I, II, IVd. I, II, III, IV


22. Justice Felix Frankfurter:a. was the main advocate of selective incorporation.b. was the main advocate of total incorporation.c. was the main advocate of the fundamental fairness doctrine.d. advocated neither the fundamental fairness nor incorporation approach to due

process.


23. Justice Hugo Black:a. was the main advocate of selective incorporation.b. was the main advocate of total incorporation.c. was the main advocate of the fundamental fairness doctrine.d. advocated neither the fundamental fairness nor incorporation to due process.


24. The Supreme Court in Rochin v. California, involving police officers who forced a stomach pumping in order to retrieve swallowed narcotics,:

a. held that the Fifth Amendment applies to the states.b. ruled that the Fourth Amendment applies to the states.c. held that the Fifth Amendment due process clause does not apply to the states.d. held that the police conduct shocked the conscience and violated due process.


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25. Although he concurred with the result in Rochin v. California, Justice Black disagreed with the majority’s approach to deciding what constitutes due process because:

a. he felt that the conviction should have stood.b. he felt the majority’s approach gave individual justices too much leeway to enforce

their own notions of justice on the states.c. he felt it was too rigid and unbending.d. he felt the Court had no business reviewing state court convictions.


26. Selective incorporation means:a. the state legislatures can select which provisions in the Bill of Rights to

incorporate.b. only some of the Bill of Rights are incorporated into the due process clause of the

Fourteenth Amendment.c. only the Fourth and Fifth Amendments are incorporated into the due process

clause of the Fourteenth Amendment.d. state supreme courts shall decide which provisions in the Bill of Rights their states

should incorporate


27. The Supreme Court, interpreting the Fourteenth Amendment due process clause, has decided that which one(s) of the following rights found in the Bill of Rights apply to the states?

I. right against unreasonable searches II. right to indictment by grand jury III. right against cruel and unusual punishments IV. right to confrontationa. I, II, III, IVb. Ic. I, III, IVd. III, IV


28. The total incorporation doctrine:a. leaves the states more freedom to determine their own procedures than the

fundamental fairness doctrine.b. means that the equal protection clause incorporates the provisions in all the Bill of

Rights relating to criminal procedure.c. would incorporate in total those rights in the Bill of Rights that are “implicit in the

concept of ordered liberty.”d. means that the due process clause of the Fourteenth Amendment incorporates the

provisions in all the Bill of Rights relating to criminal procedure.


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29. Criticism of the incorporation doctrine is particularly harsh when the national standards established in the incorporation doctrine are applied to:a. local police.b. local prosecutors.c. state supreme courts.d. federal law enforcement agencies.


30. Equal protection of the law means that: I. states cannot investigate, apprehend, convict, and punish people unreasonably. II. states must treat everybody alike. III. courts will look suspiciously at classifications passed on race and ethnicity. IV. the value of equality is deeply embedded in the concept of United States constitutionalism.a. I, II, III, IVb. I, III, IVc. I, IVd. III


31. In order to claim a violation of the equal protection clause, a claimant must:a. prove the official government action had a discriminatory effect.b. prove the official intended to discriminate.c. prove that the government action had a discriminatory effect and a discriminatory

purpose.d. prove that the government action treated him or her differently than other people.


32. The “presumption of regularity” posits that:a. most people who claim a violation of the equal protection clause have been

discriminated against.b. most people who allege due process violations have been harmed.c. there is a set of due process requirements that apply in regular criminal cases.d. government actions are presumed lawful unless there’s clear evidence to the

controversy.


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33. In U.S. v. Armstrong, the case in which the defendants’ made a motion for dismissal on selective prosecution grounds because they were Black, the Supreme Court indicated that:

I. Prosecution may not be based on an unjustifiable standard such as race.II. The claimant must demonstrate that the federal prosecution policy had a discriminatory effect.III. The claimant must demonstrate that the federal prosecution policy was motivated by a discriminatory purpose.IV. The defendant’s evidence in this case did not constitute the essential elements of a selective prosecution claim.

a. I, II, III, IVb. I, IVc. II, IVd. I, II, III


34. An appellate court hearing where all of the judges on the court consider the case as opposed to a panel of three judges is called:

a. a writ of habeas corpus.b. a petition for certiorari.c. a hearing en banc.d. a discovery hearing.


35. A motion for discovery:a. asks the court to consider new evidence in the case.b. asks the judge to investigate the opposing party’s evidence.c. asks the court to allow the defendant additional time to gather more evidence.d. asks the court to order the opposing party to turn over information they have

gathered to the party making the motion.


TRUE/FALSE

1. The Constitution is a different type of document than a statute, because it expresses the will of the people as a whole.


2. The Constitution always binds the government.


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3. Criminal procedures are the rules government must follow in enforcing the criminal law.


4. Although it is the highest court in the land, the U.S. Supreme Court depends on local courts and the police to apply its decisions to daily situations.


5. The United States Supreme Court has no authority to interpret a state constitution as long as state constitutional provisions and the decisions interpreting them meet the standards set by the United States Constitution.


6. In Palko v. Connecticut, the US Supreme Court found that freedom from double jeopardy was a fundamental right and thus part of due process.


7. Some state constitutions provide rights not mentioned in the U.S. Constitution


8. The U.S. Supreme Court has used the due process clause of the Fifth Amendment to extend most of the protections in the Bill of Rights to state criminal proceedings.


9. The fear of fascism and the rise of Nazi Germany did not revive the historical fears Americans had of arbitrary government.


10. In Powell v. Alabama, the 1932 Supreme Court decision involving several black youths accused of raping two white girls on a train, the court ruled that the due process clause of the Fourteenth Amendment requires states to provide the rudiments of a fair trial—fundamental fairness.


11. In Brown v. Mississippi, a case involving a Mississippi black man who was tortured into confessing to a murder, the Supreme Court ruled that criminal procedure was a totally local matter.


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12. According to the Fundamental Fairness Doctrine, due process is a general command, requiring states to provide the rudiments of a fair trial.


13. Most of the Bill of Rights’ guarantees have now been made applicable to and binding on the states through the due process clause of the 14th Amendment.


14. The total incorporation doctrine has been accepted by the majority of the Supreme Court.


15. Equal protection of the law means that states must treat everybody alike.


COMPLETION

1. Only the direct action of the whole _______ can change the U.S. Constitution.

ANS: the people REF: 26 OBJ: 1

2. Detailed, constantly changing rules passed by legislatures are called ________.

ANS: laws REF: 26 OBJ: 1

3. The idea that due process guarantees fair procedures for deciding cases is called _______.

ANS: procedural due process REF: 31 OBJ: 4

4. The ultimate source of the law of criminal procedure is the ______________.

ANS: United States Constitution REF: 27 OBJ: 1

5. Rights every state guarantees its citizens similar to those in the United States Constitution and Bill of Rights are known as .

ANS: parallel rights REF: 28 OBJ: 3

6. The final authority on interpreting the U.S. Constitution is ________________.

ANS: the United States Supreme Court REF: 28 OBJ: 2

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7. The power of courts to declare laws and government actions unconstitutional is called ________________.

ANS: judicial review REF: 27 OBJ: 2

8. Final government authority rests in the U.S. Constitution by virtue of the ____________.

ANS: supremacy clause REF: 27 OBJ: 1

9. The __________ doctrine holds that the due process clause included all of the specific provisions of the Bill of Rights.

ANS: total incorporation REF: 37 OBJ: 5

10. In deciding which rights in the Bill of Rights apply to the states as well as the federal government, the Supreme Court has decided on a right-by-right basis. This approach by the Supreme Court is known as __________ .

ANS: selective incorporation REF: 37 OBJ: 5

ESSAY

1. List six characteristics of constitutionalism.

1. Constitutions are a higher form of law that speak with a political authority that no ordinary law or other government action can match.

2. Constitutions express the will of the whole people.3. Constitutions always bind the government.4. Constitutions can not be changed by the government.5. Only the direct action of the people themselves can change constitutions.6. Constitutions embody the fundamental value of the people.

2. Briefly trace the history of due process from the adoption of the U.S. Constitution to the present.

From the passage of the Constitution to the Civil War, criminal justice was considered a local affair. The Bill of Rights extended protection against only the federal, not state, government. The Fourteenth Amendment’s due process clause changed that.

Courts, however, defined due process differently. Some decisions emphasized procedural due process, contending that due process guarantees fair procedures for deciding cases. The question then became which fair procedures are guaranteed. The Bill of Rights lists several. Were they due process guarantees?

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Experts differed. Some claimed the Bill of Rights codified a specific list of procedures to protect people against governmental excesses and the Fourteenth Amendment requires all these procedures apply to the states.

Others claimed that if due process was shorthand for the Bill of Rights, the Fourteenth Amendment due process clause is wasted language, because the Fifth Amendment already includes a due process clause. They the meaning of due process should evolve to meet the needs of an ever-changing society.

Until the 1930s, the Supreme Court refused to apply the Fourteenth Amendment due process clause to state criminal proceedings. After World War I came the rise of totalitarian governments in the late 1920s and 1930s which gave rise to American suspicions of arbitrary government. In 1932, the U. S. Supreme Court ruled in Powell v. Alabama that the state of Alabama had denied the defendants due process during their trial. In Brown v. Mississippi (1936), the Court ruled the defendants were denied due process when confessions obtained by brutality and torture were used against them.

These two cases established the fundamental fairness doctrine. According to this doctrine, due process commands states to provide the basics of a fair trial. These include (1) giving defendants notice of the charges against them and (2) assuring a full hearing before conviction. However, even after these two cases, the Supreme Court refused to hold that the Bill of Rights now automatically applies to state criminal justice.

During the 1940s and 1950s, all the Justices agreed the Bill of Rights imposes limits on state criminal procedures, but they disagreed about what those limits are. This view was opposed by Justices who believed in the total incorporation doctrine. They believed that all the provisions of the Bill of Rights should be incorporated through the due process clause of the Fourteenth Amendment and applied to state criminal justice proceedings. A third approach, selective incorporation, took a middle ground. Under this doctrine, some rights in the Bill of Rights should be incorporated through the Fourteenth Amendment and others should not. This doctrine was adopted by the Court in the 1960s. Gradually, on a case-by-case basis, most of the protections of the Bill of Rights were selectively incorporated and applied to the states.

3. Summarize the differences among the fundamental fairness, total incorporation, and selective incorporation doctrines as they affect state criminal procedures.

The fundamental fairness doctrine focused on general fairness. Under this doctrine states could largely define their own criminal procedures as long as they did not offend fundamental rights.

Under the total incorporation doctrine, all provisions of the Bill of Rights were considered incorporated into the Fourteenth Amendment due process clause and thus applicable to the states. Under this doctrine, states in a criminal justice system would have to follow identically all those rights guaranteed to the accused in federal criminal proceedings.

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Finally, the selective incorporation doctrine argued that some provisions of the Bill of Rights were incorporated into the notion of due process and thus applicable against the states, and some were not. When a right was considered so fundamental as to be incorporated into the due process clause and applied to the states, the states would have to apply that right exactly as it was in a federal criminal proceeding.

4. Summarize the controversy generated by the U.S. Supreme Court’s 1960s incorporation decisions.

The critics of incorporation charged that it destroyed federalism, interfered with local criminal justice, and eviscerated the need for both local variety and experiments with different solutions to problems in criminal justice administration. These critics claimed that the great differences among the states and among federal, state, and local systems of criminal justice demanded local control and variation.

The critics noted that federal criminal justice consisted mainly of cases involving fraud, tax evasion, and other complex crimes. Investigation of those cases took place largely in offices, not in the field. On the other hand, local law enforcement dealt mainly with street crimes that bring local police in contact with violent individuals who are difficult to deal with. As a result, the critics claimed that the Bill of Rights worked well for federal, but not state and local, criminal justice. Also, the critics noted that since most local police were not highly trained college graduates, as federal agents usually were, the incorporation doctrine only worked well for the smaller number of federal criminal cases but not for the larger number of state criminal cases.

5. Identify the two facts individuals have to prove to succeed in their claims that government denied them equal protection of the laws.

The two facts that must be shown to prove a claim of denial of equal protection of the laws are first, that some official act had a discriminatory effect. This usually means proving race or some other illegal group characteristic is the reason for the official decision. The second fact to be proven is that officials intended to discriminate against a specific claimant because of race or some other illegal criteria.

CHAPTER ONECRIME CONTROL IN A CONSTITUTIONAL DEMOCRACY

MULTIPLE CHOICE

1. In a constitutional democracy:a. the majority could authorize the police to arrest an individual based on the hunch

he or she committed a crime.b. the majority has total power to determine how much authority the police have.c. neither a single dictator nor an overwhelming majority of people have total power.

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d. the power of police depends on which party won the most recent election.


2. In a constitutional democracy, when enforcing the criminal law:a. officials are restricted by the law of criminal procedure.b. officials are restricted by the legislature.c. officials are restricted by popular opinion.d. officials have wide latitude to decide what actions to take.


3. According to legal experts, the primary generators of the rules to regulate the behavior of police, prosecutors, and others involved in the criminal process rests with:

a. the legislature.b. the President of the United States.c. the trial courts.d. the Unites States Supreme Court.


4. The states are free to _________________ established by the U.S. Supreme Court that apply to the administration of criminal justice.

a. lower or reduce the operating proceduresb. ignore the operating proceduresc. raise the minimum operating proceduresd. raise the maximum operating procedures


5. Striking the balance between community security and individual autonomy:a. is generally a straightforward process.b. is often difficult and the balance that is struck may not satisfy anyone completely.c. usually leads to an emphasis on community security.d. requires the court to find in favor of the individual.


6. The search for the correct result essential to criminal procedure in a constitutional democracy means to:I. convict the guilty.II. plea bargain in weak cases.III. search for truth at any cost.IV. acquit the innocent.

a. I, II, III, IVb. I, II, IIIc. Id. I, IV


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7. The “means” side of the end-means balance:a. is committed towards fairness in dealing with defendants.b. is devoted to giving government officials the greatest power possible.c. is concerned that too many defendants go free on technicalities.d. fosters the result side of the criminal justice process.


8. The correct result in a criminal case is concerned with:I. catching and convicting the guilty.II. processing a case as efficiently as possible.III. freeing innocent people caught up in government efforts to control crime.IV. making sure the result is affirmed on appeal.

a. I,II,III, IVb. I,IIIc. I, II, IVd. II, III, IV


9. The main criticism of the Warren Court was that:I. the Court paid too little attention to criminal matters.II. the Court tilted the balance of power toward process so far that it favored defendants too much. III. the Court expanded the government’s power too much in criminal cases.IV. the Court was too concerned about federalism.

a. I, II, III, IVb. IIc. I, IVd. III


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10. The due process revolution in the 1960s:a. emphasized the police power of the state to control individuals who were

protesting the government’s policies.b. tilted the balance between results and means in criminal justice in favor of the

state.c. emphasized the needs of crime victims.d. tilted the balance between results and means in criminal justice in favor of process

(means) and individual rights.


11. The trend today in balancing results and means in criminal justice:a. continues to be strongly in favor of individual rights by emphasizing process

(means).b. has shifted away from process to results.c. is impossible to determine because the Supreme Court has not made it clear.d. is equally poised between process (means) and results.


12. The balance between society and individual and between ends and means is tested most seriously:

a. during wartime.b. during depression.c. during natural disasters.d. during civil rights movements.


13. Making decisions according to the law of criminal procedure as outlined in the Constitution, judicial opinions, laws and other written sources is called:a. formal decision making.b. informal decision making.c. discretionary decision making.d. playing by the rules.


14. Judgments made by professionals based on their training and experience and unwrittenrules are known as:

a. formal decision making.b. discretionary decision making.c. applying the written rules in a flexible manner.d. official discretion.


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15. Hunches are never sufficient to guide decisions made by agents of crime control.This principle can be described as:

a. good evidence.b. using the best methods.c. the objective basis requirement.d. discretionary decisions.


16. The graduated objective basis requirement holds that the greater the limits the government places on an individual’s autonomy:

a. the more discretion the government agent must exercise.b. the less discretion the government agent must exercise.c. the more facts must back up the government’s actions.d. the facts must be close to proving guilt beyond a reasonable doubt.


17. The citation of a case tells:I. the date the case is decidedII. the decision the court reachedIII. the court reporting the caseIV. the court that the case is appealed from.

a. IIIb. I, IIIc. I, II, III, IVd. II, III, IV


18. A brief description of the steps and judgments made by each court that has heard a case is called:

a. the courts’ judgmentsb. the courts’ decisionsc. the courts’ opinionsd. the procedural history of the case


19. How a court disposes of a case is called:a. the court’s judgmentb. the court’s opinionc. the majority opiniond. the case holding


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20. Courts explain why they decided a particular case the way it did in:a. the judgment.b. the opinion.c. the decision.d. facts.


21. The court’s holding:a. is also called a judgment.b. is found in the case’s procedural history.c. is the legal rule the court applied to the facts of the case.d. is the also called the majority opinion.


22. Say that an appellate court case has a majority of the justices agree with the result in the case, but they cannot agree on the reasons for the result. The opinion with the reasoning agreed to by the largest number of justices is called a:

a. dissenting opinion.b. plurality opinion.c. majority opinion.d. concurring opinion.


23. If a justice agrees with the decision reached in another opinion but writes a separateopinion explaining her own reasons for reaching that decision, she has written a:

a. dissenting opinion.b. plurality opinion.c. concurring opinion.d. holding.


24. The doctrine of stare decisis binds judges to follow the prior decisions of:a. their own court and courts superior to them in their jurisdiction.b. any court in the same state of equal power.c. any court in the United States.d. only the United States Supreme Court.


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25. When a court refers to past cases to back up its reasons and decisions in the case currently before it, the prior decisions are called:a. procedural history.b. court opinions.c. precedent.d. majority judgments.


26. Jurisdiction refers to a court’s authority to hear and decide a case:I. in a specific geographical area.II. in a particular subject matter.III. according to legal precedent.IV. remanded by an appellate court.

a. I, IIb. Ic. IId. I, II, IV


27. When courts decide cases based on legal precedent, their decisions increase society’s sense of:I. stability.II. predictability.III. a sense of fairness.IV. discretion.

a. I, II, II, IVb. I, II, IIIc. I, IId. I


28. When a court decides that a prior court decision does not apply to a current case because the facts of the previous case are different, the court is said to:

a. dispute the holding of the previous decision.b. overturn legal precedent.c. distinguish the previous case.d. reverse the previous case.


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29. The party who is being appealed against is known as:a. the appellant.b. the petitioner.c. the plaintiff.d. the appellee.


30. A petition for a writ of habeas corpus:I. is a continuation of the original criminal case.II. is a civil case.III. reviews the constitutionality of a petitioner’s detention.IV. is another form of appeal.

a. I, IIIb. III, IVc. II, IIId. IV


31. In the U.S. Supreme Court, certiorari:I. is discretionary.II. does not require the court to hear the appeal.III. is usually granted because a case raises an important constitutional issue affecting large numbers of individuals.IV. is usually granted to prevent punishment of the innocent.

a. IIIb. I, IIc. I, II, IIId. I, II, III, IV


32. The U.S. Supreme Court decides to review a case on a writ of certiorari based on:a. the “rule of four.”b. a majority vote.c. a unanimous vote.d. what the Chief Justice wants.


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33. In habeas corpus actions:I. the petitioner names the state as a party.II. the government sues an incarcerated or detained prisoner.III. the title of the case has names of individual parties and not the state or government.IV. the court is a party to the petition.

a. I, IIb. IIIc. IVd. III, IV


34. The disposition in a criminal case when the appellate court sends a case back to the court from which it came for further action is:

a. affirmed.b. remanded.c. reversed.d. nullified.


35. An appellate court _________ a trial court’s judgment when it sets it aside.a. reversesb. affirmsc. remandsd. questions


TRUE/FALSE

1. Crime control in a constitutional democracy depends on the balance between searching for the correct result in criminal cases and the commitment to use fair procedures in pursuing criminals.


2. A case citation is composed of a string of letters and numbers.


3. A habeas corpus proceeding is not a separate proceeding from a defendant’s criminal case.


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4. A majority of U.S. Supreme Court justices have to vote to review a case before it can be heard.


5. According to the interest in fact-finding and the search for truth, the greater the deprivation the decision imposes, the greater the factual foundation required to support it.


6. How an appellate court disposes of a case is called its opinion.


7. The balance between result and process never rests at a point that satisfies everyone.


8. The greater the limit government imposes on the rights of an individual to come and go, the greater and the more facts needed to justify the limitation.


9. The due process revolution was led by the Burger Court.


10. In habeas corpus or collateral attack proceedings, you will find two person’s names in the title of the case.


11. The party appealing a lower court ruling or decision to a higher court is called the appellee.


12. One of the rules of procedure by which the U.S. Supreme Court operates is the “rule offour.” According to this rule, the Court issues a written decision in a case only if four or more justices think a written opinion is desirable.


13. Discretion and formal law making are antagonistic to each other in balancing the interests in criminal procedure.


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14. The due process revolution increased the power of the police in America.


15. When a court distinguishes a case, it decides that precedent does not apply to the current case because the facts of are different.


COMPLETION

1. Under the Constitution, public officials are required to have enough facts to back up every invasion of privacy, liberty, and property of individuals. This is known as a(n) ____________ .

ANS: objective basis REF: 14 OBJ: 5

2. The process of informal decision making by professionals based on their training and experience, rather than written rules, is called ________________________________.

ANS: discretionary decision making REF: 13 OBJ: 4

3. The citation of a case appears after ______________.

ANS: the title of the case REF: 17 OBJ: 8

4. An opinion that agrees with the result of another opinion is a(n) _____________.

ANS: concurring opinion REF: 19 OBJ: 8

5. The doctrine that requires that once courts have decided cases, those prior decisions bind later courts to follow them is .

ANS: stare decisis REF: 19 OBJ: 8

6. Motions to throw out evidence obtained by the government during searches and seizures, interrogation, and identification procedures are heard at a(n) _______________.

ANS: suppression hearing REF: 20 OBJ: 6

7. _________ and social science research helps produce a clearer picture of the real world judgments criminal justice officials make as well as defendants and suspects and how those decisions impact the balance between public safety and the liberty of the individual person.

ANS: Empirical REF: 14 OBJ: 6

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8. The power of a court to hear case in a particular subject or geographical area is its ______________.

ANS: jurisdiction REF: 19-20 OBJ: 8

9. Evidence that helps prove defendants are guilty is sometimes called ______________________.

ANS: “good” evidence REF: 14 OBJ: 6

10. The _______________ court opinion is considered the law.

ANS: majority REF: 18 OBJ: 8

ESSAY

1. Identify and describe the balance of values at the heart of our constitutional democracy and explain how and why that balance is flexible.

In a constitutional democracy, two values make life in a free society worth living. First, there is community security, which focuses on making people as a community safe. This is balanced against the value of individual autonomy, where a person alone controls his or her life. However, that individual control does not allow a person to commit crimes that would violate the community’s safety or the rights of other persons against their will.

The balance between crime control and individual rights is a flexible one. It shifts depending upon the circumstances. Rather than being a fixed point on a spectrum between total control and total freedom, the right balance falls within a zone. This zone is a choice between order and liberty. During certain times individual liberty may be sacrificed for increased order, while at other times the opposite may happen.

2. Describe how our system tries to strike a balance between ends and means. Describe the controversy this creates.

Crime control in a constitutional democracy depends upon a balance between ends and means. This can also be described as the balance between results and process. In criminal procedure, the “ends” side of the balance consists of the search for truth to obtain the correct result in deciding individual cases. At the “means” end of the balance is the commitment to fairness in dealing with suspects, defendants, and offenders. In a constitutional democracy, the system does not believe in catching, convicting, and punishing criminals at any price.

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This balance between ends and means can create controversy. Rules that protect people against government abuses of power also can interfere with the search for truth in individual cases. This interference can reduce the security of all people. For example, a guilty person may go free in one case today to make sure the government plays by the rules tomorrow. Those concerned with the “ends” part of the balance see rules that protect individual autonomy as “technicalities” that may allow criminals to go free. Those more concerned with the “means” end of the balance fear the power of the government more than they fear an incorrect result in an individual case.

3. Describe the history of criminal procedure, and explain why it is described as a pendulum swing.

The history of criminal procedure is described as a pendulum swing between the extremes of trying to balance the conflicting interests of society and those of the individual. No system has found a perfect balance between the power of the government to enforce its interest in crime control and the rights of the individuals in fair procedures to control crime. During different times in Western Civilization, the balance has swung towards one extreme or another.

In the 1960s, an increase in police power spawned a reaction called the due process revolution. This revolution tilted the balance of power towards process in individual rights in the criminal justice system. The revolution was led by the U.S. Supreme Court headed at that time by Chief Justice Earl Warren.

Critics of the Warren Court charged that it was soft on crime. Since the early 1970s, the pendulum has swung back towards the ends-result part of the balance. Presidential candidates promised to appoint judges who were tough on crime. Also, two “wars” have heightened the tension in the ends-means balance. These are the “war on drugs” and now the “war on terror.”

4. Describe the difference between formal and informal criminal procedure, and explain why both are essential to crime control in our constitutional democracy.

Formal criminal procedure focuses on decision making according to written rules spelled out in constitutions, laws, judicial opinions and other sources. Discretionary decision making involves judgments by professionals based on unwritten rules, their training, and their experience.

Justice, fairness, and predictability require the certainty and protection against abuse provided by written rules. These same goals also require discretion to soften the rigidity of written rules. This discretion must exist because it’s impossible for those people who promulgate the written rules to predict all the ramifications of the rules they enact. Enforcing written rules to the “letter” could in some circumstances lead to unfair results.

