Themis Bar Review Hangout - July 2015 Exam Forum

[gr8scOtt!]

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.

Custody does not have to be formal arrest. I think the analysis is just wrong. Was this the bar-examiners analysis or one of the provided applicant model answers? Because those can have errors in them.

Ok, so what I meant is that custody must be what is considered a "formal arrest," not necessarily in handcuffs but more than what is considered an arrest under the 4th amendment. It's more formal than a seizure (but again, not necessarily in handcuffs). The outline says it is a "substantial seizure" defined as either a "formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest." I don't think Themis makes it very clear here but the point is that you can have an seizure that constitutes an arrest under the 4th amendment that does not meet the "substantial seizure" requirement for a finding of being in custody for Miranda to apply.

But Miranda applies to all custodial interrogations. If you are in custody (formal arrest or reasonable person would not think you could leave) and it qualifies as interrogation (i.e., not during booking or public safety exception), Miranda applies. Edited to add: other than a Terry stop. I know that for a Terry stop you are seized but they definitely don't have to read you your Miranda rights.

[2014]

Sorry if this has been answered, not reading 40 pages of this, but what are y'all going to use to review to memorize elements of shit? The handouts are pretty long to use for efficient review imo but feel free to disagree.

[Pleasye]

Ok, so what I meant is that custody must be what is considered a "formal arrest," not necessarily in handcuffs but more than what is considered an arrest under the 4th amendment. It's more formal than a seizure (but again, not necessarily in handcuffs). The outline says it is a "substantial seizure" defined as either a "formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest." I don't think Themis makes it very clear here but the point is that you can have an seizure that constitutes an arrest under the 4th amendment that does not meet the "substantial seizure" requirement for a finding of being in custody for Miranda to apply.

No. Custody is more than a mere seizure, but it does NOT require a formal arrest. You can have a restraint of movement that is considered a seizure for the 4th amendment and not custody for the 5th amendment, but if you have a formal arrest under the 4th then you also have custody for the 5th amendment. Though that does not mean that there is interrogation and thus the 5th may still not apply.

If you are merely making the argument that certain facts amount to more than a seizure and have become an arrest under the 4th amendment then you could maybe argue and then conclude that the D was not in custody for the 5th amendment. But formal arrest = custody.

[always_raining]

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.

Custody does not have to be formal arrest. I think the analysis is just wrong. Was this the bar-examiners analysis or one of the provided applicant model answers? Because those can have errors in them.

Ok, so what I meant is that custody must be what is considered a "formal arrest," not necessarily in handcuffs but more than what is considered an arrest under the 4th amendment. It's more formal than a seizure (but again, not necessarily in handcuffs). The outline says it is a "substantial seizure" defined as either a "formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest." I don't think Themis makes it very clear here but the point is that you can have an seizure that constitutes an arrest under the 4th amendment that does not meet the "substantial seizure" requirement for a finding of being in custody for Miranda to apply.

But Miranda applies to all custodial interrogations. If you are in custody (formal arrest or reasonable person would not think you could leave) and it qualifies as interrogation (i.e., not during booking or public safety exception), Miranda applies. Edited to add: other than a Terry stop. I know that for a Terry stop you are seized but they definitely don't have to read you your Miranda rights.

I disagree. The standard for whether a person is in "custody" is that there must be a substantial seizure. The "reasonable person would not think you could leave" standard is misleading because in order for a reasonable person to not think he/she were free to leave, there must be a restraint on freedom of movement to the degree associated with a formal arrest. That is more than what you might think. For example, if you look at this police magazine link and scroll down to "Miranda Trigger," you will see they describe the trigger as things such as: "A person is obviously in custody if he or she has been told, "You're under arrest." Even without being so advised, a person is also in custody if he or she is handcuffed, or secured in the cage of a patrol car, or being confronted by officers with firearms pointed at him or her, or kept in a police station and not being allowed to depart at will."

