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Chapter 20: Appeal And Postconviction Relief 1. The Supreme Court has held that a defendant has a right under the U.S. Constitution to appeal a criminal conviction to a higher court. Answer: False 2. The United States Courts of Appeals ordinarily hear appeals of right in federal criminal cases. Answer: True 3. The governor or other executive authorities of a state generally have constitutional or statutory power to grant a pardon to a defendant convicted of a felony in that state. Answer: True 4. Courts tend to be more liberal in reviewing alleged errors not challenged at trial where a death sentence has been imposed. Answer: True 5. A defendant who has been convicted after trial has no opportunity to be released from custody pending the resolution of an appeal. Answer: False 6. Some jurisdictions permit a defendant to plead nolo contendere and reserve the right to appeal a specific ruling of the trial court. Answer: True 7. Just as a defendant may appeal a criminal conviction after pleading not guilty, the prosecution may appeal from the defendant’s acquittal. Answer: False 8. When a person is convicted of a misdemeanor by a court of limited jurisdiction and no record is made of the trial, an appeal takes the form of trial de novo in a higher court. Answer: True 9. A per curiam opinion is attributed to a dissenting judge in an appellate decision. Answer: False 10. Prior to the 20th century, federal habeas corpus jurisdiction was seldom invoked to review state criminal convictions. Answer: True 11. Until Parliament enacted the Criminal Appeal Act of 1907, the English common law afforded defendants unlimited review of criminal convictions. Answer: False 12. The Federal Rules of Criminal Procedure allow defendants to enter conditional pleas of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. Answer: True 13. The federal government has no right to appeal a defendant’s acquittal but may appeal dismissal of an indictment. Answer: True 14. The Supreme Court has held that indigent defendants have no right to be furnished counsel at public expense to pursue any appeal. Answer: False 15. Post-trial motions are the principal instruments used to persuade the appellate court to reverse, affirm, or modify the decision being appealed. Answer: False 16. During the 1960s under Chief Justice Earl Warren, the Supreme Court narrowed the scope of federal habeas corpus review of state criminal convictions. Answer: False 17. The Antiterrorism and Effective Death Penalty Act of 1996 curtailed second habeas corpus petitions by state prisoners who have already filed such petitions in federal court. Answer: True 18. The presidential pardoning power includes the right to commute sentences, remit fines and penalties, and even grant conditional pardons. Answer: True 19. The primary function of appellate courts is to correct trial court errors. Answer: True 20. The U.S. Supreme Court may review federal and state criminal cases involving federal issues by exercising its certiorari jurisdiction. Answer: True 21. Which of the following most accurately describes the constitutional standard articulated in 1984 by the U.S. Supreme Court in Strickland v. Washington for determining whether a defendant received ineffective assistance of counsel? a. Whether counsel’s efforts in representing the defendant were so incompetent as to constitute a “farce or mockery of justice.” b. Whether the “totality of circumstances” of the defendant’s trial evidenced a strategy by defense counsel disfavored by the judge who conducted the trial. c. Whether defense counsel made errors so serious that he or she was not properly functioning as guaranteed by the 6th Amendment, and whether such deficient performance prejudiced the defense. d. Whether the defense counsel’s decision in advising the defendant not to testify in his or her behalf was a prudent strategy for the defense. Answer: C 22. At common law prior to the 18th century, the term “appeal” referred to an effort by one convicted of ___________ to obtain a pardon from the Crown by accusing others of being accomplices. a. murder b. a felony c. a misdemeanor d. treason Answer: D 23. The U.S. Supreme Court may review a criminal conviction that has already been reviewed by a U.S. Court of Appeals by issuing a writ of ___________. a. certiorari b. error c. mandamus d. prohibition Answer: A 24. Which of the following issues are appropriately raised by defendants challenging their convictions on appeal? a. the sufficiency of the evidence to support a conviction b. trial court rulings admitting or excluding certain evidence over the defendant’s objection c. the failure of the trial judge to instruct the jury as requested by the defense d. Any of these issues are appropriately raised. Answer: D 25. In deciding whether to grant discretionary review of a state criminal case, the Supreme Court must determine whether a ___________ federal question is involved. a. timely b. novel c. controversial d. substantial Answer: A 26. An appellate proceeding where counsel appear to make verbal presentations and to answer questions from the bench is referred to as (a)(an) ___________. a. conference b. hearing c. oral argument d. rejoinder Answer: C 27. William Blackstone called the writ of ___________ the “most celebrated writ in the English law.” a. error b. habeas corpus c. mandamus d. assistance Answer: B 28. The U.S. Constitution permits the ___________.