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5. Explain why “hunches aren’t enough” in criminal procedure.

Although crime control professionals have discretion, they aren’t free to do whatever they please. According to the objective basis requirement, the government cannot intrude on the lives of individuals whenever it wishes. The government has to back up with facts every officially triggered restraint on the rights of individuals to be let alone by the government. Mere hunches are not enough. Likewise, the greater the governmental intrusion, the more objective factual basis is required to back it up.

CHAPTER SEVENSPECIAL-NEEDS SEARCHES

MULTIPLE CHOICE

1. The Fourth Amendment:a. applies only to criminal cases.b. protects just those in criminal cases.c. limits the right to search to the gathering and use of evidence in criminal cases.d. includes searches which go beyond the needs of criminal law enforcement.


2. Which of the following elements do the variety of special needs searches have in common?I. They are directed primarily at citizens generally, not those suspected of crime.II. Although they have a regulatory purpose they can result in criminal prosecution.III. Their reasonableness depends on balancing special government needs beyond law

enforcement and privacy.IV. They require probable cause to be reasonable.

a. I, II, III, IVb. I, IIc. I, II, IIId. IV


3. Which of the following searches are considered special needs searches?I. airport searchesII. consent searchesIII. inventory searchesIV. automobile searches

a. I, II, III, IVb. I, III, IVc. II, IVd. I, III

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4. Which of the following has the Supreme Court identified as legitimate purposes for inventory searches?I. protection of owners' property while in police custodyII. to protect police from law suitsIII. to protect detained suspects from dangerIV. for criminal investigation purposes

a. I, II, III, IVb. I, II, IIIc. I, IVd. I, II


5. In order to meet constitutional standards, an inventory search:a. must be conducted only at police impound lots.b. must be done pursuant to written, established, police department procedures.c. must leave no room for police officer discretion in the search.d. must involve only a “plain view” search of the interior and exterior of the item

being searched.


6. In South Dakota v. Opperman (1976), the police conducted an inventory search in which they searched Opperman’s car after towing it to an impound lot because it was parked illegally. They found marijuana during a search of the glove compartment. The Supreme Court decided that:

a. the search of the glove compartment violated the U.S. Constitution.b. the search of the glove compartment did not violate the U.S. Constitution because

it was a legitimate inventory search.c. the search of the glove compartment violated the U.S. Constitution because it was

conducted on a suspicion that drugs were in Opperman’s glove compartment.d. the search of the glove compartment did not violate the U.S. Constitution because

drugs were discovered in the glove compartment.

ANS: B REF: 232-233 OBJ: 2

7. According to the Supreme Court, in order to conduct a routine search at the border, officers need:

a. probable cause.b. a warrant.c. reasonable suspicion.d. no probable cause, reasonable suspicion, or a warrant.


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8. Joan Smith is entering the United States at the Canadian border. Officers have reasonable suspicion to believe she is smuggling drugs. Which of the following searches of Joan may the officers lawfully conduct?

I. routine border searchII. a strip search of her personIII. a search of her handbagIV. a body cavity searcha. I, II, III, IVb. I, IIc. I, II, IIId. I, II, IV

ANS: C REF: 234-235 OBJ: 3

9. With regard to the factual foundation required to support border searches:I. reasonable suspicion supports a strip search.II. no warrant, probable cause, or reasonable suspicion is required for a

routine border search.III. probable cause is required for body cavity searches.IV. none of the above

a. Ib. IVc. I, II, IIId. II, III

ANS: C REF: 234-235 OBJ: 3

10. With regard to border searches, the U.S. Supreme Court has found that:a. any kind of border search can be made without any justification whatsoever.b. strip searches must be justified by probable cause.c. body cavity searches are never justified.d. the national interest in controlling the nation’s borders outweighs the invasion of

privacy caused by routine border searches.


11. In determining the reasonableness of airport searches, courts:a. have not ruled on this matter.b. have held they entail minimal intrusions that apply to all passengers.c. have considered them to be private searches.d. have held that airports may conduct such searches to protect public safety, but the

fruits of the searches are inadmissible at a criminal trial.


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12. A special need that justifies airport searches is:a. protection of endangered species.b. protection of public health.c. protection from drug smuggling.d. protection for air travelers.


13. Jail detainees, not yet convicted of a crime:a. cannot be searched until they are convicted.b. have the same Fourth Amendment protections as people not charged with a crime

because they presumed innocent until proven guilty.c. have the diminished Fourth Amendment rights and can be searched without

probable cause.d. can be searched only if there is reasonable suspicion they are dangerous.


14. Historically, before the second half of the Twentieth Century, U.S. prisoners:a. had almost no rights under the Constitution.b. have always been fully protected by the Constitution.c. have been protected by the Constitution if they plead guilty.d. have been protected by the Fourth Amendment in the privacy of their cells.


15. With regard to prisoners, the U.S. Supreme Court has held that:I. they are subject to full body searches without probable cause following contact

with visitors.II. their Fourth Amendment rights are diminished.III. their Fourth Amendment rights remain totally intact.IV. they are protected from prison shakedowns.

a. I, II, III, IVb. I, IIc. II, IVd. III


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16. Frank is an inmate at Greensburg State Prison and he has just had a contact visit with an old friend. Before Frank returns to his cell, prison guards subject Frank to a strip search. Such a search is:

a. constitutional, because prisoners have a diminished expectation of privacy and there is an important government need to maintain prison security.

b. constitutional, because prisoners forfeit all Fourth Amendment rights.c. unconstitutional, unless prison officials have reasonable suspicion to think they

will find contraband or evidence of a crime on Frank.d. unconstitutional, unless prison officials have probable cause to think they will

find contraband or evidence of a crime on Frank.


17. Which of the following prisoner searches conducted without probable cause do not violate the Fourth Amendment if they follow contact with visitors?I. cell searchesII. full body searchesIII. strip searchesIV. body cavity searches

a. I, II, III, IVb. Ic. I, II, IIId. I, II


18. According to the court in Bull v. City and County of San Francisco (2010), involving strip searches of all arrested persons who were admitted to the general population at the San Francisco jail:

a. the strip searches did not violate the Fourth Amendment.b. the reasonableness of strip searches requires probable cause that detainees are

concealing weapons or contraband.c. strip searches can be conducted only if there is individualized reasonable

suspicion.d. correctional officers must contact law enforcement for a warrant before a strip

search can be conducted.


19. Regarding probationers and parolees:a. both groups have the same Fourth Amendment rights as ordinary citizens.b. parolees can be searched without either probable cause or warrants.c. probationers can be searched without warrants but not without probable cause.d. the Fourth Amendment rights of probationers and parolees has not been addressed

by the courts.


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20. The Fourth Amendment law concerning parolees and probationers:I. permits the arrest of parolees and probationers without a warrant or probable

cause.II. permits the search of a parolee's or probationer’s car without a warrant or

probable cause.III. permits the search of parolees and probationers without a warrant or probable

cause.IV. permits the search of a probationer’s or parolee’s home without a warrant or

probable cause.a. I, II, III, IVb. III, IVc. II, III, IVd. I, II, IV


21. The need for prison and jail security permits searches without probable cause or a warrant of:I. prisoners. II. pretrial detainees.III. employees of the prison.IV. visitors to the prison.

a. I, II, III, IVb. I, II, IIIc. I, IId. I


22. The Supreme Court in Ferguson v. City of Charleston (2001), involving state hospital obstetric patients who were pregnant and arrested for child abuse after testing positive for cocaine, decided that:

a. the warrantless, suspicionless, and nonconsensual searches violated the Fourth Amendment

b. the searches do not violate the Fourth Amendment because the incidence of cocaine use among pregnant women has created a special need.

c. the searches do not violate the Fourth Amendment if doctors suspect the mother is using cocaine.

d. the searches violate the Fourth Amendment because they are conducted by health care professionals and not law enforcement.


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23. Which of the following have courts adopted to justify the diminished Fourth Amendment rights of parolees and probationers?I. Parolees are under constructive custody and hence do not have full Fourth

Amendment rights.II. Probation is an “act of grace” giving the government the power to impose

conditions that infringe upon Fourth Amendment rights.III. Consent to search is part of the “contract” of release.IV. Probationers are legally “dead” after conviction and have no rights.

a. I, II, III, IVb. I, IIc. I, II, IIId. IV


24. To do a body cavity search at an international border, which of the below is needed?a. probable causeb. reasonable suspicionc. individualized suspiciond. a written set of procedures


25. In Samson v. California (2006), the Supreme Court ruled that:a. a police officer is prohibited from conducting a suspicionless search of a

parolee.b. a police officer is not prohibited from conducting a suspicionless search of a

parolee.c. a police officer can conduct a suspicionless search of a parolee if the parolee is

searched in a public place.d. a police officer must have reasonable suspicion in order to search a parolee.


26. DNA testing of incarcerated felons:a. has been declared unconstitutional by the courts that have considered it.b. has been found to be constitutional by the U.S. Supreme Court.c. has been found to be constitutional by the courts of appeal that have

considered it.d. has not yet been addressed in any court opinions.

ANS: C REF: 241-242 OBJ: 5

249

27. According to the Supreme Court's decision in New Jersey v. T.L.O., involving the search of a student's purse, school officials (at least those officials supervising students junior high age or younger) may search the possessions of a student under their authority:

a. only with a search warrant.b. based on probable cause that the student has broken the law or a school regulation.c. based on reasonable suspicion alone.d. without a warrant at any time, for any reason, and without individualized

suspicion.


28. In regard to school searches, the Supreme Court has declared:a. school officials may conduct a search of the outer clothing of all persons found on

school property.b. while in school, children have no reasonable expectation of privacy.c. the legality of the search of a student should depend on the reasonableness, under

all circumstances, of the search.d. the Fourth Amendment does not protect university students in administrative

searches.


29. Concerning student searches conducted by public school officials, the Supreme Court has held:I. the Fourth Amendment’s prohibition on unreasonable searches and seizures

applies to searches conducted by school officials.II. children, while in school, possess a reasonable expectation of privacy.III. school officials are exempt from the Fourth Amendment.IV. school officials are held to the requirement that searches be based on probable cause.

a. I, II, III, IVb. I, IIc. I, II, IVd. III


30. According to State v. Ellis, searches of college dormitory rooms:a. are not protected by the Fourth Amendment.b. by university officials require reasonable suspicion.c. are governed by the same standards for searches of elementary and high school

students.d. do not require a warrant or probable cause when conducted by university residence

hall staff officials for health and safety reasons.

ANS: D REF: 247-249 OBJ: 7

250

31. The special need used to justify employee drug testing is directed mainly at:a. employees who may endanger public safety while under the influence of illegal

drugs.b. employees who may be smuggling and/or selling illegal drugs while employed.c. preventative government civil liability.d. criminal law enforcement in general.


32. In National Treasury Employees Union v. Von Raab, (1989) concerning the drug testing program of the U.S. Customs Service, the Supreme Court held: I. drug testing of a government employee can be done only if the government has

probable cause to think the employee is using drugs.II. the compelling government need to protect the integrity of the drug

interdiction program outweighed the privacy interests of Customs employees.III. testing of a government employee can be done only if the government has

reasonable suspicion to think the employee is using drugs.IV. a special need may justify departure from the ordinary warrant and probable cause

requirements.a. I, II, III, IVb. I, II, IVc. II, IVd. I

ANS: C REF: 249-250 OBJ: 8

33. In National Treasury Employees Union v. Raab, concerning a Customs Service drug testing program, the Supreme Court:

a. upheld the entire Customs Service testing program.b. upheld only the testing of employees who carried weapons.c. did not uphold any of the program.d. held that part of the program requiring testing of all employees who handled

classified material was unconstitutional.


34. In National Treasury Employees Union v. Von Raab, involving the employee drug testing program in the U.S. Customs Service, Justice Scalia dissented in part because he:

a. believed that drug testing federal employees does not constitute a search.b. thought all Customs employees should be tested, not just those carrying

firearms.c. failed to see any real problem demonstrated by the government that would be

solved by the drug testing program.d. distrusts the reliability of urinalysis tests.


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35. The Supreme Court ruled in Vernonia v. School District of Acton (1995):a. drug testing of students participating in athletic programs violates the Fourth

Amendment.b. drug testing of student athletes must be consensual in order to comply with the

Fourth Amendment.c. random, suspicionless drug testing of student athletes does not violate the Fourth

Amendment.d. the Fourth Amendment does not apply to drug testing of students.


TRUE/FALSE

1. The right against unreasonable searches and seizures is limited to criminal suspects.


2. The Supreme Court has not applied the Fourth Amendment to “special needs” that aren’t directly related to criminal law enforcement.


3. The objective basis for inventory searches consists of following routine procedures in compiling the inventory.


4. The Supreme Court has ruled that inventory searches are not Fourth Amendment searches.


5. The need to protect police from possible danger is not a justification for inventory searches.


6. The special need justifying routine border searches is the right to control who and what comes in and leaves the country.


7. The border search exception allows searches at international borders without warrants or probable cause.


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8. According to the Supreme Court, it is reasonable under the Fourth Amendment for public schools to require students involved in any extracurricular activity to be tested for drug use.


9. Probationers and parolees have diminished Fourth Amendment rights.


10. The border search exception does not allow the warrantless opening of mail coming into the country.


11. According to the court in State v. Ellis, involving a search of a dormitory room at a public university, administrators may never enter students’ rooms for any purpose without probable cause.

ANS: F REF: 247-249 OBJ: 7

12. The Supreme Court has not addressed the extent to which the Fourth Amendment protects university students in their dorm rooms.


13. Urine testing of government employees for the presence of drugs is a search under the Fourth Amendment.


14. Criminal law enforcement is not the purpose of employee drug testing.


15. Special-needs searches can never result in prosecution and conviction.


COMPLETION

1. Government inspections and other searches not conducted to gather criminal evidence are known as searches.

ANS: special-needs REF: 230 OBJ: 1

253

2. Searches that consist of compiling lists of property in government custody are ______________ searches.

ANS: inventory REF: 231 OBJ: 2

3. Searches of persons and property at the border of the United States to control who and what comes in and goes out are know as _______________ searches.

ANS: border REF: 234-235 OBJ: 3

4. The objective standard necessary to justify a strip search at the border is _____________.

ANS: reasonable suspicion REF: 235 OBJ: 3

5. Body cavity searches at the border are reasonable only if authorities have ____________.


6. The requirement that law enforcement officers follow written, departmental procedures when conducting inventory searches is called the _____________________.

ANS: routine-procedure limit REF: 232 OBJ: 2

7. The principle by which the government stands in the place of parents is _________.

ANS: in loco parentis REF: 255-256 OBJ: 7

8. Routine, unannounced cell searches for weapons and contraband are called _____________ searches.

ANS: shakedown REF: 237 OBJ: 5

9. Searches at international borders are reasonable even without warrants or probable cause under what is called the ________________.

ANS: border search exception REF: 234 OBJ: 3

10. The safety and security of travelers are the special needs that justify ___________.

ANS: airport searches REF: 235-236 OBJ: 4

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ESSAY

1. Why are inventory searches reasonable even without warrants or probable cause, identify the special needs satisfied by inventory searches, and what substitutes for probable cause as the objective basis for inventory searches?

Inventory searches are reasonable, even without warrants or probable cause, because they are not searches for the purpose of gathering evidence to prosecute crime.

Inventory searches satisfy three special needs not related to searching for evidence of a crime: (1) To protect owners’ property while it is in police custody. (2) To protect law enforcement agencies against lawsuits for loss, destruction or theft of owners’ property. (3) To protect law enforcement officers, detained suspects, and offenders from the danger of hidden bombs, weapons, and illegal drugs.

The presence of routine, department-approved, written procedures by which inventory searches must be conducted takes the place of probable cause for inventory searches. Following routine procedure provides some objective basis, because the procedures apply to all inventory searches. Routine procedures also keep law enforcement officers from searching on a ruse and from going too far in making the inventory.

2. Identify four characteristics all special-needs searches have in common.

Special-needs searches have the below characteristics in common: (1) They are directed at people generally, not criminal suspects specifically. (2) They can result in prosecution and conviction. (3) They don’t require warrants for probable cause. (4) Their reasonableness depends on balancing the special government need against invasion of individual privacy.

3. Identify the special need for searches of prisoners and prisoners’ expectation of privacy.

The special need for prisoner searches is to maintain prison and jail security, safety, and discipline. This special need must be balanced against the invasion of prisoners’ substantially reduced expectation of privacy.

The United States Supreme Court has held that a prisoner does not have a reasonable expectation of privacy in a jail cell, and that a search of the cell is not covered by the Fourth Amendment. However, full-body, strip, and body-cavity searches of prisoners are covered by the Fourth Amendment. Depending upon the need, these searches may be conducted without probable cause or reasonable suspicion

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4. Why don’t searches of probationers and parolees require warrants or probable cause to be reasonable?

There are multiple explanations for why searches of probationers and parolees don’t require warrants or probable cause to be reasonable. These explanations are listed below:

(1) Some courts say that because probationers and parolees are still in custody and conditional release is a privilege, not a right, one of the conditions of this privilege is to be searched at the discretion of the State.

(2) Some courts say these searches without warrants or probable cause are consent searches; probationers and parolees sign and agree to these searches in their “contract of release.”

(3) Some courts adopt a balancing approach to searches of probationers and parolees. Probation and parole are risks taken to help rehabilitate convicted offenders. Laws to protect society from further crime reducing Fourth Amendment protections for probationers and parolees are reasonable.

5. Why are searches of high school students reasonable without warrants or probable cause?

Searches of high school students are reasonable without warrants or probable cause because the Supreme Court has held that, in the context of a school setting, the Fourth Amendment must strike a balance between students’ reasonable expectation of privacy and a school’s legitimate need to maintain a healthy learning environment. Requiring school officials to have probable cause before searching students and to additionally get warrants would be too excessive given the need for quick disciplinary action by school officials in the high school setting. Therefore, reasonable suspicion alone is enough to conduct the search, and a warrant is not required.

CHAPTER EIGHTSELF-INCRIMINATION

MULTIPLE CHOICE

1. In screening the police procedures that are used during the accusatory stage of the criminal process, the courts recognize:

a. the needs of law enforcement and the privacy and liberty interests of individual citizens.

b. the need to have standard procedures for investigating crimesc. the interests of crime victimsd. the need to make an expeditious arrest


256

2. Based on their research of 125 proven false confessions, Richard Leo and Steven Drizen concluded:

a. that the problem of false confessions in not seriousb. most of the false confessions occurred after 2-3 hours of interrogationc. most of the people who confessed to crimes they did not commit were found not

guiltyd. the problem of false confessions may be more serious than previously thought


3. According to former Supreme Court Justice Felix Frankfurter regarding interrogation and confessions:

a. Modern advances in the technology of crime detection make interrogation unnecessary.

b. Where innocent human witnesses cannot be found, nothing remains but interrogation to get information from guilty persons.

c. Substantial restrictions on the ability of the police to interrogate suspects should have no effect on the ability of police to investigate crime.

d. All empirical studies of the importance of confessions in solving crimes are untrustworthy.


4. What goes on during interrogation:a. is widely known.b. occurs in private and hence is not widely known.c. cannot be secret because the law requires its publication.d. police readily reveal to their superiors and to courts.


257

5. Research by psychologists shows that jurors may give credit to confessions obtained during high-pressure interrogation because:

a. they believe police do not engage in high pressure interrogationb. they believe that being charged with a crime probably means the defendant is

guiltyc. of fundamental attribution errord. they believe high pressure interrogation is the best way to get suspects to confess


6. The right to remain silent can be traced back in history to the:a. Magna Carta.b. laws of Moses embodied in the Talmudic law.c. Articles of Confederation preceding the adoption of the United States Constitution.d. Preamble of the Stamp Act.


7. The constitutional bases for the law of confessions include:I. due process clause of the Fourteenth Amendment.II. Sixth Amendment right-to-counsel.III. Eighth Amendment right against cruel and unusual punishment.IV. Fifth Amendment right against self incrimination.

a. I, II, III, IVb. I, II, IIIc. I, II, IVd. IV


8. In the 1936 Supreme Court case Brown v. Mississippi, involving the beating and torture of three black suspects to obtain a confession:I. the Supreme Court declined to review a confession case from a state court.II. the Supreme Court specifically relied upon the Fifth Amendment self

incrimination clause.III. the Supreme Court relied upon the Fourteenth Amendment due process clause.IV. the Supreme Court held that forced confessions were not admissible as evidence.

a. I, II, IVb. III, IVc. II, III, IVd. IV

ANS: B REF: 265-266 OBJ: 3

258

9. Under the accusatorial system rationale, forced confessions violate due process, even if they are true, because:

a. forced confessions should be conclusively assumed to be unreliable.b. they violate the Eight Amendment prohibition against cruel and unusual

punishment.c. under our system the state has the burden of proving guilt.d. all of the above.


10. Which of these rationales has the Supreme Court used in reviewing state confessions?I. the unreliability of coerced confessionsII. the state's rights doctrineIII. the accusatorial system rationaleIV. the free will rationale

a. I, II, III, IVb. I, II, IIIc. II, IVd. I, III, IV

ANS: D REF: 266-267 OBJ: 3

11. The Supreme Court's use of the Fifth Amendment privilege against self-incrimination approach in reviewing state confession cases began with:

a. Miranda v. Arizona.b. Escobedo v. Illinois.c. Brown v. Mississippi.d. Lisenba v. California.


12. In Schmerber v. California, a case involving the compelled extraction of blood from a drunk driving suspect, the U.S. Supreme Court:I. found that compulsion that makes a suspect the source of physical evidence does

not violate the Fifth Amendment.II. found that such compelled extractions do not violate the due process clause.III. found the 5th Amendment privilege against self-incrimination only protects

someone from being compelled to give evidence of a testimonial nature.IV. found that the Fifth Amendment privilege is fulfilled when a person is guaranteed

the right to be silent unless he chooses to speak of his own free will.a. I, II, IIIb. I, IIIc. II, III, IVd. I, II, III, IV


259

13. According to the Supreme Court in Miranda v. Arizona, involving a man who confessed to rape following police interrogation:

a. the Fifth Amendment protects suspects during custodial police interrogation.b. the Sixth Amendment protects suspects from all questioning by police.c. the Fifth Amendment only protects suspects from questioning in police stations.d. warnings are required whenever police question citizens.


14. According to the Supreme Court in Miranda v. Arizona, involving a man who confessed to a rape following police interrogation, which of the following is true?I. Modern interrogation procedures are psychologically oriented.II. There were gaps in knowing what actually occurred in interrogation rooms.III. Displayed confidence in the suspect’s guilt is an important tool for the

interrogator.IV. Custodial interrogation takes a toll on the weaknesses of individuals.

a. I, II, III, IVb. I, III, IVc. II, IVd. III, IV

ANS: A REF: 270-273 OBJ: 4

15. The rights concerning self-incrimination announced by the Supreme Court in Miranda v. Arizona must be given to a suspect when:I. he or she is first subjected to police interrogation.II. he or she is first subjected to police interrogation while in custody at the station.III. he or she is first subjected to police interrogation while deprived of her freedom

of action in any significant way.IV. he or she is first taken into custody or deprived of her freedom of action in any significant way.

a. I, II, III, IVb. I, II, IIIc. II, IIId. III


260

16. Which of the following are necessary parts of the Miranda warnings?I. informed of the right to remain silentII. informed of the right to consult an attorneyIII. informed of the exact nature and seriousness of the crime being investigatedIV. informed that an attorney will be provided the suspect if he is indigent and cannot

afford an attorneya. I, II, III, IVb. I, II, IIIc. I, II, IVd. I, II


17. According to the Supreme Court in Miranda v. Arizona, when must the police stop an interrogation?I. when the suspect indicates doubt about the crime and the circumstancesII. when the suspect requests an attorneyIII. when the suspect indicates, in any manner, that they wish to remain silentIV. when the suspect requests to see their spouse

a. I, II, III, IVb. I, II, IIIc. I, IIId. II, III


18. Which of the following types of police questioning are excluded from the Miranda requirements?I. questioning at the scene of a crimeII. volunteered statements of any kindIII. questioning of individuals in the fact-finding processIV. questioning that is part of an investigatory stop

a. I, II, III, IVb. I, II, IIIc. I, IId. II


19. When a suspect asks for an attorney during custodial interrogation:a. police can continue questioning while an attorney is summoned.b. police can resume questioning after an attorney has been provided.c. police must stop questioning until an attorney is present or the suspect initiates

further conversation with them.d. police can never question the suspect again without an attorney being present.


261

20. In Berkemer v. McCarty, the case involving whether Miranda warnings must be given to stopped motorists, the Court:

a. recognized a misdemeanor offense exception to Miranda.b. said all motorists must be Mirandized when stopped.c. said a motorist never has to be given Miranda.d. said a routine traffic stop was not custody for purposes of Miranda.


21. In Berkemer v. McCarty, the case involving whether Miranda warnings must be given to stopped motorists, the Court:

a. found that a misdemeanor exception to Miranda would pose too many administrative problems for courts and police.

b. found that all stopped motorists should be given Miranda.c. found that the motorist should have been Mirandized when the police officer

decided that the driver was eventually going to be arrested.d. found that a misdemeanor exception to Miranda should be recognized.


22. The Fifth Amendment approach to confession applies:a. after grand jury indictment.b. after formal charges are filed against a person.c. whenever a person is questioned by police about a crime.d. only when the person being questioned is in custody.


23. In North Carolina v. Butler, the U.S. Supreme Court found that:a. express waiver of Miranda rights is required.b. silence after Miranda is considered a valid waiver.c. express waivers of Miranda rights are not required.d. written waivers should always be obtained when possible.