Also I am not talking about Terry stops.

Edit: Duh, forgot to link to the police magazine. http://www.policemag.com/channel/patrol ... ssues.aspx

[always_raining]

Ok, so what I meant is that custody must be what is considered a "formal arrest," not necessarily in handcuffs but more than what is considered an arrest under the 4th amendment. It's more formal than a seizure (but again, not necessarily in handcuffs). The outline says it is a "substantial seizure" defined as either a "formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest." I don't think Themis makes it very clear here but the point is that you can have an seizure that constitutes an arrest under the 4th amendment that does not meet the "substantial seizure" requirement for a finding of being in custody for Miranda to apply.

No. Custody is more than a mere seizure, but it does NOT require a formal arrest. You can have a restraint of movement that is considered a seizure for the 4th amendment and not custody for the 5th amendment, but if you have a formal arrest under the 4th then you also have custody for the 5th amendment. Though that does not mean that there is interrogation and thus the 5th may still not apply.

If you are merely making the argument that certain facts amount to more than a seizure and have become an arrest under the 4th amendment then you could maybe argue and then conclude that the D was not in custody for the 5th amendment. But formal arrest = custody.

Ok, sorry I am conflating the two, but what I was saying it requires a restraint on freedom of movement to the degree associated with a formal arrest or an actual formal arrest, which, as you said, is a higher standard than a 4th amendment arrest.

[Pleasye]

Ok, sorry I am conflating the two, but what I was saying it requires a restraint on freedom of movement to the degree associated with a formal arrest or an actual formal arrest, which, as you said, is a higher standard than a 4th amendment arrest.

No. Custody is a higher standard than a 4th amendment seizure not an arrest.

[Raiden]

Going though the thread, I think we can agree that there are a lot of lovely things we can say about Themis...

But in all seriousness, what do you think is the most productive thing you do with your study time with Themis?

For me, I'd probably say doing the MBE's and reviewing them, hoping they will just cement in my mind in forever land.

[somuchbooty]

I'm doing terrible on these essays. Any advice? I'm hoping that if I just memorize all of the sample answers then I'll actually get it down.

[gaddockteeg]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

[Tripl3Espresso]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

Very possible. The graders all have different standards even though I am sure they are instructed to look for the same thing. You may just have a tough grader.

[Velours]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

I've gotten a 92, 72 and 76 so far on my graded essays. Generally, my only comments have been "good", but they have mentioned a missed doctrine or formatting. I think it just varies from grader to grader. I had taken two of the topics previously though so that helped with the elements I think.

[kjartan]

I'm confused by this Torts MBE question

[+] Spoiler

The plaintiff's father died in the hospital ... Before the mortician called for the body, a hospital orderly placed two opaque plastic bags in the drawer with the father's body. One bag contained the father's personal effects, and the other contained an amputated leg from some other hospital patient ... The plaintiff was shocked when he opened the bag containing the amputated leg. The plaintiff sued the hospital to recover for his emotional distress.

Correct Answer: The plaintiff, because of the sensitivity people have regarding the care of the bodies of deceased relatives.

I don't understand how the "funeral home" exception applies here. I was under the impression that you can only recover for NIED when the remains of your relative is negligently mishandled. Here, the father's body doesn't seem to have been negligently mishandled.

[somuchbooty]

I'm doing really well 80%+ on the PQ's but pretty much awful on the graded essays. Anyone else in the same boat or start in the same boat and if so, what did you do to fix?

[zot1]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

I've gotten a 92, 72 and 76 so far on my graded essays. Generally, my only comments have been "good", but they have mentioned a missed doctrine or formatting. I think it just varies from grader to grader. I had taken two of the topics previously though so that helped with the elements I think.

Damn! You've gotten that closed book? Now I should really start worrying about my progress

[kiwi4president]

How much time is everybody legitimately spending studying each day? I'd like to say i'm at 8-10 hours a day, but i'm really at 8-10 hours minus around 4 hours of bullshit per day.

