Constitutional Rights and Responsibilities
nstructions: As always, put your multiple choice answers on a single, first page. When complete, your test should include:
1: 10 multiple choice answers?2: an essay involving the Provo Dyke Road?3: an essay involving both the 5thand 6thAmendments about Officer Ludhaund. 4: two essays, each involving different amendments, using facts from a movie you choose.
Turn in your test to me at 6:00 pm on Monday, April 24. If you can=t make that date and time, or don’t want to come to campus then you may submit electronically as a PDF document as an attachment to a CANVAS email BEFORE that time.
Multiple Choice Section (Part I) (two points, eachB20 POINTS TOTAL)
1. The Miranda decision was unusual for scholars and the attorneys who briefed and argued the case because:
a. the decision was completed in record timeBthey expected the ruling to take much longer to brief and announce.?b. they had all argued the case with sixth amendment principles and precedent but the court asked for re-briefing and relied upon the fifth amendment, instead.
c. the case announced a rule that, if generally followed by consideration of the totality of the circumstances, would allow introduction of statements made during interrogation but, still, convictions in three of the four cases were overturned.?d. the California Supreme Court was actually overturned!
2. Even if AMiranda@ warnings are not given the answer to a police officer=s question to a man in custody might be admitted if
a. the questions are reasonably related to an immediate concern for public safety?b. the need for answers to the questions outweighs the need to protect the rule against self-incrimination.?c. viewed subjectively the officer took advantage of the danger to skip formal AMiranda@ requirements.?d. viewed objectively a reasonable officer would have been concerned for public safety. e. a, b and d?f. a and c?g. a, b and c
3. The critical question in determining, under the 5thAmendment, if statements made during a Page 1 of 8
police interrogation should be used as evidence is:?a. whether the questioning can be called a critical stage of the prosecution.?b. whether there is a rational basis for the questions being asked.?c. whether there is independent corroboration of the statements with other evidence. d. whether the statements were produced by unfair government intimidation resulting from the circumstances and nature of the interrogation.
4. Congress passed a law that softened the impact of the required AMiranda@ warnings. The statute, which was intended to apply in federal court prosecutions was:
a. overturned as an attempt to undermine a constitutional remedy imposed by the Court. b. sustained and still applicable today in those jurisdictions.?c. overturned because the Fifth Amendment has not yet been held to apply to the District of Columbia by the Fourteenth Amendment.
d. sustained because the Fourteenth Amendment only applies to states.
5. Statements made to a police agent or informant without the presence of counsel under the Sixth Amendment:
a. may not be admitted unless a verbatim recording is kept of the interview.?b. were suppressed in Massiah v. United States because the questioning was a critical stage of the investigation as it had shifted from investigatory to accusatory.?c. were not suppressed in Massiah v. United States because no charges had been filed. d. can be admitted if consent is established by a totality of the circumstances under Dickerson v. US.
6. Although interrogation without an attorney present about a charge which has been filed is prohibited by the Sixth Amendment , questioning about a different offense which has not been charged is not prohibited by either the Fifth or the Sixth Amendments:
a. if the suspect is given his Miranda rights and knowingly waives the rights.?b. questions are not asked which are objectively expected to incriminate the defendant.. c. the suspect is no longer in custody when the questioning takes place.?d. b and c?e. a and/or c?g. none of the above.
7. When an interrogating officer lies to the subject during questioning:?a. any responses are automatically suppressed.?b. the deception is weighed with the totality of the circumstances to determine if the statements resulted from government intimidation and coercion.?c. responses are not suppressed because the jury can still decide if the subject also lied. d. responses are only suppressed if the lie had a Aring of truth@ to it.
8. A defendant who is compelled to participate in a physical (not a photo) lineup before charges are filed must have counsel to assist him because of the:
a. Fourth Amendment exclusionary rule.?Page 2 of 8
b. Fifth Amendment protection against self incrimination.?c. Sixth Amendment guarantee of the assistance of counsel at critical phases of the case. d. Eight Amendment protection against cruel and unjust treatment.