24. In Orozco v. Texas (1969), four police officers arrested and talked with the defendant at 4 a.m. in his bedroom. The Supreme Court ruled that this conversation:

a. was not custodial, but was interrogation.b. was not interrogation, but was custodial.c. was neither custodial nor interrogation.d. was both custodial and interrogation.


262

25. In applying the definition of custodial interrogation to actual cases, which of the following circumstances are relevant to determining if a suspect is in custody?

I. whether officers had probable cause to arrestII. whether the investigation had focused on the suspect at the timeIII. the officers’ language in summoning suspectsIV. the physical surroundings of the interrogation

a. I, II, III, IVb. I, II, IVc. II, III, IVd. II, IV


26. Miranda warnings are not required in questioning associated with which of the following situations?I. traffic violationsII. driver's license checksIII. persons detained during execution of search warrantsIV. persons arrested for misdemeanor violations

a. I, III, IVb. I, III, IVc. I, II, IIId. IV

ANS: C REF: 275-277 OBJ: 5

27. Sociologist Richard Leo, based on his studies of confessions, concluded that:a. questioners often coerce suspects.b. only one in four suspects invoke their Miranda rights.c. Miranda has had almost no effect on how police question suspects.

d most interrogation sessions last over an hour.


263

28. According to the Supreme Court opinion in New York v. Quarles, involving a confession without Miranda warnings following an armed rape of a young woman:I. there is a public safety exception to the requirement that police give Miranda

warnings.II. the availability of the public safety exception does not depend on the motivation

of the individual officers involved.III. the public safety exception weakens the clarity of the Miranda rule.IV. the need for answers to questions in a situation posing a threat to public safety

outweighs the need for the rule protecting the privilege against self-incrimination.a. I, II, III, IVb. I, IVc. I, II, IVd. III


29. According to the courts, waiver of Fifth Amendment rights:I. requires knowing, intelligent, and voluntary waiver.II. requires a signed statement that the suspect has waived rights.III. can be inferred from suspect making a confession.IV. can be inferred from suspects lack of response to the whether they understood the Miranda warnings.

a. I, II, III, IVb. I, III, IVc. III, IVd. I

ANS: D REF: 271-273 OBJ: 7

30. In Colorado v. Connelly (1986), the Supreme Court considered the case of a mentally ill man who walked into a police station and confessed he had murdered a young woman. The Court determined that:

a. Connelly’s confession was not voluntary because of his mental illness.b. Connelly’s confession was not voluntary because he had limited free will.c. Connelly’s confession was voluntary because it was not compelled.d. Connelly’s confession is admissible if his psychiatrist testifies he was aware that

he was confessing to the police.


264

31. Which of the following are examples of knowing waivers of a suspect’s rights after being read his Miranda rights?I. The suspect invoked his right to counsel, and after a five hour ride in the back of a

police car, he signed a waiver when police asked if there was anything he wanted to say.

II. The suspect talked to police after he refused to sign an express waiver.III. A disoriented and mentally ill suspect signed a waiver and confessed.IV. A suspect who speaks and understands very little English signs an express waiver and talks to the police.

a. I, IIb. I, II, IIIc. III, IVd. II, III


32. The Supreme Court has ruled that which test or standard applies to evaluating the meaning of interrogation under the Fifth Amendment right guarantee against compelling individuals to be witnesses against themselves?

a. did the police deliberately tried to elicit a responseb. did the police directly asked the suspect a questionc. did the police use words or actions that that they knew would be likely to

elicit a response from the suspect.d. did the police use force while questioning the suspect


33. The Supreme Court has ruled that which test or standard applies to evaluating the meaning of interrogation under the Sixth Amendment right to counsel?

a. did the police deliberately try to elicit a responseb. did the police directly ask the suspect a questionc. did the police use words or actions that that they knew would be likely to

elicit a response from the suspect.d. did the police use force while questioning the suspect


34. Before formal proceedings begin, the __________ Amendment gives police more flexibility in interrogating suspects.

a. Sixthb. Fifthc. Fourteenthd. Eighth


265

35. Which of the following reforms have been suggested for police interrogation and confession procedures?I. Reduce the length of time in custody and interrogationII. Eliminate police using false information and misrepresentations during

interrogationIII. Requiring police to remind suspects of their right to remain silent several times

during an interrogation sessionIV. Video taping interrogations and confessions

a. I, II, III, IVb. I, III, IVc. I, II, IVd. II, III, IV


TRUE/FALSE

1. According to confessions and interrogation expert Professor Fred Inbau, police can solve many cases only if guilty persons confess.


2. According to research by sociologist Richard Leo, most police interrogations were coercive.


3. The right to remain silent is an ancient right.


4. Ordering a suspect to speak so that a witness may try to identify the suspect’s voice is covered by the Fifth Amendment self-incrimination clause.


5. Compelled extraction of blood for chemical analysis from a conscious person violates the due process clause


6. During the 30 years from Brown v. Mississippi to Miranda v. Arizona, the U.S. Supreme Court relied on various interpretations of the Fourteenth Amendment due process clause to invalidate as involuntary 40 confessions in state trials.


266

7. The right to counsel approach to confessions has never been accepted by a majority of the U.S. Supreme Court.

ANS: F REF: 267-268 OBJ: 3

8. According to the Supreme Court’s decision in Miranda v. Arizona, custodial interrogation is inherently coercive.


9. In the Miranda case decided in 1966, the Supreme Court of the United States affirmatively enumerated warnings that must be given by police officers if a suspect is in to be interrogated while in custody.


10. According to the Supreme Court’s decision in Miranda v. Arizona, waiver of the Miranda rights may be presumed either by silence following warnings or from an eventual confession.


11. The Miranda decision required police to warn suspects whenever they arrest them.


12. The Miranda decision required police to obtain an express waiver of rights before questioning a suspect.


13. According to the U.S. Supreme Court’s decision in Orozco v. Texas, police are not required to give Miranda warnings to any suspect questioned in the suspect’s home.


14. The test for determining whether someone is in custody for purposes of Miranda is whether there was an arrest or restraint on freedom of movement to the degree associated with a formal arrest.


15. Criminal suspects who want to protect their right to remain silent during custodial interrogation must speak up and unambiguously invoke it.


267

COMPLETION

1. The period of criminal process when police shift from a general investigation to building a case against a particular suspect is known as _____________.

ANS: the accusatory stage REF: 263 OBJ: 2

2. Forced confessions are not admissible as evidence at trial because they are not trustworthy describes the .

ANS: reliability rationale for due process REF: 266 OBJ: 3

3. The basic idea behind the due process approach to confessions is ________________.

ANS: voluntariness REF: 269 OBJ: 3

4. The notion that forced confessions violate due process even if they are true is the _______________________________.

ANS: accusatorial system rationale REF: 266 OBJ: 3

5. The totality of circumstances in each case has to prove that before suspects talked, they knew they had their miranda rights and they knew they were giving them up in order to ‘pass’ the test.

ANS: implied waiver REF: 281 OBJ: 4

6. Interrogation that takes place after the police take suspects into custody is known as .

ANS: custodial interrogation REF: 270 OBJ: 4

7. Specifically saying that you give up your rights is called ____________________.

ANS: an express waiver REF: 280 OBJ: 7

8. _____________ false confessions occur when vulnerable suspects confess under highly suggestive interrogation methods in order to end them, and come to believe they actually committed the crime.

ANS: Internalized REF: 291-292 OBJ: 2

9. The right to counsel clause is found in the ___________________.

ANS: Sixth Amendment REF: 265 OBJ: 2

268

10. The “_____________________” test defines police interrogation as any action or words that police should know are reasonably likely to elicit an incriminating response from the suspect.

ANS: functional equivalent of a question REF: 278 OBJ: 6

ESSAY

1. Discuss suggested reforms aimed at reducing false confessions.

Three major reforms have been suggested:1. Research shows that prolonged custody and interrogation can cause suspects to confess to crimes they did not commit in order to end the process. There are no rules that regulate the length of time for interrogation. Reducing that time would help contribute to reducing the false confession problem.2. The Supreme Court ruled that police may use misrepresentations to a suspect during his or her interrogation, however, research suggests that this practice substantially increases false confessions. The Supreme Court should reconsider its position based on recent empirical studies.3. Videotaping interrogations and confessions is an idea that has been around for several decades, but very few states have laws that require it. Videotaping would not only eliminate some of the secrecy that surrounds interrogating suspects, it would also help judges, juries, and attorneys better evaluate the interrogation procedure.

2. Identify the three provisions in the U.S. Constitution that govern police interrogations and confessions.

The three provisions in the U.S. Constitution that govern police interrogations and confessions are the Due Process clause of the Fourteenth Amendment, the Sixth Amendment Right to Counsel clause, and the Fifth Amendment Self-Incrimination clause. (Authors Note: Since the Fifth Amendment also contains a Due Process clause identical to the Fourteenth Amendment, there are arguably four provisions in the Constitution that govern police interrogations and confessions. The Fifth Amendment Due Process clause would only govern in federal cases while the Fourteenth Amendment Due Process clause would only govern state cases.)

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3. Define “witness against himself,” and give examples of what’s included and not included within the definition.

The Fifth Amendment provides that in a criminal case a person can not be compelled to be a “witness against himself.” This basically means that the government cannot force somebody to give evidence of a testimonial or a communicative nature. Testimony is the content of what a person says or writes. However the government can compel citizens to provide them with other information. When this information is not testimonial or communicative, but is rather of a physical nature or communications which the person has voluntarily reduced to writing, obtaining it does not violate the Fifth Amendment. Thus the following types of incriminating evidence would not be protected by the Fifth Amendment: handwriting samples, weapons, photographs, lineup appearances, voice samples, blood samples, and documents required to be kept by law or voluntarily created.

4. State the reasons for the bright-line rule regarding warnings to suspects adopted in Miranda v. Arizona. Identify two circumstances that have to be present before officers are required to give the Miranda warnings. List three types of questioning when officers do not have to give the Miranda warnings.

The bright-line rule of Miranda v. Arizona arose because the Court felt custodial interrogation is “inherently coercive.” Why is this so? First, because suspects are held in strange surroundings where they are not free to leave or call for support from others. Second, skilled police officers often use tricks, lies, and psychological pressure to overpower the will of the suspects. Given these circumstances the Court felt that strong measures were necessary to prevent involuntary confessions. These measures resulted in the now well-known Miranda warnings.

Before police must give Miranda warnings to a suspect, two circumstances must be present. First, the suspect must be in “custody.” Second, the suspect must be subject to “interrogation.”

Police don’t have to give Miranda warnings when they question people who are not in custody. This includes questioning people at crime scenes, questioning people before they become suspects, and questioning people who are in Fourth Amendment stops.

5. State the facts and explain the significance of the U.S. Supreme Court case New York v. Quarles.

New York v. Quarles created what is known as the “public safety” exception to Miranda. This exception basically declares that if giving the Miranda warnings to a suspect before questioning him/her would endanger an officer or somebody nearby, the officer can dispense with the warnings before interrogation can start.

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The facts of the case are simple. A woman came up to two police officers and told them she had been raped by a man carrying a gun who had just gone into a supermarket nearby. One officer ran to the store and saw Quarles, who fit the woman’s description. This officer briefly lost sight of Quarles, then saw him again, pulled his own gun and ordered Quarles to stop and put his hands over his head. The officer then frisked Quarles and discovered an empty shoulder holster. After handcuffing Quarles, the officer asked him where the gun was. Nodding to some nearby cartons, Quarles said, “the gun’s over there.” Among the cartons, the officer found a loaded revolver.CHAPTER NINEIDENTIFICATION PROCEDURES

MULTIPLE CHOICE

1. Which of the following are major procedures used by the police to help eyewitnesses identify suspects?

I. a confrontationII. photo identificationIII. a lineupIV. a show-upa. I, II, III, IVb. II, III, IVc. I, II, IIId. II, III


2. Experts theorize that the greatest threat to an innocent person being convicted is:a. prosecutorial misconduct.b. police misconduct.c. mistaken identification of strangers.d. judicial misconduct.


3. Best guesses indicate that eyewitness misidentifications account for ______ percent of wrongful convictions of persons eventually exonerated by DNA.

a. 80%b. 10%c. 75%d. 25%


4. The main reasons for misidentification include:I. the brain does not record accurately what the eye sees.II. the police may use improper suggestive identification measures.III. memory loss between the original event and the identification procedure.

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IV. faulty recalla. I, II, III, IVb. I, II, IIIc. IId. II, III, IV


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5. There is considerable evidence that people are poor at identifying:a. members of another race.b. members of their own race.c. people with the same hair color as they have.d. people with physical characteristics that are very different than their own.


6. In eyewitness identification, the accuracy of initial impressions depends on the:I. length of time the witness observed the stranger.II. distractions taking place during the observation.III. stress to the witness during the observation.IV. race of the witness and race of the stranger.



7. ______________ is when eyewitnesses are shown persons or objects and asked whether they are involved in the crime.

a. Recallb. Recognitionc. Suggestiond. Retention


8. Over time:a. memory fades and witnesses recognize this problem.b. memory fades, but witnesses develop greater confidence about their recall ability.c. memory improves, but witnesses do not have confidence in this fact.d. memory improves and witnesses recognize this fact.

ANS: B REF: 313-314 OBJ: 8

9. According to research conducted by Elizabeth Loftus, witnesses often added to their stories of crimes:

a. based on the suggestions made to them about what happened.b. if they were pressed by officials for more detail.c. when they felt as if officials did not believe their original story.d. when they felt as if their memory was fading.


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10. ______________ refers to the perception of an event when information is first entered into a person’s memory.

a. Recallb. Acquisitionc. Suggestiond. Retention


11. The participants in most police lineups consist mainly of:a. police officers and inmates from the local jailb. volunteers from the communityc. civilians who work for the police departmentd. jailers


12. Wisconsin’s recommendations for improving police lineups include: I. use fillers that will minimize any suggestiveness that might indicate the suspect.II. use a “double blind” procedure.III. instruct eyewitnesses that the real criminal may or may not be present in the

lineup.IV. present the suspect and the fillers simultaneously.

a. I, II, IIIb. II, IIIc. II, IIId. II, IV


13. Research shows that jurors:a. tend to overestimate the accuracy of a witness’s lineup identification.b. tend to question the accuracy of eye witness identification.c. understand the problems involved in administering identification procedures.d. are aware of the research about eyewitness identification.


14. Suggestive lineups:a. lead to automatic exclusion of the identification made at them.b. are always questioned by the trial judge.c. always give rise to a substantial likelihood of misidentification.d. do not lead to automatic exclusion of the identification made at them.


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15. Researchers recommend that officials:a. present members in a lineup to the witness at the same time, standing together.b. have the officer who arrested the suspect conduct the lineup.c. present members of the lineup to the witness one at a time.d. inform the witness that the suspect is one of the individuals they will be asked to

identify in the lineup.


16. _________ lineups reduce the power of suggestion and reduce the possibility that the witness will pick the person who most resembles the perpetrator:

a. Sequentialb. Simultaneousc. Blindd. Photo


17. Given the high risk of misidentification, courts _______ throw out eyewitness identification.

a. oftenb. sometimesc. rarelyd. are required to


18. Identification of a single suspect by a witness is called:a. a lineup.b. photo array.c. a show-up.d. an in-court identification.


19. Psychologists have studied three variables that are included in the Manson reliability test of eyewitness identification:I. the eyewitness’s opportunity to view the criminalII. the amount of attention the witness paid to the criminalIII. expert testimony concerning the reliability of eyewitness identificationIV. the witness’s confidence in the accuracy of their identification

a. I, II, III, IVb. I, II, IIIc. I, II, IVd. I, II, IV


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20. For which of the following situations will courts admit show-up identifications?I. when witnesses accidentally confront suspectsII. in emergencies, when witnesses are hospitalizedIII. for witness convenience, when witnesses are in a hurryIV. when witnesses are not quite sure of a prior identification

a. I, II, III, IVb. I, II, IIIc. I, IId. I


21. In order to exclude identification evidence on due process grounds, defendants mustprove the identification procedure was unnecessarily suggestive and created a substantial likelihood of misidentification

a. beyond a reasonable doubtb. by a preponderance of the evidencec. by clear and convincing proofd. beyond a reasonable suspicion.


22. Psychological research shows that when the person administering an identification procedure somehow confirms the witness’s pick, the comments:

a. have no impact on the witness’s confidence in their identification.b. cause witness’s to question whether the administrator is trying to influence their

identification.c. cause witness’s to have greater confidence in the accuracy of their identification.d. cause witness’s to doubt their identification.


23. Many legal commentators suggest that one way to reform identification procedures would be to:

a. loosen the standards for admitting expert testimony on human perception and memory and the problems related to eyewitness identification.

b. require all eyewitnesses to undergo psychological testing concerning their recall and retention abilities

c. require police to corroborate all eyewitness identifications for all types of casesd. totally ban the use of photo identification procedures


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24. According to the Supreme Court opinion in Stovall v. Denno (1967), involving the use of a show-up to identify the defendant in a homicide case,I. the identification procedure was suggestive and violated due process.II. the procedure resulted in irreparable mistaken identification.III. the show-up was unnecessary.IV. the show-up was justified by the circumstances surrounding the victim’s health.

a. IIb. II, IIIc. I, II, IIId. IV


25. In Stovall v. Denno (1967), the Supreme Court ruled that eyewitness identification could be challenged on constitutional grounds:

a. as a violation of due process.b. as cruel and unusual punishment.c. because suspects are compelled to testify against themselves.d. as a violation of the suspect’s right of confrontation.


26. The Supreme Court has ruled that in order for identification evidence to be thrown out of court, the defendant must show that:I. the identification procedure was unnecessarily and impermissibly suggestive.II. the procedure was not justified by the circumstances.III. a better identification procedure should have been used.IV. the procedure created a substantial likelihood of misidentification.

a. I, IIb. I, II, III, IVc. I, IVd. III


27. According to the Supreme Court:a. show-ups are so suggestive that they are always unconstitutional.b. show-ups are permissible if they do not result in a very substantial likelihood of

misidentification.c. show-ups are unconstitutional if the police could have reasonably been able to set

up a lineup instead.d. show-ups are permissible only if defense counsel is present when they are

conducted.

ANS: B REF: 309-311 OBJ: 4

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28. According to the Supreme Court opinion in Manson v. Braithwaite (1977), involving identifying a man from a single photograph whom the identifier had seen only once in poor light for several minutes:

a. such evidence must always be excluded if it is suggestive.b. reliability is the linchpin in determining the admissibility of identification

testimony.c. photographic identification procedures are per se unconstitutional.d. no identification based on a single photograph is ever reliable.


29. In Manson v. Braithwaite (1977), involving identifying a man whom the identifier had seen only once in poor light for several minutes from a single photograph, Justice Marshall in dissent criticized the police procedure because:I. a lineup could have been arranged.II. a photo array, rather than one photograph could have been used. III. the fact that the photograph was given to the identifier by a fellow police officer

increased the suggestiveness.IV. the photograph selected was not a good depiction of the description given to the officer who selected it.

a. I, II, III, IVb. I, IIc. I, II, IIId. III, IV

ANS: C REF: 306-310 OBJ: 2

30. In Manson v. Braithwaite (1977), for determining the admissibility of witness identification, the majority of the Supreme Court endorsed what became known as the:

a. per se approach.b. blind administration test.c. the totality of the circumstances approach.d. the better use approach.


31. It is agreed among scientists that DNA technology can:a. distinguish between any two individuals, other than identical twinsb. distinguish between general types of individuals.c. distinguish within 35-40% accuracy between two individuals.d. accurately identify the blood types of individuals.


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32. One of the most important criminal law issues today is whether the Constitution establishes:

a. that DNA testing is required in all criminal casesb. that DNA testing is required in all cases involving stranger on stranger crimesc. a post conviction right to access previously produced forensic evidence so it can be

DNA tested in order to establish innocenced. a post conviction right to retest evidence that was DNA tested during the criminal

trial

ANS: C REF: 326-327 OBJ: 9

33. According to the Supreme Court in District Attorney’s Office for the Third Judicial District v. Osborne (2009) involving prisoner Osborne’s post-conviction request to compel officials to release biological evidence so it could be submitted to DNA testing:

a. Osborne has a right under the U.S. Constitution of access to forensic evidenceb. Osborne’s rights under Alaska law were violatedc. there is no right under the U.S. Constitution of access to forensic evidenced. DNA testing is too expensive to make it a constitutional right


34. The time when a person recalls stored information about an event in order to identify a person who was involve din the event is called ___________:

a. acquisitionb. retrievalc. retentiond. suggestion


35. Failure to recall a detail about a crime or recognize the perpetrator is considered:a. an error of commissionb. faulty acquisitionc. an error of omissiond. retention failure


TRUE/FALSE

1. Identifying perpetrators is easier than proving that a crime was committed.


2. Eyewitness identification of strangers is low in reliability, even in the most ideal settings.


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3. Research indicates that 50% of defendants exonerated by DNA are cases involving mistaken eyewitness identification.


4. Research indicates that most eye witnesses to crimes are very good at acquiring accurate information while the crime is being committed.


5. Research suggests that jurors consistently believe mistaken identification evidence when faced with witnesses who are confident about their eyewitness identifications.


6. If the person a witness is attempting to identify is of another race, the chances of misidentification are increased.


7. The Supreme Court has ruled that there is a constitutional right of access to forensic evidence.


8. The reliability of lineups depends in part on making sure there are enough people in them and that the people in the lineups share similar characteristics.


9. According to the Supreme Court, identification evidence is automatically inadmissible if the identification procedure was unnecessarily suggestive.


10. Show-ups are less reliable than lineups.

ANS: T REF: 318-319 OBJ: 1

11. The alleged suggestiveness and unreliability of a show-up is evaluated by a different test than the one for the suggestiveness and unreliability of a lineup.

ANS: F REF: 318-319 OBJ: 4

12. In experimental research to study eyewitness identification, researchers stage crimes and question the unsuspecting witnesses about what they saw.


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13. With the totality of circumstances approach, under certain circumstances, a court can admit identification evidence even if the identification procedure was suggestive.

ANS: T REF: 320-321 OBJ: 4

14. There is consensus today that it is possible to use DNA testing to determine whether a biological tissue matches a suspect with near certainty.


15. One of the reforms suggested to improve eyewitness identification is to present the suspect and the fillers in a lineup simultaneously.


COMPLETION

1. A procedure used for the identification of suspects in a crime whereby a suspect is presented by himself alone to a witness for possible identification is known as a/an ______________.

ANS: show-up REF: 303 OBJ: 1

2. ______________ is when the brain stores information between the time of the crime and the lineup, show-up, or photo identification.

ANS: Retention REF: 312 OBJ: 5

3. The test used to determine whether an identification was reliable, even if unnecessarily suggestive, is the test.

ANS: totality of circumstances REF: 307 OBJ: 4

4. According to eyewitness expert Elizabeth Loftus, _________ shapes what a witness will remember and recall during the identification process.

ANS: suggestion REF: 314 OBJ: 6

5. A person running an identification procedure who does not know the suspects is called a/n ____________.

ANS: blind administrator REF: 322 OBJ: 7

6. The identification procedure where a witness is shown multiple photographs is called a _____________.

ANS: photo array REF: 303 OBJ: 1

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7. The constitutional provision governing most identification procedures is the _____________.

ANS: due process clause REF: 326 OBJ: 2

8. __________ research about eyewitness identifications involves analyzing previously used identification procedures in actual criminal cases.

ANS: Archival REF: 316 OBJ: 7

9. A witness’s identification is susceptible to ___________, a powerful contributor to mistaken identity during memory retrieval.

ANS: suggestion REF: 317 OBJ: 6

10. Identification evidence, with all of its problems, is the most widely used, often the only, evidence available to identify and prove the guilt of _____________.

ANS: strangers REF: 312 OBJ: 1

ESSAY

1. Discuss the importance of pre-lineup instructions in identification procedures for lineups.

Suggestion is particularly powerful, and most threatening to accuracy, after a crime has been committed. Suggestions that come from others add to what a witness believes they observe during the crime. These added “facts” are then mentally stored in a witness’s memory. When the witnesses later on are asked to recall the event at trial, the witness testifies about the suggested facts as if they were the same as what the witness had observed himself or herself.

Witnesses think of live lineups and photo lineups as multiple choice tests without a “none of the above” choice. They think of show-ups and single pictures as true or false tests. Witnesses thus feel like they have to choose the “best likeness” in a lineup and a right “true” or “false” likeness in the show-ups. Witnesses feel pressured by the possibility they might look foolish if they “don’t know the answer.”

The very fact that police have arranged an identification procedure also puts pressure on witnesses. They believe the police must have found the culprit, or they wouldn’t have gone through the trouble of arranging such a procedure. So witnesses often tell themselves the culprit has to be there and feel pressured to identify somebody.

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Much of the psychological research into eyewitness identifications suggests that officials should use the may-or-may-not-be –present instruction. The person administering the procedure tells a witness before they view the lineup that the suspect may or may not be present. The research shows that when that instruction is not given misidentifications are more likely than when it is given. Administrators can bias the lineup identification even more by telling a witness that police have already found the perpetrator or know who he is, or they have plenty of evidence against the perpetrator.

Administrators can also give witnesses other verbal and nonverbal cues that may not be intentional or even done consciously.

2. Discuss show-up identification procedures and problems related to them.

Show-ups are identifications of a single person and are much less reliable than lineups because presenting only one person to a witness to identify is more suggestive than presenting a group of people to choose from. The courts allow show-up identifications despite their unreliability in three common situations: 1) a witness accidentally runs into a suspect; 2) a witness identifies a suspect during an emergency, such as in Stovall v. Denno, where the eyewitness was hospitalized; and 3) a witness identifies a suspect while they are still being pursued by the police.

