Florida Bar Exam - Official Thread

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Common stock

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Re: Florida Bar Exam - Official Thread

Postby Common stock » Sat Aug 03, 2019 4:32 pm

Say you get the analysis correct and the conclusion wrong on an essay? Thoughts on points?

Tony48

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Re: Florida Bar Exam - Official Thread

Postby Tony48 » Sat Aug 03, 2019 10:54 pm

Lawzilla wrote:For those that have passed, how did you feel after taking it? Was there stuff that you knew you forgot and still ended up being ok? All we get to see are perfect essays, so I have no concept of what's just good enough to pass. How much can you miss and be ok? :cry:


I took and passed the July 2017 exam (where the examiners had the nerve to give us both a dependency and a commercial paper/secured essay.

When I walked out, I didn’t feel terrible, but I didn’t feel confident either. I studied my butt off so I knew that if I failed it wouldn’t be by a huge margin. But I think everyone feels like that. I mean if you didn’t study certain subjects and you come out feeling like you bombed, that feeling is probably warranted. But if you did an adequate job studying and you still feel like you just got hit over the head, that’s normal. The test is difficult and stressful. I personally don’t know anyone who was certain that they passed.

And yes, I knew I probably missed some stuff on the commercial paper essay (in fact, I think I ended up deleting stuff I should have left in). But I tried to make up for that in the Con Law essay (which I knew I probably dominated since that was the one essay I was hoping I would get).

nothing561

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Re: Florida Bar Exam - Official Thread

Postby nothing561 » Sun Aug 04, 2019 11:13 am

Anyone know where the top essay answers will be posted? My understanding is those answers will be released at some point this week?

wyoming92

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Re: Florida Bar Exam - Official Thread

Postby wyoming92 » Sun Aug 04, 2019 2:25 pm

FloridaLawyer2B wrote:I thought the essays were more straightforward this time. Then I'm reading some of your comments and I'm like, "well I sure as sh-- didn't put that down". Florida Con law was fun. I talked about the meeting in sunshine, discussing legislation outside of a regular session, right to privacy, due process, and I think I tossed in a couple others.

The property essay, well...some of you say it was "loaded" with issues. Not sure I saw all of that. I tried to answer the questions asked. I did get Nancy's license out there though before she got the deed. Talked about a lot of things that I haven't seen mentioned. I didn't talk about water rights. Didn't even study water rights because everyone always tells me it's "never tested".

The criminal law / criminal procedure / evidence essay was okay. I didn't really know all the mechanics of Florida's statutory rape law, and only went into the aspects of battery of a sexual nature, the liability for a defendant because it's a minor, the mistake of age defense, and how both sides could argue one versus the other. The evidence aspect of it was pretty straightforward. I saw both admissions by a party opponent and adoptive admissions, as well as being able to introduce the entire text message out of fairness if the state was only bringing in a section of it.

As for the multiple choice...Florida's were difficult. Some I got the exception and applied it right away. Others, no clue. The MBE was more challenging this time than it was in February or even in Michigan. I felt like I didn't know what I was doing half the time while other questions immediately jumped out at me as like "oh yeah, duh."

But I don't know...now I feel like I've failed because I'm letting the internet seduce me...


I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Remember that everyone will have slightly different answers.

wyoming92

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Re: Florida Bar Exam - Official Thread

Postby wyoming92 » Sun Aug 04, 2019 2:29 pm

Common stock wrote:Say you get the analysis correct and the conclusion wrong on an essay? Thoughts on points?


Graders will give check mark points on the IRAC sections. They may give you two or three points for a nice analysis of various sentences in the hypo that you discussed. So what if your conclusion was wrong if it means you got 7or 8 points out of the10 available for that portion of the essay?

They read these things adding points when they spot something relevant. So don’t stress on missing a correct conclusion here or there. That’s not where you pick up lots of points.

johngotti

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Re: Florida Bar Exam - Official Thread

Postby johngotti » Sun Aug 04, 2019 6:54 pm

nothing561 wrote:Anyone know where the top essay answers will be posted? My understanding is those answers will be released at some point this week?


If you're referring to the exam from last week then no, they don't get posted until after the February exam.

FloridaLawyer2B

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Re: Florida Bar Exam - Official Thread

Postby FloridaLawyer2B » Mon Aug 05, 2019 2:40 pm

wyoming92 wrote: I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Remember that everyone will have slightly different answers.