“to grant reprieves and Pardons for Offenses committed against the United States.” a. Supreme Court b. President c. Congress d. Attorney General Answer: B 29. Most decisions of appellate courts are published in books known as __________. a. reporters b. syllabi c. digests d. briefs Answer: A 30. In the United States Courts of Appeals, where cases are normally decided by panels of three judges, a party may request all of the judges of the court to participate in what is known as a (an) _________ rehearing of the case. a. plenary b. per curiam c. de novo d. en banc Answer: D 31. Typically a defendant who pleads guilty may raise on appeal only issues relating to _______. a. the jurisdiction of the trial court b. the voluntariness and factual basis of the plea of guilty c. the legality, and in some instances the reasonableness, of the sentence imposed d. the defendant can raise any of these issues. Answer: D 32. An appellate court’s reversal of a lower court’s judgment is usually accompanied by an order to _________ the case to the lower court for further proceedings consistent with the appellate court’s opinion. a. assign b. remand c. relinquish d. designate Answer: B 33. Which one of the following statements concerning the writ of habeas corpus is incorrect? a. “Habeas corpus” is a Latin term literally meaning, “You have the body.” b. The writ is available in federal and all state jurisdictions. c. The writ of habeas corpus was never suspended throughout American history. d. The U.S. Constitution explicitly recognizes the writ of habeas corpus. Answer: C 34. Petitions for federal habeas corpus review most frequently allege ________. a. ineffectiveness of the petitioner’s trial counsel b. unsanitary and unsafe prison conditions c. an insufficient evidentiary basis of the petitioner’s conviction d. failure of the trial court to allow the petitioner to be represented by counsel Answer: A 35. Counsel may utilize motions to request relief while an appeal is pending for all of the following purposes except to ___________. a. expedite consideration of an appeal b. consolidate multiple appeals c. stay a judgment of a trial court d. suppress evidence Answer: D 36. Which ONE of the following trial court actions could never be a basis for the prosecution to appeal in a criminal case? a. an order dismissing an information or indictment b. a pretrial order suppressing the defendant’s confession c. a judgment based on a jury acquittal of the defendant d. a pretrial order declaring seizure of contraband in violation of the Fourth Amendment Answer: C 37. Although the U.S. Constitution makes no mention of the right to appeal from a criminal conviction, arguably this right might exist because of the ___________. a. due Process Clauses of the Fifth and Fourteenth Amendments b. privileges and Immunities Clause in the Constitution c. American reception of the English common law as it existed prior to July 4, 1776 d. constitutional recognition of the writ of habeas corpus Answer: A 38. The document submitted to an appellate court summarizing the legal posture and factual background of a case and the legal authorities that support a reversal of the trial court’s ruling is known as _____. a. a petition for a writ of habeas corpus b. an appellant’s law brief c. an appellee’s law brief d. a motion for a new trial Answer: B 39. Points to be raised on appeal are often referred to as _________. a. allegations of scienter b. assignments of error c. complaints by counsel d. stipulations of error Answer: B 40. According to the text the justification for appellate courts to “make law” is because of ___________. a. gaps in the statutory law b. the need to interpret statutes in their applicability to varying situations c. the need to interpret constitutional provisions d. all of these Answer: D 41. At the state level a trial judge who is requested to release a convicted defendant pending the defendant’s appeal of his or her conviction would be least likely to consider the __________. a. defendant’s reputation for respect for the law b. length of the defendant’s sentence c. defendant’s inability to travel to attend a family reunion d. defendant’s ties to family and community Answer: C 42. Which ONE of the following grounds would be the LEAST likely to merit relief in response to a defendant’s motion for postconviction relief in a state court? a. The defendant’s sentence exceeded the statutory authorization for the crime for which the defendant was convicted. b. The defendant has discovered exculpatory evidence that was not available at trial. c. Defense counsel was ineffective in failing to call witnesses who could establish the defendant’s alibi. d. The evidence before the jury did not establish the defendant’s guilt beyond a reasonable doubt. Answer: D 43. Which ONE of the following statements is INCORRECT? a. Where an error at a criminal trial involves provisions of the federal constitution, the U.S. Supreme Court has said that appellate courts must find beyond a reasonable doubt that the error was harmless if the court is to affirm the trial court. b. The constitutional proscription of double jeopardy prevents appeals by the prosecutor of pretrial orders. c. The U.S. Supreme Court has said that states must provide legal counsel to indigent persons convicted of felonies who exercise their statutory right to appeal. d. Appellate courts perform dual functions in the criminal process: error correction and lawmaking. Answer: B 44. A litigant in an appellate court may file a motion to ___________. a. request the court to consolidate multiple appeals in order to obviate the necessity of preparing multiple records of trial proceedings b. dismiss an appeal on substantive grounds, for example, lack of jurisdiction c. reverse a trial court’s denial of an appellant’s request to stay a judgment or sentence pending resolution of the appeal d. accomplish any of these Answer: D 45. At the U.S. Supreme Court level the “rule of four” refers to which of the following? a. The requirement that four of the nine justices must agree to reverse