CRIMINAL TRIAL PROCESS

FINAL EXAMINATION

FALL 94

You have two and one half hours for the examination. It is

closed book. There are copies of selected Federal Rules o-f

Criminal Procedure available in the classroom. Assume these rules

are applicable. Write on one side of the page, using every other

line unless you have very good handwriting. There are six essay

questions, the first five being worth 10 points apiece and

Question 6 being worth 15 points. There are five explanations,

each counting two points.

Essay questions

l) (10 points) Darnell was charged with armed robbery of a

Convenient Store. There were three people in the store, all of

whom had a good view of the robber. All three gave general

descriptions (male, white, about 30, no facial hair, medium

height and weight, dark hair). The clerk, Able, picked Darnell

out of a photo book and he was arrested. Able and Baker, one of

the customers, positively identified Darnell in a lineup.

Charlie, the second customer, said there was some resemblance but

he didn't think Danell was the one. No statements were taken from

the witnesses. Darnell was indicted for the robbery and the

prosecutor gave defense counsel the names and addresses of all

three witnesses. In response to a defense request for exculpatory

material the prosecutor responded, "there is no exculpatory

material." Defense counsel made no attempt to interview any of

the witnesses. At trial the prosecutor called Able and Baker,

both of whom positively identified Darnell as the robber.

Out of curiosity Charlie attended the trial. During a

recess he told Edwards, the investigating officer that, after

seeing Darnell in court, he was sure Darnell was not the robber.

Edwards did not pass this on to the prosecutor and Charlie was

not called as a witness. Charlie visited defense counsel after

Darnell's conviction and defense counsel moved for a new trial on

the basis of withheld information. Discuss the issues.

2) (10 points) -- Anna Jones, age 15, ran off with Donnie___

Sparks, age 23. When they returned six months later Anna's

parents persuaded the prosecutor to indict Sparks for Third

Degree Rape -- intercourse by one over 21 with a person under 16.

Sparks pled not guilty and the case was tried before a jury. Anna

testified that she had intercourse with Sparks on a number of

occasions while she was 15. The prosecutor asked Anna how old

Sparks was at the time. The transcript is as follows:

P: How old was Donnie when you all went to Tennessee?

D: Objection, calls for a conclusion.

J: Sustained.

P: Anna, how old did Donnie say he was?

D: Objection, hearsay.

J: Sustained.

P: Judge, it would be the defendant~s statement.

J: Sustained, move along counsel.

P: Judge, I don't have anything else of this witness.

J: Cross-examination?

D: No, your honor.

J: Mr. Prosecutor, call your next witness.

P: Judge, we need a continuance to get some kind of record to

show Mr. Sparks age. I think we can have a driver's record or

something by tomorrow morning.

J: Counsel I can't do that. I've got another trial scheduled

tomorrow.

D: Judge, we ask that the charge be dismissed with prejudice --

that a verdict be directed.

J: No, I'm not going to do that. I'm going to dismiss it but they

can bring it back up if they get a record to show his age.

D: Judge, they've failed in their proof. We're entitled to a

directed verdict.

P: Judge -- if I may -- she should be able to say how old Donnie

was. You could take judicial notice. You've seen him. Or just let

the jury find his age -- they've seen him.

J: Ladies and gentlemen of the jury. It sometimes happens ~ for

reasons we can't foresee -- that we can't complete a case. You

are hereby discharged in this case. You're not to draw any

inference from the fact this case is not being completed. You're

discharged until further notice.

P: Judge I object to your letting the jury go.

D: Judge, Are you saying they can retry Donnie?

J: The court will be in recess until 9:00 am tomorrow morning.

That's all counsel.

* * * *

The prosecutor has asked that the case be redocketed for

trial. The defense asserts that retrial is barred by principles

of Double Jeopardy. Assume that the judge was wrong in his

evidentiary rulings -- Anna should have been able to testify to

Donnie's age based on her observations and Donnie's statements.

Does Double Jeopardy bar retrial? Why or why not?

3) (10 points)Dugan stabbed and killed Vernon after an argument

in a bar. Detective O'Reilly was the investigating officer and he

took statements from Dugan, Darlene (Dugan's girl friend), and

Wanda (Vernon's wife). Dugan and Darlene said Vernon became angry

and tried to strike Dugan with a broken beer bottle; that Dugan

pulled his knife and stabbed Vernon in self defense. Wanda said

Dugan stabbed Vernon without provocation and denied Vernon had a

broken beer bottle. A broken bottle was found on the floor but it

wasn't clear that Vernon had been using it as a weapon. O'Reilly

discounted its importance and did not take it as evidence. Only

Wanda and Detective O'Reilly testified before the grand jury.

Wanda testified that Dugan suddenly stabbed an unarmed Vernon as

the two men argued. Wanda further related a conversation she had

with Nancy, Dugan's sister, three days before the incident, in

which Nancy said that Dugan was going to hurt Vernon because he

thought Vernon had cheated him. O'Reilly, who stayed in the grand

jury room during Wanda's testimony, testified to the scene and to

Dugan's claim of self-defense. He did not, however, testify to

Darlene's version of the events nor did he mention the broken

beer bottle. The grand jury indicted Dugan for murder.