3. Identify the two steps in the totality of circumstances due process test of admissibility of eyewitness identification created by the U.S. Supreme Court. Identify and describe the five circumstances in the totality of circumstances due process test you identified.

The U.S. Supreme Court test for determining whether a particular identification procedure has violated due process requires that the defendant prove by a preponderance of the evidence the following: (1) The identification procedure was unnecessarily and impermissibly suggestive. (2) The totality of circumstances proves that these procedures created a very substantial likelihood of misidentification.

Five circumstances (factors) make up the “totality of circumstances” under the due process test: (1) Witness’s opportunity to view defendants at the time of the crime. (2) Witness’s degree of attention at the time of the crime. (3) Witness’s accuracy of description of defendants before the identification. (4) Witness’s level of certainty when identifying defendants at the identification. (5) The length of time between the crime and the identification procedure.

4. Discuss what psychologists know about the confidence an eyewitness has in his or her identification and how that confidence will impact a case?

Studies show that eyewitness certainty can have some value but only when no suggestive identification procedures were used. When such procedures were used, research shows that they increase the confidence of witnesses who pick the wrong person.

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Research also shows that witnesses forget that they were uncertain at the moment of identification. They come to believe they were certain all along. Research also shows that a boost in confidence is stronger in mistaken witnesses than it is in witnesses who are correct. Finally, when the person administrating the procedures make remarks that boost a witness’s confidence, they become even more certain about their identification.

A witness’s certainty in their identification affects jury decisions but also whether a prosecutor will file charges against a suspect or go to trial versus negotiate a plea.

5. Examine the reforms that legal experts suggest courts can implement to improve eyewitness identification reliability.

1) a per se rule excluding all evidence that was gathered using suggestive identification procedures.2) looser standards for admitting expert testimony on human perception and memory and the problems with eyewitness identifications.3) requiring corroboration of eyewitness identifications in some cases, especially cases involving cross-racial identifications.4) mandating certain police identification procedures, such as sequential lineups.

CHAPTER TENREMEDIES FOR CONSTITUTIONAL VIOLATIONS I:

MULTIPLE CHOICE

1. Which of the following are mechanisms used to enforce constitutional standards?I. exclusion of illegally obtained evidenceII. legal actions against individual officers such as criminal prosecutionIII. civil actions against the heads of criminal justice agenciesIV. disciplinary action by the police agency against the individual officer

a. I, II, III, IVb. I, IIIc. II, III, IVd. I


2. The best known and most controversial consequence of illegal government action:a. are civil law suits for damages against police departments.b. is the criminal prosecution of police officers.c. is the exclusionary rule.d. is the suspension or dismissal of police officers.


3. The Fourth Amendment:

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a. has a specific provision that requires the exclusion of evidence gathered in violation of the amendment.

b. spells out all of the remedies available to defendants when evidence is illegally gathered.

c. requires courts to exclude illegally gathered evidence.d. does not mention any remedies available when evidence has been gathered in

violation of the amendment.


4. The constitutional rationale used to justify the exclusionary rule:I. rests on the idea that the exclusionary rule is an essential part of the right against

unreasonable searches and seizures of the Fourth Amendment.II. views the exclusionary rule as a right.III. rests on the notion that the exclusionary rule is a mere preventative measure.IV. includes the notion of preventing illegal law enforcement.

a. I, II, IVb. I, IIc. II, IVd. IV


5. The judicial integrity rationale used to justify the exclusionary rule:I. is based on the idea that the honor and honesty of courts forbids them to

participate in unconstitutional conduct.II. requires that the government obtain criminal convictions without violating rights.III. views the exclusionary rule as a right.IV. views the freedom from illegal searches and seizures as a preventative measure.

a. I, II, IVb. I, II, IIIc. I, IId. I, IV


6. Since the 1980s, the Supreme Court has applied the exclusionary rule mainly to promote the interest in:

a. individual rights.b. deterring illegal government conduct.c. judicial integrity.d. promoting equal justice for all citizens.

ANS: B REF: 341-342 OBJ: 4

7. In using deterrence as the justification for excluding valid evidence, the Court weighs:a. the evidence of guilt against nature of the constitutional violation.b. the social costs against the deterrent effect.c. the honesty of the courts

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d. the fact that there is not right without a remedy


8. The exclusionary rule does not apply to:a. the government’s case in chief.b. any part of the trial on guilt or innocence.c. cross-examination of the defendant.d. capital punishment trials.


9. Which doctrine holds that illegally seized evidence can be introduced at trial if the poisonous connection between the illegal police actions and the evidence weakens sufficiently?

a. the attenuation exceptionb. the independent source exceptionc. the inevitable discovery exceptiond. the fruit of the poisonous tree exception

ANS: A REF: 343-344 OBJ: 3

10. Which doctrine holds that illegally seized evidence can be introduced a trial if the officials’ law breaking behavior did not cause the seizure of the evidence?


ANS: B REF: 343-344 OBJ: 3

11. Which doctrine holds that illegally seized evidence can be introduced at trial if the officials would have found the evidence anyway?


ANS: C REF: 343-344 OBJ: 3

12. The fruit-of-the-poisonous-tree doctrine refers to:a. the expansion of the exclusionary rule to ban evidence indirectly based on illegal

government activityb. the expansion of the exclusionary rule to include contrabandc. applying the exclusionary rule to constitutional violations committed by judicial

personneld. applying the exclusionary rule to constitutional violations committed by state law

enforcement officials

ANS: A REF: 343-344 OBJ: 3

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13. The U.S. Supreme Court has ruled that the exclusionary rule does not apply:a. when there is overwhelming evidence of a defendant’s guiltb. in murder and aggravated sexual assault casesc. if the defendant waives his or her Fourth Amendment rightsd. to collateral proceedings


14. The use of the exclusionary rule:I. excludes good evidence because of bad practices.II. puts the search for truth second to the rights of individuals.III. stands for the proposition that the Constitution supports criminal law enforcement

but not at any price.IV. is not controversial.

a. I, II, IIIb. I, III, IVc. I, IVd. III


15. Empirical research on the exclusionary rule suggests that:I. the social cost of the rule is as high as the Supreme Court claims.II. the social cost of the rule may be overstated.III. the deterrent effect of the rule may be understated.IV. the rule has no deterrent effect.

a. I, IVb. II, IIIc. Id. IV


16. The deterrence rationale for the exclusionary rule:a. is based on the idea that courts need to be discouraged from using illegally seized

evidence.b. is concerned with deterring judges who issue bad warrants.c. is no longer the primary justification for the rule.d. is based on the belief that excluding good evidence because it was illegally

obtained sends a message to law enforcement.


17. Which U.S. Supreme Court case established the “fruit of the poisonous tree” doctrine?a. Silverthorne Lumber Co. v. U.S.b. Mapp v. Ohioc. Weeks v. U.S.d. Wolf v. Colorado

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18. For which type of crime is the outcome most commonly affected by the exclusionary rule?

a. murderb. drug dealingc. robberyd. theft


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19. The Supreme Court's decision in Weeks v. U.S. in 1914 is significant because it:a. began the Fourth Amendment's annexation of the exclusionary rule.b. held that the exclusionary rule applies to state court criminal proceedings.c. recognized that illegally seized evidence should not be used in federal court

criminal proceedings and thereby brought the United States into conformance with the practice in most European countries.

d. permitted law enforcement officers to be sued if they conducted searches in a manner that violated the Fourth Amendment.


20. In Weeks v. U.S., a 1914 case involving the illegal entry and search of a home, the Supreme Court:I. reversed Week's conviction.II. made the U.S. unique in excluding good evidence from court because of the

manner in which it was seized.III. applied the exclusionary to both federal and state law enforcement.IV. applied the exclusionary only to gambling cases.

a. I, II, III, IVb. I, II, IVc. I, IId. I


21. In the 1925 case, Agnello v. United States, the Supreme Court:a. declared that the exclusionary rule only protected private papers.b. applied the exclusionary rule to the states.c. declared that the exclusionary rule only applied when the illegal police conduct

was extremely egregious.d. declared that the exclusionary rule applied to contraband.


22. In the 1949 case Wolf v. Colorado, the Supreme Court:a. held that the exclusionary rule wasn’t part of the Fourth Amendment right to be

free from unreasonable searches and seizures.b. applied the exclusionary rule to the states.c. held that the Fourth Amendment did not apply to the states.d. held that states could not decide on their own whether to exclude evidence

obtained by a constitutional violation.


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23. According to the Supreme Court opinion in Mapp v. Ohio (1961), involving a police search for a bombing suspect:

a. only a handful of states had adopted the exclusionary rule by legislation or judicial opinion.

b. the exclusionary rule applies to the states through the Fourteenth Amendment due process clause.

c. whether states had adopted the exclusionary rule was irrelevant in deciding whether that rule applies to the states through the Fourteenth Amendment due process clause.

d. the police may not seize evidence relating to pornography when they are looking for a bombing suspect.


24. According to the dissent in Mapp v. Ohio (1961):a. the exclusionary rule is an integral part of the Fourth Amendment.b. because the Fourth Amendment applies to the states so also must the exclusionary

rule.c. the federal exclusionary remedy should not be imposed on the states.d. the exclusionary rule is totally ineffective in controlling police behavior.


25. Under the collateral use exception to the exclusionary rule, the United States Supreme Court has held that:I. the government can use evidence illegally seized in grand jury proceedings.II. the exclusionary rule does not prevent the use of some illegally seized evidence in

the government’s case-in-chief.III. victims of the fruits of good faith illegal searches cannot call for its

suppression.IV. prosecutors can use illegally seized evidence to impeach the defendant’s

testimony.a. Ib. IIIc. IId. IV


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26. According to the Supreme Court opinion in Herring v. U.S. (2009), involving a search pursuant to an active arrest warrant that was later discovered to have been recalled several months earlier:

a. evidence obtained by officers who honestly believe they are acting lawfully is admissible.

b. the good faith of officers is irrelevant to the determination whether or not to exclude evidence.

c. all evidence seized pursuant to a search not based on probable cause must be excluded.

d. the evidence seized pursuant to the search is admissible if the police acted objectively, in reasonably good faith and the error in recordkeeping was negligent but not reckless


27. The dissent in Herring v. U.S. (2009) argued that the exclusionary rule should apply to a search conducted pursuant to an arrest warrant that was later discovered to have been recalled months earlier because:

a. there was reason to believe that the arresting officer who conducted the search should have investigated whether the warrant was recalled

b. the officer did not honestly believe he was acting in good faithc. negligent bookkeeping mistakes by law enforcement threaten individual liberty

and can be deterred by the exclusionary ruled. probable cause was required to conduct the search


28. The use of active encouragement requires law enforcement officers to do such things as:I. develop personal relationships with targets.II. make repeated requests to commit a crime.III. appeal personally to targets.IV. supply contraband to their target.a. I, II, III, IVb. I, II, IIIc. II, IIId. II


29. The need for the government to encourage criminal conduct arises because:a. it is easier for the police than traditional criminal investigation.b. the public demands it.c. of the lack of police resources.d. of police difficulty in detecting crimes with non-complaining victims.


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30. The government can prove disposition to commit an offense, to rebut an entrapment defense, by showing a defendant’s:

I. prior convictions for similar offenses.II. willingness to commit similar offenses.III. prior criminal activity not resulting in conviction.IV. active solicitation of the crime.a. I, II, III, IVb. II, III, IVc. II, IIId. III


31. In Jacobson v. U.S. (1992), involving a man charged with the illegal possession of child pornography, the Supreme Court ruled that:

a. the Constitution requires that states use a predisposition entrapment test.b. the Constitution requires states use an entrapment test that focuses on the nature of

the police encouragement to commit a crime.c. as a matter of law there was insufficient evidence to prove Jacobson was

predisposed to commit the offense charged.d. federal courts must use an entrapment test that focuses on the nature of the police

encouragement to commit a crime.

ANS: C REF: 355-356 OBJ: 8

32. The objective test for entrapment:I. focuses on the defendant’s predisposition.II. is constitutionally required.III. focuses on the actions of the government to get someone to commit a criminal act.IV. is aimed at deterring unsavory police methods.a. IIb. I, IVc. II, IVd. III, IV


33. Under the objective test of entrapment, the decision whether a defendant has been entrapped is made by:

a. juries.b. judges.c. juries recommend, but the judge makes the final decisiond. the judge in consultation with the jury


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34. According to the Supreme Court, the good faith exception to the exclusionary rule:a. the inquiry is whether a reasonably well trained officer would have known a search

was illegal under all the circumstancesb. the important issue to decide is if the officer honestly believed his or her actions

were constitutionalc. violates the fundamental protections of the Fourth Amendmentd. applies only to situations that arise because of faulty electronic databases


35. An amicus curiae brief is:a. a brief filed in a case by one of the parties to the lawsuit.b. a brief filed with permission of the court by a family relative of one of the parties

in the lawsuit.c. a brief filed without the court’s permission.d. a brief filed with the court’s permission by someone who isn’t a party to the

lawsuit but has an interest in the case.


TRUE/FALSE

1. Probative evidence is evidence collected by officials according to the requirements of the Fourth Amendment.


2. Until the twentieth century, the exclusive remedy for constitutional violations was private lawsuits against governmental officials.


3. Today, the United States Supreme Court relies exclusively on deterrence as the only justification for excluding valid evidence.


4. The Supreme Court has specifically rejected the rationale that the exclusionary rule is a constitutional right.


5. In Arizona v. Evans, the U.S. Supreme Court held that the exclusionary rule does not require suppression of evidence incident to an arrest stemming from inaccurate computer records because of who was involved in keeping the records.

ANS: T REF: 347-348 OBJ: 5

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6. Recent research into the exclusionary rule has demonstrated that the deterrent effects are considerable.


7. Recent research into the effects of the exclusionary rule indicates that the exclusionary rule affects only a minuscule number of cases.


8. With respect to the exclusionary rule, the Constitution specifically includes it in the Fourth Amendment.


9. According to the Supreme Court in Mapp v. Ohio, leaving the Fourth Amendment’s protection from illegal searches and seizures to solutions other than the exclusionary rule had been effective.


10. The exclusionary rule does not prevent prosecutors from using illegally seized evidence to impeach defendants' testimony.


11. The Supreme Court has held that the key inquiry for the good faith exception to the exclusionary rule is the officer’s honest, subjective belief in the legality of his or her actions.

ANS: F REF: 345-346 OBJ: 4

12. Historically in the United States, the entrapment defense was not recognized for much of our history.

ANS: T REF: 357-360 OBJ: 6

13. The majority of state and federal courts have adopted the subjective test of entrapment.


14. The minority view on entrapment in the United States focuses on the nature of the government conduct.


15. The Supreme Court has held that the defense of entrapment is a constitutional right.


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COMPLETION

1. The rationale used to justify the exclusionary rule that is based on the notion that excluding evidence obtained in violation of the constitution prevents illegal law enforcement is the rationale.

ANS: deterrence REF: 342 OBJ: 4

2. An argument submitted by a party with an interest in a case but not a party to the lawsuit itself is a/an ______________.

ANS: amicus curiae brief REF: 339 OBJ: 1

3. Evidence derived from illegally obtained evidence is called ________________.

ANS: fruit of the poisonous tree REF: 338 OBJ: 3

4. The exception to the exclusionary rule which allows the admission of evidence if the police reasonably and honestly relied on a search warrant valid on its face but defective in fact is the _____________________.

ANS: reasonable good faith exception REF: 337 OBJ: 5

5. Government agents inducing individuals to commit crimes they otherwise would not commit so that the government can prosecute the individuals defines ___________.

ANS: entrapment REF: 336 OBJ: 6

6. The ________________ exception to the exclusionary rule is based on an objective test of whether a well-trained officer would have known his or her actions were illegal under the circumstances.

ANS: good faith REF: 345 OBJ: 4

7. The idea that evidence that has been illegally obtained, but would have eventually found through constitutional means should thus not be excluded by virtue of the exclusionary rule is _______________________.

ANS: the inevitable discovery exception REF: 345 OBJ: 4

8. The idea that evidence illegally obtained by police can still be admitted at trial if the link between the police illegality and the evidence’s discovery is weak enough is called _________________.

ANS: attenuation exception REF: 344 OBJ: 4

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9. The part of the trial when the government presents its evidence to prove the defendant’s guilt is called the _________________.

ANS: case-in-chief REF: 343 OBJ: 5

10. Another name for the objective test of entrapment is the __________________.

ANS: hypothetical person test REF: 360 OBJ: 8

ESSAY

1. Identify and explain the rationales behind the three justifications for the exclusionary rule. Which justification does the U.S. Supreme Court use today?

There are three justifications behind the exclusionary rule: the constitutional right justification, the judicial integrity justification, and the deterrence justification. The constitutional right justification stems from the ancient legal saying, “There is no right without a remedy.” Thus when a constitutional right has been violated the Constitution must afford a remedy or the right becomes meaningless.

The judicial integrity justification maintains that the honor and honesty of the courts forbid them to participate in unconstitutional conduct. Under this rationale if courts allow evidence seized in violation of the Constitution to be admitted, they become a partner in the lawbreaking process, thus lessening their integrity.

The deterrence justification says that throwing out good evidence, because it was obtained illegally, sends a strong message to law enforcement. The message would not repair past conduct. Rather it would deter future misconduct by showing law enforcement what the effect of the misconduct might be.

Today the U.S. Supreme Court uses the third justification - the deterrence justification - to support the existence of the exclusionary rule.

2. List and explain five exceptions to the exclusionary rule.

There are five major exceptions to the exclusionary rule: collateral use, cross examination, attenuation of taint, independent source and inevitable discovery, and reasonable good faith exception.

The collateral use exception allows the use of illegally obtained evidence in nontrial proceedings such as bail hearings, preliminary hearings, grand jury proceedings and habeas corpus proceedings. The cross examination exception means that while the government cannot use illegally obtained evidence in the case in chief, it can be used to impeach the credibility of a defendant’s testimony.

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The attenuation exception says that illegally obtained evidence can still be admitted if the poisonous connection between illegal police actions and the evidence obtained through these actions are weak enough. The Supreme Court has not established a bright-line rule for when this is so; each case must be considered in its own circumstances.

Under the independent source exception, if police officers violate the Constitution looking for evidence and then in a totally separate matter lawfully get the same evidence it can still be admitted. As for the inevitable discovery exception, if police get the evidence through illegal activity but would have eventually found it through non-illegal activity, then the exclusionary rule does not apply.

Finally, under the good faith exception, if police officers act honestly and reasonably on the belief that they have a lawfully-issued warrant or some other means of searching or arresting a suspect, then even if the warrant or other means later on turns out to be defective, the exclusionary rule will not apply to exclude the evidence.

3. Describe and explain the U.S. Supreme Court’s attitude toward the defense of entrapment throughout most of our history.

For most of our history, U.S. courts didn’t recognize entrapment as a defense. The courts were initially indifferent towards government enticements to commit crimes. They took that view that once a crime was committed why should it matter what incentives were involved and who offered them. This attitude changed in 1958 when the United State Supreme Court decided the case, Sherman v. U.S., recognizing the subjective defense of entrapment.

4. Identify the difference between the subjective and objective tests of entrapment. Identify two elements in the subjective test of entrapment and the two kinds of circumstances the government can use to prove defendants’ predisposition to commit crimes.

The difference between the two tests of entrapment is where the focus of each test lies. For the subjective test of entrapment, the predisposition of the defendant to commit crimes is the primary focus. However, under the objective test of entrapment, the focus is on whether the actions of the government officials involved would get a hypothetical “reasonable person” to commit a crime. If so the predisposition of the defendant is irrelevant.

The two elements in the subjective test of entrapment are (1) that the defendant had no desire to commit the crime before the government’s encouragement and (2) the government’s encouragement caused the defendant to commit the crime.

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To prove a defendant was predisposed to commit a crime, the government can use circumstances that focus either on the defendant’s character or on the defendant’s behavior. Circumstances that focus on the defendant’s character would be a defendant’s prior criminal conviction, a defendant’s prior criminal activity that did not result in a conviction, and a defendant’s criminal reputation. A circumstance focusing on the defendant’s behavior would be the defendant’s act of solicitation of the crime involved.

5. Is there a constitutional right to the exclusionary rule and the defense of entrapment? Explain your answer.

There is no constitutional right either to the exclusionary rule or to the defense of entrapment.

The exclusionary rule is considered a judicially created remedy designed to deter police officers from violating constitutional rights.

The defense of entrapment is created either by statutes or courts. It’s an affirmative defense, which requires defendants to introduce some evidence to show they were entrapped, after which the burden shifts to the government to prove that the defendants were not entrapped.

CHAPTER ELEVENCONSTITUTIONAL VIOLATIONS II:

MULTIPLE CHOICE

1. The U.S. government can be sued for the constitutional torts of federal law enforcement officers who have the authority to search and arrest under:

a. the Bivens rule.b. the Federal Tort Claims Act.c. Section 1983.d. state tort law.


2. The legal doctrine of holding employers liable for wrongs committed by their employees if the employee is acting in the scope of employment is known as:

a. no duty to protect.b. sovereign immunity.c. color of law.d. respondeat superior.


3. In Monell v. New York City Department of Social Services (1978), the Supreme Court ruled that:

a. the U.S. Congress has not allowed individuals to sue cities and counties.

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b. the U.S. Congress did intend to allow individuals to sue cities and local governments under section 1983.

c. the doctrine of sovereign immunity protects local governments from section 1983 lawsuits.

d. city and county governments are protected by official immunity.

ANS: B REF: 372-373 OBJ: 2

4. Which of the following are remedies for illegal government action?I. internal disciplineII. legislative actionIII. damage suits against governmentsIV. criminal prosecution

a. I, III, IVb. II, III, IVc. I, IId. III

ANS: A REF: 382-383 OBJ: 10

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5. Which of the following is not a stage of internal review?a. investigationb. arbitrationc. deliberationd. disposition


6. According to the Supreme Court in Anderson v. Creighton, involving a lawsuit for damages stemming from the FBI’s warrantless search of a house, police officers are entitled to qualified immunity for their illegal acts:

a. never.b. when they acted in subjective good faith.c. when they can establish that a reasonable officer could have believed that the

search did not violate the Fourth Amendment, even though it actually did.d. even if they violate a clearly established right.

ANS: C REF: 368-370 OBJ: 6

7. The U.S. Supreme Court has put which of the following limitations on 1983 actions?a. They can only be brought for negligent acts.b. They can only be brought against government bodies.c. They can only be brought against senior government administrators.d. They can only be brought for deliberate acts.


8. Civil actions by citizens against the government derive from all of the following except:a. state tort lawb. federal statutesc. penal codesd. U.S. Constitution


9. According to the defense of official immunity, an officer is personally liable:a. for any misconduct while on duty.b. for any willful or malicious misconduct.c. for any negligent act while exercising personal discretion.d. whenever she exercises her personal judgment.


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10. Bivens actions are:a. constitutional tort actions against federal officers.b. prohibited against officials who act under color of authority.c. do not have to show unreasonable legal action by the defendants.d. banned against federal officials.

ANS: A REF: 371-372 OBJ: 3

11. In Burns v. Reed, involving a civil rights action brought against a state prosecutor for a misleading presentation to a judge to obtain a warrant, the Supreme Court held:

a. that a prosecutor is not afforded absolute immunity for their role in any probable cause hearing.

b. a prosecutor is not afforded absolute immunity for the prosecutorial function of giving legal advice to the police.

c. a prosecutor is not afforded absolute immunity for their role as advocate for the state.

d. a prosecutor is afforded absolute immunity for their role as administrator or investigative officer.


12. According to Pinder v. Johnson, involving a lawsuit by a mother against a police officer and others for the death of her children in a fire:

a. public officials owe private citizens the right to protect them from damage from one another.

b. a violation of clearly established law is not recoverable.c. the due process clause does not require government actors to affirmatively protect

life.d. an affirmative duty to protect life can never arise on the part of government

officials.

ANS: C REF: 374-375 OBJ: 7

13. According to Pinder v. Johnson, involving a lawsuit by a mother against police officers and others for the death of her children in a fire:

a. the due process clauses create an official duty to protect life.b. a duty to protect life can arise when the state restrains citizens from acting on their

own behalf.c. an affirmative duty to protect life can never arise on the part of government

officials.d. government action can never create a duty to protect life.


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14. Judges have _____________________ from civil lawsuits for actions they take while performing their official judicial duties.

a. official immunityb. functional immunityc. sovereign immunityd. absolute immunity


15. Which of the following are always protected by absolute immunity from civil lawsuits while they are performing their official duties?

a. judgesb. prosecutorsc. juriesd. police officers


16. Under what circumstances are prosecutors absolutely immune from lawsuit for their misconduct?I. while performing their advocacy roleII. while giving advice to officers regarding an investigationIII. while acting as an investigator prior to there being probable cause to arrestIV. while representing the state in criminal trials

a. Ib. I, IVc. II, IIId. I, II

ANS: B REF: 378-379 OBJ: 8

17. People who sue the government or its officers under section 1983:a. are usually successful.b. are usually successful if the violation was extreme.c. are rarely successful.d. are usually successful because juries do not believe police officers tell the truth.


18. The most common mechanism for holding police accountable for their misconduct is:a. a tort lawsuit.b. a section 1983 lawsuit.c. a letter of complaint.d. administrative review and discipline.


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19. Internal review of police misconduct involves:a. review of misconduct by civilians.b. review of misconduct by a special team of officers in the department.c. review by a special master appointed by the court.d. review by officers in another police department.


20. The major objection to internal review of police misconduct is:a. police officers do not trust the officers conducting the investigation of misconduct.b. a police department has to divert resources away from fighting crime.c. the police should not be policing themselves.d. external review is less expensive and better received by the media.


