NAILING THE BAR TM HOW TO WRITE ESSAYS FOR CRIMINAL PROCEDURE LAW SCHOOL AND BAR EXAMS WHAT to Say and HOW to Say It! Tim Tyler Ph.D. Attorney at Law
NAILING THE BAR How to Write Essays for Criminal Procedure Law School and Bar Exams Table of Contents CHAPTER 1: THE IRAC APPROACH... 1 CHAPTER 2: SPOT AND OUTLINE THE ISSUES!... 2 CHAPTER 3: ISSUE SPOTTING... 5 CHAPTER 4: AVOID NON-ISSUES, RED HERRINGS AND SPLITS... 7 CHAPTER 5: ORGANIZING THE ANSWER... 9 CHAPTER 6: ISSUE STATEMENT STRUCTURE... 11 CHAPTER 7: BUDGETING TIME... 12 CHAPTER 8: PREFACE RULES WITH CITATION OF AUTHORITY... 14 CHAPTER 9: NAILING THE ELEMENTS - THE HEART OF THE ESSAY... 15 CHAPTER 10: DON'T GIVE "CONCLUSIONARY" ANALYSIS... 19 CHAPTER 11: DON'T "RESTATE FACTS"... 20 CHAPTER 12: AVOID "PADDLING "... 21 CHAPTER 13: TEST TAKING MECHANICS... 22 CHAPTER 14: ESSAY ANSWER FORMATS... 24 WHAT TO SAY AND HOW TO SAY IT... 24 FOUR PLOYS TO SAVE YOU ON AN EXAM:... 25 CHAPTER 15: ANSWERING CRIMINAL PROCEDURE QUESTIONS... 26 Practice Question 15-1... 36 Practice Question 15-2... 37 Practice Question 15-3... 38 Practice Question 15-4... 39 Practice Question 15-5... 40 Practice Question 15-6... 41 CHAPTER 16: CONCLUSION... 42 APPENDIX A: RULES AND DEFINITIONS... 43 APPENDIX B: SAMPLE ANSWERS... 47 Sample Answer 15-1: Invalid Warrants, Consent, Plain View, Standing, Exclusionary Rule... 47 Sample Answer 15-2: Auto Search, Terry Stop... 51 Sample Answer 15-3: Evidence Wrongfully Viewed, Recorded... 53 Sample Answer 15-4: Search Incident, Evanescent Evidence, Right to Counsel... 55 Sample Answer 15-5: Miranda Violation, Exclusion... 58 Sample Answer 15-6: Fruit of Poisonous Tree... 61 INDEX... 63 iv
Chapter 3: Issue Spotting Chapter 3: Issue Spotting Since you lose points for every required issue you fail to discuss, it is CRITICAL TO SPOT all of the issues. BUT DON'T waste time discussing issues that do not really exist. This is easier said than done and introduces a certain level of sadism peculiar to law school. The grader/question writer always wants you to discuss certain required issues. But the graders fall into two basic schools. The first, rational school, simply states the issues to be discussed in the call of the question. The second, less rational and often sadistic school of question writers uses only hints about the intended issues. Sometimes the "hints" are rather obvious. Other times they are so subtle the student has to be a psychic. At this extreme this approach is called HIDING THE BALL, and it is the stuff of law school horror stories. The HIDE THE BALL question utilizes words and fact patterns that only vaguely suggest issues. This is like a code language known only to law school professors. The following is a list of "code" words and facts that are often used to indicate intended issues. Issue Spotting Hints CRIMINAL PROCEDURE: Issue Area and Coded Hint: Intended Issue: SEARCH WITHOUT WARRANT: 1. Pat down: Terry stop w/o warrant? 2. Drugs in cigarette pack/envelope: Not justified for officer protection? 3. Consent to search: Did consenting party have authority? 4. Roommate: No authority to consent? 5. Opening of door, box, chest, room: Improper search w/o warrant? 6. Search of area: Lurch area? After arrest? Protective sweep? 7. Search after pleasant visit: Not for protection? Sweep? Terry stop? 8. Search of house during arrest: Protective sweep? 9. Stop of car: Probable cause for stop? 10. Border/airport/port: Border exception? 11. Suspicious appearance: Probable cause? 12. Plain view: Officers have right to be at location? 13. Turning item to see serial numbers: Not in plain view? 14. Entry of dwelling: Exigency? Hot pursuit? 15. Victim kidnapped or in distress: Exigency? 16. Alcohol/drugs: Evanescent evidence? 17. Blood sample taken from suspect: Unreasonable? Evanescent evidence? 18. Handwriting sample: Unreasonable? 19. Fingerprints taken: Unreasonable? 20. Highway checkpoint: Checkpoint exception? 21. Body search w/o warrant: Justified by evanescent evidence? 22. "Next day", "later", "hours": Time sufficient to obtain warrant? SEARCH WITH WARRANT: 23. Magistrate paid for each warrant issued: Not neutral? 24. "Police Magistrate": Neutral magistrate? 5