Well the adoptive admission in my view was when the officer went to leave the apartment, the question he asked the defendant. Since the defendant didn't respond, given everything the defendant just learned, silence would be considered an adoptive admission because a reasonable person would have responded in that instance. Thus, it's not hearsay. Does that make sense?

Anyway, yes, have to relax and wait to see where the cards fall. Hopefully I won't be back in Tampa a third time unless it's for a vacation or just passing through to go to Orlando...lol.

wyoming92

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Re: Florida Bar Exam - Official Thread

Postby wyoming92 » Mon Aug 05, 2019 11:46 pm

FloridaLawyer2B wrote:
wyoming92 wrote: I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Remember that everyone will have slightly different answers.


Well the adoptive admission in my view was when the officer went to leave the apartment, the question he asked the defendant. Since the defendant didn't respond, given everything the defendant just learned, silence would be considered an adoptive admission because a reasonable person would have responded in that instance. Thus, it's not hearsay. Does that make sense?

Anyway, yes, have to relax and wait to see where the cards fall. Hopefully I won't be back in Tampa a third time unless it's for a vacation or just passing through to go to Orlando...lol.


It makes complete sense! You definitely scored some great points there!

ELerner

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Re: Florida Bar Exam - Official Thread

Postby ELerner » Tue Aug 06, 2019 10:17 am

wyoming92 wrote:
FloridaLawyer2B wrote:
wyoming92 wrote: I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Remember that everyone will have slightly different answers.


Well the adoptive admission in my view was when the officer went to leave the apartment, the question he asked the defendant. Since the defendant didn't respond, given everything the defendant just learned, silence would be considered an adoptive admission because a reasonable person would have responded in that instance. Thus, it's not hearsay. Does that make sense?

Anyway, yes, have to relax and wait to see where the cards fall. Hopefully I won't be back in Tampa a third time unless it's for a vacation or just passing through to go to Orlando...lol.


It makes complete sense! You definitely scored some great points there!


At the risk of revealing my cluelessness, shouldn't the questioning have stopped immediately when Dean said "I am invoking my right to remain silent"? If so, then Jones' next question "Why Dean? Have something to hide?" was unlawful. Dean, having expressly asserted his 5th Amdt right to silence, can't be used against him. Contrast with the Salinas case, in Texas, which held you must *speak* in order to invoke your right to remain silent (i.e., say "I invoke my right," instead of just staying mute). Also, contrast the USSC case Jenkins v. Anderson, where the Supremes held that pre-arrest silence could be used to *impeach* a defendant who testified in his defense. Here, Dean didn't testify, and Jones's testimony was offered as direct evidence, not for impeachment.

What did I misunderstand?

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Re: Florida Bar Exam - Official Thread

Postby applethejack » Tue Aug 06, 2019 10:45 am

ELerner wrote:
wyoming92 wrote:
FloridaLawyer2B wrote:
wyoming92 wrote: I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Remember that everyone will have slightly different answers.


Well the adoptive admission in my view was when the officer went to leave the apartment, the question he asked the defendant. Since the defendant didn't respond, given everything the defendant just learned, silence would be considered an adoptive admission because a reasonable person would have responded in that instance. Thus, it's not hearsay. Does that make sense?

Anyway, yes, have to relax and wait to see where the cards fall. Hopefully I won't be back in Tampa a third time unless it's for a vacation or just passing through to go to Orlando...lol.


It makes complete sense! You definitely scored some great points there!


At the risk of revealing my cluelessness, shouldn't the questioning have stopped immediately when Dean said "I am invoking my right to remain silent"? If so, then Jones' next question "Why Dean? Have something to hide?" was unlawful. Dean, having expressly asserted his 5th Amdt right to silence, can't be used against him. Contrast with the Salinas case, in Texas, which held you must *speak* in order to invoke your right to remain silent (i.e., say "I invoke my right," instead of just staying mute). Also, contrast the USSC case Jenkins v. Anderson, where the Supremes held that pre-arrest silence could be used to *impeach* a defendant who testified in his defense. Here, Dean didn't testify, and Jones's testimony was offered as direct evidence, not for impeachment.

What did I misunderstand?


I did the same thing as you in my analysis. I think the feeling afterwards (as least to people that I spoke with) is that some people went 4th/5th amendment heavy and others went the Evidence-route (or both) in response to questions 2 and 3. I think there may be points to be had for both routes (I think definitely what you wrote about using his invocation against him is where points exist).