21. Individual officers or government agencies cannot be sued for failing to stop private people from violating their rights by inflicting injuries on them. This is known as the:

a. no special relationship rule.b. the no affirmative duty to protect rule.c. the state did not create the danger rule.d. none of the above


22. When the government takes a person into custody against their will:a. the government does not have a duty to protect them from being injured by other

private persons.b. the government created the danger taking them into custody, so it must protect

them.c. the government must protect them because a special relationship has been created

with the person in custody who cannot protect themselves.d. the government only has the duty to protect the person in custody from harm by

government officers.


23. Research about the effectiveness of civilian review boards shows that:a. they are very effective in investigating police misconduct.b. civilians are not well equipped to evaluate police misconduct.c. it’s difficult to measure how effective they are.d. most large cities do not use civilian review.


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24. Research indicates that:a. civilian review procedures rarely sustain citizens’ complaints about police.b. civilian review procedures are much more likely to sustain citizens’ complaints

about the police.c. civilian review boards refuse to hear many of the complaints filed against the

police.d. most civilian review procedures allow the boards to take disciplinary action against

police officers.


25. Plaintiffs can sue which of the following for damages in a civil lawsuit alleging police misconduct?I. individual law enforcement officer involved.II. the officer’s superiors.III. the police department.IV. the government unit in charge of police officers and the police department.

a. Ib. I, IIc. I, II, IIId. I, II, III, IV


26. It is unlikely that a police officer will be charged with a crime:I. if the officer honestly believed he was enforcing the law, making it difficult to

prove guilt beyond a reasonable doubtII. because prosecutors are hesitant to prosecuteIII. because juries are unwilling to convict IV. especially when the “victim” of the officer’s actions is a criminal

a. Ib. I, IVc. I, II, III, IVd. II, III


27. Most plaintiffs who file civil lawsuits against police officers are seeking:a. monetary damagesb. injunctionsc. declaratory judgmentsd. an apology


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28. According to the qualified immunity defense, law enforcement officers cannot be held personally liable in a civil lawsuit if:

a. the officer honestly believed they had not violated the lawb. the officer can show that under the circumstances their actions were warrantedc. the officer can show their action was objectively reasonable as measured by legal

rules “clearly established” at the time they actedd. criminal charges are also not filed against them


29. The reason the Supreme Court created the qualified immunity defense for police officers is:I. to protect the broad discretion they need to do their job effectivelyII. to prevent officers and courts from being deluged with frivolous lawsuitsIII. to discourage citizens from suing the policeIV. to minimize the public’s knowledge about police misconduct

a. I, IIb. I, II, III, IVc. I, III, IVd. III


30. Which legal doctrine prohibits people from suing the government without its consent?a. qualified immunityb. absolute immunityc. official immunityd. sovereign immunity


31. The Federal Tort Claims Act:a. waives sovereign immunity and allows lawsuits against the federal government for

the constitutional torts of its officersb. allows citizens to submit their damage claims resulting from constitutional torts to

a panel charged with deciding if the claim should be paidc. upholds the government’s sovereign immunity from lawsuitd. only allows lawsuits against the individual officers involved


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32. In order to prevail in a Section 1983 lawsuit, plaintiffs must prove:I. the officer acted “under color of authority”II. the officer’s actions deprived the plaintiff of their rights under the U.S.

ConstitutionIII. the plaintiff suffered serious injuryIV. the officer’s actions were criminal

a. I, IIb. IIc. I, II, IIId. II, IV


33. State and local law enforcment officers are protected from Section 1983 liability by:a. sovereign immunityb. official immunityc. qualified immunityd. functional immunity


34. In Monell v. New York City Department of Social Services (1978), the Supreme Court ruled that individuals can sue local government units under Section 1983 under all of the following situations except:I. the officer acted according to officially approved written rules, policies,

statements, ordinances, or regulationsII. the officer acted outside the scope of his employmentIII. the officer acted according to unwritten custom, even though not formally

approvedIV. the officer’s actions caused a violation of the individual’s constitutional rights

a. I, II, III, IVb. I, IIc. I, III, IVd. II, III

ANS: C REF: 372-373 OBJ: 2

35. Prosecutors have:a. absolute immunity from civil lawsuitb. qualified immunity from civil lawsuitc. sovereign immunity from civil lawsuitd. functional immunity from civil lawsuit


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TRUE/FALSE

1. Officials who violate the Fourth Amendment by conducting an illegal search can still receive qualified immunity for their actions.


2. External civilian review results in more charges against police officers being sustained than internal review.

ANS: F REF: 382-383 OBJ: 10

3. Prosecutors have qualified immunity for their conduct as advocates in the judicial phase of the criminal process.


4. Suing governmental bodies under Section 1983 is more complicated than suing individuals.


5. For a right to be clearly established for purposes of defeating a claim of qualified immunity, the right must be sufficiently clear that a reasonable official would understand that what they are doing violates the right.


6. A prosecutor’s appearance in court in support of an application for a search warrant is protected by qualified immunity.


7. Under certain circumstances, law enforcement officers have a total immunity defense that protects them from being held personally liable for violating someone’s rights.


8. The risk of vexatious litigation interfering with their official duties supports giving prosecutors absolute immunity for their decisions associated with the judicial phase of the criminal process.


9. Most police believe internal affairs unit are necessary.


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10. In order to win a Section 1983 lawsuit against a police officer, the plaintiff must prove that the officer was acting under color of state law when he engaged in the behavior that is the subject of the suit.


11. Under the doctrine of respondeat superior, state and local governments and their agencies are liable for their employees’ torts if the employee committed the tort during the course of their employment.


12. The government and its officers have a constitutional duty to protect individuals from other private individuals who violate their rights.


13. Under the doctrine of sovereign immunity, governments are always immune from lawsuit.


14. The Supreme Court decided in Monell v. New York City Department of Social Services (1978) that cites and other local governments are considered “persons” and can be sued under section 1983.


15. Under the state-created danger exception to the no-duty-to-protect rule, a law enforcement officer can be held liable under section 1983 if his actions created a special danger to the general public.


COMPLETION

1. Money awarded to compensate someone for a violation of their rights is called ________.

ANS: damages REF: 366 OBJ: 2

2. A person who brings a suit against the government asking for a remedy is called ______.

ANS: the plaintiff REF: 366 OBJ: 2

3. State and local governments are responsible for the torts of their employees, if the torts are committed during the employees’ employment, under the _____________.

ANS: doctrine of respondeat superior REF: 372 OBJ: 2

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4. Criminal justice personnel are limited for liability for their torts under the ____________.

ANS: defense of official immunity REF: 371 OBJ: 4

5. When individual government employees are immune for their actions, criminal justice agencies can likewise escape liability under ____________________________.

ANS: vicarious official immunity REF: 372 OBJ: 2

6. Lawsuits against individual federal law enforcement officers for a constitutional violation are called ____________.

ANS: Bivens actions or constitutional torts REF: 367 OBJ: 3

7. Officers who violate the constitutional rights of private individuals commit a/n _________.

ANS: constitutional tort REF: 367 OBJ: 5

8. Suits under the Civil Rights Act are commonly called _____________________.

ANS: 1983 actions REF: 371 OBJ: 5

9. Lawsuits may be brought against the federal government for federal officials’ constitutional torts pursuant to the _______________________.

ANS: Federal Tort Claims Act REF: 367 OBJ: 3

10. Review of complaints against police officers by participants who themselves aren’t police officers is called _______________.

ANS: civilian review REF: 382 OBJ: 10

ESSAY

1. Summarize the Bivens v. Six Unnamed FBI Agents case, and explain its significance.

Until 1971, individual citizens could not sue federal officers for violation of their constitutional rights. The U.S. Supreme Court case of Bivens v. Six Unnamed FBI Agents changed that. Six FBI agents searched Bivens’s apartment without either a search or arrest warrant. They handcuffed him in the presence of this family and took him down to a federal building where he was again searched, interrogated, and booked. Bivens sued claiming these events caused him humiliation, embarrassment, and mental suffering and sought $15,000 from each of the officers.

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In Bivens, the Court created a constitutional tort, a private right to sue federal officers for violations of a plaintiff’s constitutional rights. To succeed, plaintiffs have to prove two elements: 1. That the officers were acting under color of law, and 2. That the officers’ actions deprived the plaintiff of a constitutional right. Even if the plaintiff proves these two elements, law enforcement officers will not be liable if they can show that their actions constitute what is called qualified immunity.

2. Identify the two elements of the qualified immunity defense, and explain why the test is so easy for officers to pass.

The qualified immunity defense to federal constitutional tort claims against police officers has two elements. First, the officers’ action must meet the test of “objective legal reasonableness.” Second, reasonableness is measured by legal rules “clearly established at the time the officers acted.” This test is easy for officers to pass, since the officers’ acts do not have to be correct but only reasonable given the law at the time. The reasons for creating this easy test is to protect officers’ broad discretion to do their jobs and keep them from being sued with frivolous lawsuits.

3. Identify and describe the differences between two kinds of state civil lawsuits against individual state officers.

Plaintiffs can sue individual state officers in two types of cases: First, state tort lawsuits and second, federal U.S. Civil Rights Act lawsuits.

A state tort lawsuit is brought to recover monetary damages for injuries caused by officials’ civil wrongs against the plaintiff. Examples of such civil wrongs are assault, false arrest, trespass, breaking and entering.

Federal U.S. Civil Rights lawsuits are brought under Title 42, Section 1983 of the Civil Rights Act of 1871. This allows plaintiffs to go into federal courts to sue state law enforcement agencies and individual law enforcement officers for violating plaintiff’s federal constitutional rights.

4. Identify two elements plaintiffs in § 1983 actions against state and local law enforcement officers have to prove. Identify and describe two limits placed by the U.S. Supreme Court in § 1983 actions against state and local officers.

In a § 1983 action against state and local law enforcement officers, the plaintiffs must prove two elements. First, plaintiffs must prove that the officials acted “under color of state law,” which includes all acts done within the scope of the officers’ employment. Second, the officers’ actions must have caused the deprivation of plaintiff’s federal rights.

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Besides the two statutory elements that plaintiffs must prove in a § 1983 action the U.S. Supreme Court has added two more. First, plaintiffs cannot recover for accidental or even negligent violations of their federal civil rights. The law enforcement officers’ violations must be deliberate. Second, state and local officers are protected by the same qualified immunity under § 1983 that federal officers have under Bivens and the Federal Tort Claims Act.

5. Can you sue a judge or a prosecutor for damages resulting from actions performed in their official capacities? Explain.

Judges enjoy absolute immunity from civil suit for actions taken in the performance of their duties. Thus, a judge cannot personally be sued for damages stemming from any official action.

Prosecutors enjoy absolute immunity as long as they are acting as advocates for the government in criminal prosecutions. This absolute immunity extends to all conduct “intimately associated with the judicial phase of the criminal process.” Thus it applies to pretrial court proceedings and not just the trial itself. However, prosecutors can be sued for giving incorrect advice to the police regarding the existence of probable cause. In such a situation the prosecutor is acting in the role of an administrator or investigative officer rather than as an advocate for the state and does not enjoy absolute immunity.

TWELVECOURT PROCEEDINGS I: BEFORE TRIAL

MULTIPLE CHOICE

1. In most jurisdictions, when the police take a criminal case to the prosecutor's office, prosecutors may:I. release suspects outright by not charging them.II. divert the case into a program for community service.III. start formal judicial proceedings by filing an information.IV. divert the case into a restitution program.

a. I, II, III, IVb. I, IIIc. I, II, IIId. III


2. If an individual is arrested and the prosecutor decides to charge them with a crime, they do so by:

a. notifying by memo the judge who, if the case goes to trial, will probably preside.b. notifying by memo the lawyer representing the accused.c. filing a complaint, information, or indictment with the court.d. notifying the accused by letter.


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3. Which of the following duties do magistrates perform at the first appearance?I. determination to set bail or detain suspectsII. inform defendants of their rightsIII. ask felony defendants to plead to chargesIV. read the charges against the defendant

a. I, II, III, IVb. I, II, IVc. II, IVd. I


4. What percentage of cases are dropped because of the exclusionary rule?a. approximately 8%b. less than 10%c. more than 12%d. fewer than 2%


5. In comparing the decision to detain someone pending the filing of formal charges and the decision to take the case on to trial:

a. the detention decision requires probable cause, while the trial decision requires reasonable suspicion.

b. the detention decision requires reasonable suspicion, while the trial decision requires probable cause.

c. both decisions require reasonable suspicion only.d. both decisions require probable cause, but less probable cause is needed to justify

the detention decision than is necessary to justify the trial decision.

ANS: D REF: 433-434 OBJ: 1

6. Which of the following are considered “administrative steps incident to arrest” that are allowed to be completed prior to the warrantless arrestee's appearance to a magistrate?I. searching the suspectII. conducting a lineupIII. interrogating the suspectIV. completing paperwork

a. I, II, III, IVb. I, II, IIIc. I, IVd. IV


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7. In the Supreme Court case County of Riverside v. McLaughlin, involving a defendant who argued the state took too long to effectuate a judicial determination of probable cause after his warrantless arrest, the Court held that the test for determining if there has been a “prompt” judicial determination of probable cause is whether the arrestee was brought before a judicial officer:

a. without unreasonable delay, under all the circumstances.b. within 36 hours of arrest, ordinarily.c. within 48 hours of arrest, ordinarily.d. within 24 hours of arrest, ordinarily.

ANS: C REF: 396-397 OBJ: 2

8. Although practices vary among jurisdictions, ordinarily an indigent accused is appointed an attorney:

a. by the police at time of arrest.b. by a magistrate at the first appearance.c. by a judge at the preliminary hearing.d. by a judge at trial.


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9. With respect to bail and pretrial detention:I. most defendants are not detained until trial.II. detention can last for considerable periods.III. pretrial detention is one of the factors contributing significantly to the jail

overcrowding problem.IV. under the Constitution, pretrial detention may never exceed 90 days.

a. I, II, III, IVb. I, II, IIIc. I, IVd. III

ANS: B REF: 399-400 OBJ: 3

10. In determining bail, courts take which of the following into account?I. seriousness of the offenseII. weight of the evidence against the defendantIII. prior criminal recordIV. length of defendant’s residence in the communitya. I, II, III, IVb. I, II, IIIc. I, IVd. I, III


11. According to the Supreme Court opinion in U.S. v. Salerno, involving pre-trial detention, of defendants due to the threat they posed to public safety:I. preventive detention is not punishment.II. pretrial detention can only be imposed for the purpose of securing the defendant’s

appearance at trial.III. pretrial detention can be imposed to secure the defendant’s appearance at trial and

if the court finds that the defendant poses a risk to the safety of the community.IV. pretrial detention violates the Eight Amendment.


ANS: C REF: 402-403 OBJ: 5

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12. According to the Supreme Court opinion in Bell v. Wolfish, involving conditions in a pretrial detention center or jail:I. due process entitles all persons not convicted of crimes a single cell.II. strip searches violate the constitutional rights of persons not yet convicted of

crimes.III. double bunking amounts to unconstitutional punishment.IV. prison administrators should be accorded wide ranging deference in the adoption

of jail policies.a. I, II, III, IVb. I, II, IIIc. II, IIId. IV

ANS: D REF: 404-406 OBJ: 4

13. In the early years immediately following the adoption of the Sixth Amendment guaranteeing the right to counsel, courts interpreted that right to mean:

a. all defendants must receive counsel at government expense.b. defendants have a right to counsel at trial provided they can afford one.c. defendants do not have a right to counsel until the trial itself, but once trial begins

all defendants must receive lawyers even if they cannot afford them.d. only felony defendants are entitled to lawyers at government expense.


14. Pro bono counsel is:a. an attorney admitted to practice before the Supreme Court.b. a lawyer who represents someone in court without a fee.c. court appointed counsel for those who cannot hire their own attorney.d. another term for retained counsel.


15. The right to counsel attaches:a. when the government files formal charges against defendants.b. as soon as police investigation focuses on a particular suspect.c. only at the trial.d. only after arraignment.


315

16. Which of the following are considered critical stages in a criminal proceeding?I. All lineup proceedingsII. First AppearanceIII. Preliminary hearingIV. Lineup after formal charges

a. I, II, III, IVb. III, IVc. IVd. II, III

ANS: B REF: 410-411 OBJ: 6

17. According to the Supreme Court opinion in Scott v. Illinois, involving the right to counsel in a shoplifting case punishable by up to one year in jail and a fine:

a. the Sixth Amendment guarantees the right to a lawyer only in capital cases in federal courts.

b. the right to counsel attaches only in actual imprisonment cases.c. the right to counsel attaches only in cases punishable by imprisonment for more

than one year.d. the right to counsel does not extend to misdemeanor cases.

ANS: B REF: 411-412 OBJ: 6

18. According to the Supreme Court’s decision in Strickland v. Washington, in order for a convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction, the defendant must show:I. counsel’s performance was deficient.II. counsel made errors so serious that he/she was not functioning as guaranteed by

the Sixth Amendment.III. the deficient performance of counsel prejudiced the defense.IV. because of defense counsel’s performance, the trial result is not reliable.

a. I, II, III, IVb.c.

II, IIIIII, IV

d. I

ANS: A REF: 414-416 OBJ: 6

19. In Strickland v. Washington, the Supreme Court adopted which standard to evaluate the performance of defense counsel in a criminal case?

a. reasonably effective assistanceb. mockery of justicec. reasonably competent attorneyd. reasonably educated attorney


316

20. Which of the following standards have states adopted for deciding whether a case should be bound over for trial after a preliminary hearing?I. clear and convincing standardII. beyond a reasonable doubt standardIII. prima facie standardIV. directed verdict standard

a. I, IIIb. III, IVc. I, II, III, IVd. II, III


21. The principal mechanisms for testing the government's case against defendants prior to trial include:I. grand jury review.II. first appearance.III. arrest warrants.IV. preliminary hearings.

a. I, II, III, IVb. I, II, IVc. I, IVd. II, IV

ANS: C REF: 423-424 OBJ: 7

22. Preliminary hearings and grand jury review differ in several important respects. These differences include:I. preliminary hearings are secret; grand jury proceedings are public.II. preliminary hearings are adversary proceedings; grand jury proceedings are not.III. judges preside at preliminary hearings; prosecutors manage grand jury

proceedings.IV. grand jury proceedings determine probable cause to prosecute a defendant;

preliminary hearings do not.a. I, II, III, IVb. I, II, IIIc. II, III, IVd. II, III


23. After grand jurors are sworn in, they are charged by the:a. prosecutor.b. judge.c. clerk of court.d. foreman.


317

24. The prohibition against double jeopardy attaches:a. at arrest.b. after indictment or being bound over following a preliminary hearing.c. when the first witness testifies.d. at different times for judge and jury trials.


25. Preliminary hearings:I. are adversary proceedings.II. are open public proceedings.III. require the prosecutor to present evidence of the defendant’s guilt.IV. permit the defense to present evidence.

a. I, II, III, IVb. I, II, IIIc. IIId. I, II


26. The prohibition against double jeopardy prohibits all of the below, except:a. a second prosecution for the same offense after conviction.b. multiple punishments for the same offense.c. a second prosecution for the same offense after acquittal.d. multiple punishments for multiple crimes stemming from the same act(s).


27. The qualifications for federal grand jurors include which of the following?I. U.S. citizenshipII. be 18 years or olderIII. ability to speak, write, and read EnglishIV. no felony convictions

a. I, II, III, IVb. I, II, IVc. I, IId. I, IV


28. The prohibition against double jeopardy is found in:a. the Sixth Amendment.b. the Fifth Amendment.c. the due process clauses.d. the Eighth Amendment.

ANS: B REF: 427-428 OBJ: 8

318

29. Which of the following actions are prohibited by the double jeopardy clause?I. a second prosecution for the same offense after a hung juryII. multiple punishments for the same offenseIII. a second prosecution for the same offense after convictionIV. a second prosecution for the same offense after acquittal

a. I, II, III, IVb. I, IIc. II, III, IVd. III, IV

ANS: C REF: 427-428 OBJ: 8

30. According to the dual sovereignty doctrine:a. it violates the double jeopardy clause to prosecute and punish a defendant for the

same act in separate jurisdictions.b. the federal government cannot prosecute a defendant for a similar state crime.c. different jurisdictions can prosecute and punish a defendant for the same conductd. state governments cannot charge defendants for the same felony.


31. The speedy trial clause of the Sixth Amendment promotes/protects which of the following interests?I. prevents prolonged detention prior to trialII. guards against weakening the defense's caseIII. reaching the correct result in individual casesIV. organizational interests in efficiency and economy

a. I, II, III, IVb. I, II, IIIc. I, III, IVd. I, IV


32. According to the Supreme Court, the four elements that determine whether a delay violates the speedy trial clause include:I. the length of the delay.II. the reason for the delay.III. the defendants’ assertion of their right to a speedy trial.IV. the prejudice that the delay causes to the defendants’ case.

a. I, II, III, IVb. I, II, IIIc. I, IId. IV


319

33. The speedy trial clause prohibits:a. any delay in prosecution.b. delays caused by the state.c. delays due to trials of other defendants.d. only undue delays.


34. If a defendant's constitutional right to a speedy trial is violated:a. the charges against the defendant are dismissed.b. the time the defendant spent in jail awaiting trial is deducted from his sentence.c. the court determines the point at which the trial should have commenced and

deducts from the sentence the period of time between then and the date the trial actually started.

d. the prosecution must go back to the grand jury stage and start all over.


35. A factor that the court can consider in deciding a motion for change of venue include is:a. trials at a distant location place a burden on the witnessesb. the courts in the community where the crime occurred are busyc. the prosecutor’s office in the community where the crime occurred is short-staffedd. the police in the community where the crime occurred want the trial to remain in

their jurisdiction


TRUE/FALSE

1. According to the Supreme Court, the Fourth Amendment requires that the police take suspects detained without arrest warrants promptly to a judge or magistrate for a determination of probable cause.


2. The probable cause needed to detain and the probable cause needed to go to trial require the same amount of proof.


3. If an arrested person does not receive a judicial determination of probable cause within 48 hours, the state bears the burden of proving that there has not been an unreasonable delay.

ANS: T REF: 397-398 OBJ: 2

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4. Misdemeanor defendants commonly enter a plea at their first appearance.


5. The rights of jailed defendants awaiting trial are not watered down by their status of being in jail.


6. Criminal defendants have an absolute right to bail guaranteed by the United States Constitution.


7. Due process of law requires not just counsel, but effective counsel.


8. The current test used to evaluate the effectiveness of counsel only requires a defendant to show that their attorney’s performance was not reasonably competent.


9. Preliminary hearings are adversary proceedings.


10. Most recent legal commentary supports the grand jury process.


11. Defendants may only plead nolo contendere with permission of the court.


12. It is not double jeopardy to prosecute and punish a defendant for the same act in separate jurisdictions.


13. A defendant’s motion to change venue does not waive the right to be tried in the state and district where the crime was located.


14. Both the state and defense may move for changes of venue.

ANS: F REF: 434-435 OBJ: 9

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15. All dismissals because of speedy trial violations are with prejudice.


COMPLETION

1. The stage of the criminal process at which the defendant is brought to court to formally hear the charges and plead to them is called _____________.

ANS: arraignment REF: 392 OBJ: 2

2. A decision by a prosecutor not to charge a crime if the suspect performs community service instead is called __________________.

ANS: diversion REF: 393 OBJ: 1

3. The pretrial release mechanism that is based solely on the promise of the defendant to appear in court is known as __________________.

ANS: recognizance REF: 399 OBJ: 3

4. The pretrial detention of dangerous suspects who pose a threat to community safety is called _________________.

ANS: preventive detention REF: 401 OBJ: 5

5. A lawyer paid for by the client is called _________________.

ANS: retained counsel REF: 408 OBJ: 6

6. If a judge concludes at a preliminary hearing that the government has satisfied its evidentiary burden, the defendant is _______________________.

ANS: bound over REF: 426 OBJ: 7

7. A crime arising out of the same facts in one state is not the same crime in another state, for purposes of double jeopardy, according to the ______________ doctrine.

ANS: dual sovereignty REF: 432 OBJ: 8

8. The formal name for the place where a trial is held is ____________________.

ANS: venue REF: 434 OBJ: 9

9. A jury that cannot reach a verdict after lengthy deliberations is a/an ___________.

ANS: hung jury REF: 428 OBJ: 8

322

10. The record of the numbers grand jurors voting for an indictment is the _________.

ANS: true bill REF: 421 OBJ: 7

ESSAY

1. Why and when do police officers have to take arrested suspects to a magistrate?

Arrested suspects, especially those arrested without a warrant, have to be taken before a magistrate so that a judicial officer can decide whether there is probable cause to sustain the deprivation of the suspect’s liberty. The U.S. Supreme Court has decided that the Fourth Amendment’s prohibition against unreasonable seizures demands that suspects taken into custody be taken “promptly” to a magistrate to decide whether there are enough facts to back up the detention. The United States Supreme Court has decided that “promptly” means that an arrested individual must, except in an unusual case, at a minimum receive a probable cause determination within 48 hours of arrest.

2. Explain the difference between probable cause to detain a suspect and probable cause to go to trial.

Probable cause to detain a suspect is decided at a court proceeding, called the first appearance, where a judicial officer decides whether there is sufficient evidence to hold a person in custody for further proceedings.

Probable cause to go to trial is decided in a preliminary hearing or a grand jury proceeding to decide whether there is sufficient evidence to bind over the defendant for serious charges.

3. Exactly what does the constitutional right to bail consist of? Identify three constitutional rights our bail system denies to poor defendants, and explain how each is denied.