NAILING THE BAR How to Write Essays for Criminal Procedure Law School and Bar Exams to represent him concerning the other crimes. For example, if the accused is arrested for a burglary on March 1 and requests an attorney, the police must stop questioning about that burglary. But the police can give Miranda warnings all over again and begin asking questions about a burglary on April 1. The accused must again assert his Miranda rights. Right to not Testify and to Confront Adverse Witnesses. Under the 5 th Amendment a criminal defendant has a right to not testify at trial, but under the 6 th Amendment a criminal defendant has a right to confront adverse witnesses. Be on guard for these issues. Be Prepared. You MUST be prepared to give a good recitation of rules for 1) the EXCLUSIONARY RULE, 2) the MIRANDA requirements and 3) the MASSIAH rules. Further, you must know and be able to explain each of the EXCEPTION situations in which a search is allowed without a search warrant. These are given in the following mnemonic. Mnemonic for Search without a Warrant: "Terry Consented to a Lawful Arrest because the Car was Plainly Hot." 1. Terry Stop -- pat and frisk for weapons 2. Consent to Search 3. Incident to a Lawful Arrest -- Search of Person Inventory of Belongings Search of Lurch Area Protective Sweep 4. Car Exceptions Stop with Probable Cause Checkpoint Stop not a dragnet looking for drugs. Border Stop 5. Plain View 6. Hot Pursuit/Exigency CRIMINAL PROCEDURE ISSUES AND ANSWERS FOLLOW THE CALL of the question. But if the call is general, such as "discuss," list the issues as follows: 1) Was the evidence seen in PLAIN VIEW? No warrant is required for police to discover evidence that is in their PLAIN VIEW while observed by reasonable means from a proper position. This is called the OPEN FIELDS DOCTRINE. Important! Here the police were not observing from a proper position by reasonable means because And the evidence was not in the plain view of the police because Therefore 28
NAILING THE BAR How to Write Essays for Criminal Procedure Law School and Bar Exams 5) Was the search subject to the HOT PURSUIT exception so it did not require a WARRANT? Under the HOT PURSUIT exception no warrant is required for police to enter property to arrest if they are in hot pursuit of a fleeing suspect. Here the police were not in hot pursuit of a fleeing suspect because Therefore 6) Was the search a TERRY STOP that did not require a WARRANT? Under Criminal Procedure law no warrant is required for a TERRY STOP, where police may PAT and FRISK a person without a warrant searching for WEAPONS if there is an articulable reason to believe it is necessary for safety. Here the search of the defendant was not necessary for safety because the search was not for weapons because And the search was more than a pat and frisk because Therefore 7) Was the search subject to an AUTO EXCEPTION that did not require a WARRANT? Under the AUTO EXCEPTION no warrant is required to search an AUTO, including all compartments and containers within it, if the car is stopped based on probable cause, or at a checkpoint where cars are stopped on a uniform or systematic basis for purposes of a) traffic safety, b) preventing illegal immigration or c) searching for witnesses to crimes recently committed in the area. Important! If a car is stopped for a legitimate reason it can only be searched without a warrant if that is 1) reasonably necessary for officer safety, 2) to prevent the destruction of evidence by the driver or passengers during the stop, or 3) when there is a reasonable suspicion evidence of the crime for which the car was stopped is in the car. Here the car was not stopped with probable cause because Therefore [Warning! The auto exception has been changed twice by the Supreme Court in recent years. The Court ruled in Indianapolis v. Edmond (2000) 531 U.S. 32 that police cannot stop cars at traffic checkpoints looking randomly for drugs or other evidence of criminal activity. Police can only stop cars for traffic safety, to look for illegal aliens or to find witnesses to recent crimes committed in the area. Following that case the Court ruled in Arizona v. Gant (2009) 556 U.S., that if an auto has been stopped for a legitimate purpose the police can only search the car without a warrant for three reasons: 1) for officer safety because the driver or passengers are in a position where they could reach a weapon, 2) to prevent destruction of evidence by the driver or passengers, or 3) there is reasonable suspicion evidence of a crime for which the car was stopped is in the car.] 30
