If you found my exam question (see post on 12/23/2002) too easy, you might want to try your hand at another take-home exam question that I gave recently. As before, I absolutely promise not to grade any of your answers. I won't even comment on your answers!
This is the question:
Our story takes place in the Lincoln Estates neighborhood of Gotham City. Gotham City is much like New York City: Gotham, which lies in the State of Steelacre, is a city on the Eastern seaboard of the United States; it is a large city; it is – by North American standards – an old city; and Gotham is a flourishing city. Lincoln Estates is a densely-settled neighborhood of Gotham City. The populations of both Lincoln Estates and Gotham City are ethnically and racially varied. The socio-economic status of Lincoln Estates, however, is substantially lower than the socio-economic status of Gotham City. Rates of violent crime (such as homicide, assault, and armed robbery), drug trafficking, and auto theft are substantially higher in Lincoln Estates than they are in the Gotham City as a whole. Until recently, however, the burglary rates in Lincoln Estates and in Gotham as a whole were approximately the same.
In January, 2002, the number of nighttime residential burglaries in Lincoln Estates spiked sharply upward. Several local newspaper articles and a number of TV broadcasts characterized this sudden increase in the burglary rate in Lincoln Estates as a “crime wave.” Leading police officials speculated that the rise in the burglary rate in Lincoln Estates was attributable to attempts by desperate narcotics addicts to find new sources of revenue to purchase certain narcotics whose street price had sharply escalated during the last several months of 2001. In February, 2002, the Gotham City police department greatly intensified its anti-burglary law enforcement measures in Lincoln Estates. The number of burglaries in Lincoln Estates in February, 2002, was nevertheless about the same as in January, 2002.
Relations between Gotham City police officers and residents of Lincoln Estates are generally thought to be deeply troubled. Newspapers and TV stations in Gotham City often characterize the relationship between police officers and the public in Lincoln Estates as “appalling” or “terrible.” Two mayoral commissions have investigated the Gotham City police department in recent years. Both commissions concluded – the first commission, in 1992; the second, in 1995 – that the Gotham City police department was infected with a “culture of lawlessness and violence.” The second of the two commissions also concluded that racial animus toward minorities – particularly toward African-Americans – was “endemic in many sectors of the Gotham City police department.” (Police officials, however, vehemently denied such accusations of police lawlessness, excessive violence, and prejudice.) Police enforcement activity in Lincoln Estates has led to a number of deaths of both police officers and members of the public. From 1991 through 2001 a total of four police officers and twelve members of the public were killed in Lincoln Estates as a result of shootouts involving on-duty Gotham City police officers. Ten of the twelve members of the public killed in such shootouts in Lincoln Estates were male African-American teenagers. While almost all of these African-American teenagers were involved in some form of criminal activity when they were shot and killed, three of the shootouts in which the ten African-American teenagers were killed eventuated in successful wrongful death actions against the Gotham City police department and Gotham city police officers: those three wrongful death actions went to trial and the juries in those three trials apparently accepted the plaintiffs’ contentions that police officers in those instances had used deadly force without reasonable justification. Those three wrongful death trials received an enormous amount of media attention – and so did several civil actions that involved allegations of non-lethal police misconduct toward inhabitants of Lincoln Estates.
Late in the evening of March 1, 2002, one or more persons broke into a private residence at 237th Street and 4th Avenue in the Lincoln Estates neighborhood of Gotham City. The culprit or culprits who broke into that residence also unlawfully took and carried away several expensive laptop computers that the culprit or culprits found in the residence. On March 5, 2002, an alert Gotham City police officer – Officer Keith Kelly – noticed that David Delta, who was walking near 237th Street and 1st Avenue, was carrying several laptop computers that were quite similar to the laptop computers that had been reported stolen by the owner of the residence at 237th Street and 4th Avenue. After a brief investigation Officer Kelly arrested Delta.
[*At this point students were told, "The question of lawfulness or unlawfulness of Delta’s arrest is not in issue in this examination. Hence, do not discuss questions such as whether the police had probable cause to arrest Delta. Please see 'Important note,' below, at the end of Question 1."]