FloridaLawyer2B

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Re: Florida Bar Exam - Official Thread

Postby FloridaLawyer2B » Tue Aug 06, 2019 12:21 pm

applethejack wrote:
ELerner wrote:
wyoming92 wrote:
FloridaLawyer2B wrote:
wyoming92 wrote: I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Rememberup that everyone will have slightly different answers.


Well the adoptive admission in my view was when the officer went to leave the apartment, the question he asked the defendant. Since the defendant didn't respond, given everything the defendant just learned, silence would be considered an adoptive admission because a reasonable person would have responded in that instance. Thus, it's not hearsay. Does that make sense?

Anyway, yes, have to relax and wait to see where the cards fall. Hopefully I won't be back in Tampa a third time unless it's for a vacation or just passing through to go to Orlando...lol.


It makes complete sense! You definitely scored some great points there!


At the risk of revealing my cluelessness, shouldn't the questioning have stopped immediately when Dean said "I am invoking my right to remain silent"? If so, then Jones' next question "Why Dean? Have something to hide?" was unlawful. Dean, having expressly asserted his 5th Amdt right to silence, can't be used against him. Contrast with the Salinas case, in Texas, which held you must *speak* in order to invoke your right to remain silent (i.e., say "I invoke my right," instead of just staying mute). Also, contrast the USSC case Jenkins v. Anderson, where the Supremes held that pre-arrest silence could be used to *impeach* a defendant who testified in his defense. Here, Dean didn't testify, and Jones's testimony was offered as direct evidence, not for impeachment.

What did I misunderstand?


I did the same thing as you in my analysis. I think the feeling afterwards (as least to people that I spoke with) is that some people went 4th/5th amendment heavy and others went the Evidence-route (or both) in response to questions 2 and 3. I think there may be points to be had for both routes (I think definitely what you wrote about using his invocation against him is where points exist).


I’d point out that the defendant was not in custody. Miranda doesn’t apply here. The defendant voluntarily let the officer into his home and spoke with the officer on his own free will. He was never in handcuffs, surrounded by police, or made to feel in any way that he wasn’t free to terminate the encounter. So the statement I think was designed to be a red herring.

flbartaker

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Re: Florida Bar Exam - Official Thread

Postby flbartaker » Tue Aug 06, 2019 1:33 pm

ELerner wrote:
wyoming92 wrote:
FloridaLawyer2B wrote:
wyoming92 wrote: I didn’t read the property as a water rights issue either since it was use of property as a license and easement...it just happened to be on water. I didn’t bring up some of the con law out of session information or the adoptive admission information on the evidence/crim essay.

It goes to show that there just is a lot of information and they can give a wide variety of points. It sounds like you did just fine. Florida MC was difficult for me too. We just have to relax and know that we did our best. And if we don’t pass, we can see where to focus for next time. We got this! Remember that everyone will have slightly different answers.


Well the adoptive admission in my view was when the officer went to leave the apartment, the question he asked the defendant. Since the defendant didn't respond, given everything the defendant just learned, silence would be considered an adoptive admission because a reasonable person would have responded in that instance. Thus, it's not hearsay. Does that make sense?

Anyway, yes, have to relax and wait to see where the cards fall. Hopefully I won't be back in Tampa a third time unless it's for a vacation or just passing through to go to Orlando...lol.


It makes complete sense! You definitely scored some great points there!


At the risk of revealing my cluelessness, shouldn't the questioning have stopped immediately when Dean said "I am invoking my right to remain silent"? If so, then Jones' next question "Why Dean? Have something to hide?" was unlawful. Dean, having expressly asserted his 5th Amdt right to silence, can't be used against him. Contrast with the Salinas case, in Texas, which held you must *speak* in order to invoke your right to remain silent (i.e., say "I invoke my right," instead of just staying mute). Also, contrast the USSC case Jenkins v. Anderson, where the Supremes held that pre-arrest silence could be used to *impeach* a defendant who testified in his defense. Here, Dean didn't testify, and Jones's testimony was offered as direct evidence, not for impeachment.

What did I misunderstand?


CORRECT. I thought of adoptive admission, however, as soon as he invoked his right to an attorney that doctrine does not apply because you can't argue for adoptive admission to trump his 5th amendment right to remain silent and his 6th amendment right to counsel.

flbartaker

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Re: Florida Bar Exam - Official Thread

Postby flbartaker » Tue Aug 06, 2019 1:36 pm

Did any of you just take the Florida portion and already passed the MBE? I was going to do that because I passed the Feb 2019 MBE with a 145, but came up short on Florida and did not pass overall. However, I decided to take the MBE again to take a shot at scoring over 150 in case I fall short on Florida again. So glad I did! Florida Multiple Choice portion was brutal.

