Scheb and Scheb,Criminal Law and Procedure, 6th ed.

Hypothetical Questions for Classroom Discussion


  1. The City of Utopia was experiencing difficulties with groups of rowdy individuals congregating on the sidewalks in the downtown area. The police were unable to control the situation by enforcement of laws making disorderly conduct an offense. In order to maintain the downtown business section appealing to customers, the city commission enacted an ordinance that provided: "It shall be unlawful for three or more persons to assemble on any public sidewalk or walkway within the city while conducting themselves in a manner annoying to surrounding persons." The ordinance imposed a fine for anyone who violated its provisions. After the ordinance became effective, three college students congregated on a public sidewalk in Utopia and in a loud manner made smart remarks to passersby. The police arrested the three and they are being prosecuted by the court that has jurisdiction over ordinance violations in Utopia. The three students acknowledge their rowdiness, but they pled not guilty, because they believe their actions were within the protections of the First Amendment. They have retained an attorney to represent them. What arguments do you think their defense attorney will likely advance on their behalf?


  1. A shot at B intending to kill B, but he missed B and killed C, a close friend of A's. The police arrest A and charge him with premeditated murder. At trial A argues that he would never have harmed C because C was his best friend. His defense attorney argues that premeditated murder is a specific intent crime and that there are no facts from which the jury can find any intent on A's part to kill C. The prosecutor, however, contends that A is just as guilty as if he had a premeditated intent to kill C. How should the judge instruct the jury on the issue of intent? What legal doctrine is involved here?


  1. El Bosso, an underworld figure, dispatched Diputs and Loof to rob a bank in Richville, Urstate. Diputs was to commit the robbery and Loof was to be "wheel man" in the getaway car. The robbery was carried out as planned and Diputs and Loof left the scene without being apprehended. They decided to hide out on Pot Key, Urstate. Diputs stayed with Ms. Waltuo, a non-relative, who knew that Diputs and Loof committed the robbery. Nevertheless, she made no effort to notify the police. Loof stayed with his mother at her home. Loof's mother also knew the robbery had been committed, but she made no attempt to notify the police. Under the laws of the jurisdiction where you are studying: Can Loof be convicted as a principal in the crime of robbery? Can Ms. Waltuo be convicted of being an accessory after the fact? Can Loof's mother be convicted of being an accessory after the fact?


  1. A.H. sold untaxed cigarettes to B.P. who in turn agreed with C.D. to sell the cigarettes on the black market in a state that imposed heavy taxes on the sale of cigarettes. A.H. had heard that B.P. was in league with someone to sell the cigarettes, but A.H. did not know anything about C.D.  On basis of these facts, is A.H. guilty of conspiracy?  Why or why not?  Are B.P. and C.D. guilty of a conspiracy? Why or why not?


  1. Prior to trial on a charge of robbery, the prosecutor stipulated that after the defendant was arrested and formally charged with the robbery, he was required to participate in a lineup with four other men. The defense counsel stipulated that the lineup was not unduly suggestive, yet he contended that the identification made at the lineup was inadmissible in court. He pointed out that the defendant had asked to have counsel present at the lineup, but he was denied that right. The prosecutor disagreed, saying, "since the defense counsel agreed that the identification was not impermissibly suggestive, the fact that the defendant was not provided counsel was a harmless error." Therefore, the prosecutor urged the court not to suppress the identification made at the pretrial lineup. What result should occur? What rule is involved here?


  1. One cold winter day, Phil Freeloader stood curbside on Elm Street in Cozytown, Anystate, thumbing a ride from passing motorists. Joe Gullible stopped and offered him a ride.  Freeloader climbed into Gullible’s car.  Gullible told Freeloader that he was heading for Parklake, a city some twenty miles away. Freeloader responded, “Great, just where I want to go to visit my girlfriend.” After Gullible turned onto the Interstate highway, Freeloader drew a pistol from his coat and forced Gullible to drive to Playville, a small town just a few miles away. There Freeloader struck Gullible with the butt of the pistol and pushed him from the car. Freeloader moved into the driver’s seat and sped away. As Freeloader approached Parklake he came upon a school zone with a flashing caution light and a sign reading, “Speed limit 15 m.p.h. while light is flashing.” A uniformed guard stood at the school crossing. Freeloader sped through the school zone at 65 m.p.h. and struck and killed a nine-year-old child. What offenses would the state likely charge against Freeloader?


  1. Assume that you are a state legislator serving on the criminal justice committee. There have been numerous complaints about the lack of enforcement of laws relating to offenses committed through use of computers. The police have said that it is very difficult to classify certain types of computer manipulations under the traditional laws defining theft and embezzlement. In requesting the committee’s legal counsel to draft a law aimed at computer crime, what terms do you think it necessary to define for the statute to comprehensively embrace the scope of offenses that may be committed through use of a computer?


