Final Exam

(I highly recommend drawing out the chain of events.)

The Goldbergia police department is trying to stop a final exam cheating ring, perpetuated mainly by John and Paul.  Members of the GPD put a recording device on John’s best friend George.  The police record a conversation in George’s home where John admits to masterminding the cheating ring.  “Imagine all the people….living life in peace,” he says of his utopian plan to rid the world of grading.  John also mentions, on the recorded conversation, that Ringo is responsible for collecting the money from students looking for exam cheating help.

After hearing this conversation, the police immediately place a GPS tracker on Ringo’s car.  The tracker marks Ringo going to Yoko’s house on ten different times over the course of two days.  As a result of this discovery, police point a device at Yoko’s house from across the street that measures a specific stress hormone associated with illegal activity (and usually only illegal activity) that emanates off the walls of Yoko’s apartment building, in order to determine if illegal activity is happening inside.  The stress hormone levels coming from Yoko’s building are consistent with residents being worried about detection by the police.  The police do not get warrants for any of their investigative activities.

The Goldbergia police then call Yoko and ask her to come to the station.  Yoko agrees.  Upon her arrival, the police say to Yoko, “do you know why you’re here?  Tell us about the cheating ring with John, Paul, and Ringo.”  Yoko looks away quickly but says nothing.  The police then arrest Yoko, Mirandize her, and demand that she sign a form indicating that she understands her Miranda rights.  Yoko signs the form.  The police use this handwriting sample to compare it to the handwriting of one of the masterminds of the cheating ring.

John, Ringo, Yoko, and Paul are indicted for running a final exam cheating ring.  Paul’s attorney does not call any character witnesses, assuming that all of Paul’s friends are shady people.  Instead, she employs a strategy of claiming that Paul is too idealistic and just wants everyone to be happy and let it be, and is thus too insane to form the requisite mens rea to be convicted of running a cheating ring.  She adopts this strategy because there is so much evidence that Paul was running the cheating ring.

A court must make the following decisions.  Analyze what a court is likely to do, covering multiple possibilities for hard, open issues.

1. A court would like to admit the evidence of John and George’s recorded conversation against every single defendant. Which defendant or defendants, if any, will the court likely admit this evidence against.
2. A court would like to admit the evidence produced by the GPS tracker against every single defendant. Which defendant or defendants will the court likely admit this evidence against?
3. A court would like to admit the stress hormone detection evidence against every single defendant. Which defendant or defendants will the court likely admit this evidence against?
4. A court would like to admit against Yoko her looking away, and her silence, during police questioning. Will a court likely allow this evidence to come in against Yoko?
5. A court would like to admit the handwriting sample against Yoko? What decision will it likely make?
6. What decision is a court likely to make about the representation in this case, and how will it analyze the issues?

 

 Answer Key

A court has to make the following decisions.  Analyze what a court is likely to do, covering many possibilities for hard, open issues.

1. A court would like to admit the evidence of John and George’s recorded conversation against every single defendant. Which defendant or defendants, if any, will the court likely admit this evidence against.

 

John and George’s recorded conversation reflects no constitutional violation because it is not a search, and it is not a 5^th Amendment violation either, under Illinois v. Perkins.  Under cases like White, the police can record conversations because a gossipy friend could tell all of your information to the police, so a recording device captures only what John has knowingly exposed.   Plus, under cases like Illinois v. Perkins, this is not a custodial interrogation that needs to be Mirandized because John isn’t feeling the compulsion of a custodial interrogation, since he doesn’t realize George is working with the police.  As a result, the recording can come in against every single defendant.

Even if this was a constitutional violation, none of the defendants except John would have standing to challenge the illegal search.

 

2. A court would like to admit the evidence produced by the GPS tracker against every single defendant. Which defendant or defendants will the court likely admit this evidence against?

 

Placing a GPS tracker on a car is a search, under Jones, and so probable cause and a warrant is needed.  The police likely have probable cause, because John admitted that Ringo was involved when he did not know he was being recorded, so there was no reason to lie.   However, the police did not get a warrant to trespass upon Ringo’s car.   As a result, the GPS locational information is an unreasonable search.  Ringo can exclude this evidence , but no other defendant has standing to exclude this evidence.  

3. A court would like to admit the stress hormone detection evidence against every single defendant. Which defendant or defendants will the court likely admit this evidence against?

 

The stress hormone evidence appears to be a violation of Kyllo, because it is evidence that, even though off the wall, records what is happening inside a home through technology that is not in common use.   Although the Goldbergia prosecutors could argue that this is a binary device, because it measures only stress associated with illegal activity, Kyllo’s reasoning may also apply to binary devices, as the rule articulated is quite broad  – although a court could narrow Kyllo only to non-binary devices.  In addition, this device may not be binary; we don’t have enough information to know whether this stress hormone is only associated with illegal activity.

There may not be sufficient probable cause to use this device, as all we have is Ringo, who has been implicated in the cheating ring, going to Yoko’s house on a number of occasions.  There are many innocent explanations for this behavior, even if probable cause is only a fair probability of evidence uncovering criminal activity.   Further, there is no warrant, so the use of the stress hormone measuring device is an illegal search.

Yoko can challenge this search.   Ringo can also exclude this evidence as the result of an illegal search of his car, because it is the fruit of the poisonous tree of his illegal search, under Wong Sun.   Getting to Yoko was a but for cause of the search of Ringo, and the use of the thermal device was not so attenuated as to dissipate the taint from Ringo’s illegal search.   No other defendant has standing to challenge the use of this evidence.  John’s recorded conversation was constitutionally permissible, so he cannot claim fruit of the poisonous tree.

 

4. A court would like to admit against Yoko her looking away, and her silence, during police questioning. Will a court likely allow this evidence to come in against Yoko?

 

Because Yoko came to the station voluntarily, she was not in custody.  She did not assert her Fifth Amendment rights, and so both her body language and her silence can be used against her, just like in Salinas v. Texas.

 

5. A court would like to admit the handwriting sample against Yoko? What decision will it likely make?

 

Handwriting is non-testimonial, even if a defendant is asked to sign a form, like in Doe v. United States, the case where defendant was made to sign a form releasing his international bank records.   Thus, there is no Fifth Amendment violation in using the handwriting evidence because even if compulsory and incriminating, it is non-testimonial

 

6. What decision is a court likely to make about the representation in this case, and how will it analyze the issues?

 

A court will use the test from Strickland v. Washington to determine whether Paul’s attorney’s decision fell below a reasonable standard of performance and also prejudiced the outcome in this case.  Paul’s attorney’s decision was likely a strategic decision – it looks a lot like the one in Strickland itself to not call character witnesses during the penalty phase, if insanity does indeed undercut the mens rea required for being convicted of running a cheating ring.   Regardless, prejudice is likely not met because there is so much evidence against Paul, and Paul would need to meet both prongs, so Paul will likely not win an ineffective assistance of counsel claim.