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Re: Florida Bar Exam - Official Thread

Postby applethejack » Tue Aug 06, 2019 1:39 pm

I did the same thing as you in my analysis. I think the feeling afterwards (as least to people that I spoke with) is that some people went 4th/5th amendment heavy and others went the Evidence-route (or both) in response to questions 2 and 3. I think there may be points to be had for both routes (I think definitely what you wrote about using his invocation against him is where points exist).[/quote]

I’d point out that the defendant was not in custody. Miranda doesn’t apply here. The defendant voluntarily let the officer into his home and spoke with the officer on his own free will. He was never in handcuffs, surrounded by police, or made to feel in any way that he wasn’t free to terminate the encounter. So the statement I think was designed to be a red herring.[/quote]

Agreed. I think the facts lent itself well for a "vomit all the points you know about the 5th amendment" and then ultimately say Miranda doesn't apply accept for the court not being able to use is invocation of the right to remain silent as substantive evidence against D.

not guilty

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Re: Florida Bar Exam - Official Thread

Postby not guilty » Tue Aug 06, 2019 2:13 pm

Skipped over some posts above, but they need to read Miranda if it is a custodial interrogation. They need to stop questioning the defendant if he unequivocally asks for a lawyer - that's where the analysis gets dicey. Some courts even interpret "do I need a lawyer?" as the defendant invoking his right to counsel. See all the case law cited in: https://www.courtlistener.com/opinion/1 ... r-v-state/

What did the essay question say?

ELerner

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Re: Florida Bar Exam - Official Thread

Postby ELerner » Wed Aug 07, 2019 8:07 am

not guilty wrote:Skipped over some posts above, but they need to read Miranda if it is a custodial interrogation. They need to stop questioning the defendant if he unequivocally asks for a lawyer - that's where the analysis gets dicey. Some courts even interpret "do I need a lawyer?" as the defendant invoking his right to counsel. See all the case law cited in: https://www.courtlistener.com/opinion/1 ... r-v-state/

What did the essay question say?


Non-custodial questioning. No Miranda, but subject immediately said "I invoke my right to remain silent." Detective questioned him nevertheless.

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Jmart082

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Re: Florida Bar Exam - Official Thread

Postby Jmart082 » Wed Aug 07, 2019 9:17 am

ELerner wrote:
not guilty wrote:Skipped over some posts above, but they need to read Miranda if it is a custodial interrogation. They need to stop questioning the defendant if he unequivocally asks for a lawyer - that's where the analysis gets dicey. Some courts even interpret "do I need a lawyer?" as the defendant invoking his right to counsel. See all the case law cited in: https://www.courtlistener.com/opinion/1 ... r-v-state/

What did the essay question say?


Non-custodial questioning. No Miranda, but subject immediately said "I invoke my right to remain silent." Detective questioned him nevertheless.

Obviously, I was not able to really commit the finer details of the fact pattern to memory given the time constraint, but my reading of the issues presented was that the questioning of Dean (Defendant) raised some concerns about the propriety of using his statements about invoking silence and requesting the assistance of counsel against him at trial, given that the interaction with law enforcement was non-custodial and arguably occurred with his consent. My interpretation was that while Miranda need not have been invoked, as an evidentiary matter, it is not proper to use his statements about invoking these rights against him as direct evidence of his guilt in the matter. They could potentially have some impeachment value as being some sort of admission, but ultimately, I concluded that their probative value is outweighed by their prejudice to the defendant. Full stop. Moved on.

not guilty

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Re: Florida Bar Exam - Official Thread

Postby not guilty » Wed Aug 07, 2019 1:05 pm

ELerner wrote:
Non-custodial questioning. No Miranda, but subject immediately said "I invoke my right to remain silent." Detective questioned him nevertheless.

Interesting. Depending on the call of the question, I guess it would matter what he said before he invoked his rights.

Jmart082 wrote:Obviously, I was not able to really commit the finer details of the fact pattern to memory given the time constraint, but my reading of the issues presented was that the questioning of Dean (Defendant) raised some concerns about the propriety of using his statements about invoking silence and requesting the assistance of counsel against him at trial, given that the interaction with law enforcement was non-custodial and arguably occurred with his consent. My interpretation was that while Miranda need not have been invoked, as an evidentiary matter, it is not proper to use his statements about invoking these rights against him as direct evidence of his guilt in the matter. They could potentially have some impeachment value as being some sort of admission, but ultimately, I concluded that their probative value is outweighed by their prejudice to the defendant. Full stop. Moved on.