  1. While drinking at the Goodtime Bar, John Mako, a single man, is attracted to a woman sitting by herself at a table. He asks to join her and she consents. After buying her a few drinks Mako suggests that they go to his apartment to watch a movie. The woman consents, and during the course of the evening she tells Mako that she is a “call girl” who caters to select male clientele, but only for a fee. John explains he is a little short of cash, but if she would consent to sex he would give her a fine wristwatch that he has just retrieved from his former girl friend. She agrees, but before having sex with John, the woman tells him that while she is married, her husband deserted her several months ago and she now hires out as an escort. Mako and the woman then engage in consensual sex. What, if any, offenses has Mako committed?  Has the woman committed any offenses? Explain.


  1. While patrolling a seldom-used road, a deputy sheriff observed a pickup truck stopped along the side of the road with the motor running. Upon investigation the deputy found a man asleep behind the steering wheel. The key was in the ignition. The deputy awakened the man only to find him obviously intoxicated. The deputy arrested the man and charged him with violation of a state statute that makes it an offense for any person “to drive or operate a motor vehicle while under the influence of intoxicating liquor to the extent that his or her normal faculties are impaired.” Do you think that the deputy made a proper charge or should he have charged the man with public drunkenness?


  1. Harvey Goodman, a contractor, was constructing storm sewers for the city of Happyville pursuant to a contract awarded by the city council. City inspectors inspected the progress of the construction at various stages and either approved the work or required it to be done over. After an interim inspection disclosed improper workmanship in one area, the contractor made it a point to talk to each of the city’s three inspectors and to give each of them a $20 bill each time they made an inspection. Thereafter the inspectors approved all of the Goodman’s work as it progressed through several different stages. The federal prosecutor secured an indictment of the contractor under the RICO law. At trial the government offered proof of the contractor’s payments to establish violation of the state law making bribery a crime. The contractor’s counsel argued that the payments were simply tips with no corrupt intent on the part of the contractor in making such disbursements to the inspectors. Further, even if Goodman’s “tips” might be looked upon as bribes, no state prosecutor had brought bribery charges against the contractor. Therefore, defense counsel argued that the contractor’s acts could not furnish the necessary predicate offenses required to establish a pattern of racketeering to prove a RICO violation. How do you assess the contractor’s arguments?


  1. Cornelius Eartho was the supervisor of the municipal landfill operation in Goodtown, U.S.A. The landfill routinely received solid wastes collected by municipal vehicles. In addition, industrial concerns were permitted to deposit solid wastes upon payment of scheduled fees. Eartho operated under the overall supervision of the city manager; however, in practice he was responsible for the day-to-day operations at the landfill. His duties included detection and prevention of release of hazardous substances. One day while Eartho was away, an employee of Cleanco, Inc. brought solid waste materials to the landfill. When Eartho returned he noticed these materials contained paint waste and oils from industrial operations.  Having some doubt about the propriety of disposing of these materials in the usual way, Eartho called the city manager.  The manager was ill, and the deputy city manager told Eartho to use his best judgment on how to handle the situation, however, he pointed out that Cleanco, Inc. employs some 800 local residents and has recently been looking at other sites for its plant.  Eartho did not wish to contact Cleanco, Inc., so he directed that the materials be buried just as if they were ordinary solid wastes.  On a routine inspection trip, an Environmental Protection Agency (EPA) inspector determined the Cleanco wastes hazardous and that no permit for their disposal had been obtained.  The inspector recommended that Eartho be prosecuted for violation of the Resource Conservation and Recovery Act (RCRA).  Goodtown’s city attorney met with EPA officials and argued against their recommendation for prosecution.  The city attorney pointed out that Eartho is neither a policymaker nor an employee of high rank.  Furthermore, he had sought advice from his superior, but was not given any positive guidance. Discuss whether, under interpretations of the federal courts, Eartho is subject to prosecution for violation of laws concerning release of hazardous materials without a permit.