a lower court’s decision. b. The fact that each justice is furnished four law clerks for assistance in research and writing. c. The fact that four of the nine justices must agree to place a case on the Court’s docket. d. When a decision is rendered on a 5–4 vote of the nine justices, the fact that four justices have dissented conveys that the decision is not given great weight by lower tribunals. Answer: C 46. A public defender or publicly appointed attorney who, after careful review of the trial court record and the applicable law, finds there is no merit to a defendant’s appeal from a criminal conviction. The attorney may file an ___________ explaining that the appeal is frivolous, referring to any arguable issues and asking to be released from further representation. Answer: Anders brief 47. An appellate judge who concurs in the decision of the court but who does not support the reasoning process articulated in the court’s opinion may file an opinion _______. Answer: concurring in the judgment 48. A motion for rehearing before the U.S. Court of Appeals that requests that all judges of the court, and not just those who rendered the decision, participate is called a motion for an ___________. Answer: en banc rehearing 49. A full presidential __________ totally restores any civil rights the recipient of the pardon lost as a result of a conviction and in effect makes the recipient as innocent as if the crime had never been committed. Answer: pardon 50. In some jurisdictions a defendant may plead ___________ and reserve the right to appeal a specific ruling of the trial court. Answer: nolo contendre 51. The Supreme Court said that states must provide counsel to ___________ convicted of felonies who exercise their statutory right to appeal. Answer: indigent persons 52. The principle that an appellate court will reverse a conviction only when the trial record reveals substantial, as distinct from technical, error is known as the doctrine of ___________. Answer: harmless error 53. Requests of counsel to an appellate court seeking additional time to file a law brief or asking for expedited consideration of an appeal are generally effectuated by filing a written _______ with the appellate court. Answer: motion 54. The Supreme Court has observed that a ____________ error in a criminal trial should be corrected on appeal even the error was not specifically challenged by the appellant when a person’s life is at stake. Answer: fundamental 55. The federal statute that reversed the presumption of entitlement to bail pending appeal was the ____________ of 1984. Answer: Bail Reform Act 56. A defendant whose conviction has been sustained by a U.S. Court of Appeals may petition the Supreme Court for a writ of ___________. Answer: certiorari 57. A _________ opinion represents the appellate court as a whole. Answer: per curiam 58. The U.S. Constitution declares the “[t]he Privilege of the Writ ____________ of shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” Answer: Habeas Corpus 59. Article II, Section 2, Clause 1 of the U.S. Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of ___________.” Answer: Impeachment 60. Typically, a defendant who pleads __________ at arraignment may appeal only issues relating to the trial court’s jurisdiction, voluntariness of the plea, and the legality of the sentence. Answer: guilty 61. A defendant confined to prison may seek additional review of his or her conviction or sentence by applying for a ____________ or seeking another form of postconviction relief. Answer: writ of habeas corpus 62. A ___________ is a review of a conviction for a minor offense by a court of limited jurisdiction by conducting a new trial instead of merely reviewing the record of the initial trial. Answer: trial de novo 63. The party who seeks discretionary review by a higher court is referred to as the petitioner; the other party is designated the __________. Answer: respondent 64. Irrespective of whether an objection was made in the trial court, a defendant may challenge the trial court’s jurisdiction and those trial court actions or rulings considered to be ___________. Answer: fundamental errors 65. A decision of a court that is inconsistent with the substantial rights of a party to a case is termed a ___________ of justice. Answer: miscarriage Rock star Tim Three-Tone has been convicted of first-degree murder in the death of his manager. Famed courtroom reporter Nancy Lace notes that Tim’s lawyer, Rickey James, had fallen asleep during the prosecutor’s closing arguments, but had otherwise done a reasonable job considering how much forensic evidence the prosecution presented. Tim, however, feels that his lawyer did a particularly poor job during the sentencing phase of his bifurcated trial. Even Nancy Lace notes that it was odd for the lawyer not to call any witnesses in the sentencing phase or to offer any evidence of mitigating circumstances—especially in light of Tim Three-Tone’s well-chronicled tale of surviving childhood abuse. Timmy is ultimately sentenced to die by lethal injection. 