9. In Utah when eyewitness identification is critical to a criminal case:?a. the prosecution is in trouble because eyewitness testimony is inherently false.?b. the case must be dismissed unless the police have either conducted a photo lineup or a physical line-up involving the defendant.?c. the case may be decided without further hearing if the Court finds at a pre-trial hearing, beyond a reasonable doubt, that the identification is reliable.?d. a jury must be warned that eyewitness testimony is inherently unreliable.
10. When a capital offense is committed by a person under the age of 18 or by an older person who is developmentally disabled (mentally retarded):
a. the death penalty can be imposed.?b. the death penalty may not be imposed.?c. the death penalty may not be imposed until the defendant=s chronological or mental age exceeds 18.?d. the death penalty may only be imposed in states where such executions have occurred in the past.
Essay Section (Part II)
Instructions:
The first essay section includes two essay questions, designed to test the material covered since the last exam. Each question is worth 15 points. You need not re-state the facts but you should identify a legal issue, outline the law, do an analysis and state a conclusion (ILAC).
The final section should include two IFLAC essays, each worth 25 points. This portion of the exam is comprehensiveBmeaning the answer may be drawn from any doctrine or topic we have covered during this course. More detailed instructions are included, below.
ESSAY SECTION I: (2 essays, 15 points eachB30 POINTS TOTAL) Consider these facts for question 1:
On May 2, 2001, Deputy Wayne Keith was patrolling the Provo Dike Road, which is a public road. Deputy Keith observed a convertible vehicle that was parked on the side of the road. Deputy Keith noticed that the registration was expired on the vehicle and subsequently stopped his vehicle behind the parked convertible. Deputy Keith did not activate his overhead lights or his siren when he parked behind the vehicle. Furthermore, he did not block their vehicle from moving or leaving with the position of his vehicle. Deputy Keith observed three occupants sitting in the car. Deputy Keith approached the vehicle on foot and observed several open containers of alcohol in plain view in both the front and rear area of the passenger compartment
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of the vehicle. Deputy Keith asked for the three passengers’ identification. Defendant was determined to be the individual sitting in the driver’s seat. Deputy Keith asked the occupants to step out of the vehicle and explained that he was going to search for more open containers. Deputy Keith began searching the vehicle for open containers. In the center console, which was large enough to house an open container, Deputy Keith smelled the odor of marijuana and observed a metal “socket” that was fashioned into a pipe. The socket smelled of marijuana and appeared to have marijuana residue in the “pipe.” In a back-pack in the back seat, Deputy Keith found three plastic bags that were determined to contain marijuana. The rear-seated passenger stated it was his back-pack. Deputy Keith asked Defendant about the socket that was found in the center console between the driver’s and passenger seats. Defendant stated he did not know it was there and insisted that he had not smoked any marijuana. At this time, Defendant was not under arrest nor was he handcuffed. Within a short time, two other officers arrived. Because Defendant was in the driver’s seat, Defendant was asked to perform some field sobriety tests. The officer that conducted the field sobriety tests on Defendant, Deputy Todd Orton, was a certified Drug Recognition Expert. After the conclusion of the field sobriety tests, Deputy Orton believed Defendant was possibly under the influence of marijuana; however, it was felt that he was not impaired to the point that he could not safely operate a motor vehicle. Deputy Orton informed Deputy Keith of his belief that the Defendant was possibly under the influence of marijuana but that he was not impaired to the point that he could not safely operate a motor vehicle.
Deputy Keith then told Defendant that he “knew he had smoked marijuana.” This was not phrased in the form of a question or was the deputy confronting the Defendant or “in his face.” No evidence was attained that was anything more than a statement casually made to Defendant. Up to this point, Defendant had maintained a lack of knowledge of the marijuana or the pipe. However, Defendant then told Deputy Keith that he had only taken a couple of hits of marijuana while at that location. He stated that both he and the back seated passenger had smoked out of a pipe. Deputy Keith was surprised when Defendant stated he had smoked marijuana while at that location. Deputy Keith testified that he did not expect Defendant to say anything in response. Defendant, along with the other occupants of the vehicle, was never arrested, never handcuffed and was merely given a citation. Defendant was then allowed to drive the vehicle away from the location with his friends as passengers.
