Chapter 18: The Criminal Trial 1. The Sixth Amendment guarantees an accused the right to a trial by jury in a criminal case where a penalty of more than six months imprisonment can be imposed. Answer: True 2. The United States Supreme Court has ruled that it is constitutionally permissible for a state to provide for a less-than-unanimous verdict in six-person juries in criminal trials. Answer: False 3. Televising criminal trials is now an accepted practice in both state and federal courts. Answer: False 4. Federal appellate courts have approved the use of an anonymous jury where there is a strong reason to believe the jury needs protection and where reasonable precautions are taken to ensure the defendant’s fundamental rights are protected. Answer: True 5. Although the law provides an attorney-client privilege in regard to matters discussed by a client with counsel, the attorney may waive privilege. Answer: False 6. A defendant in a criminal case is entitled to have the jury instructed on the law applicable to any legitimate theory of defense supported by the evidence at trial. Answer: True 7. The practice of a trial court receiving, without proof, certain information well known by the public is referred to as the court taking “judicial notice.” Answer: True 8. Once a physician offered by the prosecution as an expert witness testifies to his or her qualifications, cross-examination as to those qualifications by the defense is not permitted. Answer: False 9. In a closing argument to a jury it is proper for a lawyer to comment on the weight of the evidence and the credibility of the witnesses. Answer: True 10. For purpose of ruling whether to grant a defendant’s motion for a judgment of acquittal (directed verdict), a trial judge must view the evidence in a light most favorable to the defendant. Answer: False 11. A witness with proper credentials can be received as an expert, may testify based on personal knowledge, and may respond to hypothetical questions that assume the existence of facts the evidence tends to establish. Answer: True 12. In 1990 the Supreme Court held that the Sixth Amendment’s Confrontation Clause absolutely prohibits states from using one-way closed circuit television to receive a child’s testimony in a child abuse case. Answer: False 13. The Fifth Amendment privilege against self-incrimination protects the defendant from being required to testify, absent a grant of immunity, and forbids any direct or indirect comment by the prosecution on the defendant’s failure to testify. Answer: True 14. During their closing arguments at trial, both the prosecutor and the defense counsel may refer to matters not in evidence. Answer: False 15. A defendant is entitled to have the jury instructed on the law applicable to any legitimate theory of defense supported by the evidence. Answer: True 16. The Supreme Court has approved nonunanimous verdicts by twelve-person juries, but has held that a conviction by a nonunanimous six-person jury in a state trial for a nonpetty offense violates the Sixth Amendment. Answer: True 17. “Death qualification” means that jurors in a capital case understand that they may have to consider the death penalty if the defendant is convicted. Answer: False 18. In order to keep the prosecutor and the defense counsel from “trying a case in the media,” a judge can issue a gag order prohibiting the attorneys from talking to the press about the case. Answer: True 19. The Federal Rules of Criminal Procedure now permit photography of judicial proceedings. Answer: False 20. The Supreme Court has held that a judge may have an unruly defendant removed from the courtroom or bound and gagged until the defendant agrees to proper decorum. Answer: True 21. State statutes frequently provide exemption from jury duty for ___________. a. people who are employed during the daytime b. persons over age 50 c. physicians, lawyers, and judges d. all of these Answer: D 22. If after deliberating for a considerable time a jury reports that it is deadlocked, the trial judge may do any of the following EXCEPT: a. declare a mistrial. b. urge the jury to make further attempts to arrive at a verdict. c. give a supplemental instruction sometimes referred to as an Allen Charge. d. direct the jury to render “guilty” or “not guilty” verdict within a specified short period of time. Answer: D 23. Which ONE of the following statements is INCORRECT? a. After one side offers a witness as an expert and addresses his or her qualifications, the other side may cross-examine as to the witness’s qualifications to testify as an expert. b. An expert witness is permitted to voice opinions within the range of his or her expertise. c. An expert witness may not answer hypothetical questions. d. A trial judge has considerable discretion in determining whether to receive a witness as an expert. Answer: C 24. Witnesses who are “put under the rule” ___________. a. are not permitted to testify at trial b. must remain outside the courtroom except when testifying c. are those who have been found in contempt d. are exempt from testifying because of “privileges” Answer: B 25. A trial judge who accepts, without formal proof, matters of common knowledge is said to be ___________. a. taking judicial notice of certain facts b. accepting a proffer of evidence c. making a determination of relevancy or competency d. None of these Answer: A 26. Which ONE of the following statements represents the current view of the United States Supreme Court with respect to race-based peremptory challenges of prospective jurors? a. Racial motivation in the exercise of peremptory challenges is