[anon sequitur]

I really question whether or not anyone can consistently be productive at this sort of thing for more than about 8 hours a day. I do 10-12 hours, with maybe 6 hours of productive work. Which is light years ahead of my productivity ratio in a real job.

[gaddockteeg]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

I've gotten a 92, 72 and 76 so far on my graded essays. Generally, my only comments have been "good", but they have mentioned a missed doctrine or formatting. I think it just varies from grader to grader. I had taken two of the topics previously though so that helped with the elements I think.

Whattt..... oh man. you're beasting it.

[gaddockteeg]

How much time is everybody legitimately spending studying each day? I'd like to say i'm at 8-10 hours a day, but i'm really at 8-10 hours minus around 4 hours of bullshit per day.

same. haha.

edit: my ratio is the same but I'm more like 12 hours with 6 hours bs.

[Raiden]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

I've gotten a 92, 72 and 76 so far on my graded essays. Generally, my only comments have been "good", but they have mentioned a missed doctrine or formatting. I think it just varies from grader to grader. I had taken two of the topics previously though so that helped with the elements I think.

Whattt..... oh man. you're beasting it.

92...dude, that is like uber beast mode right there times infinity plus a power lever over 9000.

[zot1]

Never mind . . .

[zot1]

Clocked in 2.1% so I think it's time to stop. Still don't get "custodial" for 5th A purposes.

[Pleasye]

Clocked in 2.1% so I think it's time to stop. Still don't get "custodial" for 5th A purposes.

I tried (but props on 2.1% damn)

[Velours]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

I've gotten a 92, 72 and 76 so far on my graded essays. Generally, my only comments have been "good", but they have mentioned a missed doctrine or formatting. I think it just varies from grader to grader. I had taken two of the topics previously though so that helped with the elements I think.

Damn! You've gotten that closed book? Now I should really start worrying about my progress

Yeah, I've been doing the essays closed book, but I review the previous practice essay(s) and the lecture handouts right before I do it. Though, I have had my grader also comment that he (and the model answer) didn't agree with my conclusion and still give me full points for that section so maybe he just sucks.

However, I feel like straight memorization and regurgitation is my strong suit, so I'm banking on the essays to help me with the MBE since I've been finding those much more difficult even if I knew the elements/rule.

[zot1]

Clocked in 2.1% so I think it's time to stop. Still don't get "custodial" for 5th A purposes.

I tried (but props on 2.1% damn)

Meh, don't let that number fool you. I did a whole bunch of practice exams but still in the 52%-68% range (with the 68% being the highest by several percentage points ha!). So even if I "moved forward," I didn't feel like I made any progress.

Sigh.

[zot1]

Is it possible to get any grade other 60 on the practice exams? I feel like on one essay I did awesome and only missed 1 minor element and then got a 60. On another, I missed like 5 elements and yet I also got a 60. It's not like my grader isn't reading it either. I get tons of comments.

I've gotten a 92, 72 and 76 so far on my graded essays. Generally, my only comments have been "good", but they have mentioned a missed doctrine or formatting. I think it just varies from grader to grader. I had taken two of the topics previously though so that helped with the elements I think.

Damn! You've gotten that closed book? Now I should really start worrying about my progress

Yeah, I've been doing the essays closed book, but I review the previous practice essay(s) and the lecture handouts right before I do it. Though, I have had my grader also comment that he (and the model answer) didn't agree with my conclusion and still give me full points for that section so maybe he just sucks.

However, I feel like straight memorization and regurgitation is my strong suit, so I'm banking on the essays to help me with the MBE since I've been finding those much more difficult even if I knew the elements/rule.

That's still impressive. Highest grade I've gotten is a 67%, though grader wouldn't ever give me any points if I didn't answer something like the model answer did.

I definitely need to get better at memorizing. My biggest flaw is that my rules sometimes miss something and that I don't use all the facts within the given time.