CRIMINAL TRIAL PROCESS

FINAL EXAMINATION

FALL 96

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

book. Write on one side of the page. There are four essays with

relative weight as indicated and ten short answer questions worth

one point apiece. The test is worth 65 points, the exercises 10

points apiece, and a maximum of 5 points will be assigned on the

basis of attendance, participation, and preparation.

The Federal Rules of Criminal Procedure are applicable to all

problems -- even those which appear to be state prosecutions. Use

the rules which came as part of the supplement. There are several

copies in the classroom if you do not have your copy.

Honor Code notice and Pledge

The College of Law Honor Code prohibits cheating on examinations.

The Code requires students to report cheating. Failure to report

cheating is a violation of the Honor Code.

By turning in this examination, I pledge that I have neither

given nor received any unauthorized aid on the examination.

Question one (the facts of this real case have been changed

slightly) (10 points)

In the state of Idaho, fornication (defined as sex between

unmarried persons of the opposite sex) is a misdemeanor. The

statute, passed in 1921, has not been enforced for many years in

any part of the state. Several months ago, however, Douglas

Varie, county attorney of Gem county, filed a juvenile court

information against Amanda Carter, an unmarried, seven months

pregnant, seventeen year old. Since the filing of the

information, Carter gave birth to a healthy nine pound boy named

Tyler.

At a press conference Varie explained that Gem county's rate

of 84 pregnancies per 1,000 teenagers, while slightly lower than

the national average, was twice the rate of the state of Idaho.

He further stated that he was not interested in putting Carter in

jail, that he wanted her to be put on probation to attend

parenting classes, stay off drugs and alcohol and get her high

school diploma. Varie said that it was essential that Carter name

the father so that the man could take responsibility for his

actions. He promised to prosecute the man for "statutory" rape if

he turned out to be over 21.

Carter, who is African-American, refuses to name the father

and feels she is being selectively prosecuted for impermissible

reasons. In Gem county (population 8500) there are only about 60

African-Americans. In the state of Idaho the percentage of

African-Americans is only 3%.

Discuss the issues.

Question two (10 points)

Boeglin and Earnest were arrested in connection with the robbery

and murder of David Eastman. Boeglin gave a statement

incriminating himself and Earnest. Boeglin was given use immunity

and called as a witness during Earnest's trial. Boeglin's counsel

informed the court that Boeglin would refuse to answer any

questions. The trial judge responded that Boeglin would be sworn

and questioned outside the presence of the jury, and would be

sentenced to a year imprisonment for every question he refused to

answer. Boeglin's counsel objected and Earnest's counsel objected

and moved for a mistrial, which was denied.

The judge then questioned Boeglin outside the presence of

the jury. 26 questions were asked and 26 one year sentences were

meted out in response to Boeglin's refusal to answer. I a series

of heated exchanges Boeglin's lawyer objected to every contempt

sentence handed out to his client. After the 26th citation the

judge told both lawyers that he had erred by continuing to

question Boeglin and that he was going to set aside the contempt sentences and grant the motion for mistrial.

Earnest's lawyer then attempted to withdraw the motion. The

judge responded that it was too late and discharged the jury.

Earnest objects to a retrial on Double Jeopardy grounds. The

state concedes that at the time of the mistrial that the state

had not proved all the elements of the case.

Decide the issue, clearly stating your reasoning.

Question three ( 2 0 points )

In Douglass county, a rural county of about 20,000 people, Jones,

an African-American non-resident indigent, was charged with the

rape of a popular high school student. Jones claims mistaken

identity. DNA testing conducted by the state indicates a match

between Jones' DNA and the DNA of semen found on the victim.

Jones was arrested on April 15 and Wallace, the public

defender for Douglass county, was appointed for Jones at his

initial appearance that day. Bond was set at $50,000 and Jones

was kept in custody for inability to make bond. The preliminary

hearing was scheduled for April 28 at 2:00 pm.

When the case was called on the 28th, Wallace was not

present. The judge called his office but got an answering

machine. At 4:00 pm the judge asked Jones if he wanted to go

ahead with the preliminary hearing without Wallace being present.

Jones said that he did. The arresting officer testified to the

statement of the victim and the DNA test. Given an opportunity to

cross-examine the officer, Jones said, "She's lying. It was too

dark for her to see all that." Based on the officer's testimony

the judge held Jones to answer to the grand jury. It turned out

that Wallace had entered the wrong date on his calendar and was

playing golf at the time of the preliminary hearing. He moved for

a new preliminary hearing and suppression of Jones's statement.