subject to challenge only when the defendant and the prospective juror are of the same race. b. Racial motivation of a prosecutor who exercises a peremptory challenge is subject to challenge irrespective of the defendant and prospective juror being of the same race. c. A defendant may challenge the prosecution’s peremptory challenge, but the prosecution may not challenge a defendant from engaging in discrimination on the ground of race. d. Peremptory challenges by the prosecution and defense may be exercised subject to the discretion of the trial court without regard to racial motivation. Answer: B 27. A witness whose credibility is undermined during cross-examination is said to have been ___________. a. impeached b. declared hostile c. put “under the rule” d. None of these Answer: A 28. The standard of proof in a criminal case is ____________. a. clear and convincing evidence b. preponderance of the evidence c. beyond a reasonable doubt d. presumption of validity of the jury’s verdict Answer: C 29. The process by which jurors are selected by the court and counsel is known as ______. a. arraignment b. opening statements of counsel c. voir dire d. proffer of evidence Answer: C 30. A challenge in which an attorney has broad discretion in excusing prospective jurors is known as a (an) ___________. a. peremptory challenge b. challenge for cause c. challenge to the venire d. Allen charge Answer: A 31. If the prosecution offered in evidence a relevant, but unsigned, statement purportedly made by a defense witness the defense counsel would ordinarily object on the ground of ________. a. improper judicial notice b. attorney-client privilege c. the best evidence rule d. improper opinion evidence Answer: C 32. A lay witness CANNOT ordinarily testify in court about ___________. a. the speed of a car based on observation of the car’s skid marks b. a person’s general appearance c. matters ordinarily perceived by the senses or matters of common knowledge d. the appearance of a person who has been injured Answer: A 33. Which one of the following is not recognized as a valid privilege from offering evidence? a. attorney-client b. clergy-penitent c. husband-wife d. teacher-student Answer: D 34. Disruptive courtroom behavior by defendants, witnesses, and spectators is most likely to be encountered in ___________. a. routine civil trials b. criminal trials involving sexual battery offenses c. “political trials” where there may be support for the cause the defendant claims to represent d. criminal trials involving drug offenses Answer: C 35. If at the conclusion of the prosecution’s case, defense counsel moves the court for a directed verdict (or judgment of acquittal) the judge must ___________. a. assess the credibility of each witness who has testified b. view the evidence in the most favorable light to the defendant and determine whether any rational jury could find the defendant guilty as charged or of any lesser-included offense c. view the prosecution’s evidence in the light most favorable to the government and determine whether the evidence presented is legally sufficient to support a verdict of guilty d. decide whether in the court’s discretion it would be better to deny the defense counsel’s motion and submit the question of the defendant’s guilt or innocence to the jury Answer: C 36. A lawyer who addresses the trial judge and states: “I object on the ground that the testimony being sought by the prosecutor is irrelevant and immaterial” is making a ___________. a. general objection b. specific objection c. proffer of evidence d. request for the court to take judicial notice Answer: A 37. In Illinois v. Allen (1970) the Supreme Court indicated that a trial judge can handle an obstreperous defendant in the courtroom by ___________. a. binding and gagging the defendant but allowing the defendant to remain in court b. citing the defendant for contempt c. having the defendant removed from the courtroom until the defendant promises to adhere to proper standards of conduct d. following any of the stated courses of action Answer: D 38. Exceptions to the hearsay rule include ___________. a. a spontaneous or excited utterance b. a person’s dying declaration c. evidence of a person’s reputation d. all of these Answer: D 39. When an accused takes the stand in his or her defense and testifies, the prosecution ______. a. is prohibited by the Constitution from asking the defendant any questions b. may cross-examine the accused about his or her testimony with the same latitude as with any other witness c. may only ask the defendant questions previously approved by the trial judge d. may only ask the defendant questions previously submitted in writing to defense counsel by the prosecution Answer: B 40. In instructing the trial jury, the trial judge may do all of the following except __________. a. explain the charges against the defendant b. define the crimes and applicable defenses at issue in the trial c. explain to the jury its function as the trier of facts d. comment on the weight of the evidence and credibility of the witnesses who testified Answer: D 41. Similar fact evidence consists of facts similar to the facts of a crime charged against a defendant. Although courts sometimes admit such evidence, it cannot be admitted in a criminal trial _____. a. to demonstrate the defendant’s propensity to commit crime b. to establish the identity of the defendant c. to establish that the defendant had a motive to commit the crime now charged d. to show the absence of a mistake in commission of an act by the defendant Answer: A 42. In criminal trials, courts are most