Themis Bar Review Hangout - July 2014 Exam Forum

[bedefan]

Is the fact that someone is dead necessarily an "element" of murder? The prosecution isn't asking for the jury to be instructed that the defendant caused the death or even that the victim was murdered at all.

It is. At first I thought this was odd too. But then I thought about it -- if you shoot somebody, and they don't die, you can't be convicted of murdering them, right?

To convict for murder, the state has to prove, beyond a reasonable doubt, that the alleged victim died.

[jigglypuffdreams]

A defendant is being tried for the murder of a woman who disappeared 10 years ago and has not been heard from since. Her body has never been found. The prosecutor has presented strong circumstantial evidence that she was murdered by the defendant. To help establish the fact of her death, the prosecutor has requested that the judge give the following instruction, based on a recognized presumption in the jurisdiction: "A person missing and not heard from in the last seven years shall be presumed to be deceased."

Is the instruction proper?

A. No, because the fact that someone has not been heard from in seven years does not necessarily lead to a conclusion that the person is dead.
B. No, because mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime.
C. Yes, because it expresses a rational conclusion that the jury should be required to accept.
D. Yes, because the defendant has a chance to rebut the presumption by offering evidence that the woman is alive or has been heard from in the last seven years.

Answer choice B is correct. The U.S. Supreme Court has held it to be a violation of due process for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime. The instruction is unconstitutional because the phrase "shall be presumed" could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible. Answer choice A is incorrect. It is true that the conclusion does not necessarily follow. But to be constitutional, a presumption or inference does not have to be certain; it needs only to be rational and to follow more likely than not. The presumption in the requested instruction meets that standard. However, the instruction violates due process as explained above. Answer choice C is incorrect because a mandatory jury instruction in a criminal case on an element of the charged crime violates due process. Answer choice D is incorrect. It is true that the defendant has a chance to rebut the presumption with evidence that the woman is alive or has been heard from in the last seven years. But it violates due process to shift the burden of proof to the defendant on an element of the crime.

Is the fact that someone is dead necessarily an "element" of murder? The prosecution isn't asking for the jury to be instructed that the defendant caused the death or even that the victim was murdered at all.

Yeah, they're pretty strict about mandatory presumptions in criminal cases. For example, one MBE question involves a transaction that took place between Chicago and New York, New York (I forget the exact cities, but it was pretty damn obvious they were in different states). You couldn't have a mandatory presumption that the deal involved interstate commerce, even though it was obvious it involved two different cities in different states. It's different with civil cases and kind of seems absurd they'd go so far for criminal cases, but due process I guess.

[champ33]

Wondering if anyone can correct or clarify, re: bystander claims for intentional infliction of emotional distress (IIED) vs. negligent infliction of emotional distress (NIED). For IIED, a bystander family member can recover even without physical injuries, and even if not in the zone of danger, whereas a non-family member can recover even if not in the zone of danger, but must have accompanying physical injuries. NIED is where the zone of danger is involved, and both the original claimant and a bystander must have been in the zone of danger to recover, unless the bystander is a close family member and personally observed the conduct. God. I hate everything. Is this right?

[northwood]

Wondering if anyone can correct or clarify, re: bystander claims for intentional infliction of emotional distress (IIED) vs. negligent infliction of emotional distress (NIED). For IIED, a bystander family member can recover even without physical injuries, and even if not in the zone of danger, whereas a non-family member can recover even if not in the zone of danger, but must have accompanying physical injuries. NIED is where the zone of danger is involved, and both the original claimant and a bystander must have been in the zone of danger to recover, unless the bystander is a close family member and personally observed the conduct. God. I hate everything. Is this right?

Bystander Emotional suffering: need to show that the bystander witnessed the intentional tort, and was an immediate family member ( parent, child sibling only). On the MBE this person does not need to be in the zone of danger but rather just have witnessed the event as it occurred.

Negligent infliction of Emotional Distress: need to show: zone of danger, reasonable person would be severely distressed and the Plaintiff suffered a physical AND emotional harm

Intentional Infliction of Emotional Harm: need to show - intentional or reckless condcuct by the defendant, that was extreme/ outrageous and that the plaintiff suffered a severe and debilitating emotional anguish

[Prime]

Someone please tell me this is just a crappy Themis written question, the answer to which is not actually supported by its fact pattern:

A defendant is on trial for the crime of obstructing justice in a government investigation by concealing records subpoenaed May 1. The government calls an attorney to testify that on May 3, the defendant asked him how to comply with the regulations regarding the transfer of records to a safe-deposit box in Mexico. The testimony of the attorney is
Answers
A. privileged, because it relates to conduct outside the jurisdiction of the United States.
B. privileged, because an attorney is required to keep the confidences of his clients.
C. not privileged, provided the attorney knew of the concededly illegal purpose for which the advice was sought.
D. not privileged, whether or not the attorney knew of the concededly illegal purpose for which the advice was sought.

