Badmovies.org Forum

I am taking the KY Bar Exam in less than a month now.  I just finished my first simulated exam.  One of the things one of the professors who's advising us on how to take the test said struck me.  He said:

"Law school has destroyed your common sense.  Most applicants get a lot of questions wrong because they overthink them.  If you ask the same question you just missed to some of your friends with no legal training, they'll get the right answer just by using common sense."

So I thought I'd do a test and see if he's right.  I'll give you guys a legal question (that I missed on the test) and you decide how you would rule.  You can give your reasoning if you want but you don't have to: just go with your gut sense of fairness if you like.

QUESTION 1

Armed with a warrant, the police arrest Don for embezzlement and give him his proper Miranda warnings ("you have the right to remain silent, you have the right to an attorney.")  Don has his wife call his lawyer while he's being taken to the station.   The lawyer calls the station and speaks to the desk sergeant.  She tells him to instruct Don not to answer any questions until she gets there.  The desk sergeant says no problem, when he arrives they will put him a holding cell for a few hours before they question him.  When the cops arrive with Don they take him immediately to an interrogation room, and never tell him about the call from his lawyer.  Don agrees to talk to them but says he's not putting anything in writing without his lawyer being there.  The cops question him about a rape that's totally unrelated to the embezzlement charges he was arrested for.  Don gets nervous and blurts out some incriminating facts.  The police charge him with the rape as well.

At the preliminary hearing Don's lawyer moves to have the statements he made regarding the rape excluded from evidence because they were given without the counsel of his lawyer.

If it's your decision, do you allow the evidence to be presented at trial, or not? 

Lets see how a high school student does:

No, because the trial was for embezzlement :smile:

My lawyer tells me there is not enough information to answer the question.

However, ANYTHING you say can and will be used against you in a court of law.

If he was properly Mirandized, then the evidence is in.  He's the one who chose to talk.  He's the only one who can waive his 5th Amendment rights; it's not the Police's responsibility to tell him to wait for his lawyer to show up (beyond Miranda's requirement of telling him that he has the RIGHT to wait), phone call from the lawyer or no phone call from the lawyer.

OBJECTION!!!  RELEVANCE!  Is what I would shout if it was brought up but he could be charged with that by the police later on.

My guess is totally based on movie experience. In movies, the lawyer usually rushes in in the middle of the questioning and announces his client would not answer any questions anymore. So I think this has to be said by the accused or the lawyer in person. A phone call seems a bit weak. "I told someone at your office what my client should do, but I can't remember his name. So anything my client said is irrelevant" would be a good choice otherwise.

My common sense, which is probably located in my guts, tells me he can be charged. This would make the world an easier, thus better place. However, I can also imagine it the other way around. Here I am, a confused member of human society with no idea whats right and wrong in the legal system....

To clarify: the attorney objects to introducing the testimony in the trial for rape, not for embezzlement.  Anyone who answered that the rape evidence is inadmissible in the embezzlement trial is absolutely correct.  My fault for not making that clear.

Thanks for the responses.  They're very interesting to me.  I'll leave this open for a while to let other people express their opinions.  Then I'll tell you the "real" answer.

And Cheeze, what more info would your lawyer friend want to answer the question?  If I forgot something relevant in the facts I'd be happy to add it.

I just had to look up "embezzlement". It is now in my top ten list of words I just like to say for the sound of it. No 1 still is "smithereens".

...sorry, off topic...

Don't know, you'll have to ask my wife she'd been a KY lawyer for 19 years. So actually what I got from her was a typical lawyer answer ... which means she talked for 20 minutes and didn't say anything. But it boiled down to not enough facts.

As I said the short of it is, ANYTHING you say can and will be used against you, regardless of what your lawyer says. You are ultimately responsible for what comes out of your mouth with or without counsel. Wasn't those rights are read, your on the record.


The culprit was guilty embezzlement; fearing apprehension he blew the records vault to smithereens, amongst other shenanigans.   

Yeah, but how can rape be held against you in an embezzlement case? Wouldn't there have to make a seperate case for the rape?

Yes, it's a secondary charge and would require a separate trail. Rape is a violent crime, embezzlement is not so different rules apply.

In that case then if the client were charged for the rape his confession could be used in court.

Your wife's a lawyer?  That's cheating!  But I think there are enough facts for a bar exam question (at least, the people who made the test did).  The key is don't assume anything not in the question, such as: he's not retarded if the facts don't say it, the cops didn't beat on him if the facts don't say it, etc. 

Ahh, man, do we really NEED any more lawyers in the world?

Maybe have to break out my list of Lawyer jokes just to make myself feel better...

Okay, the answer is that the evidence comes in.  This is a perfect example of a law-trained person overthinking the problem rather than using common sense.