likely not to admit expert testimony concerning _________. a. DNA printing tests b. the battered woman syndrome c. polygraph evidence d. fingerprint identification Answer: C 43. According to the authors, which one of the following suggestions has not been offered to permit trial jurors to play a more active role in a trial? a. Limiting the number of peremptory challenges by counsel. b. Allowing jurors to take written notes as a trial proceeds. c. Permitting jurors to discuss the merits of a case being tried before the evidentiary phase of the trial has concluded. d. Permitting jurors to ask questions of witnesses. Answer: C 44. In 2004 the U.S. Supreme Court held that a witness’s out-of-court statement could not be introduced at a criminal unless the witness was unavailable and the defendant had a prior opportunity to cross-examine the witness. The basis of the Court’s ruling was ___________. a. the Fourth Amendment to the U.S. Constitution b. the common-law rules of evidentiary privilege c. the First Amendment to the U.S. Constitution d. the Confrontation Clause, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Answer: D 45. “Real” evidence does not include ___________. a. the defendant’s fingerprints found at the scene of a crime b. a television set that was stolen from a victim’s residence c. the direct testimony of a witness who identifies the defendant as having perpetrated the crime for which the defendant is on trial d. an x-ray depicting an injury to a victim Answer: C 46. The Sixth Amendment to the U.S. Constitution guarantees a defendant the right “to have ___________ or obtaining witnesses in his favor.” Answer: compulsory process 47. The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a ___________ by an impartial jury.” Answer: speedy and public trial 48. An accused may waive the right to a jury trial. Indeed, many persons who plead not guilty to misdemeanor charges elect a _______ trial. Answer: bench 49. At common law a jury in a criminal trial consisted of ________ men. Answer: twelve 12 50. In capital cases it has become common for the jury first to hear the evidence bearing on the defendant’s guilt or innocence and then to receive evidence on whether the death penalty should be imposed. This practice is referred to as a _________ trial. Answer: bifurcated 51. It is not always possible to articulate a basis for dismissing a juror who may appear to be biased. Therefore, each side in a criminal trial is also allowed a limited number of __________ that may be exercised to excuse prospective jurors without stating any reason. Answer: peremptory challenges 52. In a high-profile homicide case, a jury found __________ guilty of the 1954 murder of his wife, Marilyn. But in 1966 the Supreme Court found that highly prejudicial publicity contributed to the denial of due process of law to the defendant. Answer: Dr. Sam Sheppard Sam Sheppard 53. Photographs, fingerprints, weapons and other tangible items introduced into evidence are examples of __________ evidence. Answer: real 54. So-called ___________ evidence consists of facts like those in the crime charged. Answer: similar fact 55. At the close of the prosecution's evidence, the defense counsel will frequently move the court to grant a ________ verdict. Answer: directed 56. Direct evidence includes eyewitness testimony; indirect evidence usually consists of ___________ evidence—that is, attendant facts from which inferences can be drawn to establish other facts in issue. Answer: circumstantial 57. Evidence must be ___________—that is, it must tend to prove or disprove a material fact in issue. Answer: relevant 58. If the trial judge fails to take appropriate action when the prosecutor makes improper remarks, or if the prosecutor’s remarks are too prejudicial to be erased from the minds of the jurors, the defendant may be able to obtain a __________. Answer: mistrial 59. If the jury is deadlocked, the trial judge can urge the jury to make further attempts to arrive at a verdict by giving a supplemental instruction known as a(an) ___________. Answer: Allen charge 60. The Supreme Court has ruled that the right to a jury trial extends to all criminal cases where a defendant is subject to more than _______ in jail or prison. Answer: six months 61. During __________, prospective jurors answer questions from the court and counsel. Answer: voir dire 62. In Batson v. Kentucky (1986), the Supreme Court held that the Equal Protection Clause prohibits racially-based ___________ to prospective jurors. Answer: peremptory challenges 63. Courts take ___________ f commonly known facts without formal proof, but a party can offer proof to the contrary. Answer: judicial notice 64. Testimony by a witness as to facts the witness has heard from others that is offered in evidence at a trial or hearing to prove the truth of the matter asserted is known as ___________. Answer: hearsay evidence 65. A question that suggests an answer to a witness is called a ________ question. Answer: leading Famous football star Oxford Jack Wilson is about to stand trial for murdering his brother-inlaw, a man who had also served as his agent and accountant. Just before jury selection is about to begin, you are hired as a consultant to assist his legal team. You immediately offer three suggestions. Your first is that the legal defense team attempt to get as many men— preferably football fans—on the jury as possible. Your next suggestion is to make sure that the courtroom is packed with members of the media, in the hope of making Oxford Jack appear to be a celebrity. Your final suggestion is that the attorneys do whatever they can to have potentially-damaging DNA evidence excluded before trial. The lawyers get to work on immediately implementing your ideas. 