There is no absolute constitutional right to bail, only a right against excessive bail. The U.S. Supreme Court has ruled that amounts more than necessary to ensure that defendants come to court for their trials are “excessive.” Thus judges and magistrates have to calculate how much money it would take to guarantee that defendants will appear for their trials.

Our bail system denies poor defendants due process of law, equal protection of the law, and the right against excessive bail. Due process of law is denied to poor defendants, because they can’t help with their own defense if they are locked up. Equal protection of the law is denied to poor defendants; because they are jailed, because they are poor. Finally, the right against excessive bail is denied to poor defendants, because they can’t raise any amount required.

323

4. Identify, define, and explain the two-prongs of the U.S. Supreme Court’s test of “effective” counsel adopted in Strickland v. Washington.

In Strickland v. Washington, the U.S. Supreme Court adopted a two-prong test to decide whether counsel has provided effective assistance in a criminal case. Under the first prong, called the reasonableness prong, defendants have to prove that their lawyer’s performance wasn’t reasonably competent, meaning that the lawyer was so deficient that he/she “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” The lawyer’s performance is judged by looking at the totality of facts and circumstances surrounding the trial and the lawyer’s performance.

If a defendant proves a lawyer’s performance was unreasonable, the defendant must still meet a second-prong, called the prejudice prong. Under the prejudice prong, defendants have to prove that their lawyers’ competence was probably responsible for their conviction.

5. List and describe the differences between testing the government’s case by grand jury review and by preliminary hearing.

The goal of both grand jury review and a preliminary hearing is to decide whether there is enough evidence to bring defendants to trial. The preliminary hearing process stresses adversarial, open, accusatory values and control by experts. Grand jury review underscores the value of lay participation in criminal proceedings.

Preliminary hearings are public; grand jury proceedings are secret. Preliminary hearings are adversarial proceedings in which the defense can challenge the prosecution’s case; grand juries hear only the prosecution’s case. Judges preside over preliminary hearings; prosecutors manage the grand jury . In preliminary hearings, judges determine whether there is enough evidence to proceed to trial; grand jury review relies on grand jurors, citizens selected to serve a term, to decide whether there is enough evidence to go to trial. Finally, defendants and their lawyers attend preliminary hearings; in grand jury review, defendants and their lawyers are not present.

CHAPTER TWELVECOURT PROCEEDINGS I: BEFORE TRIAL

MULTIPLE CHOICE

1. In most jurisdictions, when the police take a criminal case to the prosecutor's office, prosecutors may:I. release suspects outright by not charging them.II. divert the case into a program for community service.III. start formal judicial proceedings by filing an information.IV. divert the case into a restitution program.

a. I, II, III, IVb. I, IIIc. I, II, III

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d. III


2. If an individual is arrested and the prosecutor decides to charge them with a crime, they do so by:

a. notifying by memo the judge who, if the case goes to trial, will probably preside.b. notifying by memo the lawyer representing the accused.c. filing a complaint, information, or indictment with the court.d. notifying the accused by letter.


3. Which of the following duties do magistrates perform at the first appearance?I. determination to set bail or detain suspectsII. inform defendants of their rightsIII. ask felony defendants to plead to chargesIV. read the charges against the defendant

a. I, II, III, IVb. I, II, IVc. II, IVd. I


4. What percentage of cases are dropped because of the exclusionary rule?a. approximately 8%b. less than 10%c. more than 12%d. fewer than 2%


5. In comparing the decision to detain someone pending the filing of formal charges and the decision to take the case on to trial:

a. the detention decision requires probable cause, while the trial decision requires reasonable suspicion.

b. the detention decision requires reasonable suspicion, while the trial decision requires probable cause.

c. both decisions require reasonable suspicion only.d. both decisions require probable cause, but less probable cause is needed to justify

the detention decision than is necessary to justify the trial decision.

ANS: D REF: 433-434 OBJ: 1

6. Which of the following are considered “administrative steps incident to arrest” that are allowed to be completed prior to the warrantless arrestee's appearance to a magistrate?I. searching the suspectII. conducting a lineup

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III. interrogating the suspectIV. completing paperwork



7. In the Supreme Court case County of Riverside v. McLaughlin, involving a defendant who argued the state took too long to effectuate a judicial determination of probable cause after his warrantless arrest, the Court held that the test for determining if there has been a “prompt” judicial determination of probable cause is whether the arrestee was brought before a judicial officer:

a. without unreasonable delay, under all the circumstances.b. within 36 hours of arrest, ordinarily.c. within 48 hours of arrest, ordinarily.d. within 24 hours of arrest, ordinarily.

ANS: C REF: 396-397 OBJ: 2

8. Although practices vary among jurisdictions, ordinarily an indigent accused is appointed an attorney:

a. by the police at time of arrest.b. by a magistrate at the first appearance.c. by a judge at the preliminary hearing.d. by a judge at trial.


326

9. With respect to bail and pretrial detention:I. most defendants are not detained until trial.II. detention can last for considerable periods.III. pretrial detention is one of the factors contributing significantly to the jail

overcrowding problem.IV. under the Constitution, pretrial detention may never exceed 90 days.

a. I, II, III, IVb. I, II, IIIc. I, IVd. III

ANS: B REF: 399-400 OBJ: 3

10. In determining bail, courts take which of the following into account?I. seriousness of the offenseII. weight of the evidence against the defendantIII. prior criminal recordIV. length of defendant’s residence in the communitya. I, II, III, IVb. I, II, IIIc. I, IVd. I, III


11. According to the Supreme Court opinion in U.S. v. Salerno, involving pre-trial detention, of defendants due to the threat they posed to public safety:I. preventive detention is not punishment.II. pretrial detention can only be imposed for the purpose of securing the defendant’s

appearance at trial.III. pretrial detention can be imposed to secure the defendant’s appearance at trial and

if the court finds that the defendant poses a risk to the safety of the community.IV. pretrial detention violates the Eight Amendment.


ANS: C REF: 402-403 OBJ: 5

327

12. According to the Supreme Court opinion in Bell v. Wolfish, involving conditions in a pretrial detention center or jail:I. due process entitles all persons not convicted of crimes a single cell.II. strip searches violate the constitutional rights of persons not yet convicted of

crimes.III. double bunking amounts to unconstitutional punishment.IV. prison administrators should be accorded wide ranging deference in the adoption

of jail policies.a. I, II, III, IVb. I, II, IIIc. II, IIId. IV

ANS: D REF: 404-406 OBJ: 4

13. In the early years immediately following the adoption of the Sixth Amendment guaranteeing the right to counsel, courts interpreted that right to mean:

a. all defendants must receive counsel at government expense.b. defendants have a right to counsel at trial provided they can afford one.c. defendants do not have a right to counsel until the trial itself, but once trial begins

all defendants must receive lawyers even if they cannot afford them.d. only felony defendants are entitled to lawyers at government expense.


14. Pro bono counsel is:a. an attorney admitted to practice before the Supreme Court.b. a lawyer who represents someone in court without a fee.c. court appointed counsel for those who cannot hire their own attorney.d. another term for retained counsel.


15. The right to counsel attaches:a. when the government files formal charges against defendants.b. as soon as police investigation focuses on a particular suspect.c. only at the trial.d. only after arraignment.


328

16. Which of the following are considered critical stages in a criminal proceeding?I. All lineup proceedingsII. First AppearanceIII. Preliminary hearingIV. Lineup after formal charges

a. I, II, III, IVb. III, IVc. IVd. II, III

ANS: B REF: 410-411 OBJ: 6

17. According to the Supreme Court opinion in Scott v. Illinois, involving the right to counsel in a shoplifting case punishable by up to one year in jail and a fine:

a. the Sixth Amendment guarantees the right to a lawyer only in capital cases in federal courts.

b. the right to counsel attaches only in actual imprisonment cases.c. the right to counsel attaches only in cases punishable by imprisonment for more

than one year.d. the right to counsel does not extend to misdemeanor cases.

ANS: B REF: 411-412 OBJ: 6

18. According to the Supreme Court’s decision in Strickland v. Washington, in order for a convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction, the defendant must show:I. counsel’s performance was deficient.II. counsel made errors so serious that he/she was not functioning as guaranteed by

the Sixth Amendment.III. the deficient performance of counsel prejudiced the defense.IV. because of defense counsel’s performance, the trial result is not reliable.

a. I, II, III, IVb.c.

II, IIIIII, IV

d. I

ANS: A REF: 414-416 OBJ: 6

19. In Strickland v. Washington, the Supreme Court adopted which standard to evaluate the performance of defense counsel in a criminal case?

a. reasonably effective assistanceb. mockery of justicec. reasonably competent attorneyd. reasonably educated attorney


329

20. Which of the following standards have states adopted for deciding whether a case should be bound over for trial after a preliminary hearing?I. clear and convincing standardII. beyond a reasonable doubt standardIII. prima facie standardIV. directed verdict standard

a. I, IIIb. III, IVc. I, II, III, IVd. II, III


21. The principal mechanisms for testing the government's case against defendants prior to trial include:I. grand jury review.II. first appearance.III. arrest warrants.IV. preliminary hearings.

a. I, II, III, IVb. I, II, IVc. I, IVd. II, IV

ANS: C REF: 423-424 OBJ: 7

22. Preliminary hearings and grand jury review differ in several important respects. These differences include:I. preliminary hearings are secret; grand jury proceedings are public.II. preliminary hearings are adversary proceedings; grand jury proceedings are not.III. judges preside at preliminary hearings; prosecutors manage grand jury

proceedings.IV. grand jury proceedings determine probable cause to prosecute a defendant;

preliminary hearings do not.a. I, II, III, IVb. I, II, IIIc. II, III, IVd. II, III


23. After grand jurors are sworn in, they are charged by the:a. prosecutor.b. judge.c. clerk of court.d. foreman.


330

24. The prohibition against double jeopardy attaches:a. at arrest.b. after indictment or being bound over following a preliminary hearing.c. when the first witness testifies.d. at different times for judge and jury trials.


25. Preliminary hearings:I. are adversary proceedings.II. are open public proceedings.III. require the prosecutor to present evidence of the defendant’s guilt.IV. permit the defense to present evidence.

a. I, II, III, IVb. I, II, IIIc. IIId. I, II


26. The prohibition against double jeopardy prohibits all of the below, except:a. a second prosecution for the same offense after conviction.b. multiple punishments for the same offense.c. a second prosecution for the same offense after acquittal.d. multiple punishments for multiple crimes stemming from the same act(s).


27. The qualifications for federal grand jurors include which of the following?I. U.S. citizenshipII. be 18 years or olderIII. ability to speak, write, and read EnglishIV. no felony convictions

a. I, II, III, IVb. I, II, IVc. I, IId. I, IV


28. The prohibition against double jeopardy is found in:a. the Sixth Amendment.b. the Fifth Amendment.c. the due process clauses.d. the Eighth Amendment.

ANS: B REF: 427-428 OBJ: 8

331

29. Which of the following actions are prohibited by the double jeopardy clause?I. a second prosecution for the same offense after a hung juryII. multiple punishments for the same offenseIII. a second prosecution for the same offense after convictionIV. a second prosecution for the same offense after acquittal

a. I, II, III, IVb. I, IIc. II, III, IVd. III, IV

ANS: C REF: 427-428 OBJ: 8

30. According to the dual sovereignty doctrine:a. it violates the double jeopardy clause to prosecute and punish a defendant for the

same act in separate jurisdictions.b. the federal government cannot prosecute a defendant for a similar state crime.c. different jurisdictions can prosecute and punish a defendant for the same conductd. state governments cannot charge defendants for the same felony.


31. The speedy trial clause of the Sixth Amendment promotes/protects which of the following interests?I. prevents prolonged detention prior to trialII. guards against weakening the defense's caseIII. reaching the correct result in individual casesIV. organizational interests in efficiency and economy



32. According to the Supreme Court, the four elements that determine whether a delay violates the speedy trial clause include:I. the length of the delay.II. the reason for the delay.III. the defendants’ assertion of their right to a speedy trial.IV. the prejudice that the delay causes to the defendants’ case.

a. I, II, III, IVb. I, II, IIIc. I, IId. IV


332

33. The speedy trial clause prohibits:a. any delay in prosecution.b. delays caused by the state.c. delays due to trials of other defendants.d. only undue delays.


34. If a defendant's constitutional right to a speedy trial is violated:a. the charges against the defendant are dismissed.b. the time the defendant spent in jail awaiting trial is deducted from his sentence.c. the court determines the point at which the trial should have commenced and

deducts from the sentence the period of time between then and the date the trial actually started.

d. the prosecution must go back to the grand jury stage and start all over.


35. A factor that the court can consider in deciding a motion for change of venue include is:a. trials at a distant location place a burden on the witnessesb. the courts in the community where the crime occurred are busyc. the prosecutor’s office in the community where the crime occurred is short-staffedd. the police in the community where the crime occurred want the trial to remain in

their jurisdiction


TRUE/FALSE

1. According to the Supreme Court, the Fourth Amendment requires that the police take suspects detained without arrest warrants promptly to a judge or magistrate for a determination of probable cause.


2. The probable cause needed to detain and the probable cause needed to go to trial require the same amount of proof.


3. If an arrested person does not receive a judicial determination of probable cause within 48 hours, the state bears the burden of proving that there has not been an unreasonable delay.

ANS: T REF: 397-398 OBJ: 2

333

4. Misdemeanor defendants commonly enter a plea at their first appearance.


5. The rights of jailed defendants awaiting trial are not watered down by their status of being in jail.


6. Criminal defendants have an absolute right to bail guaranteed by the United States Constitution.


7. Due process of law requires not just counsel, but effective counsel.


8. The current test used to evaluate the effectiveness of counsel only requires a defendant to show that their attorney’s performance was not reasonably competent.


9. Preliminary hearings are adversary proceedings.


10. Most recent legal commentary supports the grand jury process.


11. Defendants may only plead nolo contendere with permission of the court.


12. It is not double jeopardy to prosecute and punish a defendant for the same act in separate jurisdictions.


13. A defendant’s motion to change venue does not waive the right to be tried in the state and district where the crime was located.


14. Both the state and defense may move for changes of venue.

ANS: F REF: 434-435 OBJ: 9

334

15. All dismissals because of speedy trial violations are with prejudice.


COMPLETION

1. The stage of the criminal process at which the defendant is brought to court to formally hear the charges and plead to them is called _____________.

ANS: arraignment REF: 392 OBJ: 2

2. A decision by a prosecutor not to charge a crime if the suspect performs community service instead is called __________________.

ANS: diversion REF: 393 OBJ: 1

3. The pretrial release mechanism that is based solely on the promise of the defendant to appear in court is known as __________________.

ANS: recognizance REF: 399 OBJ: 3

4. The pretrial detention of dangerous suspects who pose a threat to community safety is called _________________.

ANS: preventive detention REF: 401 OBJ: 5

5. A lawyer paid for by the client is called _________________.

ANS: retained counsel REF: 408 OBJ: 6

6. If a judge concludes at a preliminary hearing that the government has satisfied its evidentiary burden, the defendant is _______________________.

ANS: bound over REF: 426 OBJ: 7

7. A crime arising out of the same facts in one state is not the same crime in another state, for purposes of double jeopardy, according to the ______________ doctrine.

ANS: dual sovereignty REF: 432 OBJ: 8

8. The formal name for the place where a trial is held is ____________________.

ANS: venue REF: 434 OBJ: 9

9. A jury that cannot reach a verdict after lengthy deliberations is a/an ___________.

ANS: hung jury REF: 428 OBJ: 8

335

10. The record of the numbers grand jurors voting for an indictment is the _________.

ANS: true bill REF: 421 OBJ: 7

ESSAY

1. Why and when do police officers have to take arrested suspects to a magistrate?

Arrested suspects, especially those arrested without a warrant, have to be taken before a magistrate so that a judicial officer can decide whether there is probable cause to sustain the deprivation of the suspect’s liberty. The U.S. Supreme Court has decided that the Fourth Amendment’s prohibition against unreasonable seizures demands that suspects taken into custody be taken “promptly” to a magistrate to decide whether there are enough facts to back up the detention. The United States Supreme Court has decided that “promptly” means that an arrested individual must, except in an unusual case, at a minimum receive a probable cause determination within 48 hours of arrest.

2. Explain the difference between probable cause to detain a suspect and probable cause to go to trial.

Probable cause to detain a suspect is decided at a court proceeding, called the first appearance, where a judicial officer decides whether there is sufficient evidence to hold a person in custody for further proceedings.

Probable cause to go to trial is decided in a preliminary hearing or a grand jury proceeding to decide whether there is sufficient evidence to bind over the defendant for serious charges.

3. Exactly what does the constitutional right to bail consist of? Identify three constitutional rights our bail system denies to poor defendants, and explain how each is denied.

There is no absolute constitutional right to bail, only a right against excessive bail. The U.S. Supreme Court has ruled that amounts more than necessary to ensure that defendants come to court for their trials are “excessive.” Thus judges and magistrates have to calculate how much money it would take to guarantee that defendants will appear for their trials.

Our bail system denies poor defendants due process of law, equal protection of the law, and the right against excessive bail. Due process of law is denied to poor defendants, because they can’t help with their own defense if they are locked up. Equal protection of the law is denied to poor defendants; because they are jailed, because they are poor. Finally, the right against excessive bail is denied to poor defendants, because they can’t raise any amount required.

336

4. Identify, define, and explain the two-prongs of the U.S. Supreme Court’s test of “effective” counsel adopted in Strickland v. Washington.

In Strickland v. Washington, the U.S. Supreme Court adopted a two-prong test to decide whether counsel has provided effective assistance in a criminal case. Under the first prong, called the reasonableness prong, defendants have to prove that their lawyer’s performance wasn’t reasonably competent, meaning that the lawyer was so deficient that he/she “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” The lawyer’s performance is judged by looking at the totality of facts and circumstances surrounding the trial and the lawyer’s performance.

If a defendant proves a lawyer’s performance was unreasonable, the defendant must still meet a second-prong, called the prejudice prong. Under the prejudice prong, defendants have to prove that their lawyers’ competence was probably responsible for their conviction.

5. List and describe the differences between testing the government’s case by grand jury review and by preliminary hearing.

The goal of both grand jury review and a preliminary hearing is to decide whether there is enough evidence to bring defendants to trial. The preliminary hearing process stresses adversarial, open, accusatory values and control by experts. Grand jury review underscores the value of lay participation in criminal proceedings.

Preliminary hearings are public; grand jury proceedings are secret. Preliminary hearings are adversarial proceedings in which the defense can challenge the prosecution’s case; grand juries hear only the prosecution’s case. Judges preside over preliminary hearings; prosecutors manage the grand jury . In preliminary hearings, judges determine whether there is enough evidence to proceed to trial; grand jury review relies on grand jurors, citizens selected to serve a term, to decide whether there is enough evidence to go to trial. Finally, defendants and their lawyers attend preliminary hearings; in grand jury review, defendants and their lawyers are not present.

CHAPTER FOURTEENAFTER CONVICTION

MULTIPLE CHOICE

1. All of the following are true about the history of sentencing except:a. the concern over judicial discretion in sentencing has an ancient heritage.b. fixed sentencing prevailed from the 1600s until the latter part of the 1800s.c. a shift toward indeterminate sentences began in the latter part of the 1800s.d. in the 20th century, fixed sentences totally dominated criminal sentencing.

ANS: D REF: 475-476 OBJ: 2

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2. In the U.S. indeterminate sentencing was the dominant form of sentencing until the 1970s, when several forces came together to oppose it. These forces included:I. reformers concerned about harsh, fixed sentences.II. public discontent with rehabilitation.III. individual rights advocates who opposed the informal discretionary power of

judges.IV. increased demands for formal accountability throughout the criminal justice

system.a. I, II, III, IVb. II, IVc. I, IIId. II, III, IV


3. Throughout American history, which of the following institutions have exercised sentencing power?I. policeII. legislaturesIII. the judiciaryIV. administrative agencies

a. I, II, III, IVb. I, II, IIIc. III, IVd. II, III, IV


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4. By 1970, which of the following ideas did not dominate thinking about sentencing?a. Sentencing should have rehabilitation of the offender at least as a partial goal.b. Repeat career criminals require severe punishment to incapacitate them.c. Many offenders deserve severe punishment because they have committed serious

crimes.d. All crimes deserve some punishment to retain the deterrent potency of the criminal

law.


5. Fixed (determinate) sentencing:a. is currently the only form of sentencing in all jurisdictions in the U.S.b. is currently not in favor in any U.S. jurisdictionc. shares the stage with indeterminate sentencing but is being adopted by more and

more jurisdictionsd. is only found in mandatory minimum statutes


6. Which of the following types of crimes are the main targets of mandatory minimum sentencing?I. drug offensesII. theft offensesIII. crimes committed with a weaponIV. regulatory crimes

a. IIIb. I, II, III, IVc. I, IId. I, III


7. Sentencing guidelines are a response to demands from both experts and the public for:I. uniformity in sentencing.II. certainty and truth in sentencing.III. increased rehabilitation of offenders.IV. retribution, deterrence and incapacitation.

a. I, II, III, IVb. I, II, IIIc. I, II, IVd. I, II


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8. Sentences determined under sentencing guidelines are based primarily on:a. combination of the seriousness of the crime and the offender’s age.b. combination of the seriousness of the crime and the harm caused to the victim.c. combination of the offender’s criminal history and whether the crime was violent.d. combination of the seriousness of the crime and the offender’s criminal history.


9. In sentencing guidelines:I. a commission establishes a range of penalties from which judges are to choose a

specific sentence.II. the seriousness of the crime is a major determinant of the sentence.III. the offender’s criminal history is a major determinant of the sentence.IV. judges can depart from the guidelines, but must provide a reason for the

departure.a. I, II, III, IVb. I, II, IIIc. I, IId. I, IV


10. Mandatory minimum sentences:I. require offenders convicted of the offense to serve a non-discretionary amount of

prison time.II. allow judges to sentence offenders to more than the minimum.III. promise “if you do the crime, you will do the time.”IV. are very old.

a. I, II, III, IVb. I, III, IVc. I, IIId. I


11. Which of the below was not among the reasons for repeal of mandatory minimum sentences for drug offenses in the early 1970s?

a. alienation of youth from general societyb. belief that the war on drugs was endingc. hampering the rehabilitation of drug offendersd. reduction of the deterrent of drug laws, because even prosecutors thought the

penalties were too harsh


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12. The aims of criminal punishment that mandatory minimum sentences attempt to satisfy include:I. retribution.II. rehabilitation.III. incapacitation.IV. deterrence.

a. I, II, III, IVb. I, III, IVc. I, IVd. I


13. Concerning mandatory minimum sentencing laws, evaluations conducted by the U.S. Sentencing Commission found that:I. mandatory minimum sentences actually introduce disparity in sentencing.II. mandatory minimum sentences eliminate discretion.III. very few mandatory minimum sentencing provisions are ever used.IV. offenders sentenced to mandatory minimum sentences have higher recidivism

rates.a. I, II, III, IVb. I, II, IIIc. I, IIId. III


14. A majority of the U.S. Supreme Court Justices agree that the principle of proportionality applies to:

a. death sentences.b. sentences leading to imprisonment.c. death sentences and sentences leading to imprisonment.d. sentencing leading to imprisonment and probation.


15. In Lockyer v. Andrade (2003), the Supreme Court held that a 25-year to life sentence for petty theft under the state’s three strikes law:

a. violated the Constitution because it was disproportionate to Andrade’s crime.b. did not violate the Constitution and is justified by the state’s interest in

incapacitating and deterring repeat offenders.c. violated the Constitution because it was cruel and unusual punishment.d. did not violate the Constitution because the Eighth Amendment doesn’t apply to

state sentences.


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16. In Apprendi v. New Jersey (2000), the Supreme Court ruled that:a. a judge can find by a preponderance of the evidence that a defendant committed a

crime for a “racial purpose” in order to extend the term of the defendant’s sentence.

b. a judge can find facts that by law can increase a defendant’s sentence.c. any fact (other than a prior criminal conviction) that can increase a defendant’s

sentence beyond the statutory maximum must be decided by a jury beyond a reasonable doubt.

d. facts that can increase a defendant’s sentence beyond the statutory maximum must be found by a judge and confirmed by a jury.


17. In Blakely v. Washington (2004), the Supreme Court decided:a. that Washington’s sentencing guidelines violated the Sixth Amendment because

they allowed a judge to find facts that allowed her to extend a defendant’s sentence beyond the maximum sentence.

b. that Washington’s sentencing guidelines do not violate the Constitution because Blakely plead guilty.

c. that states cannot enact sentencing guidelines under the U.S. Constitution.d. that Washington’s guidelines provided a punishment that is disproportionate to the

offense.


18. According to the U.S. Supreme Court, the death penalty is not cruel and unusual punishment if:

a. it is automatically applied to all murderers.b. any aggravating circumstances can support it.c. there is a review procedure to ensure against discriminatory application.d. judges and juries both agree in a particular case that death is appropriate.


19. Which of the following would not be considered an aggravating factor in a death penalty case?

a. prior conviction of a misdemeanorb. killing to avoid arrestc. felony murderd. killing during escape from lawful custody


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20. Which of the following is not considered mitigating circumstances in death penalty cases?

a. killing to avoid arrestb. no significant prior criminal recordc. minor participant in the murderd. youth at the time of the murder


21. Research shows that:a. Whites who kill blacks are more likely to receive the death penalty.b. Blacks and Whites who kill Whites are more likely to receive the death penalty

than either Blacks who kill Blacks or Whites who kill Blacks.c. Blacks who kill Blacks are just as likely to receive the death penalty as Whites

who kill Blacks.d. The race of the victim does not affect the likelihood of an offender receiving the

death penalty.