In April of 2002 the State of Steelacre indicts David Delta for burglary. The indictment charges that Delta broke and entered into the residence at 237th Street and 4th Avenue with the intent of committing a felony – grand theft – therein; the indictment charges that Delta broke into the dwelling with the intent of stealing laptop computers. Steelacre, however, does not indict Delta for grand theft.
Delta pleads not guilty. He also elects to be tried by a jury. The twelve-member jury selected for Delta’s trial seems fairly diverse. For example, five of the jurors are male, five of the jurors are African-American, three of the jurors are Hispanic, and five of the jurors are 18-25 years old.
At trial the prosecutor irrefutably establishes – without objection – that the laptop computers that Delta was carrying at the time of his arrest on March 5, 2002, were the computers that had been unlawfully taken on March 1, 2002, at 11:00 p.m., from the residence at 237th Street and 4th Avenue. (It is possible that Delta’s counsel will try to suggest or show that Delta innocently purchased laptop computers that happened to be stolen.)
After introducing evidence that tends to show that someone – one or more culprits – did commit burglary at 237th Street and 4th Avenue at 11:00 p.m. on the night of March 1, 2002, the prosecutor offers to have Carlo Donato give the following testimony:
"My name is Carlo Donato. I am a Gotham City police officer. I guess I’m 'White.' Or perhaps I’m 'Caucasian.' I’m really not sure what the proper terminology is. I only know that I’m Italian-American. In any event, in the very early morning of March 2, 2002, I was on plainclothes patrol with Gotham City police officers John Carter and Jane Martinez. They were also in plainclothes. Officer Carter is African-American. Officer Martinez is Hispanic. We were in an unmarked patrol car, a 1997 Chevrolet Impala. I was driving. Carter and Martinez were sitting in the back seat. They were trying to be unobtrusive."
"At about 1:00 a.m. I came to a stop at a red light at the intersection of 238th Street and 5th Avenue in Lincoln Estates. I glanced to my left. I saw a sleek new BMW directly next to me, just a few feet away. It apparently had also stopped at the red light. I saw two African-American male teenagers in the BMW. One of them was Albert Alpha. The other was David Delta. I didn’t know their names at the time but I later identified them from a photo array. Alpha was in the driver’s seat of the BMW. Delta was to the right of Alpha; Delta was sitting next to the front passenger-side window of the BMW. So Delta was to my left; he was sitting about two feet away from me, directly to my left."
"You will remember that I said that I glanced to my left and noticed Albert and Delta in the adjacent BMW. Immediately after I did that, Delta bent down and disappeared from my view. Alpha then abruptly did the same thing. I blurted out, 'Stop! Police! What are you guys doing out here in the middle of the night? What are you hiding?' Alpha quickly sat up again and glanced at me and at the patrol car I was driving, the Chevrolet Impala. A fraction of a second later the BMW’s tires started squealing furiously and the BMW lurched through the intersection. The car went through a red light; the light at the intersection was still red. The BMW then sped away. It was going very fast. I gave chase in my Impala, but I was unable to catch up."
"That’s what happened. Carter and Martinez will back me up."
Please describe and evaluate David Delta’s probable objection or objections to this offer of evidence.
Important note: You have been told (above) that Delta was arrested on March 5, 2002. Furthermore, an argument might be made that the proffered testimony by Officer Donato shows or suggests that Alpha and Delta were arrested, detained, or stopped on March 2, 2002. It might even be argued that the proffered testimony by Officer Donato shows or suggests that a search or some other significant police intrusion took place on March 2, 2002. For purposes of this examination, however, the question of the lawfulness or unlawfulness of any arrests, stops, searches, or other police intrusions is not in issue. The only question you are to consider here is whether the evidence offered by the prosecution is admissible at trial on the question of Delta’s guilt or innocence of the crime of burglary. Do not discuss issues such as the existence or non-existence of probable cause or reasonable grounds for any arrest, custodial detention, stop, search, or any other police intrusion that may have taken place during the scenario recounted in Question 1.
