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When Assistant Attorney General Jay Bybee advised the President on the definition of “torture,” he said that the infliction of physical pain was not torture unless it was similar to pain that would be experienced from:

Fact Pattern #4:  A defendant has been formally charged with robbery, but she is released on bond and is not in jail.   She is approached in a park during the day and questioned by two police officers about a murder that took place some time after the robbery.  There are mothers present in the park playing with their children.  One of the mothers comes over and begins video recording the encounter.  The police have their weapons clearly displayed, but they are not drawn.  Before entering the park, the officers discuss that they hope that the defendant will not feel free to leave, but they do not mention this to the defendant.  The officers never come more than three feet from the defendant.  The defendant is petite and one of the officers is a body builder.  The defendant was never read her Miranda rights, and during the questioning admitted to the murder.   Which of these is the best argument against admitting the confession at trial:

Technically, the Jencks Act applies only to written statements that a witness authored or adopted in some way.

The Fifth Amendment right to counsel applies to any suspect in a criminal investigation.

For a statement to be considered Giglio material, it must relate in some way to the witness’s testimony.

Fact Pattern #4:  A defendant has been formally charged with robbery, but she is released on bond and is not in jail.   She is approached in a park during the day and questioned by two police officers about a murder that took place some time after the robbery.  There are mothers present in the park playing with their children.  One of the mothers comes over and begins video recording the encounter.  The police have their weapons clearly displayed, but they are not drawn.  Before entering the park, the officers discuss that they hope that the defendant will not feel free to leave, but they do not mention this to the defendant.  The officers never come more than three feet from the defendant.  The defendant is petite and one of the officers is a body builder.  The defendant was never read her Miranda rights, and during the questioning admitted to the murder.   Which of these, if any, is the best argument for admitting the confession at trial:

Fact Pattern #6:  A DEA agent who regularly acts in an undercover capacity bought drugs from the defendant, Doug Dealer, and will be testifying as a government witness in the prosecution of Dealer.  The agent wrote an entirely accurate email to his supervisors describing his encounters with Dealer.  The agent also interviewed a witness, Bill Bystander, during the investigation and wrote a memo (also known as “DEA-6”) recounting what Bystander said.  Bystander initially lied about knowing Dealer, but eventually came around to telling the truth.  The agent did not mention in the DEA-6 that Bystander first lied about knowing Dealer.  Bystander never saw the DEA-6.  The agent and Bystander also exchanged several text messages concerning what Bystander knew about Dealer. Bystander is in the United States illegally, and he told the agent several times that he hopes his cooperation in the investigation will help with his application for a visa.  The Department of Homeland Security (“DHS”) has as file (also known as an “A-File”) concerning Bystander that notes that Bystander committed fraud in his home country.  The agent never asked for the DHS A-File and does not know about Bystander’s fraud.   The agent was involved in a very nasty divorce ten years ago, and during the proceedings, he lied about his assets.  The DEA disciplined the agent for this, but determined that it did not affect his capability as an agent and did not fire him. Which of the following is true regarding the agent’s email to his supervisor about Dealer (choose all that apply):

The Jencks Act applies to every individual contacted by the agents, regardless of whether the individual will testify.

Fact Pattern #1: A defendant has been formally charged with burglary of a residence. During the investigation, agents came to believe that he was also involved in a string of murders.  After he was appointed a lawyer and released on bail for the burglary charge, agents decided to approach him to ask about the murders.  While the defendant is walking down a dark alley that leads to his house, three agents surround him and ask to see his driver’s license.  While he is looking in his wallet, one of the agents casually asks him about one of the murders.  The defendant breaks down and confesses to all of the murders. Based upon this fact pattern, which of these is/are correct (choose all that apply):

Fact Pattern #6:  A DEA agent who regularly acts in an undercover capacity bought drugs from the defendant, Doug Dealer, and will be testifying as a government witness in the prosecution of Dealer.  The agent wrote an entirely accurate email to his supervisors describing his encounters with Dealer.  The agent also interviewed a witness, Bill Bystander, during the investigation and wrote a memo (also known as “DEA-6”) recounting what Bystander said.  Bystander initially lied about knowing Dealer, but eventually came around to telling the truth.  The agent did not mention in the DEA-6 that Bystander first lied about knowing Dealer.  Bystander never saw the DEA-6.  The agent and Bystander also exchanged several text messages concerning what Bystander knew about Dealer. Bystander is in the United States illegally, and he told the agent several times that he hopes his cooperation in the investigation will help with his application for a visa.  The Department of Homeland Security (“DHS”) has as file (also known as an “A-File”) concerning Bystander that notes that Bystander committed fraud in his home country.  The agent never asked for the DHS A-File and does not know about Bystander’s fraud.   The agent was involved in a very nasty divorce ten years ago, and during the proceedings, he lied about his assets.  The DEA disciplined the agent for this, but determined that it did not affect his capability as an agent and did not fire him. Which of the following is true concerning the DHS A-File concerning Bystander (choose all that apply):