Rationale:
Answer choice D is correct. A confidential communication between a client and an attorney is privileged, except when the communication relates to the future commission of what the client knew or should have known was a crime or fraud. Thus, answer choice B is incorrect. Answer choice A is incorrect because it does not matter where the conduct occurs if it is a crime punishable by the United States. Answer choice C is incorrect because the attorney's knowledge of the illegal purpose is not necessary.

Is that actually true? So, nothing a client asks his attorney when the client intends to use the information to commit a crime is ever privileged, even if the attorney reasonably and in good faith does not believe the client will rely on it to commit a crime? ...Cause the fact pattern definitely does not support the idea that the attorney had even an inkling idea of what the client was going to use that information for.

I agree this question and explanation are bogus. The only thing I can think of is that now that it has been established because of the criminal trial that the client was using the lawyer's services to commit a crime, the information is no longer privileged/the attorney has an obligation to disclose it? But that is not supported by the explanation and I don't know if it is legally correct.

I was rather pissed when I reviewed this question. I thought the attorney had to have at least an inkling of an idea of what the client was up to.

[Tanicius]

I was rather pissed when I reviewed this question. I thought the attorney had to have at least an inkling of an idea of what the client was up to.

More than an inkling. You have to be reasonably certain that your advice is being used for a crime.

[Prime]

I was rather pissed when I reviewed this question. I thought the attorney had to have at least an inkling of an idea of what the client was up to.

More than an inkling. You have to be reasonably certain that your advice is being used for a crime.

Touche

[dtl]

The attorney does not need to even have an inkling. If the communication related to future fraud or a crime, and the client knew or should have known, then it is not privileged.

Edit: Forgot we were talking out an MBE question. I was just neck deep in reviewing cal professional responsibility and lost sight of the forest for the trees. It is that way in CA tho. Ca evid code 956.

Edit 2: found this in a primer from the aba.

The cloak of privilege cannot be used to prevent disclosure of information provided with the intent to further a continuing or future crime or a fraud. SeeIn re Grand Jury Investigation, 445 F.3d 266, 274 (3d Cir. 2006) (providing a detailed discussion of the crime-fraud exception); Wachtel v. Guardian Life Ins. Co., 2006 WL 1286189 at *1 (D.N.J. May 8, 2006). However, the crime-fraud exception applies only when a client knowingly seeks legal counsel to further a continuing or future crime; the privilege is not lost if the client innocently proposes an illegal course of conduct in order to explore with counsel what the client may or may not do. United States v. Doe, 429 F.3d 450, 454 (3d Cir. 2005).

[Tanicius]

The attorney does not need to even have an inkling. If the communication related to future fraud or a crime, and the client knew or should have known, then it is not privileged.

Edit: Forgot we were talking out an MBE question. I was just neck deep in reviewing cal professional responsibility and lost sight of the forest for the trees. It is that way in CA tho. Ca evid code 956.

This seems really sketch. Yes, if the client admits to the court that he said it with the hope of using it for a crime, it's not privileged. But everything is presumed privileged until proven otherwise or revealed by the attorney.

[84Sunbird2000]

Does anyone know how to access the "30 minute reviews of each subject" without going through the directed study mode?

[jigglypuffdreams]

Does anyone know how to access the "30 minute reviews of each subject" without going through the directed study mode?

I'm pretty sure directed study is the only way to get to it is through directed study. I wouldn't worry about it unless you need access to shortened outlines though, because it literally does nothing for the percentage done progress meter and it's literally a message saying "review in the way that's best for you!"

[dtl]

Does anyone know how to access the "30 minute reviews of each subject" without going through the directed study mode?

I have been doing flex study and did not even know those existed.....

That is pretty bad if they do not have them available on demand.

[84Sunbird2000]

Does anyone know how to access the "30 minute reviews of each subject" without going through the directed study mode?