  1. Shortly after his wife of many years died, Jerry Vago, age 63, became an insomniac who frequently took late night walks around his neighborhood. Neighbors and the police who patrolled the area knew of the situation and did not seem disturbed by it. One cold, dark night Mr. Vago decided to walk in a neighborhood about a mile from his home. He was unacquainted with the more distant neighborhood, but he knew that very wealthy people owned the homes there. As he walked around the new neighborhood just before midnight, he stopped to rest on a bench on the sidewalk leading into a home occupied by a widow, Nellie Nerva, who lived alone. Ms. Nerva was up late reading and observed Mr. Vago from her library. He was wearing a long overcoat. Ms. Nerva was very apprehensive because her home had been burglarized the week before. She called the police and when they arrived she asked them to arrest Mr. Vago for loitering.  The officers asked Mr. Vago to identify himself and to allow them to search him. He produced a driver’s license with his local address, and the police search revealed no weapon. He explained that he liked to walk late at night because he had trouble falling asleep. Nevertheless, Ms. Nerva insisted on the police making an arrest because “no man has any business sitting on the bench on my sidewalk at midnight. I was very frightened just seeing him there. He was wearing an overcoat and he might well have had a gun on him.” A local ordinance making loitering a misdemeanor stipulates:  “It shall be unlawful for any person to loiter on private or public property during the nighttime, provided the police shall not arrest a person who provides satisfactory identification and accounts for his or her presence, unless the surrounding circumstances indicate a reasonable concern for the public safety.” Should the police arrest Jerry Vago?


  1. When a defendant convicted of armed robbery appeared for sentencing, the trial judge asked, “Do you wish to make any statement to the court before I pronounce your sentence?” In an insolent tone the defendant responded, “I was wrongfully convicted and it was your fault. This is a kangaroo court and you’re the kangaroo--on second thought it’s a donkey court and you’re an ass.” The judge promptly announced, “I find you in contempt of court and sentence you to serve one year for that contempt.” The defendant replied, “A jury would find my remarks to be true.” The judge angrily responded, “I don’t need a jury for contempt.” “Take him to jail, bailiff.” Did the defendant’s statements constitute criminal contempt? If so, was it direct or indirect contempt? Was the defendant properly convicted and sentenced without a jury trial?


  1. Marcus Nefario was being tried before a jury on charges of grand theft. A young, inexperienced, court-appointed attorney represented him. During the course of the prosecution’s case, defense counsel failed to object to several damaging hearsay statements from the prosecution’s witnesses. Upon completion of the prosecution’s case, the trial judge was convinced that the appointed counsel was ineffective, and that to continue the trial would effectively deny the defendant the right to counsel. Thus, the judge indicated that he was disposed to terminate the proceedings. The prosecutor protested and suggested that perhaps a continuance could be granted to allow a substitution of counsel. But the judge said, “This trial is a mockery and a farce and I will not allow it to continue.” The trial judge then announced that he was declaring a mistrial because he felt the defendant was not being properly represented. The state announced it would reschedule the trial the following month. New defense counsel was appointed and the court set a new trial date. Prior to the new trial the defense counsel filed a plea of double jeopardy based on the defendant having previously been subjected to trial. The trial judge denied the plea, and at the conclusion of the new trial the jury found the defendant guilty of grand theft. Defendant filed an appeal contending the court erred in denying his plea of double jeopardy. What ruling do you think the state appellate court should make? What reasons would the court likely give to support its ruling?


  1. Cal Rosario, an off-duty police officer, received information from a local citizen that Otto Ruffer was growing marijuana plants at his residence in a suburb of Pottsville, Anystate.  Officer Rosario called the police station and enlisted the aid of two officers to investigate.  The two officers drove to Ruffer’s residence.  When they arrived it was dark, and as they walked through Ruffer’s side yard into his back yard they saw a greenhouse with plastic sheets draped over its frame.  It was located about twenty yards from the back door to Ruffer’s house.  One of the officers shined his flashlight into a tear in the plastic and observed marijuana plants inside.  The officers did not attempt to obtain a search warrant.  Rather, they seized the plants and arrested Ruffer.  The state prosecuted Ruffer for unlawful manufacture of marijuana.  Ruffer’s attorney moved the court to suppress the marijuana on the ground that the warrantless search was invalid.  He stated, “Ruffer’s greenhouse was within the curtilage of his residence, essentially part of his homeplace, and Ruffer maintained the greenhouse for his own personal purposes.” Further, the defense contended that the officers trespassed in order to observe the plants and this was an intrusion on Ruffer’s privacy. Thus, the defense attorney argued there was no basis for a warrantless search. The prosecutor urged that no search warrant was required since the officers were able to see the marijuana and that the area searched was not Ruffer’s home.  Thus, the prosecutor maintained that the greenhouse was outside the scope of Fourth Amendment protection against unreasonable searches and seizures. What should be the court’s ruling? 