Sounds like his statements would be suppressed. Especially if they had PC to make the arrest and did make the arrest (I'm guessing).
Someone above wrote that the cop said "why? Do you have something to hide?" and that statement would clearly be an improper suggestion/implication of guilt on the def's right to remain silent.

Essay's are getting trickier and trickier. Even if it is a subject that has been tested before, they are finding new topics within that subject (see the essay on adoption recently).

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Re: Florida Bar Exam - Official Thread

Postby Jmart082 » Wed Aug 07, 2019 3:04 pm

not guilty wrote:
ELerner wrote:
Non-custodial questioning. No Miranda, but subject immediately said "I invoke my right to remain silent." Detective questioned him nevertheless.

Interesting. Depending on the call of the question, I guess it would matter what he said before he invoked his rights.

Jmart082 wrote:Obviously, I was not able to really commit the finer details of the fact pattern to memory given the time constraint, but my reading of the issues presented was that the questioning of Dean (Defendant) raised some concerns about the propriety of using his statements about invoking silence and requesting the assistance of counsel against him at trial, given that the interaction with law enforcement was non-custodial and arguably occurred with his consent. My interpretation was that while Miranda need not have been invoked, as an evidentiary matter, it is not proper to use his statements about invoking these rights against him as direct evidence of his guilt in the matter. They could potentially have some impeachment value as being some sort of admission, but ultimately, I concluded that their probative value is outweighed by their prejudice to the defendant. Full stop. Moved on.


Sounds like his statements would be suppressed. Especially if they had PC to make the arrest and did make the arrest (I'm guessing).
Someone above wrote that the cop said "why? Do you have something to hide?" and that statement would clearly be an improper suggestion/implication of guilt on the def's right to remain silent.

Essay's are getting trickier and trickier. Even if it is a subject that has been tested before, they are finding new topics within that subject (see the essay on adoption recently).


I blame disgraced lawyers, California and Kim Kardashian.

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Re: Florida Bar Exam - Official Thread

Postby FloridaLawyer2B » Wed Aug 07, 2019 9:34 pm

Jmart082 wrote:
ELerner wrote:
not guilty wrote:Skipped over some posts above, but they need to read Miranda if it is a custodial interrogation. They need to stop questioning the defendant if he unequivocally asks for a lawyer - that's where the analysis gets dicey. Some courts even interpret "do I need a lawyer?" as the defendant invoking his right to counsel. See all the case law cited in: https://www.courtlistener.com/opinion/1 ... r-v-state/

What did the essay question say?


Non-custodial questioning. No Miranda, but subject immediately said "I invoke my right to remain silent." Detective questioned him nevertheless.

Obviously, I was not able to really commit the finer details of the fact pattern to memory given the time constraint, but my reading of the issues presented was that the questioning of Dean (Defendant) raised some concerns about the propriety of using his statements about invoking silence and requesting the assistance of counsel against him at trial, given that the interaction with law enforcement was non-custodial and arguably occurred with his consent. My interpretation was that while Miranda need not have been invoked, as an evidentiary matter, it is not proper to use his statements about invoking these rights against him as direct evidence of his guilt in the matter. They could potentially have some impeachment value as being some sort of admission, but ultimately, I concluded that their probative value is outweighed by their prejudice to the defendant. Full stop. Moved on.


I think there is a fair argument to be made that way as well. I just went another direction. To me, Miranda cannot be invoked by someone who is not in a custodial situation facing questioning. If its invoked outside of that, it has no effect no legal effect. The Court has over the years been very clear that you must unambiguously invoke any rights under Miranda to make them attach. Invoking them in a voluntary encounter with the police, in your own living room? Eh...would seem to me to be a swing and a miss by Dean. Now on the other hand, if Dean would have invoked his Fifth Amendment right against self-incrimination...well then, you'd have something different. That right can ALWAYS be invoked, whereas Miranda is much more narrower in scope. But anyway...to each his own.

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Re: Florida Bar Exam - Official Thread

Postby anon3030 » Thu Aug 08, 2019 12:03 pm

Apologies if this question has already been answered on this thread, but if you passed the MBE (score over 136) in a different jurisdiction in 2017, and now want to get licensed in Florida too, can you just take the Part A -- General Exam in Florida and that's it? I know Florida now accepts MBE scores from past exams but Florida's FAQ are unclear how it works exactly for other jurisdictions as the state's website describes in it in the context of people only passing the MBE section on past exams.