I got it wrong because I focused on the fact that Don said I'll talk to you but I won't put anything in writing.  To me that indicated he didn't actually understand his rights, so he didn't voluntarily waive them.  That might be the right analysis in a contracts question, but in criminal procedure it doesn't matter that he misunderstood the law.  They told him upfront that anything he said could be used against him.  The law is not set up to prevent you from being a complete dumba$$.

Cheeze got it right in the simplest way possible: "anything" means anything.

Ulthar got it right and his statement of the law is correct.

Frank's guts were right.  But he's thinking most like a lawyer, seeing the argument on both sides. 

Patient7 got it right, after I clarified the ambiguity.  He and Briggs Inc. were also right that the rape statements would be irrelevant in the embezzlement case--not the question I meant to ask, but a good catch.

Karma to everyone for participating and getting it right!  See, the law student was the only one to get it wrong.  No layperson I've asked got the question wrong.

BTM just complained about lawyers and threatened to make lawyer jokes.  No karma for him unless he ACTUALLY MAKES a lawyer joke. 

Thanks everyone for participating.  It was helpful and interesting to me, and now there's no chance I get that question wrong on the real test. 

Okay, you asked for it!


1. Any person with a valid Washington State hunting license may harvest attorneys.

2. Taking of attorneys with traps or deadfalls is permitted. The use of currency as bait is prohibited.

3. Killing of attorneys with a vehicle is prohibited. If accidentally struck, remove dead attorney to roadside and proceed to nearest car wash.

4. It is unlawful to chase, herd, or harvest attorneys from a snow machine, helicopter, or aircraft.

5. It shall be unlawful to shout "whiplash", "ambulance", or "free Perrier" for the purpose of trapping attorneys.

6. It shall be unlawful to hunt attorneys within 100 yards of BMW dealerships.

7. It shall be unlawful to use cocaine, young boys, $100 bills, prostitutes, or vehicle accidents to attract attorneys.

8. It shall be unlawful to hunt attorneys within 200 yards of courtrooms, law libraries, health spas, gay bars, ambulances, or hospitals.

9. If an attorney is elected to government office, it shall be a felony to hunt, trap, or possess it.

10. Stuffed or mounted attorneys must have a state health department inspection for AIDS, rabies, and vermin.

11. It shall be illegal for a hunter to disguise himself as a reporter, drug dealer, pimp, female legal clerk, sheep, accident victim, bookie, or tax accountant for the purpose of hunting attorneys.

BAG LIMITS

1.   Yellow Bellied Sidewinder   2
2.   Two-faced Tort Feasor   3
3.   Back-stabbing Divorce Litigator   5
4.   Big-mouthed Pub Gut   2
5.   Honest Attorney   EXTINCT
6.   Cut-throat   2
7.   Back-stabbing Whiner   2
8.   Brown-nosed Judge Kisser   2
9.   Silver-tongued Drug Defender   $100 bounty

You know what I think?

Kentucky (a fine and beautiful state) really needs to change its official abbreviation.

What do you call 500 lawyers at the bottom of the ocean? 

Same thing you call 500 saxophonists.

500 scuba diving attorneys.

Maybe not a joke, but here in South Central Texas we pronounce "lawyer" and "liar" exactly the same way. Coincidence? I don't think so!


But turnabout is fair play so if you all want to make fun of my profession I am a computer nerd! Let me know and I'll start a topic...with a pic!

If you ever visit, be sure to attend one of our KY Open Meetings.  They're very expanding!

Nope.  What do you call 500 lawyers at the bottom of the ocean?  "A good start!" 

Ahem, don't know about "saxophonists," but my understanding is that the other woodwinds are jealous of the sax...

Why don't the sharks in the ocean eat the lawyer?





Professional courtesy.

I don't think you can make a lawyer honest by an act of legislature. You've got to work on his conscience. And his lack of conscience is what makes him a lawyer.
-- Will Rogers


A man who never graduated from school might steal from a freight car. But a man who attends college and graduates as a lawyer might steal the whole railroad.
-- President Theodore Roosevelt, attempting to persuade his son to become a lawyer


Lawyer's creed: A man is innocent until proven broke.


Almost 37 percent of the U.S. House of Representatives and 53 percent of the U.S. Senate are comprised of lawyers. It's like buying chicken wire from the fox.


Lawyers are the only profession where the more there are, the more are needed!
-- Robert Lucky, IEEE Spectrum


There's no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets the truth.

This doesn't answer the question, however, I'd fire the lawyer for relying on the desk sgt. to tell his client not to answer any questions.

I liked Danny DeVito's spiel about lawyers: Lawyers are like nuclear missiles, You have yours because they have theirs. Once someone uses them, they just f**k everything up.

Man! This is from like 100 years ago!  I want a new fun lawyer question!  I totally would have got this one right!

Okay, this was a question from a bar examine practice test, here is a new version of this same question.
If the situation described in the question occurred in reality what would happen at the trial ?