22. According to the Supreme Court, states:a. must allow one appeal as a matter of right in all criminal cases.b. must allow one appeal as a matter of right in all felony cases.c. must allow one appeal as a matter of right in all criminal cases to which the right

to a jury trial attaches.d. need not provide any appeal at all.


23. The writ of certiorari:a. requires the Supreme Court to hear and decide a case.b. is a request to a court to decide on the legality of a prisoner’s incarceration.c. is a discretionary writ, which allows the Supreme Court to either agree or not

agree to hear and decide a case.d. mandates a party to turn over evidence to the other party in the case.


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24. Which of the following are examples of a consequence that would probably fall within the collateral consequences exception to the mootness doctrine?I. loss of reputationII. loss of a professional licenseIII. rejection for admission to a professional schoolIV. loss of employment

a. I, II, III, IVb. II, III, IVc. I, II, IVd. II, III


25. According to the collateral consequences exception:a. if a defendant has plead guilty, he or she cannot appeal their case.b. offenders who have completed serving their sentence cannot appeal.c. if a defendant might suffer legal consequences from a criminal conviction, then

their case is not moot even if they have served their sentence.d. if defendants don’t raise their objections at trial, they give up their right to appeal.


26. According to the raise or waive doctrine, a defendant must make objections at trial in order to preserve those issues for appeal is called the:

a. judicial economy doctrine.b. collateral consequences doctrine.c. habeas corpus doctrine.d. mootness doctrine.


27. An appeal from a trial court’s judgment of conviction:a. is considered a direct attack.b. can be taken multiple times.c. can only be taken if the trial court certifies there are important issues for the

higher court to hear.d. is the equivalent of habeas corpus.


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28. A federal habeas corpus proceeding:I. is a civil action.II. begins with the U.S. Supreme Court.III. challenges the lawfulness of imprisonment.IV. is a trial of the defendant’s guilt.



29. During the Warren Court era of the Supreme Court, the Court:a. took a narrow view of the Habeas Corpus Act of 1867.b. took a broad view of the Habeas Corpus Act of 1867.c. declared the Habeas Corpus Act of 1867 unconstitutional.d. did not decide any cases dealing with the Habeas Corpus Act of 1867 .


30. The Burger and Rehnquist Courts:a. seem to have adopted a narrow view of the Habeas Corpus Act of 1867.b. seem to have adopted a broad view of the Habeas Corpus Act of 1867.c. have declared the Habeas Corpus Act of 1867 unconstitutional.d. have not decided any cases dealing with the Habeas Corpus Act of 1867.


31. Those in favor of limiting the use of habeas corpus appeals often use which of the following interests to support their position?I. finality of decisionsII. certainty in decisionsIII. federalismIV. burden on federal judicial resources

a. I, II, III, IVb. I, II, IVc. IVd. I, IV


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32. The writ of habeas corpus:a. dates back to the 1867 Habeas Corpus Act.b. is not mentioned in the U.S. Constitution.c. has a long and distinguished history and protected Englishmen from tyrannical

English kings.d. has not been addressed by the U.S. Supreme Court in many opinions.


33. In Booker v. U.S., the Supreme Court ruled that the Federal Sentencing Guidelines:a. are advisory, but enjoy a presumption of reasonablenessb. are advisory and judges can depart without explanationc. are mandatory for all federal crimesd. are mandatory for certain serious felonies


34. A state prisoner who seeks review of his case under a writ of habeas corpus in federal court can obtain review only if his claim:

a. is that he is innocent of the crime of which he was convicted.b. is based on an alleged violation of a federal constitutional or statutory right.c. is a search and seizure claim.d. is a claim of ineffective assistance of counsel.

ANS: B REF: 500, 504 OBJ: 9

35. The Warren Court:a. adopted a broad view of the Habeas Corpus Act of 1867.b. adopted a narrow view of the Habeas Corpus Act of 1867.c. declared the Habeas Corpus Act of 1867 unconstitutional.d. did not any cases dealing with the Habeas Corpus Act of 1867.

ANS: A REF: 502-503 OBJ: 9

TRUE/FALSE

1. After conviction, a criminal defendant is still presumed not guilty during the appeal process.


2. Throughout history, fixed sentences have totally dominated criminal sentencing.


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3. By the early 1970s, there was a consensus among law enforcement officials, prisoners’ groups, reformers, and bureaucrats that indeterminate sentencing should be replaced with a more determinate sentencing system.


4. Fixed sentencing has two primary forms – sentencing guidelines and discretion.


5. Indeterminate sentencing requires a judge to impose a nondiscretionary minimum period of incarceration that everyone convicted of that crime must serve.


6. Research indicates that mandatory minimum sentences actually introduce disparity in sentencing.


7. Mandatory minimum sentences shift discretion from judges to prosecutors.


8. Every state jurisdiction has created a statutory right to appeal.


9. Justices on the U.S. Supreme Court are divided on whether the proportionality principle applies to sentences of imprisonment.


10. In the case Lockyer v. Andrade (2003), the Supreme Court ruled that it was a violation of the Eighth Amendment’s cruel and unusual punishment clause to sentence Andrade to 25 years to life imprisonment for petty theft under the state’s three strikes law.


11. In the case Apprendi v. New Jersey (2000), the Supreme Court ruled that any fact that increases the penalty for a crime beyond what is provided as the statutory maximum punishment (with the exception of the fact that the defendant has a prior criminal conviction), must be submitted to the jury and proved beyond a reasonable doubt.


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12. Statistics indicate that there is a pronounced racial disparity in death sentences.


13. A defendant’s youthful age at the time he committed a murder is considered an aggravating factor in most death penalty sentencing statutes.


14. Not every state has created a statutory right to appeal a criminal conviction.


15. According to the broad view of habeas corpus, the 1867 Habeas Corpus Act authorizes courts to review the entire state proceeding to determine if there was a violation of a defendant’s constitutional rights.


COMPLETION

1. Parole boards and prison administrators determine the exact release date within sentences prescribed by judges and legislatures in the __________.

ANS: administrative sentencing model REF: 477 OBJ: 2

2. _________ demands that government justify the detention and incarceration of prisoners.

ANS: Habeas corpus REF: 474 OBJ: 9

3. ____________________ relies heavily on the discretion of judges and parole boards in exercising sentencing authority.

ANS: Indeterminate sentencing REF: 475 OBJ: 2

4. Judges prescribe sentences within broad formal contours set by legislative acts in the __________.

ANS: judicial sentencing model REF: 477 OBJ: 2

5. Legislatures prescribe specific penalties that judges and administrative agencies cannot alter in the __________.

ANS: legislative sentencing model REF: 477 OBJ: 2

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6. A type of fixed sentence that prescribes a non-discretionary amount of prison time that all offenders convicted of the offense must serve is ___________________________.

ANS: mandatory minimum sentence REF: 481 OBJ: 4

7. The traditional legal doctrine which held that criminal cases could not be appealed if the sentence had been satisfied is called the __________.

ANS: mootness doctrine REF: 500 OBJ: 10

8. The rule that an alleged error at trial may be raised on appeal even if the error was not objected to at trial so long as it was a clear error affecting substantial rights and causing manifest injustice is called __________.

ANS: plain error rule REF: 500 OBJ: 10

9. The ______________ of 1996 substantially amends and narrows the federal habeas corpus rights of both state and federal prisoners.

ANS: Antiterrorism and Effective Death Penalty Act (AEDPA)

REF: 504 OBJ: 10

10. Proceedings which attack the trial court’s judgment of conviction as part of the same case are __________.

ANS: direct attacks REF: 501 OBJ: 10

ESSAY

1. Compare and contrast sentencing guidelines and mandatory minimum sentences. Also identify three aims of both sentencing guidelines and mandatory minimum sentences.

Both sentencing guidelines and mandatory minimum sentences have three aims. First, uniformity is served, which is the notion that similar crimes should receive similar punishment. Second, certainty and truth in sentencing, or the notion that convicted offenders, victims and the public should know that the sentence imposed is similar to the sentence actually to be served. Finally, guidelines and mandatory sentences promote retribution, deterrence, and incapacitation, where the rehabilitation of individual offenders is no longer the primary aim of punishment.

Mandatory minimum sentences require judges to impose a nondiscretionary minimum amount of prison time that all offenders convicted of the offense have to serve. Judges can sentence offenders to more than the minimum, but not less.

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With sentencing guidelines, a commission establishes a relatively narrow range of penalties, and judges are supposed to choose a specific sentence within that range. The guidelines depend on a combination of the seriousness of the crime and the offender’s criminal history. Sentences are either presumptively incarceration or presumptively probation. Judges can depart from the ranges set in the guidelines but have to give written reasons for doing so. Additionally, certain reasons for departure are no longer allowed.

2. List and summarize the five main findings of empirical research on the effectiveness of mandatory minimum sentences.

The U.S. Sentencing Commission has evaluated the effectiveness of mandatory minimum sentences. Commission studies provide little empirical support for the success of mandatory sentencing laws. Instead, the Commission’s findings demonstrate five major conclusions.

First, only a few of the mandatory minimum sentencing provisions are ever used, and nearly all of those are related to drug or weapon offenses. Second, only 41% of defendants whose characteristics and behaviors qualify them for mandatory minimum sentences actually receive them. Third, mandatory minimum sentences actually introduce disparities in sentences. Fourth, other disparities in sentences resulted from reductions for providing “substantial assistance to prosecutors.” This tended to favor the very people the law was meant to reach, viz.: those higher up in the chain of drug dealing and other crimes. Fifth, mandatory minimum sentences don’t eliminate discretion; they just shift it from judges to prosecutors. Prosecutors end up using the discretion in a number of ways, including manipulating the “substantial assistance exception” and in the decision whether to charge defendants with the crimes carrying minimum mandatory sentences to begin with.

3. Summarize the limits on the rights of offenders at sentencing, and explain the reasons for the limits.

When defendants become convicted offenders, they lose many safeguards they had during the trial. Most of the procedural safeguards written into the Constitution were originally intended to protect abuses of defendant’s rights during the trial itself. Also, giving too much attention to defendant’s rights at sentencing would restrict the flexibility judges need to impose the right sentence—one that would satisfy the objectives of retribution and/or punishment.

Flexibility in sentencing allows trial judges to use information outside the official record of a trial. Offenders have no right either to confront or to cross-examine people who have supplied unfavorable sentencing information about them. Trial judges can also consider the conduct of defendants during the trial.

Two rights defendants don’t give up at sentencing are the right to counsel and the right to equal protection of the law. The right to counsel assures that they will have assistance in arguing for the appropriate sentence. Equal protection assures that offenders are treated relatively equally. Thus, the court could not sentence an offender too poor to pay a fine to prison while freeing those people able to pay the fine.

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4. Identify the nature and circumstances of the right to appeal a conviction.

Convicted offenders don’t have a constitutional right to appeal their conviction. Even though there is no constitutional right to appeal, every jurisdiction has created the statutory right to appeal. However, the United States Supreme Court has upheld denying a defendant a right to a lawyer for his appeal to the State Supreme Court. In doing so, the Court distinguished between the trial and appellate stages of criminal proceeding. The trial process requires appointment of counsel for anyone too poor to afford one, so that the defendant can adequately defend against the charges the state has brought against him/her.

However, after a conviction, the tables are turned. Then it is the defendant who initiates the process, seeking to overcome the guilty finding made in the trial court below. Thus, the defendant does not need their attorney as a shield against the state hauling them into court and incorrectly convicting them, but rather as a sword to try to upset what is now a presumptively correct determination of guilt.

5. Describe the progress through direct appeal and collateral attack.

After a guilty verdict in a trial court, whether from a judge or a jury, all jurisdictions afford the defendant at least one statutory right to appeal. This statutory right to appeal is usually only to an intermediate appellate court. After the appeal, having the case considered further by the state supreme court or U.S. Supreme Court is largely discretionary. After a state or U.S. Supreme Court hearing or denial of discretionary appeal, a defendant can collaterally attack his/her conviction through a habeas corpus proceeding.

Habeas corpus proceedings are noncriminal (civil) lawsuits and are considered separate cases from the original criminal trial. In these new cases, the defendants in the criminal case are now the plaintiffs or petitioners in the habeas corpus proceeding. They petition the court for a writ on the grounds that they are being unlawfully detained. These habeas corpus proceedings may initially be brought in a state court; but after the state court procedures are exhausted, they can be brought in a United States District Court. From an unsuccessful petition in U.S. District Court, the defendant can appeal to a circuit court of appeals and ultimately ask the Supreme Court to hear his/her case on a writ of certiorari.

CHAPTER FIFTEENCRIMINAL PROCEDURE IN CRISIS TIMES

MULTIPLE CHOICE

1. The government’s use of extraordinary power:a. is only limited by necessityb. is unlimited and can be used for any length of time

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c. can be used only when it is absolutely necessary and must be given up when the emergency is over

d. refers only to the use of the military


2. Which of the below is/are example(s) of total war?I. Vietnam WarII. World War IIII. World War IIIV. Korean War

a. I, II, III, IVb. II, IVc. I, IIId. II, III


3. Which of the below is a source of the president’s authority to establish military commissions?

a. the uniform code of military justiceb. Article III courtsc. the president’s power to conduct foreign policyd. the president’s role as commander in chief


4. What type of offenses were sneak and peak searches mainly used for originally?a. counterfeitingb. homicidesc. all feloniesd. drug offenses


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5. Who can military commissions try?a. any terrorist offensesb. noncitizensc. citizensd. U.S. military personnel


6. Since 9/11, the government has shifted its primary goal from gathering evidence in order to prosecute terrorists to:

a. deporting them.b. prosecuting drug dealers.c. gathering intelligence in order to prevent future attacks.d. detaining them without trial.


7. The USA Patriot Act:a. eliminates the constitutional balance between government power and individual

privacy.b. tips the balance in favor of individual privacy and liberty.c. reinforces the balance between government power and individual liberty that was

in effect before 9/11.d. modifies the balance between government power and individual liberty in the

government’s favor.


8. The Fourth Amendment does not protect:I. conversations of private individuals secretly listened to after wiring informants for

sound.II. telephone company lists of the phone numbers of outgoing and incoming calls to

a specific telephone.III. bank records of individual’s financial dealings.IV. searches of automobiles

a. I, II, IIIb. I, IIc. I, I, III, IVd. II, III, IV


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9. A general ban on the interception of wire, oral, or electronic communications while they are taking place was enacted in:

a. The Patriot Act.b. The Crime Control and Safe Streets Act.c. The Federal Intelligence Surveillance Act.d. Terrorist Surveillance Program.


10. According to the Crime Control and Safe Streets Act’s serious crime exception:a. law enforcement officials can intercept electronic communications without a court

order.b. the U.S. Attorney alone can approve the interception of electronic

communications.c. a federal judge must approve the interception of electronic communications.d. no electronic communications can be intercepted while they are taking place.


11. The government is allowed access to voice mail and email communications under:a. The Patriot Act.b. The Crime Control and Safe Streets Act.c. The Federal Intelligence Surveillance Act.d. The Terrorist Surveillance Act.


12. If email and voicemail messages have been stored for less than six months, under the Patriot Act law enforcement officials:

a. do not need a warrant to intercept them.b. need reasonable suspicion to intercept them.c. need probable cause but not a warrant.d. need probable cause and a warrant.


13. The Patriot Act expands pen register and trap and trace:I. by allowing the devices to capture email headers.II. by expanding the geographical area the devices can cover.III. by allowing the devices to be used in misdemeanor investigations.IV. by allowing the devices to capture email messages.

a. I, IIb. I, II, IVc. IVd. I, II, III


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14. Which of the below crimes is subject to a ban on electronic surveillance?I. chemical weapons offensesII. use of weapons of mass destructionIII. financial transactions with countries supporting terroristsIV. none of the above

a. I, II, III, IVb. I, II, IIIc. IVd. II, III


15. The U.S. Patriot Act:a. tips the balance totally in favor of government power with very little protection for

individual privacyb. tips the balance somewhat in favor of government power and guarantees somewhat

less protection for individual privacyc. leaves the balance between government power and individual privacy in the same

place it was pre-9/11d. tips the balance so far in favor of the government that the U.S. Supreme Court

declared many of its provisions unconstitutional.


16. In Boumediene v. Bush (2008), the Supreme Court: decided that:a. declared unconstitutional the provision of the Military Commission Act of 2006

that stripped federal courts of power to hear habeas corpus petitions from detainees challenging their designation as enemy combatants

b. declared constitutional the provision of the Military Commission Act of 2006 that stripped federal courts of power to hear habeas corpus petitions from detainees challenging their designation as enemy combatants

c. the Constitution does not protect enemy combatantsd. enemy combatants must be tried in court martial proceedings


17. Miranda’s application to terrorism suspects:a. is an unsettled legal matter and still controversial.b. is a matter that has been resolved and there is agreement that terrorism suspects

must always be Mirandized before they are subject to custodial interrogation.c. the U.S. Attorney General has publicly refused to take a position on this matterd. the U.S. Attorney General has stated that the decision to Mirandize or not rests

with the law enforcement agent’s discretion.


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18. Military Commissions:a. follow all the same procedures and rules as Article III courts.b. have jurisdiction over citizens and non-citizensc. operate under relaxed rules of procedure and proof compared to Article III

courts.d. also try members of the U. S. armed forces when they violate the Uniform Code

of Military Justice


19. According to rules issued by the Department of Defense in 2010 governing military commission proceedings:

a. evidence derived from statements obtained by cruel, inhumane, and degrading treatment can never be used

b. evidence derived from statements obtained by cruel, inhumane, and degrading treatment can be used in all circumstances

c. evidence derived from statements obtained by cruel, inhumane, and degrading treatment can be used if its use would otherwise be consistent with the interests of justice

d. evidence can be used only if it can also be used in federal courts


20. In the current debate about how to try foreign terrorist suspects:a. the “terrorism as war” advocates support the use of federal courtsb. the “terrorism as crime” advocates support the use of federal courtsc. the “terrorism as crime” advocates support the use of military commissionsd. there is no middle course – it’s an either/or decision

ANS: B REF: 533-534 OBJ: 9

21. In a sneak-and-peek search warrant:a. law enforcement officials first serve the warrant on the occupants but conduct the

actual search while the occupants are not present.b. law enforcement officials seek a search warrant after they first conduct a

warrantless search of the premises in order to look around.c. because of the danger involved, officers get a special warrant that allows them to

sneak into the place to be searched without first knocking on the door to serve the warrant.

d. allow officers to enter a privately owned place without the owner or occupant consenting or even knowing about it.


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22. Sneak-and-peek warrants became part of a federal statute in:a. the Crime Control and Safe Streets Act of 1968.b. the Foreign Intelligence Surveillance Act of 1979.c. the U.S. Patriot Act of 2001.d. the Terrorist Surveillance Program.


23. In which document did the U.S. Congress gave the President the authority “to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” on 9/11/2001?

a. The Terrorist Surveillance Programb. the Authorization for Use of Military Forcec. the Military Order of November 13, 2001d. the Presidential Proclamation 7463


24. The Military Order of November 13, 2001:a. allows the secretary of defense to detain noncitizens who there is reason to believe

was a member of al Qaida.b. allows the secretary of defense to detain American citizens who are suspected of

being members of al Qaida.c. authorizes the use of military force against individuals suspected of being involved

in the 9/11 attack on the U.S.d. allows federal law enforcement agencies to arrest suspected terrorists.


25. In the case Hamdi v. Rumsfield (2004), in which Hamdi, an American citizen, was declared an enemy combatant and detained without formal charges or proceedings, the Supreme Court ruled:

a. that the government was not required to provide him any rights normally given to citizens facing criminal charges.

b. the government has complete discretion to use whatever procedures are necessary in situations involving enemy combatants, even those who are U.S. citizens.

c. because he is a U.S. citizen, Hamdi is entitled to all of the rights provided to persons facing criminal charges.

d. as a citizen who is detained as an enemy combatant, he must receive notice of the reasons for this classification and a fair opportunity to rebut the government’s assertions before a neutral decision maker.


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26. In the case, Rasul v. Bush (2004), the Supreme Court ruled:a. that noncitizen detainees who have been declared enemy combatants and detained

in areas controlled by the U.S. cannot petition for habeas corpus in federal courts.b. that noncitizen detainees who have been declared enemy combatants and detained

in areas controlled by the U.S. can petition for habeas corpus in federal courts.c. that noncitizen detainees who have been declared enemy combatants must be tried

in federal courts in the U.S.d. that the right to habeas corpus is suspended during war time.


27. Concerning the law of interrogating terrorist suspects:a. it is clear that the U.S. Constitution requires terrorist suspects be treated the same

as criminal suspects.b. the definition of what constitutes torture is clear.c. there is no clear definition of torture or what violates the Constitution.d. there is consensus that torture is legal when interrogating persons suspects of

planning terrorist acts on American soil.


28. One of the primary differences between interrogating criminal suspects and suspected terrorists, which impacts whether the interrogation techniques are legal is:

a. the suspected terrorist will most likely be a noncitizen and the criminal suspect most likely be a citizen.

b. the terrorist suspect may be detained outside the U.S. and the criminal suspect is in the U.S.

c. law enforcement officers question criminal suspects and intelligence officers question suspected terrorists.

d. for criminal suspects the issue is whether a confession is admissible in court to establish guilt; for terrorists suspects the issue is getting information to prevent a future attack.


29. Suspected terrorists:I. can be tried for ordinary crimes in Article III courts.II. can never be tried for ordinary crimes.III. can be tried for war crimes in military tribunals.IV. can be tried for violating the Uniform Code of Military Justice.

a. I, IIIb. IIc. II, IIId. IV


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30. A military commission is composed of:a. a panel of civilian judges who decide war crime cases.b. a panel of civilian judges and military officers who decide war crime cases.c. a panel of military officers who decide war crime cases.d. a panel of military officers who decide violations of the Uniform Code of Military

Justice.


31. In U.S. v. Martinez-Fuerte (1976), the Supreme Court held:a. police can constitutionally stop a vehicle at a fixed check point for brief

questioning of the occupants even though they have no reason to believe the vehicle contains illegal aliens.

b. it violates the Fourth Amendment for police to stop vehicles at a fixed checkpoint without reasonable suspicion that the vehicle contains illegal aliens.

c. the Fourth Amendment requires that police have probable cause to believe a vehicle contains illegal aliens before they can stop it at a fixed checkpoint.

d. it is constitutional for police to stop a vehicle at a fixed checkpoint and they can search the entire vehicle and its occupants without reasonable suspicion or probable cause.


32. The U.S. Attorney General must take into custody and detain during removal proceedings any alien who has committed certain detailed criminal offenses according to the:

a. Illegal Immigration Reform and Immigrant Responsibility Actb. Immigration Actc. a presidential Executive Orderd. the Supreme Court’s decision in U.S. v. Martinez-Fuerte


33. In order to be considered a “deportable alien”, a person must:a. must admit to his or her deportability when questioned by officialsb. must have been found deportable by an immigration judgec. must refuse to cooperate with officialsd. must admit to his or her deportability when questioned by officials or been found

deportable by an immigration judge


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34. In Demore v. Kim (2003), the Supreme Court ruled that:a. mandatory detention for aliens who have been convicted of certain crimes pending

removal proceedings is not unconstitutional, even if the alien is a lawful permanent resident

b. mandatory detention for criminal aliens is unconstitutionalc. mandatory detention for criminal aliens is not unconstitutional as long as the alien

was not admitted lawfully into the U.S.d. the Immigration and Nationality Act requires immigration judges to exercise their

discretion in deciding if a criminal alien should be detained pending removal proceedings


35. Stopping travelers in vehicles at a fixed checkpoint for brief questioning about their citizenship and immigration status:

a. violates the Fourth Amendment search and seizure requirementsb. is not considered a seizure under the Fourth Amendmentc. is considered a seizure under the Fourth Amendment but has been held

constitutionald. is considered a seizure only if officials detain the travelers for a significant amount

of time

ANS: C REF: 536-538 OBJ: 10

TRUE/FALSE

1. The balance during emergency times tips toward the protection of individual liberty.


2. Military commissions try military personnel for violating the Uniform Code of Military Justice.


3. The jurisdiction of military commissions applies only to noncitizens.


4. Sneak and peek searches were first created by the Patriot Act.


5. In a trial before a military commission created in the wake of 9/11, an accused does not have the presumption of innocence.


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6. The Patriot Act expanded the permitted use of pen registers.


7. Waging the Cold War required greater dependence on intelligence gathering.


8. The Crime Control and Safe Streets Act placed an absolute ban on the interception of all wire, oral, or electronic communications while there taking place.


9. The Patriot Act significantly expanded government surveillance power beyond the Crime Control and Safe Streets Act.


10. The Supreme Court has ruled that stopping travelers at fixed checkpoints for brief questioning about their citizenship or immigration status is constitutional.


11. Sneak and peek warrants are a variation of no-knock entries.


12. The Authorization for Use of Military Force of 2001 was issued by President Bush as a presidential proclamation.


13. In Demore v. Kim, the Supreme Court ruled that mandatory detention for criminal aliens pending removal proceedings always violates due process.


14. Arizona’s Immigration Law signed in 2010, requires police officers who, in the course of a traffic stop or other law enforcement action, have reasonable suspicion the person entered the U.S. illegally to verify the person’s immigration status.

ANS: T REF: 539-540 OBJ: 11

15. It has been is the national policy of the U.S. for many years to limit immigration into the country.


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COMPLETION

1. Panels made up of military officers to try U. S. military personnel for violations of the Uniform Code of Military Justice are _________________________ .

