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Badmovies.org Forum  |  Other Topics  |  Off Topic Discussion  |  You, the Jury: "I Want My Lawyer, Sort of" « previous next »
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Author Topic: You, the Jury: "I Want My Lawyer, Sort of"  (Read 4459 times)
Rev. Powell
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« on: July 01, 2008, 09:57:40 PM »

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? 
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Doc Daneeka
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« Reply #1 on: July 01, 2008, 10:01:50 PM »

Lets see how a high school student does:

No, because the trial was for embezzlement Smile
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CheezeFlixz
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« Reply #2 on: July 01, 2008, 10:09:34 PM »

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.
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« Reply #3 on: July 01, 2008, 10:33:34 PM »

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.
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« Reply #4 on: July 01, 2008, 11:28:16 PM »

OBJECTION!!!  RELEVANCE!  Is what I would shout if it was brought up but he could be charged with that by the police later on.
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« Reply #5 on: July 02, 2008, 01:54:03 AM »



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....

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« Reply #6 on: July 02, 2008, 08:52:20 AM »

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.
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frank
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« Reply #7 on: July 02, 2008, 09:09:41 AM »


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...

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« Reply #8 on: July 02, 2008, 09:19:25 AM »

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.

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.


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...



The culprit was guilty embezzlement; fearing apprehension he blew the records vault to smithereens, amongst other shenanigans.   
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« Reply #9 on: July 02, 2008, 09:30:46 AM »

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.
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?
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« Reply #10 on: July 02, 2008, 09:41:28 AM »

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.
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.
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« Reply #11 on: July 02, 2008, 10:26:31 AM »

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.

In that case then if the client were charged for the rape his confession could be used in court.
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« Reply #12 on: July 02, 2008, 11:41:53 AM »

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.

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.


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. 


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"[It has] a special Zombie Puppet Cam that lets you see all the people die at Puppet Level! It's one thing to say, 'I wonder what it would look like if a puppet with a dentist's drill in his head ran straight at your brain and just drilled his way right through.' But it's another, entirely DIFFERENT thing when you say 'What would the same thing look like if you were eight inches high so all you could see was this enormous blood-spouting brain?'"-Joe Bob on PUPPET MASTER
BTM
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« Reply #13 on: July 02, 2008, 02:48:52 PM »

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...

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Rev. Powell
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« Reply #14 on: July 02, 2008, 03:10:46 PM »

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. 
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"[It has] a special Zombie Puppet Cam that lets you see all the people die at Puppet Level! It's one thing to say, 'I wonder what it would look like if a puppet with a dentist's drill in his head ran straight at your brain and just drilled his way right through.' But it's another, entirely DIFFERENT thing when you say 'What would the same thing look like if you were eight inches high so all you could see was this enormous blood-spouting brain?'"-Joe Bob on PUPPET MASTER
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