The judge denied the motions.

The grand jury indicted Jones for rape. Wallace moved the

trial court for payment of $1000 for an expert to analyze the DNA

tests run by the state and $1000 for a jury consultant to survey

community attitudes to support a possible motion for change of

venue. The motions were denied and no motion for change of venue

was made.

Jones was convicted in a one day trial. Only one African-

American was in the jury venire. He was a young man about Jones'

age, who wore a Malcolm X cap backwards. The prosecutor struck

him from the venire. Wallace asked for a bench conference. He

asked why the only African-American had been struck. The

prosecutor responded, "Because of his militant attitude." The

judge said, "I can see that." Wallace made no further objection

to the strike.

The state's proof consisted of the victim's positive

identification, the DNA tests, and Jones' statement made at the

preliminary hearing. Jones testified and denied the offense. He

said he was with his friend Sam watching television when the

crime occurred. There were no other defense witnesses. Wallace

had not attempted to find and interview "Sam" because he was

convinced that Jones had committed the crime.

In summation Wallace said only, "I know it looks like he did

it. But he says he didn't do it and he's entitled to a verdict of

not guilty if you have a reasonable doubt about it. Thank you for

your consideration." The jury convicted Jones in twenty minutes.

The judge sentenced Jones to twenty years imprisonment.

Jones said he wasn't guilty and wanted to appeal. The judge asked

Wallace and Jones what grounds. Jones said, "She lied about me;"

Wallace said, "Judge, I don't know any." The judge said that

there appeared to be no grounds for an appeal, and he would not

appoint counsel on appeal -- though Jones was free to take an

appeal through private counsel.

Jones' appeal time has now lapsed. Analyze the problem for a

motion for new trial and/or belated appeal.

Question four (15 points)

Miller is married to Sarah, and Sarah's five year old son, Jason,

lives with them. On April 15 Sarah took Jason to the emergency

room with a skull fracture. Sarah claimed that Jason had fallen

and struck his head. The doctor believed that the injuries were

the result of a severe blow, and notified the police. Social

services took Jason into custody. Jason initially denied being

struck but eventually told Nancy, a social worker, that Miller

had struck him with his fist. The police questioned Miller and

Sarah. Miller denied striking the child. After an initial denial

Sarah said Miller had struck the child.

The grand jury indicted Miller for first degree assault on

Jason, a Class B felony. Miller has asked for dismissal of the

indictment based on the following revealed by the grand jury

tape.

l) Nancy, the social worker, accompanied Jason to the grand jury

room. On several occasions Nancy encouraged Jason to "tell them

what he did to you."

2) Detective Watkins testified to the accusatory statements of

Jason and Sarah but did not tell the grand jury that both had

initially denied that Miller struck the child.

3) The prosecutor did not tell the grand jury that he had

received a letter from Miller's lawyer offering to waive the

privilege against self-incrimination if Miller was permitted to

testify before the grand jury.

4) The prosecutor did not tell the grand jury that it could

indict for criminal abuse in the first degree, a Class C felony.

Criminal abuse has the same elements as assault plus the element

of a custodial relationship with the victim.

5) The prosecutor gave Nancy a copy of the grand jury transcript

for her use in preparing Jason to testify.

Short answer (one point each -- a sentence or less)

l) What is an "Anders brief?"

2) What is an "Alford plea?"

3) What is the standard of materiality (prejudice) when the

defendant seeks a new trial on the ground that defense counsel

was incompetent?

4) What is the standard of materiality (prejudice) when the

defendant seeks a new trial on the ground that defense counsel

had a conflict of interest?

5) An indictment charged A with robbery of bank X on April 10 and

A and B with robbery of bank Y on July 5. Is joinder proper? Why

or why not?

6) What is the Blockburger test?

7) When does the Constitutional right to a Speedy Trial attach?

8) D was arrested at an airport for possessing drugs found in his

suitcase. He was given the Miranda warnings and made no statement

at the time. At trial D testified that he didn't know there were

drugs in the suitcase; that someone must have planted them there.

The prosecutor cross-examined by asking if he had told this story

to the arresting officer. Is this error? Why or why not?

9) Why wasn't Stacey Koon (one of the officers who beat Rodney

King) entitled to the defense of double jeopardy when he was

tried in federal court for a civil rights violation after having

been acquitted in a California state court of assault?

10) Why should counsel avoid interviewing witnesses except in the

presence of a third person?