KY Bar Constitutional Rights and Liberties 3 — Questions and Answers
Question 1: A suspect in custody invokes his right to counsel during interrogation. Two hours later, officers return and re-Mirandize him, and he confesses without counsel present. Is the confession admissible?
- No, because under Edwards v. Arizona interrogation must cease until counsel is present or the suspect reinitiates contact (Correct answer)
- Yes, because fresh Miranda warnings cure any prior invocation
- Yes, because two hours is a sufficient break in custody
- No, because confessions obtained in custody are always inadmissible
Correct answer: No, because under Edwards v. Arizona interrogation must cease until counsel is present or the suspect reinitiates contact
Once a suspect invokes the Miranda right to counsel, police may not reinitiate interrogation without counsel present unless the suspect himself reinitiates or there is a 14-day break in custody.
Question 2: A state grants property tax exemptions only to veterans who resided in the state before 1980. A newer resident veteran challenges the law. The classification most likely violates:
- The right to travel, because durational residency preferences penalize new residents (Correct answer)
- The Privileges and Immunities Clause of Article IV, which covers only economic rights
- The Third Amendment
- Nothing, because tax exemptions are discretionary benefits
Correct answer: The right to travel, because durational residency preferences penalize new residents
Fixed-date residency preferences that permanently favor longer-term residents penalize the right to migrate and fail equal protection review.
Question 3: A city allows private groups to display holiday exhibits in a public park but denies a religious group's request to erect a nativity scene, citing the Establishment Clause. The denial is most likely:
- Unconstitutional viewpoint discrimination, because private religious speech in a public forum enjoys equal access (Correct answer)
- Constitutional, because religious displays on public land always violate the Establishment Clause
- Constitutional, because parks are nonpublic forums
- Unconstitutional, because the city must sponsor religious displays itself
Correct answer: Unconstitutional viewpoint discrimination, because private religious speech in a public forum enjoys equal access
Excluding private religious expression from a forum open to comparable secular speech is viewpoint discrimination, and equal access does not violate the Establishment Clause.
Question 4: A grand jury witness is compelled to testify after receiving use and derivative use immunity. He later argues the compulsion violated his Fifth Amendment privilege. What result?
- No violation, because use and derivative use immunity is coextensive with the privilege against self-incrimination (Correct answer)
- Violation, because only full transactional immunity can replace the privilege
- Violation, because immunity can never substitute for the privilege
- No violation, because the privilege does not apply in grand jury proceedings
Correct answer: No violation, because use and derivative use immunity is coextensive with the privilege against self-incrimination
Kastigar v. United States held that use and derivative use immunity sufficiently protects the Fifth Amendment privilege, so testimony may be compelled.
Question 5: A state law requires all candidates for state office to swear they have never advocated overthrow of the government. A candidate refuses and is barred from the ballot. The law is most vulnerable because:
- It penalizes mere abstract advocacy protected by the First Amendment rather than incitement to imminent lawless action (Correct answer)
- Ballot access is a fundamental right immune from all regulation
- Loyalty oaths are per se unconstitutional in every form
- It violates the Titles of Nobility Clause
Correct answer: It penalizes mere abstract advocacy protected by the First Amendment rather than incitement to imminent lawless action
Under Brandenburg, government may punish advocacy only when directed to inciting imminent lawless action and likely to produce it, so oaths targeting abstract advocacy are invalid.
Question 6: A defendant is convicted and sentenced to death by a judge who found the aggravating factors himself after a jury verdict of guilt. Under the Sixth Amendment, the sentence is:
- Invalid, because any fact making a defendant eligible for death must be found by a jury (Correct answer)
- Valid, because judges traditionally have discretion in sentencing
- Valid, because the jury found guilt beyond a reasonable doubt
- Invalid, because capital punishment is per se unconstitutional
Correct answer: Invalid, because any fact making a defendant eligible for death must be found by a jury
Ring v. Arizona requires that a jury, not a judge, find the aggravating facts that make a defendant eligible for the death penalty.
Question 7: A state bans the sale of violent video games to minors without parental consent. Under Brown v. Entertainment Merchants Association, the ban is:
- Unconstitutional, because video games are protected speech and the state failed strict scrutiny (Correct answer)
- Constitutional, because minors have no First Amendment rights
- Constitutional, because violence is a category of unprotected speech like obscenity
- Unconstitutional, because commercial transactions are beyond state power
Correct answer: Unconstitutional, because video games are protected speech and the state failed strict scrutiny
The Court held that video games are protected expression, violence is not an unprotected category, and the ban failed strict scrutiny.
KY Bar Constitutional Rights and Liberties 3
A suspect in custody invokes his right to counsel during interrogation.
Two hours later, officers return and re-Mirandize him, and he confesses without counsel present.
Is the confession admissible?