Before trial, the defendant moved to suppress statements he made at the time of his citation, claiming that Deputy Keith had subjected him to custodial interrogation without informing him of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) Assuming you are the trial judge, how would you rule on the motion to suppress? (15 points)
Here are the facts for question 2:
On a dark and stormy night . . . officers got a call about a gunshot in the area of 400 West and 1000 South in Orem. Three separate calls to dispatch described a Apopping sound@ like a handgun within a few minutes of 6 a.m. followed by yelling, loud crying and screeching tires. Officer B. Ludhaund arrived at the scene and found copious amounts of what appeared to be blood in a parking lot but no people. Upon careful examination with a very bright flashlight, the
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officer spotted fresh black tire marks. As the officer was studying the ground, he looked up and realized that he was in a junior high school parking lot and that the kids would start arriving within a couple of hours. He put orange cones and yellow tape all around the red pools and detailed the newest rookie to park and watch the scene.
A few hours later, at 9 a.m., Charles Goodnight appeared at the Fourth District Court in Orem for a pre-trial conference on a pending misdemeanor theft charge against him. He had an appointed attorney, Cynthia, who was in the courtroom where she was responsible for around 30 cases that morning. Officer Ludhaund entered the courtroom because he had a subpoena for a traffic trial at 9:30. He was hoping to get Cynthia and the prosecutor, Wilbur, to continue the trial so he could get back to the junior high and help out the rookie. While he was waiting he looked carefully at Charles and noticed that his shoes were caked and streaked with either very red mud or blood. He was disheveled in appearance and seemed extremely nervous. What really intrigued Ludhaund, however, was that he had a shoulder holster on under his jacket. Knowing no weapons were allowed in the courtroom Ludhaund checked with security at the front door and discovered that Charles had not checked a firearm. He returned to the courtroom and, with the bailiff, approached Charles. Charles saw them coming and jumped up shouting ALeave me alone! Discrimination! You all hate me!@
Ludhaund and the bailiff tackled him as Judge Backlund calmly looked up and said, ACan=t we please have some order in this courtroom? Wilbur, I want you to pursue a disorderly charge against that man.@ Charles was dragged from the courtroom to the Orem Police Department where he was handcuffed to a chair in an interrogation room.
30 minutes later Attorney George T. Imhoff appeared at the front counter of the Orem Police Department and announced that he had been retained by the sister of Charles Goodnight, Shezariel, to represent Goodnight on the disorderly conduct charge so he wouldn=t be held in jail. The officer at the counter thought Mr. Imhoff had unfairly gotten a guy he had arrested a year before out of a charge so he was rude to Imhoff and told him to just go see the judge about a writ but ALittle Charley@ would have to be on his own for a bit.
Meanwhile, in the interrogation room, Officer Ludhaund knew nothing about Imhoff and was speaking to Charles. The first thing he did was to ask him about the shoulder holster. AWhy do you have an empty holster, where is the gun?@
Charles sullenly replied, AIt=s just a pellet gun and it=s in the bushes by the front door of the school.@
Ludhaund immediately spoke to the rookie on his radio who reported after a moment that he=d found a pellet gun that looked like a handgun in the bushes as described. Ludhaund then said, ASo, who=d you shoot?@
AI thought I was here cause I stole that stuff and then yelled in court!@Page 5 of 8
ANah, I=d have yelled, too. Judge Backlund=ll get over that. But, anyway, you do have the right to remain silent because what you say can be used in court. You can have an attorney help you if you want and if you can=t afford one, we=ll appoint one to represent you. If you decide to answer questions you can stop at any time. Do you understand that?@
AYes, I want to talk to Bob before I say anything else.@ AWho=s Bob?@?AHe=s my probation officer.@?ANo. Who=d you shoot?@
AOk, I=ll talk! I shot that damn dog, ok? Now I want a lawyer!@
Ludhaund put Charles in a cell where, eventually, both Cynthia and Mr. Imhoff were allowed to interview him. Back at the school after checking with a few neighbors Ludhaund found a severely injured Golden Retriever a few houses away from the school which appeared to have puncture wounds, possibly from a pellet gun, in its neck. Charles is now charged under a new Utah statute with felony wounding of an animal, disorderly conduct in the courtroom and the theft charge. Mr. Imhoff now seeks to suppress the weapon and the statements made to Ludhaund under the fifth and sixth amendments.