  1. A police officer was on routine night patrol in an area where a number of thefts had been reported in the past few months. While driving through the parking lot for the Goodtimer’s Bar, the officer observed a parked car with two persons inside who appeared to be doing something to the dashboard. The officer suspected a theft may be in progress, but the car’s window tinting obscured his view. So, the officer stopped and shined his flashlight into the car. When he did, he observed a plastic box with white powder in it sitting on the center console along with a small soda straw. At this point the occupants sought to conceal the plastic box, but the officer ordered them both out of the car, placed them under arrest, and seized the cocaine and straw. When the prosecutor filed an information charging the occupants with possession of contraband and drug paraphernalia, they contended the officer’s use of his flashlight infringed their Fourth Amendment rights; that without its use the officer did not have probable cause to make an arrest. “Not so,” countered the prosecutor, “the officer had a ‘reasonable suspicion’ that justified him in using his flashlight to determine if a crime was in progress, and when he observed what he did, he then had probable cause to arrest the occupants of the car.” How do you think the court should rule on the Fourth Amendment issue?


  1. Lanier Lustmore operates Club Madam, a café, and topless bar in Tranquility, Homestate. Because nighttime activities at the Club Madam have been the source of complaints, the police conducted extensive surveillance of Lustmore and Club Madam. An undercover police operative reported that Lustmore had offered to secure sexual favors for a state health inspector if the inspector would “go easy” on his report of sanitary conditions in the Club’s kitchen. As a result, Lustmore was charged with bribery, a third-degree felony carrying a maximum punishment of $5,000 fine and five years in prison. Lustmore retained I. M. Ready to defend him. Ready learned from Lustmore that two state alcoholic beverage agents “tried to shake him down.” Ready agreed to enter a plea of guilty on behalf of Lustmore if the prosecutor would agree to a sentence of fifteen days in jail, plus Lustmore’s agreement to testify against the two state beverage agents. The prosecutor agreed, and the trial judge accepted the plea bargain and sentenced Lustmore in open court. Two days later the prosecutor received information that Lustmore had a personal involvement with the beverage agents that would make his testimony highly suspect. The prosecutor moved the court to revoke the sentence based on the plea bargain and to resentence Lustmore. At this point Lustmore’s counsel sought to withdraw his client’s plea of guilty, but the trial judge denied his request and imposed a one-year prison sentence. Lustmore’s counsel filed an appeal challenging the judge’s ruling. What result is likely?


  1. An African-American defendant was on trial for armed robbery.  After five of the six jurors had been accepted during the voir dire, the prosecution exercised a peremptory challenge to exclude the sixth prospective juror, an African-American. When the defense counsel objected on the ground that the challenge was racially motivated, the trial judge asked the prosecution for an explanation. The prosecutor pointed out that three of the five jurors already accepted were African-Americans; that should another person of that race be accepted, the jury would be composed of two-thirds African-Americans. Further, the prosecutor stated:  “The population of this county is less than ten percent African-American. We simply want a jury that is representative of the community.” What should be the trial judge’s ruling?


19.  A jury found Nancy Nevermore, age 22, guilty of three counts of sale and delivery of marijuana, a felony. Evidence at her trial revealed that she had been persuaded to deliver marijuana by Horace Narko, age 38, with whom she had enjoyed a romantic live-in relationship for three months before yielding to Narko’s repeated requests that she assist him in his sales of marijuana. Ms. Nevermore’s presentence investigation report discloses that after graduation from high school, she became a trainee and later assistant manager of Faster Food, a local eatery. The maximum punishment for Ms. Nevermore’s offenses is three years imprisonment. Pointing out that her difficulties stemmed from her relationship with Narko, her counsel asked the judge to grant her probation. The judge agreed and ordered three years probation. In addition to the statutory conditions, the judge added a special condition:  “You shall have no association with Horace Narko during the period of your probation.” Ms. Nevermore’s counsel argues that this special condition is inappropriate because it infringes Ms. Nevermore’s First Amendment right of freedom of association. The prosecutor responds that the condition is reasonably related to Ms. Nevermore’s rehabilitation because by avoiding an association with Narko she should be less likely to become involved in drug dealing. Evaluate the defense counsel’s argument.


  1. After a jury trial, N.G. Lockbreaker was convicted of burglary and sentenced to three years in prison. The judge informed him of his right to appeal and, having determined Lockbreaker was insolvent, assigned his case to Ms. Whitestone, a public defender. Ms. Whitestone’s investigation revealed that the trial court had jurisdiction of the offense and the defendant and that the jury was properly impaneled. From her thorough review of the trial transcript she determined that there was substantial, competent evidence on which the jury based its verdict, and that the sentence is within the statutory parameters. Indeed, the record does not reveal any errors that likely could have prejudiced Lockbreaker from receiving a fair trial. Ms. Whitestone believes that any appeal by the defendant would be without merit, therefore she desires to be relieved from representing Lockbreaker. What procedure should she follow?