ANS: court martials REF: 532 OBJ: 5

2. Searches of private places without the occupants’ consent or knowledge are __________.

ANS: “sneak and peek” searches REF: 515 OBJ: 4

3. Information gathering about the enemy is called ________________.

ANS: intelligence REF: 511 OBJ: 3

4. Suspected terrorists can be tried in two kinds of proceedings: ordinary courts or _________________.

ANS: special military courts REF: 530 OBJ: 1

5. Devices used to record outgoing telephone numbers for a particular telephone are _______________.

ANS: pen registers REF: 512 OBJ: 3

6. A panel of military officers with authority to try enemy combatants for war crimes is a/an ____________________.

ANS: military commission REF: 530 OBJ: 5

7. Acts committed during wartime that inflict needless suffering and damage when pursuing a military objective are ____________.

ANS: war crimes REF: 530 OBJ: 2

8. Ordinary federal courts are also known as _________________.

ANS: Article III courts REF: 530 OBJ: 1

9. The ________________________ Act of 1968 puts a general ban on the interception of wire, oral, or electronic communication while they are taking place.

ANS: Crime Control and Safe Streets REF: 513 OBJ: 3

10. The ___________________ captures a record of all telephone numbers from a subscriber’s phone, using pen registers and trap and trace devices.

ANS: secret “caller ID” REF: 514 OBJ: 3

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ESSAY

1. Identify and describe the three tiers of the surveillance system designed to balance government power and individual privacy. Include in your description both government powers and the limits on that power in each tier.

Federal law has established a three-tier system to balance government power and individual privacy in government surveillance. Tier One restricts government power and protects privacy the most. This tier includes a general ban on electronic surveillance, intersection, and capture. However, this tier has a serious crime exception which allows such activities for any crimes punishable by death or more than one year in prison. This tier also requires safeguards with detailed requirements and approval by the courts.

Tier Two authorizes more government power and provides less protection for individual privacy. Under this tier, stored communications and transactions are subject to surveillance, interception, and capture of information. This tier applies to all crimes, not just “serious” crimes. There are still safeguards in this tier, viz., the requirements of a court order, warrant or subpoena to gather the information.

Tier Three authorizes the most government power and provides the least protection for individual privacy. Under this tier, government has the power to use pen registers and tap and trace devices on a particular phone for surveillance, interception, and capture of information. Once again, this tier applies to all crimes, not just “serious crimes.” Here safeguards are less. Court approval is not always required, and only the approval of the department senior official is needed for the use of pen registers and trap and trace devices. However, if the government wishes to get e-mail headers, there is the requirement of a court order.

2. How, if at all, has the Patriot Act modified this balance?

For Tier One surveillance, the Patriot Act adds several terrorist crimes to the list of serious crimes excepted from the general ban on electronic surveillance. For Tier Two, the Patriot Act allows the government to access stored “wire and electronic communications” by voice mail and e-mail. The Act also expands the power to conduct such investigations to “any criminal investigation”, not just serious crimes. With respect to Tier Three, the Patriot Act expands pen register and trap and trace in two ways. First, it allows the use of pen registers and trap and trace devices to capture e-mail headers (not messages). Before the Patriot Act, pen registers and trap and trace devices were authorized only to capture telephone numbers. Secondly, the Act expands the geographical area the pen register and trap and trace order covers. Before the Act, the court’s power was limited to issuing orders only within its district; the Patriot Act empowers the court to issue orders to “anywhere in the United States.”

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3. What were “sneak-and-peek” searches originally used for, and how has their legal status and definition changed since 9/11? Describe the three conditions under which the Patriot Act authorizes judges to issue sneak-and-peek warrants.

Until September 11, sneak-and-peek searches were used mainly in drug cases with court approval but did have any statutory authority. The USA Patriot Act was the first time authorization for sneak-and-peek warrants became part of a statute. The Act authorizes the issuance of these warrants if several requirements are met. First, the issuing court must find reasonable cause to believe notification may have an “adverse effect.” Second, the authorization for sneak-and-peek warrants prohibits the seizure of any tangible personal property except where the court finds reasonable necessity for this seizure. Thirdly, a sneak-and-peek warrant now provides for the giving of notice within a reasonable time of its execution, and the period may be extended by a court for good cause shown.

The Patriot Act authorizes judges to issue sneak-and-peek warrants under three conditions. These conditions are:

1st A court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect.

2nd The warrant prohibits the seizure of any tangible property except where the court finds reasonable necessity for the seizure.

3rd The warrant provides for the giving of such notice within a reasonable time of its execution, which period may be extended by the court for good cause.

4. Identify and describe the significance of the three sources that have affected the balance between security and rights in the detention of terrorist suspects since 9/11.

Since 9/11, three official acts document the changes in the balance between preserving national security and the rights of individuals to come and go as they please. These three acts are: one, Presidential Proclamation 7463; two, Congressional “Authorization for Use of Military Force;” and three, the president’s military order of November 13, 2001 (“Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”). Presidential Proclamation 7463 declared a “national emergency by reason of certain terrorist attacks.” That same day, Congress threw its weight behind the president’s war powers in a joint resolution, “Authorization for Use of Military Force.” Finally, President Bush issued the Military Order of November 13, 2001 to establish military commissions for the trial of non-citizens accused of engaging in terrorist activities.

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5. Identify the sources of authority for the Military Order of November 13, 2001, and describe the jurisdiction of military commissions created by the order.

There are three sources of authority for the Military Order of November 13, 2001. First, the Constitution, Article II, Section II, makes the president “the commander in chief” of the Armed Forces. As such, he is responsible for trying terrorists. Secondly, Article II, Section II also imposes responsibility on the president to “take care that the laws shall be faithfully executed.” These laws include trying war crimes under the articles of war and the Authorization for Use of Military Force passed by a joint congressional resolution on September 14, 2001. Thirdly, the joint congressional resolution authorizes the president to use “all necessary and appropriate force against those nations, or organizations, or persons he determines planned, authorized, committed, or aided” or “harbored” such persons.

The military commissions’ authority only applies to non-citizens.

CHAPTER THIRTEENCOURT PROCEEDINGS II: TRIAL AND CONVICTION

MULTIPLE CHOICE

1. Regarding the right to a public trial, all of the following are true except:a. it is a personal right that only defendants may invoke.b. the press and public have a right of access to criminal trials.c. the right of access applies to pretrial proceedings as well as to the trial itself.d. press and public access includes jury deliberations.

ANS: D REF: 452-453 OBJ: 3

2. According to the moral seriousness standard, the Sixth Amendment right to a jury trial extends to crimes that:

a. are petty and can be punished by more than six months imprisonmentb. are considered serious felonies with long imprisonment termsc. can be punished by less than six months imprisonment but that courts have

determined have a certain “moral quality” that requires a jury triald. involve sexual assault


3. The right to confrontation comes from:a. the Fifth Amendment.b. the Due Process Clauses.c. the Eight Amendment.d. the Sixth Amendment.


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4. Supporters of convictions by guilty pleas argue all of the below except what?a. Negotiation better serves the search for truth.b. Guilty pleas save time.c. The system would collapse without guilty pleas.d. Guilty pleas further the interests of crime victims.


5. The Sixth Amendment guarantees jury trial:a. in all offenses.b. only in felonies.c. only in felonies against the person.d. in all criminal prosecutions excepting petty offenses.


6. According to the Supreme Court:a. the Sixth Amendment guarantees a twelve member jury.b. the Framers clearly intended to impose the requirement of a twelve member jury

on the states.c. the twelve member jury was an historical accident.d. a twelve member jury is required to arrive at a proper verdict.

ANS: C REF: 444-445 OBJ: 4

7. Concerning the functioning of twelve member juries, social scientists have found:a. that twelve member juries are right less often than smaller juries.b. that twelve member juries are right more often than smaller juries.c. that there is no difference in the reliability of verdicts between twelve member and

smaller juries.d. that jury verdicts cannot be studied using social science methods


8. Pleas bargaining that involves the exchange of a guilty plea for a reduction in either the number or severity of criminal charges is known as:

a. sentence bargainingb. charge bargainingc. fact bargainingd. a negotiated plea


9. According to the Supreme Court, a jury’s verdict in a criminal case must be unanimous when there are only how many jurors?

a. 10b. 12c. 7

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d. 6


10. According to the Supreme Court in Ballew v. Georgia:a. a five person jury satisfies the Sixth Amendmentb. a five person jury does not satisfy the Sixth Amendmentc. it’s not clear whether a five person jury is constitutionald. a five person jury is constitutional if the crime cab be punished by less than six

months imprisonment


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11. According to critics of the Supreme Court's ruling on non-unanimous verdicts, unanimous verdicts:I. instill confidence in the criminal justice process.II. guarantee that the jury carefully reviews the evidence.III. ensures the hearing of minority viewpoints.IV. prevents government oppression.



12. According to the doctrine of jury nullification:a. courts can overturn jury acquittals.b. juries can acquit even if the evidence proves guilt.c. juries cannot go against the weight of the evidence in criminal cases.d. courts cannot interfere with a verdict of guilty.


13. According to the Supreme Court, the equal protection clause of the Fourteenth Amendment prohibits systematic exclusion from juries of members of a defendants’ _____________________ group.I. racialII. genderIII. religiousIV. ethnic

a. I, II, III, IVb. I, II, IIIc. I, IId. I, IV


14. Voir dire is:a. the instructions given the jury by the judge as to how the jury should deliberate.b. the name given the prosecutor's opening statement.c. the process of examining prospective jurors.d. the questioning of prospective jurors by a judge and attorneys in court.

ANS: D

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15. To have a valid guilty plea, a defendant who pleads guilty must:a. acknowledge guilt.b. know beforehand the exact sentence to be given.c. do so voluntarily and knowingly.d. agree he or she is factually guilty.


16. According to the Supreme Court opinion in Batson v. Kentucky:a. racial discrimination in the jury selection process is not unconstitutional because it

would be impossible to proveb. to prove racial discrimination, a defendant only has to make a prima facie case

based on the totality of facts about the prosecutor’s conductc. to prove racial discrimination, a defendant must make a prima facie case based on

the totality of facts about the prosecutor’s conduct at which time the burden switches to the government to put forth a race neutral explanation for its use of peremptory challenges

d. peremptory challenges can be used by both sides in whatever way they deem necessary to help them prevail


17. The right to a public trial:I. arises out of the Sixth Amendment.II. gives the public right of access to attend court proceedings.III. gives defendants the right to attend their own trials.IV. extends to bench conferences during the trial.

a. I, II, III, IVb. I, II, IIIc. II, III, IVd. I, III, IV


18. Which of the following have contributed to the growth and prevalence of plea bargaining?I. larger caseloadsII. increased complexity of the criminal trial processIII. increasing crime ratesIV. reduction in the power of prosecutors



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19. According to the Supreme Court, proof beyond a reasonable doubt:a. is required by due process.b. is a rule of procedure, not a constitutional requirement.c. states are free to adopt whatever standard of proof they choose.d. is a discretionary matter for each court to determine for itself.


20. Which of the following best describes the purpose of opening statements?a. outline the case the two sides hope to prove.b. are intended to prove the government's case.c. must prove the defendant's theory of the case.d. may include references to evidence that the lawyer making the opening statement

knows is probably inadmissible.


21. The Sixth Amendment confrontation clause:a. guarantees the government the right to cross-examine the defense's witnesses.b. limits the government's use of physical evidence.c. guarantees the defense the right to cross-examine the government's witnesses.d. guarantees the defendant the right to compulsory process to obtain witnesses.


22. Which of the following tactics may the defendant constitutionally use at a criminal trial?I. not present a caseII. cross examine the prosecution witnessesIII. present evidence in an attempt to reduce the grade of the offenseIV. call their own witnesses

a. I, II, III, IVb. II, III, IVc. III, IVd. IV


23. Which of the following is not true about closing arguments?a. Prosecutors can waive their right to make a closing argument and then save their

comments for rebuttal.b. Prosecutors can raise new matters in rebuttal.c. Appellate courts frequently reverse convictions for even one improper prosecution

comment in closing argument.d. Prosecutors can express their personal beliefs about the defendant’s guilt.


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24. According to the American Bar Association, which of the following are improper remarks for prosecutors to make during closing argument?I. intentionally to misstate the evidenceII. refer to excluded evidenceIII. arguments calculated to inflame jurors' passions and prejudicesIV. express a personal opinion about the defendant's guilt

a. I, II, III, IVb. I, II, IIIc. I, IId. I, II, IV


25. The Supreme Court has ruled that a judge’s failure to ask a defendant if they knowingly and voluntarily entered a guilty plea in open court is:

a. not reversible if there is strong evidence of the defendant’s guiltb. not reversible if the defendant was represented by counsel during the entry of the

pleac. reversible error because the judge accepted a plea without an affirmative showing

that it was freely given and the defendant knew what he or she was agreeing tod. may be grounds for an appeal if the defendant can show the judge was aware the

defendant was not of sound mind


26. According to the Supreme Court, guilty pleas waive all of the following rights excepta. prohibition against self-incriminationb. right to trialc. right to compel witnesses to testifyd. right to counsel


27. The Supreme Court has held that guilty pleas are:a. unconstitutional.b. constitutional, so long as they are made voluntarily, knowingly, and intelligently.c. unconstitutional when they are obtained as a result of plea bargaining.d. constitutional even if the prosecution cannot present enough evidence to establish

that there is a factual basis for the guilty plea.


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28. According to the Supreme Court in North Carolina v. Alford, regarding a plea of guilty:a. defendants’ plea of guilty when they believe they are innocent can never constitute

a voluntary guilty plea.b. the only constitutional requirement is that the plea be voluntaryc. guilty pleas must consist of both a waiver of trial and an express admission of

guilt.d. to pass constitutional muster, guilty pleas must be voluntary and intelligent


29. Prosecutors and defense attorneys can remove potential jurors without having a reason using the:

a. peremptory challenge.b. challenge for cause.c. voir dire.d. exemption from service objection.


30. When the defense agrees to not contest evidence introduced by the prosecutor, it is called a(n):

a. formal agreement.b. a judgment.c. presentation of evidence.d. stipulation.


31. Defendants have the right under the Sixth Amendment to force witnesses to come to court to testify for them. This is called:

a. cross-examination.b. direct examination.c. the right to compel testimony.d. compulsory process.


32. The right to a jury trial:a. dates back in history to the U.S. Constitution.b. was first recognized in the Bill of Rights.c. has ancient roots in European history and the English Bill of Rights.d. was first espoused by the American colonists.


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33. The jury selection system that relies on recommendations from civic and political leaders is called the:

a. fair-cross section system.b. random selection system.c. impartial jury selection system.d. key-man system.


34. A challenge for cause:a. is made by the prosecutor to strike a potential juror the prosecutor thinks will not

be favorable to the state’s case.b. is made by defense counsel based on the juror’s race or gender.c. strikes a juror who is biased or prejudiced toward the defendant or the state.d. exempts persons from jury service because of their age, criminal record, or ability

to speak and write English.


35. Hearsay violates the confrontation clause because:a. the defendant can’t cross-examine the witnesses against them.b. it often gets misinterpreted.c. the jury doesn’t have a chance to see the demeanor of the person who spoke the

out of court statements.d. people can lie too easily about what they heard someone else say.


TRUE/FALSE

1. For purposes of Sixth Amendment guarantee to a jury trial, the Supreme Court has used a potential six months imprisonment to divide serious from petty crimes.


2. During the trial, defendants must either prove their innocence or raise a reasonable doubt about the government’s case.


3. If a defendant wishes to plead guilty, but still not admit guilt, states are constitutionally required to let the defendant do so.


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4. Most courts require that a factual basis for the plea be established before the court will accept the plea.


5. A valid plea cannot be assumed from a silent record.


6. The Supreme Court has ruled that all jury verdicts in criminal cases must be unanimous to be constitutional.

ANS: F REF: 459-460 OBJ: 4

7. Six person juries do not have to render unanimous verdicts.


8. The right to an impartial jury does not require that a jury be selected from a fair cross section of the community.


9. A trial judge may not deal with a continually disruptive defendant by having the defendant bound and gagged.


10. Defendants may not be required to come to court in prison clothes.


11. Six member juries satisfy the requirements of the Sixth Amendment.


12. The Supreme Court has ruled that use of the key-man system to select jurors is in violation of the Sixth Amendment.


13. Judges are responsible for exercising a peremptory challenge to strike potential jurors.


14. The Fifth Amendment requires that juries represent a fair cross section of the community.


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15. The Sixth Amendment confrontation clause bars the use of hearsay evidence under all circumstances.


COMPLETION

1. The jury’s authority to reach a not guilty verdict despite proof of guilt is called ________.

ANS: jury nullification REF: 460 OBJ: 8

2. Cases where the proof of guilt is overwhelming are called _________________.

ANS: “dead bang” cases REF: 461 OBJ: 3

3. Attorneys for both sides can remove prospective jurors from the jury panel by ________.

ANS: peremptory challenges REF: 446 OBJ: 2

4. Challenges to a prospective juror based on the showing that allowing the juror to serve would deny either side a fair trial are called ________________.

ANS: challenges for cause REF: 446 OBJ: 2

5. The standard of proof necessary to convict a defendant is __________________.

ANS: proof beyond a reasonable doubt REF: 456 OBJ: 1

6. An attorney’s address to the jury just before presentation of evidence is called a(n) _____.

ANS: opening statement REF: 454 OBJ: 3

7. Boilerplate jury instructions that fit most cases are called ____________________.

ANS: pattern instructions REF: 458 OBJ: 3

8. The two types of guilty pleas are the ___________ plea and the ______________ plea.

ANS: straight, negotiated REF: 461 OBJ: 5

9. When the defense agrees not to contest some of the facts of a case, they are said to ___________.

ANS: stipulate REF: 454 OBJ: # 3

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10. A guilty plea without any prior negotiations is called a/an ________________.

ANS: straight plea REF: 461 OBJ: 5

ESSAY

1. Explain the difference between peremptory challenges and challenges for cause.

There are two ways of challenging potential jurors: peremptory challenges and challenges for cause. A peremptory challenge is one made to strike a juror without having to give a reason. A challenge for cause is a strike made by showing that the juror cannot render a fair and impartial verdict, i.e., the juror’s biased.

2. List and briefly summarize the stages in the criminal trial.

There are various stages in a criminal trial, including the following: 1) Voir dire - the process by which attorneys for both sides question potential jurors; 2) Opening statement - the point at which both sides have the opportunity to address the selected jurors before presenting evidence; 3) Presenting the evidence - the time when the state and defendant call witnesses and introduce exhibits to present their case, and cross-examine witnesses for the other side; 4) Closing arguments - the time when both sides have the opportunity to argue to the jury what the evidence that has been introduce should lead the jury to conclude; 5) Instructions to jury - the time when the court reads the instructions on the law and other matters to the jury before the jury begins discussing the case; 6) Jury deliberations - the time when the jury retires to the jury room to discuss in private the case among themselves; 7) Jury verdict - the conclusion of the jurors announced in open court; 8) Judgment of the court - the court’s final decision on the legal outcome of the case.

3. Explain the rights that defendants waive when they enter a guilty plea and what protection does a defendant have when making a guilty plea.

Defendants waive three constitutional rights:1) The Fifth Amendment right to remain silent, meaning they waive the privilege of self-incrimination.2)The Sixth Amendment right to a trial by jury.3)The Sixth Amendment right to confront the witnesses against them.

For the waiver to be constitutional, the Supreme Court has ruled judges must ensure in open court through direct questions to the defendant that the waiver was knowing and intelligent. The defendant must be aware of all of the consequences of their plea.

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4. Explain the various types of guilty pleas.

Straight guilty pleas are made without negotiation between defense counsel and the prosecutor and are generally done in cases where the proof of guilt is overwhelming. Negotiated pleas occur in exchange for some concession from the government. Charge bargaining is when the government reduces either the severity or the number of criminal charges in exchange for a guilty plea. Sentence bargaining occurs when the prosecutor recommends a favorable sentence to the judge or the defendant bargains directly for a favorable sentence with the judge in exchange for a guilty plea. Fact bargaining occurs when the prosecutor agrees not to challenge a defendant’s version of the facts or agrees not to reveal damaging facts to the judge.

5. Describe and explain the significance of the U.S. Supreme Court decision Batson v. Kentucky (1986).

In that case, the Court emphasized again that a peremptory strike of a potential juror based on race violates the equal protection clause of the Constitution. To ferret out this discrimination, the Court created a three step test. The defendant must first make a prima facie case, based on the totality of the prosecutor’s conduct, that racial discrimination occurred in the use of peremptory challenges. During step two, the burden shifts to the government to come forward with a race neutral explanation for the strikes. In step three, the trial judge decides if the defendant proved intentional discrimination.

If email and voice mail messages have been stored for less than 6 months, under the patriot Act law enforcement officialsAnswer: need probable cause and a warrant

---------------- Consist of a panel of military officers acting under military authority to try enemy combatants for war crimes.Answer: Military commission

Who can military commission try?Answer: Noncitizens

The patriot Act--- provision creates a national security equivalent of grand jury subpoenasAnswer: Business record

What type of offense were sneak and peak searches mainly used for originally?Answer: Drug offenses

Proceedings which attack the trial court's judgment of conviction as part of the same case areAnswer: Direct attacks

By the 1970s, there was a consensus among law enforcement officials, prisoner's groups, reform-ers, and bureaucrats that indeterminate sentencing should be replaced with a more determinate sentencing system

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Answer: True

In Blakely v. Washington (2004), the Supreme CourtAnswer: In essence, struck down Washington states sentencing guideline schemeWhich of the following is not one of the aims of criminal punishment that mandatory minimum sentences attempt to satisfy?Answer: rehabilitationWhich of the following is false about the history of sentencing?Answer: In the 20th century, fixed sentences totally dominated criminal sentencing

----------- Occurs after the opening statement in a trialAnswer: presentation of the evidence

Which constitutional amendment does not guarantee defendants the right to a public trial?Ans : 8th amendment

The sixth amendment guarantees jury trialAns: In all criminal prosecution excepting petty offenses.

Hearsay violates the confrontation clause becauseAns: The defendants can not cross examine the witness against them.

According to Supreme Court, a jury's verdict in a criminal cast must be unanimous when there are only how many jurors?Ans: 6

In order to accept a quality plea, the judge is required to find all of the following exceptAns: No bargain or promises were made in exchange for the plea

A challenge for causeAns: Strikes a juror who is biased or prejudiced toward the defendant or the stateAttorneys for both sides can remove prospective jurors from the jury panel byAns: Peremptory challengesThe Supreme Court has ruled use of the key-man system to select jurors is in violation of the sixth amendment.Ans: falseDuring the trial, defendants must either prove their innocence or raise a reasonable doubt about the government’s caseAns : falseA crime arising of the same facts in one state is not the same crime in another state, for purpose of double jeopardy, according to the ----- doctrine.Ans: dual sovereigntyThe process for allowing judges to deny bail to dangerous defendants referred to asAns: Preventive detentionwhat percentage of cases are dropped because of the exclusionary rule?Ans: Less than 2%

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which of the following is NOT consider in deciding a motion for change of venue include isAns: trials at a distant location place a burden on the witnesswhich of the following is NOT considered to be a function of the first appearanceAns" Negotiationg plea bargains with the judgeAbout 20% of defendants charged with petty offenses are released with a written promise to ap-pear in court, which includes the charges and the court date, which the defendants signs, without admitting guilt. This is referred to asAns: R.O.R(Released on recognize)courts that have allowed the state-created danger exception apply it in one of the two ways, The first way requires(a) a special relationship between the government and the victim, plus(b)Ans: A danger created by the state

law enforcement officers have a defense called---------- wherein individual officers cannot be held personally liable for official action if their actions meets the test of objective legal reason-ableness.Ans: Qualified immunityAccording to U.S supreme court, there is an exception to the no-duty-to-protect-rule,called the special relationship exception. That special relationshipAns: CustodyThe U.S Supreme Court has relied on three justifications for throwing out good evidence, which of the following is not one of these threeAns: Good faithWhich of the following is not a potential negative consequence of the exclusionary ruleAns: Diversion of resources from suppression hearings to appeal trialsThe deterrence rationale for the exclusionary ruleAns: is based on the belief that excluding good evidence because it was illegally obtained sends a

message to law enforcement.U.S. v Moscatiello (1985) involved police use of plain view at a physical location where they

had no right to be (a ware house), although they observed contraband in the form of marijuana, they maintained surveillance and secured a warrant without using the drug observations a part of their probable cause. This decision created what exception to the exclusionary rule

Ans: Independent source exceptionThe idea that evidence that has been illegally obtained, but would have eventually found through

constitutional means should thus not be excluded by virtue of the exclusionary rule isAns: inevitable discoverywhat did the court decide with regards to show-ups where the police typically bring one person

by for the victim or witness to identifyAns: This process is highly suggestive and widely condemned, but it does deny due process and

is therefore permittedIn state v. long (1986), the court ruled that the trial courts had to give jurors----------- instruction

explaining the weakness of eyewitness identification evidence.Ans: cautionaryThe “functional equivalent of a question test” was developed in what supreme court decision?Ans: Rhode island v.imis

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Which of the following types of police questioning are excluded from the Miranda requirments?Ans: questioning at the scene of crime, volunteered statements of any kind, questioning of

individuals in the fact-finding process, and questioning that is a part of an investigatory stopWhich of the following is not a type of false confessionAns: Media-induced false confession

Which of the following is true regarding the waiver of the right to remain silentAns: suspects overwhelmingly waive their Miranda rights to remain silent and to have a lawyer assist them

In Colorado v. Connelly (1986), the Supreme Court that Connelly’s confession was voluntary even though his serious mental illness led him to believe god ordered him to “confess or commit suicide”Ans: True

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