Using the cases and principles from our studies, explain why the evidence should or should not be suppressed. You should identify the principle issue under each of the two amendments and give me a separate IFLACBor at least an ILAC (without re-stating all the facts) for each.
ESSAY SECTION IIB( two questions, 25 points each)
View any one of the movies listed below. Popcorn is optional. Companions are allowed so long as you are not unreasonably distracted. In the first paragraph briefly summarize the plot and principal characters of the movie. Then, using such facts or circumstances from the movie as you wish or need, select and discuss any two (in separate IFLAC essays) of the following principles as we discussed in this course Feel free, if necessary, to Aimagine@ or suggest plot, character or dialogue changes to enhance your ability to apply what we have studied (I=m not a movie critic and don=t care if you accurately describe the movie!). Demonstrate a basic understanding of the doctrines as you state a legal issue then marshal the relevant facts, present applicable legal principles, analyze the facts with the law and come to a conclusion.
Keep in mind that I=m not really interested in the moviesBwhat I want to see is your proficiency with the issues we have studied during this semester. To that end, if you select a relatively simple principle to write about I will expect a much more competent and complete answer than if you take on one of the more complex concepts. Either way, however, your task is to demonstrate to me that you have learned to write well, think well, and analyze thoroughly.
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Going through the mechanics, getting an IFLAC on paper and turning it in on time is worthy of a C. Showing me that you really get it and thoroughly wrestling with the facts is the way to earn an A.
Choose any two of the following principles (A through M) to analyze and discuss in your essay although your two issues must come from different amendments. .
(First Amendment)
A. Establishment of Religion ?
B. Public Forum/Regulation of Speech ?
(Second Amendment)
C. Right to Bear Arms
(Fourth Amendment)
. D Search warrants including the determination of probable cause and credibility of informants. ?
. E Warrantless searches including the doctrines of inventory search and inevitable discovery. ?
. F Plain View and/or plain smell doctrine ?
. G Warrantless arrest and detention including the Utah doctrine of level 1,2 and 3 detentions ?
. H Electronic surveillance including bugs, wiretap, tracker devices and pen register/trap and trace equipment. ?
. I Exclusionary Rule including the good faith exception ?
(Fifth Amendment)
J Interrogation (don=t confuse the Fifth Amendment rule with the Sixth Amendment approach!)
(Sixth Amendment)?L Interrogation (See J, above! Keep them straight!) M Pre-trial identification
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Suggested Movies: Minority Report; Rush Hour, Beverly Hills Cop (I, II or III); Dirty Harry (or any of the ADirty Harry@ sequels); In the Line of Fire; Bullitt; To Kill a Mockingbird; The Thomas Crown Affair (original or remake); Ransom; Enemy of the State; Fargo; Lethal Weapon (1,2,3,4 or whatever); The French Connection; The Blue Knight; The Bourne Identity or The Bourne Supremacy (assume all the action occurred in
the USA); After the Sunset (again, assume the action occurred in the USA); or any other cop/robber genre movie.
If nothing else, you will now understand why judges and criminal lawyers have a hard time watching and enjoying most of these movies!
It has been a genuine pleasure to spend this term with you. Thank you for coming and for your diligent work!
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