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Re: Florida Bar Exam - Official Thread

Postby anon3030 » Thu Aug 08, 2019 12:06 pm

To clarify, I also saw that you must take the Part A within 25 months of when you passed the MBE. So does that mean you can't transfer the MBE score if you passed it over 2 years ago?

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Re: Florida Bar Exam - Official Thread

Postby Nat3089 » Thu Aug 08, 2019 1:19 pm

https://reason.com/2016/01/05/federal-c ... -constitu/

How could I have not put in the FIRST AMENDMENT?!?!?!?!?!

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Re: Florida Bar Exam - Official Thread

Postby not guilty » Thu Aug 08, 2019 1:20 pm

FloridaLawyer2B wrote:The criminal law / criminal procedure / evidence essay was okay. I didn't really know all the mechanics of Florida's statutory rape law, and only went into the aspects of battery of a sexual nature, the liability for a defendant because it's a minor, the mistake of age defense, and how both sides could argue one versus the other. The evidence aspect of it was pretty straightforward. I saw both admissions by a party opponent and adoptive admissions, as well as being able to introduce the entire text message out of fairness if the state was only bringing in a section of it. ..

wyoming92 wrote: or the adoptive admission information on the evidence/crim essay.

ELerner wrote:At the risk of revealing my cluelessness, shouldn't the questioning have stopped immediately when Dean said "I am invoking my right to remain silent"? If so, then Jones' next question "Why Dean? Have something to hide?" was unlawful. Dean, having expressly asserted his 5th Amdt right to silence, can't be used against him. Contrast with the Salinas case, in Texas, which held you must *speak* in order to invoke your right to remain silent (i.e., say "I invoke my right," instead of just staying mute). Also, contrast the USSC case Jenkins v. Anderson, where the Supremes held that pre-arrest silence could be used to *impeach* a defendant who testified in his defense. Here, Dean didn't testify, and Jones's testimony was offered as direct evidence, not for impeachment.

What did I misunderstand?

applethejack wrote: I did the same thing as you in my analysis. I think the feeling afterwards (as least to people that I spoke with) is that some people went 4th/5th amendment heavy and others went the Evidence-route (or both) in response to questions 2 and 3. I think there may be points to be had for both routes (I think definitely what you wrote about using his invocation against him is where points exist).

flbartaker wrote: CORRECT. I thought of adoptive admission, however, as soon as he invoked his right to an attorney that doctrine does not apply because you can't argue for adoptive admission to trump his 5th amendment right to remain silent and his 6th amendment right to counsel.

Jmart082 wrote:Obviously, I was not able to really commit the finer details of the fact pattern to memory given the time constraint, but my reading of the issues presented was that the questioning of Dean (Defendant) raised some concerns about the propriety of using his statements about invoking silence and requesting the assistance of counsel against him at trial, given that the interaction with law enforcement was non-custodial and arguably occurred with his consent. My interpretation was that while Miranda need not have been invoked, as an evidentiary matter, it is not proper to use his statements about invoking these rights against him as direct evidence of his guilt in the matter. They could potentially have some impeachment value as being some sort of admission, but ultimately, I concluded that their probative value is outweighed by their prejudice to the defendant. Full stop. Moved on.

Questions are up online https://www.floridabarexam.org/__85257b ... 0c00756f05

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Last edited by not guilty on Thu Aug 08, 2019 1:23 pm, edited 2 times in total.

not guilty

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Re: Florida Bar Exam - Official Thread

Postby not guilty » Thu Aug 08, 2019 1:21 pm

1) Yes

2A) Dean only said one sentence to Det. Jones ("I am invoking...). So I think the essay question is better formed "Can Dean invoking his 5th Amendment right be used against him?" and I'm not sure it can. It isn't that he needed to be read Miranda, it's that he exercised his 5th and now they want to comment on his silence https://www.annenbergclassroom.org/time ... s-silence/
2B) Is Jones testimony of "something to hide?" admissible? It appears that would be an improper comment on Dean's right to remain silent.

3) Hearsay, but an exception via 90.803 (18) Admission. A statement that is offered against a party and is: The party’s own statement in either an individual or a representative capacity. Possibly get into Best Evidence Rule (authentication) of the text message.

4) Motion to exclude granted. See Fla. Stat. §90.616 (2016).

5) No effect. Double Jeopardy would not attach.



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