66. Based on the Supreme Court’s discussion of “ineffective counsel” in Strickland v. Washington, the fact that his lawyer fell asleep during the prosecutor’s closing argument is: a. Automatic grounds for a new trial on the grounds that Tim’s 6th Amendment rights have been violated b. Automatic grounds for a new trial on the grounds that Tim’s 8th Amendment rights have been violated c. Not necessarily grounds for a new trial provided that we believe Nancy Lace’s assessment that the lawyer has done a reasonable job consistent with what another lawyer would have done d. Is not grounds for appeal in a death penalty case in a state court Answer: C 67. Based on relevant case law, we can surmise that the lawyer’s failure to raise appropriate concerns during the sentencing phase: a. Is irrelevant, as effective counsel claims are restricted to what occurs during the first part of a bifurcated trial, not the sentencing phase b. Is potentially grounds for the Supreme Court of the United States to grant a new trial, as it has done in two similar instances c. Is potentially grounds for the Supreme Court of the United States to grant a new trial based on the 5th Amendment d. Is irrelevant, as effective counsel claims must be based on what a lawyer actually did, not on what they failed to do Answer: B 68. The weight of the evidence against Tim cannot be considered as a relevant criterion in determining whether his ineffective counsel claim should succeed. a. This statement is true. b. This statement is false because his likelihood of winning the case with a different lawyer is a relevant consideration. c. This statement is false because the 6th Amendment specifically states that he is entitled to a well-prepared counsel no matter how bad his case is. d. The statement is true only for state cases, not federal cases. Answer: B 69. Because he was sentenced to death, Tim is likely to receive an automatic: a. appeal of right b. trial de novo c. writ of certiorari to the Supreme Court of the United States d. He will not receive anything automatically. Answer: A Lily Logan is a famous model. She is convicted of drug charges stemming from an incident where she was pulled over on suspicion of DUI and police found cocaine on her front seat. This conviction occurs in Lower Alabama (L.A.) County Court. After Lily is convicted, her lawyer prepares to file an appeal based on his perception that several of his client’s constitutional rights have been violated. Specifically, he feels that officers conducted an improper traffic stop in violation of the 4th Amendment; that there was an improperly obtained confession in violation of the 5th Amendment; and that his client’s 6th Amendment right to a speedy trial was also violated. He raised all of these issues at the trial. 70. The fact that the lawyer raised certain objections at trial is most relevant to which of the following topics? a. direct appeal b. trial de novo c. substantial federal question d. pendency of the appeal Answer: A 71. Let’s say that Lily exhausts all of her state appeals and is languishing in prison for a few years. Which of the following seems to be her best avenue for appeal at that point? a. Direct appeal b. Seeking post-conviction relief through a writ of habeas corpus c. An appeal of right d. There is nothing more that can be done. Answer: B 72. Based on case precedent, if Lily attempts to take her appeals into a federal court, which of the following statements is true? a. There is no federal question here; thus she cannot appeal to federal courts b. She must exhaust all state appeals before any federal appellate court will hear her case c. Her Fourth Amendment claim is likely to be barred from consideration as a result of Supreme Court precedent that limits that, but her 5th and 6th Amendment claims can be heard by federal courts d. All of her claims can be taken directly to federal appellate courts, regardless of whether they are heard first in state appellate courts and she can put forth multiple claims even if her initial federal appeals are rejected Answer: C Bernard Ponski is a disgraced former CEO of a Fortune 500 company. Bernard was convicted of embezzling money from shareholders and is serving a 50 year sentence in the state penitentiary. He was also convicted on two federal counts, with the sentences for those running concurrently with his state charges. Although he once had over $900 million in his bank accounts—so much that he contributed large sums of money to both the sitting governor of his state and to the President of the United States—Bernard is currently destitute. He even had to be represented by a public defender at his trial, and currently has no lawyer. While in jail, though, Bernard has been doing some reading of law books and thinks that he can win his freedom. 73. According to Supreme Court precedent, if Bernard sought discretionary relief in a state appellate court, then which of the following is true? a. The state would have to provide appointed counsel for him, since he is indigent b. The state is not obligated to provide appointed counsel for an indigent defendant seeking discretionary relief c. The state would only have to provide appointed counsel for a defendant seeking discretionary relief from a federal court reviewing a constitutional question d. Bernard couldn’t obtain appointed counsel for discretionary relief or even for an appeal stemming from a statutory right of review of his felony conviction Answer: B 74. Bernard has decided that he would be better off representing himself than trying to obtain the services of a lawyer. Appellate courts will most likely allow him to file a pro se appeal in which of these circumstances: a. Direct appeal b. If a trial de novo is granted c. Discretionary review from a state appellate court d. Filing a petition for habeas corpus Answer: D 75. Given his connection to high-level politicians, which of the following options is the most plausible? a. The President of the United States pardons him of all charges, and he goes completely free. b. The governor of his state pardons him of all charges, and he goes completely free. c. He goes free because the governor of his state pardons him of the state charges and the President of the United States pardons him of the federal charges. d. His political connections are not legally authorized to assist him in any way. Answer: C Test Bank for Criminal Law and Procedure John M. Scheb 9781285070117, 9781285690292, 9781285546131