66. The attempt to exclude women from the jury could be deemed inconsistent with the principles articulated in what Supreme Court case? a. Crawford v. Washington b. Sheppard v. Maxwell c. Taylor v. Louisiana d. It would not run afoul of any Supreme Court precedent Answer: C 67. If prosecutors attempt to exclude African-Americans from the jury by use of peremptory challenges, then: a. This would not be grounds for appeal, as per the Supreme Court’s ruling in Batson v. Kentucky b. This would not be grounds for appeal, as only gender discrimination is grounds for appeal c. The precedent in Taylor v. Louisiana would be directly applicable to the matter at hand d. This could serve as grounds for appeal, as per the Supreme Court’s ruling in Batson v Kentucky Answer: D 68. If the media that pack the courtroom become unruly and detract from the orderly procession of the trial, the Supreme Court’s decisions in Sheppard v. Maxwell and Richmond Newspapers, Inc. v. Virginia, indicate that which of the following statements is true: a. There is absolutely nothing that the judge can do, because there is a right to a public trial and a First Amendment right to freedom of the press. b. Although there is a presumption of openness, a judge has some discretion for excluding the press, particularly if there is a prejudicial impact on the defense. c. A judge has a very low burden to meet in deciding when to exclude press from the courtroom, as the First Amendment rights at stake are not significant. d. All of these statements are false Answer: B 69. Let’s say that the DNA evidence in this case was derived from a small sample of blood that had to be genetically replicated before it could be tested. The technique for doing so has not achieved “general acceptance” in the scientific community, but it is a testable and could be subjected to peer review. Evaluate these statements: 1) In a state that uses the Frye standard, the evidence is likely to be excluded at trial; 2) In a state that uses the Daubert standard, there is a chance that the evidence could be permitted at trial. a. Statement 1 is true; Statement 2 is false. b. Both statements are true. c. Both statements are false. d. Statement 2 is true; Statement 1 is false Answer: B 70. The opportunity for lawyers to ask questions of prospective jurors to determine whether they may or may not be football fans with previous perceptions of the defendant would occur during: a. a preliminary hearing b. cross-examination c. voir dire d. closing arguments Answer: C The trial of famous football star Oxford Jack Wilson, accused of killing his brother-in-law, is underway. Prosecutors, frustrated by a pre-trial decision that excluded their key DNA evidence, begin taking some risks. On direct examination, they ask a doctor the following question: “So when you read a report of DNA results from the night of the murder, you saw that the defendant’s DNA matched blood evidence at the scene, correct?” Next, while questioning a police officer on direct examination, the prosecutors play an audiotape of a phone conversation between Oxford Jack’s wife and her now-deceased brother. This audiotape includes the wife discussing fears that her husband might be a violent man. However, Oxford Jack’s wife is not actually able to appear in person because she has fled the country, fearing for her safety. Finally, during closing arguments, the prosecutor refers to Oxford Jack as a “monster both on and off the football field.” Answer the following questions about what has taken place in this trial. 71. As to the prosecutor’s comment made during closing argument: a. This is acceptable; a prosecutor can say whatever they want during closing. b. This is grounds for a judge to admonish the prosecutor and to instruct a jury to disregard the remark. c. This is irrelevant information to the case, but a judge is powerless to rectify the problem, as the case has technically concluded by that point. d. This type of comment is acceptable only if the prosecutor is offering a rebuttal to comments made during defense closing Answer: B 72. Which of the following is the most likely grounds for defense counsel to invoke when objecting to the question asked of the doctor? a. hearsay b. Asks for an opinion c. Leading question d. Best Evidence Rule Answer: C 73. The playing of the audiotape is likely to be excluded as a violation of: a. Clergy-Penitent Privilege b. Attorney-Client Privilege c. Spousal Privilege d. No privilege would apply here because we can assume the wife would want it played. Answer: C 74. The audiotape could also be problematic for violating which of the following: a. The 6th Amendment, provided that it is considered testimonial evidence b. The 6th Amendment, whether it is considered testimonial evidence or not c. The 5th Amendment, whether it is considered testimonial evidence or not d. The 8th Amendment, provided that it is considered testimonial evidence Answer: A 75. There is a way that a clever prosecutor might be able to include the audiotape. This would have to rely upon: a. Davis v. Washington and the presumption that non-testimonial evidence is involved b. Crawford v. Washington, and the fact that the witness is not available c. The Daubert standard for scientific evidence d. The notion of a public trial, as discussed in Sheppard v. Maxwell Answer: A Test Bank for Criminal Law and Procedure John M. Scheb 9781285070117, 9781285690292, 9781285546131
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