I'm pretty sure directed study is the only way to get to it is through directed study. I wouldn't worry about it unless you need access to shortened outlines though, because it literally does nothing for the percentage done progress meter and it's literally a message saying "review in the way that's best for you!"

Ohhh.... lame. I thought it was like a super short lecture review covering the main points. Thanks.

[jigglypuffdreams]

So this might be old news to California people but these Stanford attack outlines/rule statements are beautiful: https://www.law.stanford.edu/organizati ... m-outlines

Obviously a lot of it is California specific, but they're kind of helpful guidance for making my own condensed outlines.

[whirledpeas86]

Hey, does anyone know where I can find short brief subject outlines for the Pennsylvania essays? It looks like leansheets doesn't have PA specific material. Alternatively, does someone either have some to share or want to go in on some outlines from outline depot? It looks like they have PA outlines for all of the topics, but I don't have enough credits to download all of them. With our powers combined, maybe we could pull together a full set?

[Genuine4ps]

Crim Pro question: If an officer pulls somebody over for a traffic stop, they can pat that person down. Can they also search the interior of the car that the driver would have access to? I know this is a valid search incident to arrest, but it is ok when he's just writing a ticket?

[whirledpeas86]

Crim Pro question: If an officer pulls somebody over for a traffic stop, they can pat that person down. Can they also search the interior of the car that the driver would have access to? I know this is a valid search incident to arrest, but it is ok when he's just writing a ticket?

There's the automobile exception to warrant searches. For the exception to apply, the D either needs to still be in the car (i.e. within reach of weapons) or the officer has to have a reasonable suspicion (I think...might be probable cause) to believe that evidence of the crime is in the car, in which case they can search the whole passenger compartment.

[Genuine4ps]

Crim Pro question: If an officer pulls somebody over for a traffic stop, they can pat that person down. Can they also search the interior of the car that the driver would have access to? I know this is a valid search incident to arrest, but it is ok when he's just writing a ticket?

There's the automobile exception to warrant searches. For the exception to apply, the D either needs to still be in the car (i.e. within reach of weapons) or the officer has to have a reasonable suspicion (I think...might be probable cause) to believe that evidence of the crime is in the car, in which case they can search the whole passenger compartment.

Thank you. Just to confirm, if you're pulled over today for speeding, for example, you can be patted down and the interior of your car can be searched where weapons may be found?

[mmmnnn]

Crim Pro question: If an officer pulls somebody over for a traffic stop, they can pat that person down. Can they also search the interior of the car that the driver would have access to? I know this is a valid search incident to arrest, but it is ok when he's just writing a ticket?

There's the automobile exception to warrant searches. For the exception to apply, the D either needs to still be in the car (i.e. within reach of weapons) or the officer has to have a reasonable suspicion (I think...might be probable cause) to believe that evidence of the crime is in the car, in which case they can search the whole passenger compartment.

Thank you. Just to confirm, if you're pulled over today for speeding, for example, you can be patted down and the interior of your car can be searched where weapons may be found?

A police officer can order you out of the car (and even put you in the back of his car) during a traffic stop. The cop still has to have RS to even pat you down.

Edit: This also means they can search the passenger compartment/reachable area w/ reasonable suspicion. This is entirely separate from the Gant world. I think Arizona v. Johnson is the case you're looking for.

[northwood]

Crim Pro question: If an officer pulls somebody over for a traffic stop, they can pat that person down. Can they also search the interior of the car that the driver would have access to? I know this is a valid search incident to arrest, but it is ok when he's just writing a ticket?

There's the automobile exception to warrant searches. For the exception to apply, the D either needs to still be in the car (i.e. within reach of weapons) or the officer has to have a reasonable suspicion (I think...might be probable cause) to believe that evidence of the crime is in the car, in which case they can search the whole passenger compartment.

Thank you. Just to confirm, if you're pulled over today for speeding, for example, you can be patted down and the interior of your car can be searched where weapons may be found?

Yes. I belie the rule is that in order for a cop to effectively execute a warrantless auto search they must either 1) witness you violate a traffic code( i.e. speeding failing to use turn signal, broken taillight) or 2) have reasonable suspicion that crime is afoot ( you are driving in a known drug selling neighborhood which is economiccaly depressed in a 2015 suped up Cadillac worth 80,000, at 2AM or some other valid ( but debatable) circumstnaces when taken as a whole give the police reasonable supsicition to believe that the car is being used to commit a crime.