Index Index 4 4 th Amendment, 29, 47, 53, 55 5 5 th Amendment, 32, 34, 35, 44, 55, 58 6 6 th Amendment right to confront witnesses, 28, 34 6 th Amendment right to counsel, 32 8 8 th Amendment, 43 A Adverse witnesses, right to confront, 28, 34 Arizona v. Gant, 30 Arraignment, right to counsel, 32 Arrest, search incident warrant exception, 31, 61 Authority, citing, 14 Auto searches, warrant exception, 30, 55, 61 Automobile Searches, need for warrant, 30, 55, 61 B Bail, excessive, protection, 43 Border Search, warrant exception, 31 C Checkpoint Stops, auto exception, 30 Conclusionary analysis, defined, 19 Consensual searches, warrant exception, 32 Counsel, right to, 6 th Amendment, 6, 10, 26, 43, 44, 45, 56 Crawford v. Washington, 35 Cruel and unusual punishment, 43 Cruel and unusual punishment, prohibition, 43 Custodial Interrogation, 48 D Double jeopardy, 35 Dying declarations, admissibility, 34 E Elements, nailing, 15 Evanescent Evidence, legality of search, 29, 52 Exclusionary Rule, 26, 34, 52, 54, 56, 59, 62 Exigent Circumstances, legality of search, 27, 29 Expectation of Privacy, 10, 33, 34, 44, 49, 52, 54, 56, 59, 62 F Forced confessions, prohibition, 32, 44, 55, 58 Fruit of Poisonous Tree, 33, 61, 62 63 H Harmless error, exclusionary rule exception, 34, 44, 54, 59 Hot Pursuit, legality of search, 30, 51 I Illegal Evidence, use to impeach, 34, 44, 59 Immunity, granting of, 34 Indianapolis v. Edmond, 30 Informants, jailhouse, 33 IRAC approach, 1 Issues, counting, 2, 3 Issues, spotting, 5 J Juries, separate, 34 L Lineups, right to counsel, 32 M Magistrate, neutral, warrant requirement, 29, 47, 53 Miranda Doctrine, defined, 32, 48 Miranda Rights, 32, 44, 55, 58 N New York v. Quarles, 31 Non-issues, avoiding, 7 O Open Fields Doctrine, 28, 44, 45, 53, 58, 61 P Paddling, defined, 21 Particularity, need for in warrants, 29, 43, 47, 53, 55 Plain View Doctrine, 28 Preliminary hearings, right to counsel, 32 Probable cause, defined, 29 Protective Sweep, search exception, 31 Public safety, search/miranda exception, 31 R Red Herrings, defined, 7 Right to confront adverse witnesses, 28, 34 Right to counsel, 6 th Amendment, 32, 53 Right to remain silent, 5 th Amendment, 32, 44, 55, 58 Rules, memorizing, 24 S Searches, intrusive, 27 Searches, non-intrusive, 26
NAILING THE BAR How to Write Essays for Criminal Procedure Law School and Bar Exams Splits, discussing, 8 Standing, lack of, exclusion exception, 33, 49 Statements against interest, admissibility, 34 T Terry stops, warrant exception, 30 Trials, right to separate, 34 W Warrants, improper execution, 29 Witnesses, right to confront, 34 Y Yellow Brick Road analogy, 20 64
WHAT to Say and HOW to Say it on CRIMINAL PROCEDURE Law School and Bar Exams * The MOST COMMONLY TESTED ISSUES and RULES AND DEFINITIONS to Help Answer Them! * How to SPOT ISSUES! * How to BUDGET TIME on Exams! * CONCLUSIONARY Answers and How to Avoid Them! * 6 PRACTICE QUESTIONS with SAMPLE ANSWERS! This is what LAW STUDENTS are saying about NAILING THE BAR I did exactly what you said to do. And I passed! Vijay D. Nailing the Bar was all I could afford to prepare for the July 2001 Bar. I passed on my first attempt. Thomas N., Deputy City Attorney I didn t go to an ABA school and English is a second language for me. But I passed the Bar! Thanks Shah P. I passed! THANKS! Your approach taught me a LOT Annie B. "Nailing the Bar" gave me the edge I needed to pass the Bar the first time Jay I purchased your outline set :-) -- Great stuff! Rueben B. I used Nailing the Bar strategies on every essay! You re the reason I am a lawyer now. You re the BOMB! Katie N. Before. I didn't have a clue how to spot issues or IRAC! Now I FINALLY GET IT!! Shirley S. I passed! Your method pulled me through. I ve never felt so humble and grateful. Thanks. Dan G. Received my letter today. I passed - got an A. You rock!! Jennifer I passed. In fact, Q4 of the Bar s Selected Answers was MY essay. Your method works!! Steve D. Thanks for writing Nailing the Bar. It earned me a B in my class Dr. Brenda P. With Nailing the Bar I am able to understand IRAC and issue spotting for the first time Beverly W. "Nailing the Bar" was the best guide I have found. Using it I passed the Bar in one try Sabrina Published by ISBN 978-1-936160-10-5 Practical Step Press www.practicalsteppress.com D