Dugan has moved for dismissal of the indictment based on and

affidavit from Darlene and a transcript of the grand jury

proceedings. What result and why?

4) (10 points) Roberts was arrested in 1983 for rape of his ten

year old stepdaughter. The charge was dismissed at the

preliminary hearing on the prosecution's motion because the child

refused to testify. Roberts divorced his wife and moved to

California. In 1988 a Kentucky grand jury indicted Roberts for

rape on the basis of the testimony of the stepdaughter, then

fifteen, who came forward on the advice of her therapist. At the

time Roberts was living in Los Angeles California under his own

name. The state made no effort to bring Roberts back from

California because of expense and the fact the case was not

pressed by the ex-wife and stepdaughter. In 1994 Roberts was

arrested on a tip from his ex-wife when he returned to Kentucky

to visit his parents. Roberts has moved to dismiss the charge on

Due Process and Speedy Trial grounds. Discuss the issues.

5) (10 points) The grand jury indicted David, mayor of Metro

City, and his wife Ann for tax evasion, and David and two others,

Curly and Moe, for bribery.

Count (l) alleges that Curly, a developer, paid $10,000 to

David in 1992 for David's okay on an extension of city services

to a project outside the urban service area.

Count (2) alleges that Moe, a lawyer, paid David $500 in

1992 in return for David having hired him to do legal work for

the city.

Count (3) alleges that David and Ann underreported the

income on their joint return by $25,500 in 1992 (the $10,500

above plus $15,000 in legitimate but unreported income).

All parties have moved for separate trials as to parties and

counts. They have made the following representations about their

defenses:

David: does not wish to testify on Counts (l) and (3), would

testify on Count (2) that the $500 was a campaign contribution

given to him by Moe without promise of employment.

Curly: would testify that he paid $10,000 to David under

duress -- that David held up the project without cause,

jeopardizing Curly's business, and forced him to pay

$10,000 to connect to city services.

Moe: would testify he gave the $500 as a campaign

contribution without promise of employment.

Ann: would testify that David was responsible for all the

financial matters and she signed the return without any knowledge

of the $25,500 alleged to be unreported income.

Assume you are the trial judge. Rule on the motions for severance

and explain your rulings.

6) (15 points) Elem, an African-American, was charged with the

assault and robbery of a white woman. Elem denied the crime and

presented alibi witnesses. The only evidence against Elem was the

testimony of the victim. During jury selection the prosecutor, a

woman, exercised only two peremptory challenges, both against

African-American men, jurors Nos. 4 and 14. A third African-

American man (Juror No. 7) was excused for cause after a lengthy

interrogation by the prosecutor. No objection was made to the

interrogation or the judge's ruling on this juror. After the

second peremptory challenge defense counsel objected. Following

is the discussion at the bench:

J: What's your objection?

D: Judge, this is obvious. She's only exercised two strikes. This

is racially based.

J: Well, I don't really see that. __-

P: Judge, I struck those men because they have long hair,

mustaches and goatees. I don't like the way they looked, with the

way the hair is cut, both of them. And the mustaches and beards

look suspicious to me. I don't think they would be very

sympathetic to me or to the victim.

J: Very well. I don't believe you struck them because they were

black. I'm going to overrule the objection.

Elem was convicted by an all white jury. On direct appeal to

the state appellate court Elem's counsel raised on Batson

grounds: l) the exercise of the peremptory challenges; and 2) the

way in which the prosecutor questioned the African-American who

was struck for cause. The state appellate court affirmed the

conviction in an opinion which treats the Batson grounds as

follows,

"While the challenges to jurors 4 and 14 were properly

objected to, no objection was made to the trial court's ruling

sustaining the prosecutor's challenge for cause to Juror No.7. In

any case we find the claims of the defendant based on Batson v.

Kentucky to be without merit."

The defendant sought and was denied discretionary review in

the state supreme court and in the United States Supreme Court.

a) The defendant has filed for habeas corpus in the federal

district court alleging both grounds asserted on direct appeal.

The state has responded by denying that any Batson violations

occurred, arguing that the trial judge's findings are conclusive

and that any error was harmless. How should the federal court

rule on ground (l) -- the exercise of the peremptory challenges?

b) What grounds do you think the state will assert with regard to

ground (2) -- the questioning of Juror No. 7? How should the

federal court rule and why?

Explanations (two points apiece). Briefly explain:

l) The rationale for the rule that a judge may base the decision

at a preliminary hearing on hearsay evidence

2) The significance of classifying on habeas a claimed

Constitutional error as "structural~ rather than "trial-type."

3) The rationale for the Supreme Court's ruling that a state

cannot require a defendant to testify before his other witnesses.

4) The rationale for the rule that a presumption cannot be used

to shift the burden of proof from the state to the defense.

5) The rationale for the rule that inconsistency of verdicts is

not a ground for reversal of a conviction.