California Western --
Take Home Midterm Examination, Laws 101

Professor Benner, Spring 2005

 Q.1: The transcript ( see web page) of the preliminary hearing testimony of Ms. Juanita Molina, a Latina customer, constitutes the entire record for the purpose of this question. Assume that defendant Albert Green was arrested on the evening of April 13th. He was formally arraigned in court on a charge of robbery on April 15th  and the public defender was appointed to represent him.  The preliminary hearing was held on April 28th.


Q.1A. List all acts or omissions by police which may have contributed to a mistaken eye-witnesses identification in this case and briefly explain how each could have made the witnesses’ ability to make an accurate identification unreliable.


Q1B. Assume that despite the public defender’s excellent representation at the preliminary hearing, Albert Green’s father insisted that he get a “real” lawyer, so the family hired Clarence Barrow, a friend of the family who occasionally does some drunk driving cases. Based on the facts established at the preliminary hearing, Clarence has prepared a motion to suppress Ms. Molina’s identification testimony at trial. 

The motion seeks to bar the following:

1) Her in-court identification of Albert Green as the robber,

2) Her testimony about previously picking Green’s photo out of a photo spread in the detective’s office,

3) Her testimony about picking Green out at the line up, and

4) Her testimony about identifying Green as the robber when shown his photo by the prosecutor just before the preliminary hearing. 

Clarence has based his motion on the Sixth Amendment. He asserts that the Sixth Amendment was violated because counsel was not present at any of the identification procedures noted in #2, 3 or 4 above.

            Assume you are the trial judge. How would you rule on Clarence’s motion? Briefly explain your reason(s) for accepting or rejecting each claim (#1-4) above.


Q1C. Assume that Clarence’s motion (based on the 6th Amendment) was denied in all respects and Albert was convicted at trial based solely on Ms. Molina’s testimony. Assume that Albert is indigent and the court has appointed you to represent him on appeal.  What different Constitutional argument could you raise on appeal regarding the in –court identification testimony of Ms. Molina? (1) Identify the constitutional provision relied upon, (2) State the two pronged test used to determine when an identification procedure violates this constitutional right and (3) Apply the test. Apply the first prong of that test to the facts of this case to establish whether one or more of the identification procedures show that this prong has been establlished, and then apply the second prong of the test to Ms Molina’s  in-court identification of Albert Green, being sure to use the five factors found in the relevant case you studied in the Reader.


Q2. Bonus question:  What factor, which has nothing to do with police conduct (and is indeed something over which the police have no control) nevertheless could have contributed to the danger of mistaken eye-witness identification in this case? Tip: The answer contains a hyphenated word.


Turn in your typed answer not to exceed 5 pages at the beginning of class May 5th.