When this is established the police officer may order the driver out of the car for their own safety and pat them down for illegal weapons or needles for their protection, and can also search the interior of the car ( wingspan- I belive they need to get consent for this however). if they find contraband then they now have probable cause to make an arrest.

[mmmnnn]

Crim Pro question: If an officer pulls somebody over for a traffic stop, they can pat that person down. Can they also search the interior of the car that the driver would have access to? I know this is a valid search incident to arrest, but it is ok when he's just writing a ticket?

There's the automobile exception to warrant searches. For the exception to apply, the D either needs to still be in the car (i.e. within reach of weapons) or the officer has to have a reasonable suspicion (I think...might be probable cause) to believe that evidence of the crime is in the car, in which case they can search the whole passenger compartment.

Thank you. Just to confirm, if you're pulled over today for speeding, for example, you can be patted down and the interior of your car can be searched where weapons may be found?

Yes. I belie the rule is that in order for a cop to effectively execute a warrantless auto search they must either 1) witness you violate a traffic code( i.e. speeding failing to use turn signal, broken taillight) or 2) have reasonable suspicion that crime is afoot ( you are driving in a known drug selling neighborhood which is economiccaly depressed in a 2015 suped up Cadillac worth 80,000, at 2AM or some other valid ( but debatable) circumstnaces when taken as a whole give the police reasonable supsicition to believe that the car is being used to commit a crime.

When this is established the police officer may order the driver out of the car for their own safety and pat them down for illegal weapons or needles for their protection, and can also search the interior of the car ( wingspan- I belive they need to get consent for this however). if they find contraband then they now have probable cause to make an arrest.

A police officer generally must have reasonable suspicion of crime beyond the reason for the traffic stop to search the interior of a car. He must have reasonable suspicion to conduct a pat down of someone in that car (e.g., reasonable suspicion that the person is armed and dangerous). During any valid traffic stop, the officer can order the driver and passengers out of the car.

[schweitziro]

This is beginning to get real.

[Genuine4ps]

A police officer generally must have reasonable suspicion of crime beyond the reason for the traffic stop to search the interior of a car. He must have reasonable suspicion to conduct a pat down of someone in that car (e.g., reasonable suspicion that the person is armed and dangerous). During any valid traffic stop, the officer can order the driver and passengers out of the car.

Are you sure about the bolded? It was my understanding that traffic stops are analogous to terry stops, and the officer can conduct a pat down even WITHOUT reasonable suspicion that you're armed and dangerous. In other words, any valid stop for a traffic violation, and the officer can pat you down for weapons and search the vehicle for his protection. I could be wrong on this, but that's what my outline seems to say.

[mmmnnn]

A police officer generally must have reasonable suspicion of crime beyond the reason for the traffic stop to search the interior of a car. He must have reasonable suspicion to conduct a pat down of someone in that car (e.g., reasonable suspicion that the person is armed and dangerous). During any valid traffic stop, the officer can order the driver and passengers out of the car.

Are you sure about the bolded? It was my understanding that traffic stops are analogous to terry stops, and the officer can conduct a pat down even WITHOUT reasonable suspicion that you're armed and dangerous. In other words, any valid stop for a traffic violation, and the officer can pat you down for weapons and search the vehicle for his protection. I could be wrong on this, but that's what my outline seems to say.

Arizona v. Johnson (US 2009): "Accordingly, we hold that, in a traffic-stop setting, the first Terry condition--a lawful investigatory stop--is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous."

http://caselaw.lp.findlaw.com/scripts/g ... ol=07-1122

[Genuine4ps]

A police officer generally must have reasonable suspicion of crime beyond the reason for the traffic stop to search the interior of a car. He must have reasonable suspicion to conduct a pat down of someone in that car (e.g., reasonable suspicion that the person is armed and dangerous). During any valid traffic stop, the officer can order the driver and passengers out of the car.

Are you sure about the bolded? It was my understanding that traffic stops are analogous to terry stops, and the officer can conduct a pat down even WITHOUT reasonable suspicion that you're armed and dangerous. In other words, any valid stop for a traffic violation, and the officer can pat you down for weapons and search the vehicle for his protection. I could be wrong on this, but that's what my outline seems to say.

Arizona v. Johnson (US 2009): "Accordingly, we hold that, in a traffic-stop setting, the first Terry condition--a lawful investigatory stop--is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous."

http://caselaw.lp.findlaw.com/scripts/g ... ol=07-1122

Thanks!