Florida Bar Exam - Official Thread

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applethejack

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Re: Florida Bar Exam - Official Thread

Postby applethejack » Thu Aug 08, 2019 2:20 pm

not guilty wrote: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.


Yeah, to #3, I think there is a lot to be said by Dean about whether the police officer's actions violated the 4th and 5th amendments -- not just evidence. Ultimately, I do not think the evidence would be suppressed but I went the route of arguing that under the 4th amendment, Vicki could be seen as a gov't agent in eliciting the texts but ultimately D did not have a reasonable expectation of privacy in the texts under the third-party doctrine (arguable in today's world) so there was no search requiring a warrant/probable cause. Further, there is an issue of whether Vicki's actions violated Miranda. However, since Miranda only applies to the actions by police in in deterring coercion by police officers, I found no 5th amendment violation.

For number 4, I focused on the newly passed Constitutional amendment re: Marcy's Law.

Good to talk through these issues though as the final five weeks of waiting continues!! This is a very cheap form of post-Bar therapy.

FloridaLawyer2B

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Re: Florida Bar Exam - Official Thread

Postby FloridaLawyer2B » Thu Aug 08, 2019 10:07 pm

applethejack wrote:
not guilty wrote: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.


Yeah, to #3, I think there is a lot to be said by Dean about whether the police officer's actions violated the 4th and 5th amendments -- not just evidence. Ultimately, I do not think the evidence would be suppressed but I went the route of arguing that under the 4th amendment, Vicki could be seen as a gov't agent in eliciting the texts but ultimately D did not have a reasonable expectation of privacy in the texts under the third-party doctrine (arguable in today's world) so there was no search requiring a warrant/probable cause. Further, there is an issue of whether Vicki's actions violated Miranda. However, since Miranda only applies to the actions by police in in deterring coercion by police officers, I found no 5th amendment violation.

For number 4, I focused on the newly passed Constitutional amendment re: Marcy's Law.

Good to talk through these issues though as the final five weeks of waiting continues!! This is a very cheap form of post-Bar therapy.


Hats off to whomever actually quoted Florida statutes and had that level of mastery for this exam. It sure wasn’t me. :oops:

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Jmart082

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Re: Florida Bar Exam - Official Thread

Postby Jmart082 » Fri Aug 09, 2019 9:50 am

FloridaLawyer2B wrote:
applethejack wrote:
not guilty wrote: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.


Yeah, to #3, I think there is a lot to be said by Dean about whether the police officer's actions violated the 4th and 5th amendments -- not just evidence. Ultimately, I do not think the evidence would be suppressed but I went the route of arguing that under the 4th amendment, Vicki could be seen as a gov't agent in eliciting the texts but ultimately D did not have a reasonable expectation of privacy in the texts under the third-party doctrine (arguable in today's world) so there was no search requiring a warrant/probable cause. Further, there is an issue of whether Vicki's actions violated Miranda. However, since Miranda only applies to the actions by police in in deterring coercion by police officers, I found no 5th amendment violation.

For number 4, I focused on the newly passed Constitutional amendment re: Marcy's Law.

Good to talk through these issues though as the final five weeks of waiting continues!! This is a very cheap form of post-Bar therapy.


Hats off to whomever actually quoted Florida statutes and had that level of mastery for this exam. It sure wasn’t me. :oops:

Same. Number 4 just screamed out Marcy's law to me.

not guilty

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Re: Florida Bar Exam - Official Thread

Postby not guilty » Fri Aug 09, 2019 10:17 am

Jmart082 wrote:Same. Number 4 just screamed out Marcy's law to me.


I respectfully disagree. Marcy's law doesn't invalidate 90.616 http://www.leg.state.fl.us/Statutes/ind ... 0.616.html

Not to mention that it is possible this essay was written before Marcy's law passed.

not guilty

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Re: Florida Bar Exam - Official Thread

Postby not guilty » Fri Aug 09, 2019 10:23 am

User Elerner PM'd me with a good point, maybe the text messages were inadmissible/unlawful due to the fact that the suspect had invoked the 5th and the victim was texting the suspect at the directive of the police. Great point!

Mitch498

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Re: Florida Bar Exam - Official Thread

Postby Mitch498 » Thu Aug 15, 2019 11:28 pm

There’s a Florida Supreme Court decision directly on point for the “right to remain silent” issue. Florida Supreme Court has interpreted the Florida constitutional right to be greater than than the us constitutional right, so the evidence is inadmissible. It’s pretty straightforward. Here’s the case:

https://www.floridasupremecourt.org/con ... 15-348.pdf



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