TX Bar Criminal Law and Procedure 3 — Questions and Answers
Question 1: During custodial interrogation, a suspect says 'I think I want a lawyer.' Officers continue questioning without providing counsel and obtain incriminating statements. Under Davis v. United States, the suspect's statement about a lawyer:
- Was sufficient to invoke the right to counsel, requiring all questioning to cease immediately
- Was not sufficient because the right to counsel must be invoked unambiguously; ambiguous references do not obligate police to stop questioning (Correct answer)
- Required police to ask once whether the suspect wanted an attorney before continuing
- Was sufficient if the officer subjectively understood it as a request for counsel
Correct answer: Was not sufficient because the right to counsel must be invoked unambiguously; ambiguous references do not obligate police to stop questioning
Under Davis v. United States, a suspect must unambiguously invoke the right to counsel; ambiguous or equivocal statements about wanting an attorney do not require police to cease questioning.
Question 2: A defendant is convicted of simple drug possession. The state then charges him with possession with intent to distribute arising from the same seized drugs. Under the Blockburger test, the second prosecution:
- Is barred because both charges arise from the same criminal episode
- Is barred because the defendant has already been punished for possessing the same drugs
- Is not barred because possession with intent to distribute requires proof of intent to distribute, an element simple possession does not require (Correct answer)
- Is not barred only if the defendant was acquitted in the first proceeding
Correct answer: Is not barred because possession with intent to distribute requires proof of intent to distribute, an element simple possession does not require
Under Blockburger, double jeopardy does not bar successive prosecutions when each offense requires proof of an element the other does not; intent to distribute is required by the second offense but not simple possession.
Question 3: Officers apprehend a robbery suspect at the scene but find no gun on him. Without Miranda warnings, an officer asks 'Where is the gun?' to prevent bystanders from being harmed. The suspect reveals the gun's location. Under New York v. Quarles, this statement is:
- Inadmissible because Miranda warnings are required before any custodial questioning
- Inadmissible because the officer's motive was partly investigative
- Admissible only if the suspect confirmed the statement after later receiving Miranda warnings
- Admissible under the public safety exception to Miranda because the question addressed an immediate threat to public safety (Correct answer)
Correct answer: Admissible under the public safety exception to Miranda because the question addressed an immediate threat to public safety
Under New York v. Quarles, the public safety exception permits officers to question a suspect in custody without Miranda warnings when necessary to address an immediate threat to public safety.
Question 4: A defendant is acquitted of robbery based on the jury's finding that he was not present at the crime scene. The state then charges him with assault arising from the same event. Under Ashe v. Swenson, double jeopardy's collateral estoppel component:
- Bars the second prosecution because the jury necessarily decided the defendant was not present at the scene of both crimes (Correct answer)
- Does not apply because assault and robbery are different offenses under the Blockburger test
- Applies only if the defendant was convicted, not acquitted, in the first trial
- Does not apply because collateral estoppel is a civil doctrine inapplicable to criminal cases
Correct answer: Bars the second prosecution because the jury necessarily decided the defendant was not present at the scene of both crimes
Under Ashe v. Swenson, collateral estoppel is incorporated into the Double Jeopardy Clause and bars relitigation of ultimate facts necessarily decided in a prior acquittal.
Question 5: A jury deliberates for six days without reaching a verdict and is dismissed over the defendant's objection. The prosecutor seeks to retry the defendant. Double jeopardy:
- Bars retrial because jeopardy attached when the jury was sworn and the defendant objected to the mistrial
- Does not bar retrial because a hung jury constitutes manifest necessity for a mistrial, permitting a new trial (Correct answer)
- Bars retrial if the jury's vote indicated it leaned toward acquittal
- Does not bar retrial only if the defendant consented to dismissing the jury
Correct answer: Does not bar retrial because a hung jury constitutes manifest necessity for a mistrial, permitting a new trial
A hung jury constitutes 'manifest necessity' for a mistrial, and retrial after such a mistrial does not violate double jeopardy even over the defendant's objection.
Question 6: A corporate executive subpoenaed to produce company business records invokes her Fifth Amendment privilege against self-incrimination to avoid production. Under Braswell v. United States, this claim will:
- Succeed because producing the records is a testimonial act that may be personally incriminating
- Succeed if the records were created by her personally
- Fail because the Fifth Amendment's personal privilege does not extend to corporate records held in a representative capacity (Correct answer)
- Fail only if the corporation itself also waives any applicable privilege
Correct answer: Fail because the Fifth Amendment's personal privilege does not extend to corporate records held in a representative capacity
Under Braswell v. United States, the Fifth Amendment's personal privilege against self-incrimination does not apply to corporate records; a records custodian must produce corporate documents even if personally incriminating.
Question 7: A suspect invokes the right to counsel during custodial interrogation. Police stop questioning. Three days later, without providing counsel, police reinitiate interrogation and the suspect waives rights and confesses. Under Edwards v. Arizona, this waiver is:
- Invalid because once a suspect invokes the right to counsel, police may not reinitiate interrogation until counsel has been provided or the suspect initiates communication (Correct answer)
- Valid because a reasonable period of time passed after the initial invocation
- Valid because the suspect made a knowing and voluntary waiver at the second interrogation
- Invalid only if the second interrogation covered the same subject matter as the first
Correct answer: Invalid because once a suspect invokes the right to counsel, police may not reinitiate interrogation until counsel has been provided or the suspect initiates communication
Under Edwards v. Arizona, once a suspect invokes the right to counsel, all police-initiated interrogation must cease until counsel has been made available or the suspect himself reopens communication.
TX Bar Criminal Law and Procedure 3
During custodial interrogation, a suspect says 'I think I want a lawyer.' Officers continue questioning without providing counsel and obtain incriminating statements.
Under Davis v.
United States, the suspect's statement about a lawyer: