OA Bar Prep with Heather! T3BE30

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:46 Thomas: And welcome to Opening Arguments. This is OA Takes the Bar Exam, or, I know, T3BE, or OA Bar Prep with Heather, any one of those names, whichever one you like best, D, all of the above. Today we are going to hear the answer to question 29 and get a fresh question number 30. And of course I'll give the shout out for the winner on both Reddit and Patreon, and then I'll thank our wonderful patrons, and we're on the final quartile of month so that'll be fun. Alright, after this break, let's bring on Heather for the answer to question 29.

0:01:20 Thomas: Right, Heather, well here we are for another week of T3BE, and uh this one is T3B30. However, we still have some unfinished business, because we have to hear the answer to question 29. So why don't you remind us what that question was about, and I will wait on pins and needles to find out if I blew it.

0:01:39 Heather: Right, this was our question about the president and his commission on vaccination, so we... So we're just trying to figure out whether the president's, the commission that the president created, whether he was able to do that, whether that was a constitutional exercise of authority, or whether he was not able to do that. Well, we did see him up in front of Congress recently. So that may or may not have been the impetus for this question. Well

0:01:57 Thomas: And if Dr. Fauci started COVID, that's Hey, you weren't authorized to start COVID-19, okay? That wasn't appropriate use of funding. So I...

0:02:14 Heather: I was just going to start by asking you so remind us what topic that you thought the question was testing you on.

0:02:19 Thomas: It seems to be constitutional law, because we're talking about who has the authority to do what kind

0:02:24 Heather: Exactly it. You nailed it right away. And you also nailed exactly the topic within constitutional law, since we often get tested on questions about the branches of government. So this might seem like a little bit of an obvious question, but please answer anyway. What branch of government do you think the question is testing you in?

0:02:43 Thomas: Executive branch and Sort of maybe Congress also. But I don't know.

0:02:44 Heather: Yes. Actually, the answer is yes. So it's primarily a question testing the presidential powers, but it has a little bit of a Congress flavor, and one of the tip-offs, uh, was the call of the question, to your point a little bit earlier about it's asking about the president's, uh, of authority. So it was the question's way of kind, its headlights, and saying, "Hello, this is a constitutional law question and I am asking about whether the president can or can't do something." We'll hop into talking a little bit about the rule, but before we get into the rule I'm going to talk a little bit about how we get to the rule. So, we're going to do a little bit of history, if that's okay with you.

0:03:21 Thomas: I love it. No, it's, that's more than okay with me.

0:03:23 Heather: Okay, good. So, pretty much every law student since the mid-1950s has read this case. It's called Youngstown Sheet and Tube versus Sawyer. It's from 1952. Do you happen to remember, you know, back when you were alive back then, because I obviously was too, what was going on with the United States at that time in the 50s?

0:03:38 Thomas: Okay. Sure. Uh, the Red Scare and the Cold War, the, there's a lot of things, Korean War. I don't know. Ah, Ah, there we go.

0:03:49 Heather: It's the Korean War. You nailed it. So this, we need, when we go to war, that's

0:03:53 Thomas: Need sheet and tubes is what we need. We go to the sheet and tube store and we We buy some war things.

0:03:55 Heather: We do, that's Right, that's exactly when you bring more stuff, right?

0:04:02 Thomas: Yeah. The U.S. government stopped by the sheet and tube store on the way to the war. Hey, we need war stuff. Give it to us. And then they were like, no. And then now we'll give the Supreme Court case, I guess.

0:04:02 Heather: Uh, Exactly what happened. So what happened was that in, uh, 1952, the U.S. steel workers union, they planned a strike. And And hours before the strike was about to start, President Truman signed an executive order, and the executive order was for the government to take control of the steel mills and force them to continue producing the weapons to head over to the Korean War, because he was concerned that it would endanger our national defenses as it related to our war effort, right? And what you'll hear a lot of times, too, when you start to study constitutional law, is that a really common justification for things that happen by a president in wartime is that we do them for reasons of national defense.

0:04:54 Thomas: Right. Yeah.

0:04:55 Heather: Is this sounding familiar?

0:04:55 Thomas: We need to defend ourselves way over across the world. Continental drift, you know, they're getting close. It may take a while, but, you you know,

0:05:04 Heather: When you hear that around the cases that you read around 9/11 and some other cases, and again, this spans the history, as soon as they raise that as a justification, they're often given quite a bit of latitude, right? And again, you don't have to believe me, you can feel free to read the cases yourselves. Thank you, I appreciate that, um. So they're off to get a space lot of just in this area, so that's what he said. He signed the executive order, the United States government ceased control the steel mills, forced them to continue to operate and to make guns and weapons to send over to Korea. So not surprisingly, this case went up before the United States Supreme Court and was heard the same year. And in a decision, in a six to three decision, the United State Supreme Court actually declared the seizure unconstitutional. So they voted against President Truman.

0:05:19 Thomas: I do believe you. I think what's weird, ironic is like, he's literally seizing the means of production during the Red Scare. Anyway. So

0:05:57 Heather: About this case at all is because it's the leading case on the scope of the presidential powers. This case actually sets out our understanding for the scope of the executive powers. We're talking last time, you mentioned the powers of the president. You're like, "I hadn't read the Constitution in a while." That's okay. Not all of us carry it around with us in our back pocket or in our purse. That is all right, right?

0:06:18 Thomas: Keep, I shouldn't keep it in there for grandstanding purposes though. It does come in handy in a pinch.

0:06:22 Heather: Just to whip it out. So, um, article two of the Constitution covers the presidential powers, and the first line, so article 2 section 1, it grants executive power to the president, and the first thing that it says is that the executive power shall be vested in a president of the United States of America, great. Uh, then it goes on to talk about, um, term of office, it talks about the vice president, and then it talks extensively about how the president gets elected, yeah.

0:06:47 Thomas: Say a whole lot about what the heck executive power means, then does it not?

0:06:51 Heather: Doesn't. And the scope of the power tends be broad, but it's not really that clearly defined. So instead, we have to start looking at Supreme Court cases to kind of better understand what the edges of the power are. And this case is really the definitive case on how we do that, especially when we're looking to Congress acts, and in relation to some federal statutes, the Constitution, and other branches.

So what you'll hear often is that the scope of the power is it's extensive as it relates to issuing executive orders and domestic affairs, but it's not clearly delineated. And again, you'll see this term inherent presidential power, that there's a lot there, and that's really just a reference to whether the language of the Constitution was meant to grant the president power that's not expressly written into the Constitution, and there's debate on this, right?

And if you're wondering what kind of debate or how long has been going on, this has been going on since the Madison and Hamilton days, so if you are feeling strongly about this, you are not the only one, this has going on for quite some time about whether the president has a lot of power that is just not written in, or a little bit of power, or somewhere more in between.

0:07:57 Thomas: To get on my soapbox, but it's almost like saying, "Well, we just need to do what the founders would have wanted," doesn't really accomplish a lot because, because they didn't even know what the hell they wanted.

0:08:07 Heather: That's right. They were fighting about it back then. This particular case has, and again, I'm going to skip all the really fun, long, detailed stuff, because again, it gets a little complicated. And we're just going to go straight to the analysis portion. So I want you to envision a triangle, right? And this is how we're going to do it. So there's a little part at the top, there's a part in the middle, and then there's a part at the bottom. And that's how we're actually going to work through this question. I promise it's not quite as complicated as it sounds, but as you start to think about that triangle, that's how we think about the scope of the president's power.

Really looking at that in relation to action by Congress, president'S power as it relates to his action, as it relates to federal statutes that exist, or the Constitution. I'm going to start at the bottom, so bear with me. Case says that the president's power is its lowest ebb, or that's the terminology they use, or its lowest point when Congress has taken action that's contrary to the president'S action, right?

When you have two branches of government who are essentially in conflict, it makes sense that one of those here, like the president, that their action will be likely invalid and that their authority is at its lowest part. Right? Because you've got, again, two of those branches in conflict with each other. That's what we've gotten at the bottom of our triangle, is that lowest ebb.

We pop all the way up to the top, and we skip that middle part for now, if we get all the way to the end of the triangle, it's called the zenith, or the height of authority. The president acts at the height of their authority when they act with the express or the implied authorization of Congress. And anytime the president acts with the expressed or implied authorization of Congress, the president's actions is just presumed valid. That also kind of makes sense, right? Because now we've got two branches working together.

0:08:23 Thomas: Okay.

0:09:53 Thomas: Congress is like, go kill a bunch of people in the Middle East. President's like, yes, I yes will. And then we have that authorization for use of force in, you know, 20 years later or more. That kind of thing. They get rid of that? I think That's still in effect, isn't it?

0:10:05 Heather: AUMF? A good question.

0:10:08 Thomas: I think it is.

0:10:10 Heather: Look because I'm afraid the answer is yes.

0:10:12 Thomas: Yeah. The Senate. Oh, that's fine. Okay, so we Googled it for fun. The Senate did to repeal it, but, uh, what, it stalled in the house. Yeah.

0:10:19 Heather: Sigh there?

0:10:20 Thomas: There's still an awful lot of those terrorists from 9-11 that we need to go get, apparently. I don't know. Yeah.

0:10:27 Heather: Importance of also getting rid of laws on the books we no longer need. Kind of like the Comstock Act, if you don't know what that is. On this one. You're right. When agree, whether it's for something we agree with or not, the president's acting with the height of their authority. Then we get to this middle section. Is referred to as the zone of twilight.

0:10:31 Thomas: Right. Yeah, yeah. I'm Sorry, are they trying to avoid copyright infringement for the Twilight Zone? Is that, was this named before the show, the Twilights? Oh, okay. That's An old show. I

0:10:54 Heather: I Think it was because A great show, and if you ever look up the history, by the way, of the person who who created it. Me Too. Yeah.

0:11:00 Thomas: It. Yeah. Rod Serling's amazing. I

0:11:02 Heather: Don't

0:11:02 Thomas: Of them are really silly by today's standards and like hilarious, and then the other half are like, "Oh my god, that's still so brilliant," like 60 years later or more. It's it's a it's a great show. Anyway, okay, so we're in the Twilight Zone, I'm my show, my rules, this is Twilight Zone here. Sorry.

0:11:18 Heather: What it is, if Congress is saying that and then the action does not conflict with the power of another branch, and here that'd be the judicial branch, right, or the constitution or federal law, then the president's actions likely valid, right, because he's not bumping up against anything. So if Congress is silent but then the president's action conflicts with another branch, that'd be the judicial branch, or it conflicts with a constitution, or if it conflicts with federal law, then then that president's actions presumed invalid. And that makes sense too.

0:11:46 Thomas: Yeah.

0:11:46 Heather: Right, because if the president has suddenly started to conflict with some already established law, would make sense that what he's doing is invalid. So that's considered, that's referred to was the tripartite framework that we use when we're starting to think about if what the president is doing, if what he's doing is valid or invalid. And so I'll never forget, so when I was studying constitutional law way back in the day, uh, and we were about finals time, the president Obama signed DACA into law. And so when we were getting ready for our final exam, one of the things that we practiced was about whether or not the president's, uh, order on DACA, whether that would be valid using this framework. And so this is, so this isn't just something that's like theoretical, it's Something that gets used, right? Let's use this to, uh, look at our question and go back through some of the answer choices that you had gone through, because you had identified some really important parts of the fact pattern. Do you remember which those were? Yeah.

0:12:37 Thomas: I'm Just gonna say all of them. I just, I Got it. I identified all of them. Why don't you go ahead and narrow it down for us.

0:12:38 Heather: The You're identifying specifically, and you talked a lot about this being a national publicity campaign. You really narrowed in on that. Also that no federal statute authorizes or prohibits the action by the president, right? And those being two really important parts. And so hopefully after talking a little bit about the framework, that portion where it says no federal statute autorizes or inhibits, That kind of helps give us a little little bit of a taste of the rule, and then now we're looking for what has Congress said, have they done something that they expressly or impliedly authorized the president to create this commission, um, they, uh, something that is contrary to this, or are they silent on the issue. So that's kind of what we're looking at, what do we think. And

0:13:04 Thomas: I Would Say they're silent, or you could argue that like that little slush fund that I think I'm supposed to assume they already gave, I think sort of like saying something on the issue. But so silent to maybe that is my range there.

0:13:40 Heather: Guess that they were either silent, that the slush fund was them saying something, because, would you think?

0:13:45 Thomas: Think I'd have to say silent, because if just giving funds for such other purposes as the president may think appropriate meant they were speaking on, like, that issue, would mean they're speaking on, like, every single possible issue. You. So I'll say silent.

0:13:59 Heather: You would be correct, because fact patterns like this, it would, you would see oftentimes another, like a statute that would Say, "Oh, Congress passed a law and they did this," and then you would say that's how you could tell whether or not Congress had done somebody that was either expressly or, uh, impliedly in favor of the president did or contrary to. So that's the kind of typical fact patterns that you see. And And this is the typical one you see where Congress is silent.

0:14:06 Thomas: Yeah.

0:14:24 Thomas: All right. Feeling pretty good about a yes answer then.

0:14:27 Heather: And you are exactly right. The yes answer is exactly the camp that we want to be in. So now we're trying to figure out the reasoning behind

0:14:35 Thomas: Okay. So we're eliminating C and D then right off the bat. And guess if that's the case, I feel good about the fact that I couldn't really differentiate between C and E, because often it's hard to differentiate. Like sometimes there's better and worse, and you feel free to chime in if you think I'm wrong, but sometimes there're better or worse wrong answers. But in some cases is also like, well, they're both kind of irrelevant in a way. And I felt like C and D were kind of equally wrong, but please let me know if disagree you on that. C was no, because the protection of children against common diseases by vaccination is a traditional state function and therefore is reserved to the states by the 10th Amendment. And D was no, because Congress has not specifically authorized the creation and support of such a new federal agency. I got a little worried about that new federal emergency language, but but I also, they just kind of neither of them seemed right. But do you think either of them was more or less right or not?

0:15:30 Heather: Of them were there for different reasons. And hopefully this will help as folks start to navigate through answer choices. So the C answer choice was the way, from my perspective, it's really testing how closely folks were reading. Because remember that the multiple choice questions in law school and on the bar exam are reading comprehension questions. And this answer choice said here, because the protection of children against common diseases by vaccinations is a traditional state function. Really focused on vaccinations, and right? Remember that what the president's doing is he's putting together an advisory commission and it's really also a publicity campaign so if you weren't writing closely you might have missed it that he's really encouraging vaccination but he's not actually providing vaccines that's you had also mentioned too about the 10th amendment about keeping kind of track Of them it what this one was trying to say is um rule for the 10 th amendment is that states may act unless the constitution prohibits It more or less. Yeah.

0:15:35 Thomas: Yeah. Right. Right, right, okay.

0:16:23 Heather: And the 10th Amendment tends to be a limit, you see that come up more as a limit, uh, the legislative power. So typically you'll see that on questions that are related to, like, Congress and the 10th Amendment acting as a limit to congressional powers, like taxing, like spending, like the commerce clause. So that's typically how that comes up on the multiple choice questions. And so since we're getting tested on the presidential power here, the 10th Amendment wouldn't really be something we'd see as a correct answer choice most of the time, because the limit to the president, right. To be things like impeachment and it tends to be like getting voted out of office. So hopefully that that also helps a little bit.

0:16:51 Thomas: Yeah. What are we doing on D though, what are we thinking, how do we eliminate that easily?

0:17:01 Heather: Well, I like to think of this as this question is really testing the executive power. And this answer choice is talking about Congress. So I think, you know what, the best answer choice always has to answer the call of the question and be correct based on the facts. And the answer the issue. The issue is trying to get me to talk about the And this is really talking about Congress again. And so it's not really the best answer choice. It's really, again, not really giving an answer choice related to presidential authority. Instead, it's talking about Congress and what Congress can do. Andso I don't see a one -to -one match with this answer choice, and so that's how I need to eliminate it.

0:17:38 Thomas: Think I can translate that into the logic that works on my operating system, which is, I guess there could be other reasons, reasons why it's okay that the president did this. So like if D is saying no, because Congress has not specifically authorized, I guess that would imply that the present can only do things that Congress has specifically authorized, which, based on this very helpful breakdown, seems to not really be true. It's not as though the president can only what Congress has specific authorized. So it's like an incomplete kind of answer. Like it's touching on stuff that might be related to how we we look at this, but not really.

0:18:14 Heather: Exactly.

0:18:14 Thomas: Okay. Makes sense. Okay, so C and D, feel I pretty vindicated in that I couldn't really make a better, like those both were just bad. So between A and B, I quickly eliminated one of them and now fingers crossed, I'm hoping that that was the right elimination.

0:18:30 Heather: And You eliminated A, which said yes because the president has plenary authority to provide for the health, safety, and welfare of the people of the United States, and you said this was a hard no, right? Yeah.

0:18:40 Thomas: Yeah, I just, no, the hell Well, he doesn't. I don't know. That doesn't seem right.

0:18:46 Heather: And you had also said that would give him too much broad authority, right? Yeah. The interesting thing here is that states traditionally have the power over legislate over the health, security, and welfare, safety of The not a rule about the presidential Power. The

0:18:56 Thomas: OK. Yeah, so that's just right. All right. Well, I think I've made the proper eliminations. I think what you're saying is that

0:19:08 Heather: Answer is, which one did you pick? You

0:19:09 Thomas: I got It right. Three in a row. Yes, because this action is within the scope of executive vested in the president by the Constitution and no federal statute prohibits it. It bam, nailed it.

0:19:23 Heather: Did, exactly. Because here, we don't have any other branch of government. The president's action doesn't conflict with the judicial branch. There's no federal statute that prohibits the president's action. And there's no part of the constitution here that shows us that president's the actions prohibited either. So this means that because the scope of authority also for the executive is so broad, right? This tends to lead to it being a valid action by the president. On

0:19:50 Thomas: It, uh, we got a fun history lesson along the way, so thank you so much, Heather. I really appreciate it. Uh, feel like I understand this better. And more importantly, I've gotten three right in a row. Oh, I should update my score. Let's see what the spreadsheet says. It's Uh, yeah, now you're gonna start giving me the real questions. Uh, uh, I am. And remember, this is question 29, but four of them were repeats. The technicalities I don't need to bore a Heather with, uh, accidental repeats. Um, and I only counted the ones I got wrong if they're repeats. So long story short, I've answered 25 that count and I've gotten 16. So I'm at 64%. Cool.

0:20:03 Heather: A hot streak. That's

0:20:28 Thomas: Feeling

0:20:27 Heather: Great. And just a fun fact, if you're studying for the bar exam, what you're trying to do is you're tying to shoot for like an average of like 65 % correct on your questions. So guess you're really close.

0:20:36 Thomas: Close. Not enough of a sample size though. I could really go on a bad streak at any point. So we'll see. I gotta keep, gotta keep on trucking.

0:20:47 Thomas: I just have to announce this week's winners or So as I look on reddit .com slash r slash open args for the T3B question 29, here's the honest truth. Everyone got this right. This was an easy one. Kind of dumb. It's weird. When I get it right and then everybody else got it right, somehow I feel like stupider. Isn't that weird? That doesn't make any sense, does it? Maybe it's because I felt like maybe I had to try a little.

And then when I see everybody got B, I'm like, well, they didn't all have to try. I don't know. That's just a weird psychological thing. So it's hard to pick a winner when everybody got it, right? But I'm going to do two things. First off, you may remember that last Last week's winner was German Death Reggae. I didn't realize what that name was about. And that user was kind enough to link and say, say if Thomas still doesn't know what that means.

And it links to Parks and Rec, quite possibly my favorite show. Up there in my top like five for sure. And I didn't realize it was an April Ludgate quote. Quote, I really only listen to like German death reggae and Halloween sound effects records from the 50s.

0:21:55 Thomas: German Death Reggae. Well, that's awesome. Didn't remember that, but that's, that's fantastic. Thanks for the reminder. Then to pick a winner, I'm going to pick someone who actually asked a meta T3B question that I think will be useful. So this week's winner is Eldias, E-L-D-I-A-S. Appreciate that the question is so direct after word vomiting all the extra stuff. "Thomas is right. This is con law.

Off the bat, I'm tossing out both no answers because I'm pretty sure we've had presidential commissions in the past. There was one about human rights or something under Obama, maybe. I think A is an attractive distractor. It sounds kind of right, but it's misphrasing part of the preamble of the Constitution as though it were the duty of the the president, kind of only leaves me with one choice left. So B, final answer." To add two things. First, I'm loving the addition of Heather to the show.

Hope she comes around for an AMA one of these days like Matt did. And second, could you give a shout out, Thomas, when the answers are due by? I'm guessing T3B is scheduled for Monday recordings, it might be useful for folks who aren't terminally online that opt to start playing along. Is useful. So I will say it doesn't can answer all the way up until probably like Tuesday evening, you know, pretty safely.

I'm not, not a guarantee, but I would say if you answer by Monday night, you're pretty much guaranteed to at least be considered, considered, but you can get away with, you can play fast and loose and get away with Tuesday, Tuesday a .m., Tuesday, maybe even Tuesday p .m. Maybe you're me and you have ADHD and you leave everything for the last moment. You could even wait until Tuesday in the evening and maybe, maybe you'd be the winner, but probably not.

I mean, you probably want to answer earlier and you might be closer to the top of the answers and you'd have a better chance. So hopefully that answers that. And now we'll go to patreon.com/law and look for a patron winner, though I'm starting to worry that even the patrons are going to Reddit because Reddit is so cool that it like tracks scores and stuff. So hey, you know what, if you're a patron, I will not at all begrudge you for posting your answer in both places.

That's actually totally fine. That would actually even help me because then I can like pick a non -patron on and a patron on, on Patreon. So yeah, you would like to do that, please feel free. Cause only a handle full of answers, but the we've got a winner. It's the great state denial. "Hopefully I'm not too late. I think the answer is B. The president is creating a commission. Commissions study issues and offer solutions.

It's not a new department and there aren't any policy that take effect, probably means policies, that take affect from the commission's decision, funds have already been allocated by Congress. So A is maybe, or maybe, not correct but doesn' t feel relevant, C is maybe and maybe not not correct, but wouldn't apply because there's no action taken by the commission decision. And D is not correct because there is not a new agency created in the question.

The answer left is B." Well, congratulations, the great state of denial and Eldius on Reddit, you're our two winners for this week. Job. Well, on this break, Heather, I think I'll have to – I think I'll try another one. I think it feels good enough to try another question, so we'll have to have that after the break.

0:25:00 Heather: Like a plan.

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0:26:41 Thomas: Right, Heather. Now it's time for our next question. Is question 30. So let's have it.

0:26:48 Heather: Mart was robbed and the cashier was shot. Next day, the police arrested a suspect and brought him into the police station for questioning.

0:26:54 Thomas: Jeez. And that's how you tell us the news? Jeez, Heather, okay. No bedside manner or anything? You're just like, someone shot and And then there's, you know, it's robbed. Like, No. Okay. In the question, someone was shot and robbed. Okay. Oh,

0:27:18 Heather: An Next day, the police arrested a suspect and brought him into the police station for questioning. Read the suspect his Miranda rights, which he stated he understood. For two hours, a police officer questioned the suspect about his involvement in the robbery. Suspect Suspect did not respond to the questions, remaining silent. Learning the cashier died, the officer informed the suspect of the cashier's death and told him that he should start talking if he wanted to get the best plea deal. Suspect then confessed to both the robbery and the shooting. To suppress his confession. The confession likely to be suppressed for violation of Miranda rights? A. No, because the suspect waived his Miranda rights by by making the statement. B, no, because the suspect's statement was not made in response to a question from police. Yes, because this suspect did not receive fresh Miranda warnings before he was told of the cashier's death.

0:28:14 Heather: D, yes because the suspects invoked his Miranda rights by remaining silent in the face of police questioning for over two hours.

0:28:13 Thomas: Shoot. And I, man, I love it. I say this every time. Cause it's like the questions that you tend to have are all like, oh, this seems easy. And then, but the answers are really good at like, Oh, okay. I can see how each of those might be right. So this is, this is a fun one. You know, murder. No, Miranda writes. That's always fun.

0:28:34 Heather: A little bit of murder, a

0:28:37 Thomas: Yeah. So Let's See? Robbing the cashier, shot police, arrested the suspect and brought him into the police station for questioning. An officer read the suspect his Miranda rights, which he stated he understood. Okay, so that seems good. Two hours, he's like just remaining silent. So then the cash here dies and the officer informed... So he's still, he hasn't like left or anything. He's... He's still in custody. It's not like a new arrest. Seems to be in, I think, right? He's still in the police station. Yeah, two hours.

The suspect did not. After learning the cashier died, the officer informed the suspect of the cashier's death. So it seems like he's still at the police station, if that matters, like if it's not another arrest. It seems like it's the same one. And told him that he should start talking if he wanted to get the best plea deal. The suspect then confessed to both the robbery and the shooting.

At a hard time thinking this is going to be suppressed because, like, for one, our Supreme Court doesn't like that. So, but also I don't really... I think going through the answers is goingto maybe reveal where the sticking point is. But my first instinct is like, yeah, it seems like this should count. So here we go. It's basically the question is, will the suspect kind of win and the confession will be suppressed for violation of Miranda rights?

So A, no, because the suspect waived his Miranda rights by making the statement. Don't think that could... I don't think that's going to be it just because it seems like then police would just do this all the time. And like, if they make someone make a statement, if they like force someone to talk, then it's like, oh, he waved it by making the statement. I don't think that's right, but I'm having what might be a really dumb thought, which is I can't...

Now I don't know what is your Miranda rights versus the Miranda, like, told what you're... Like there's the, like, oh, he didn't read him his Miranda rights, like you have to be read your Miranda, Miranda rights. And then there's, but of the rights violated. And I actually, realizing like that, I think that might be two separate things and I don't know which is happening right now. Maybe that's wrong. Okay, so Miranda, Miranda warning or whatever, they'd have to tell them right from silent, right to counsel.

So what, I guess what I'm saying is like, oh, a violation of Miranda rights, I typically think that means like, oh, he wasn't read his rights properly. Is this question going for, like, no, one of those rights that they tell you about was violated? So they didn't let you remain silent, they didn't give you an attorney. Is that what the Miranda rights are? I actually, wow. Huh. That's weird. I don't... I can't believe I've never thought of that before.

All right, I'll see if I can make sense of it through the answers, but still I'm kind of leaning away from A, not a hundred percent, because I think you could waive your Miranda rights by making a statement. Okay. No, that's why I said it. So you wouldn't waive the right to be told your Miranda rights, like, that. I think you just have to... That has to be...

But if it's, if you're talking about just the right to remain silent, then I guess you could wave that by just talking. So that's what I'm a little confused. I think I have to keep A in the mix, 'cause I can't really tell for sure which thing I'm answering. B, no. So is the confession likely to be suppressed for violation of Miranda rights? B, no, because the suspect's statement was not made in response to a question from police. I... From actually think this is a really strong contender because I... I look at what happened. So he was read his Miranda writes, which he said he understood, and then he's silent. OK, I take it back, I think this is a very true one. Like, I think this is like, oh, this happens, you know, if the police don't actually...

They're not even really questioning you, but you just say stuff, then I actually don't think you can go like, "Oh, but they didn't..." But because he's been Mirandized, then he understands it, he remains silent, and then she confesses later. I don't know that this will be the right answer just because I don't think that's why this was OK, if that makes sense, but I'm still keeping it in the mix. This is a tough one. No, because the assessment was not made in response to a question.

Because that's true. He said, "Hey, you should start talking if you want to get the best plea deal." Wasn't really them asking a specific question, it's just like, "You should talk to us." I feel like police get pretty wide latitude, and I feel that's a thing they can do. But we'll see. See, yes, because this suspect did not receive fresh Miranda warnings before he was told of the cashier's death. So that's the thing that I think they're going for, because this doesn't really make much sense.

If you need have to have those read to you before, like, it could be a new thing you're charged with... That's the only way this makes sense, because otherwise what happened was someone was read his rights and then a little while while later he confessed, which isn't really anything. So I think I'm going to need to read it with that lens. I think C is plausible. Would you need to be read your rights again because, like, a new crime?

So you could have been charged with robbery and maybe like attempted murder or something, and then the cashier dies. Now you could be charged with murder. Do you need to be read... I don't know, because I don's think Miranda rights really change all that much depending on the crime. It's not like, "Oh, but if you're a murderer, then you get even special or Mirandized." Like, it's still just write to remain silent, write to an attorney, you say can, will be...

None of those things changes because of, like, a new crime. Plus, feel like if that was how it works, then, I mean, I feel like there are other things that... It's not as though right when you're arrested, they know everything they're going to charge you with all the time. Like, it could be like you're rested because of something and then there's new developments or there's a further crimes are discovered. And I don't think they would need to read you the warnings again each time.

Yeah, I don't... So C is both the only way that this question even really makes sense, but also I don't think it's right at all. Or D, yes, because the suspect invoked, invoked his Miranda rights by remaining silent in the face of police questioning for over an hour. That, that seems nuts. Like, if D is right, then I'm very confused. So the logic of D is trying to be like, "Okay, I'm... My Miranda right to be silent by being silent, and as long...

And I did that for over an hour, but then they made me talk." I don't... I don't even understand how this could make sense. Like, usually I can find an explanation for it. It would be one thing to be like, "Well, yeah, they, like, beat him and then he started talking," and it's like, "Well, okay, he didn't want to talk, he was going to remain silent, but then you used force or something." I... This doesn't make any sense.

It's because you invoked your Miranda rights for a certain length, length of time, then what? I wonder if I'm missing something because I don't even... This seems really silly. D, yes, because the suspect invoked his Miranda rights by remaining silent in the face of police questioning for over an hour. Is there a time limit to how long you have to sit there and remain silent? Or, it porque they haven't given him a lawyer? Is that... that what it is?

The next day the police, all right, "Oh, you have a right to have an attorney present." He didn't... I You have to request one, right? Okay, maybe that's the element I'm missing. So the rest, of the rest read Miranda writes, which he stated he understood. For two hours, police questioned him. He If he understood it, he could have said, "Lawyer, I want a lawyer, give me a lawyer, or let me call one," or whatever, but he didn't. He But did remain silent.

After learning the cashier died, the officer informed the suspect of the cashier's death and told him he should start talking if he wanted to best, get the best plea deal. I don't know, this seems fine. Like, I think maybe, maybe the question is also trying to get me to think about, should they have given him a lawyer or something, but I think you still have to request one.

I, if you say you understood your Miranda rights and you didn't do that, I think you're kind of waiving that sort right. This so is weird. I really think I'm missing something and I'm I quite figure out what it is because usually I can put the question into, like, a lens that makes sense even if I don't know, like, the specifics, fix, but here I worry that I'm missing something. Could you invoke your Miranda rights? So, so let's think of it this way.

Maybe it's trying to get me to think an officer reads you your Miranda rights and you're like, "You have the right to remain silent and you have a right to an attorney." Trying make me think, hey, he was silent and means he wanted an attorney, but you didn't give it to him. And then he confessed later.

I think it's trying to make me think that maybe, like, the equivalent being, what if you just said, "I want a lawyer, I want a lawyer," and they didn't do anything, and then eventually they wear you down and you confess. I feel like you could be like, "Well, I wanted the lawyer the whole time, you didn't do it, so it doesn't matter." I think, is that that might be kind of what I'm supposed to think? Like, it's kind of equivalent to that.

And so, am I supposed to thinking that by remaining silent, that therefore means you're also invoking the rest of your Miranda rights, one of which would would be like the right to an attorney? But I don't think that's how it works. So, wow, okay, I don't know that I'm interpreting this right, I could be off, but if that's the right interpretation of what's going on, I still think D is a terrible answer. Let me go through them again just because I've been so confused.

So, is the confession likely to be suppressed for violation of Miranda rights? A, no, because the suspect waived his Miranda rights by making the statement. Statement, that's seeming pretty strong there, when I look at it that way. B, no, because the suspect statement was not made in response to a question from police. And that one, now, now that one looks kind of worse. That one looks like it doesn't matter.

That one looks like if he hadn't been read Miranda rights at all, like he volunteered something, I think it still be allowable because, or, hey, the police didn't really ask him a question, they just said like, "Hey, you sure should talk." Think that's what that's going for, and that's not what's happening here, I don't think. So right now, A is alive, I'm eliminating B. C, yes, because, because the suspect did not receive fresh Miranda warnings before he was told of the cashier's death.

Just don't know why that would be like, that seems a little weird. Might be my second best answer, but, before he was told of the cashier's death. So we, so it'd be like, "Hey, all right, before telling you this very important news, you have the right to an attorney, you have the right to whatever," and he's like, "Hey, man, yeah, I've already been here for two hours and I knew that, I said I understood." Like, I just, it doesn't make any sense to me, but maybe there's some technicality I'm missing? Or D, yes, because the suspect invoked his Miranda rights by remaining silent in the face of police questioning for over an hour.

Is there some principle that if he remains silent, police are supposed to just stop questioning him? Is that what I'm supposed to worry about? Don't think that's true. I think you have the right to remain silent and the right to have an attorney present. I don't think if you say, "Hey, I'm remaining silent," that means that's like, "Okay, force field, like you're not allowed to do anything." I think they can still question you, they can still ask you questions, you just don't have to answer.

I think that's how that works. So D seems bad to me. Right, I... I have, I to go with A. This is a weird one, man. I really, I have go with A, no, because the suspect waived his Miranda rights by making the statement. So he waived his right to remain silent by not remaining silent, and he was properly warned of it, seems fine.

Guess I'll go second best answer C, just because, like, maybe there would be something weird where you would need to be Mirandized again because of that development and the thing. Like, I, I think I'll go answering A, second choice C, just in case there is some principle there that I don't know about. But I got to say my main answer is I'm confused and cannot wait till next week to find out what the answer to this is, because what the hell is happening here.

Final answer A, second chance answer C. Huh, all right. If everyone would like to play along, make sure to go to the subreddit, that is reddit .com slash r slash open args They've got a great way for you to play along, and it'll track your score, even, which is super cool. And the second best, best place to play, the best place to play is on patreon.com/law on the post for each T3BE, comment below that, and you could be the big patron winner for the week.

Right, Heather? So I'm excited to wait a week and find out if I got this right, but so much, as always, for joining us, Heather, and we can't wait to hear your lengthy explanation for what the hell I was missing.

0:28:38 Heather: Little bit robbery. Thanks, I'm excited too.

0:40:34 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:40:43 Thomas: Now all that's left to do is thank our patrons. We'll begin with the new patrons catching up from when I took back over the show, and we are into March, finally. We're getting through the February rush, and so we're inching inching ever closer to being caught up with new patrons, which will be sad, but that's life. But here we go. Thank you so much to Mitchell Johnson, Apple Monkey Man, Dion Oh, sorry. I hope I pronounced that right. Slightly askew since 1982. Alana L. Barmp.

0:41:21 Thomas: Barp. I don't know why that's so funny. That's just, I don't know what that is. I don't know if it's a word or some sort of abbreviation, whatever, but it's, it's a funny sound. Barp! Anyway, Landry Dugan, Judy Hanrahan, Marianne Atherton, Friday Spangenberg, that's an awesome name, Eric Chase, David Menestrina, Squoop, Mel Ancrath or Mel Ankrath, it's one word but there's a capital A, not sure, Otto Neal, Ryan Wade, Kelly, Sarah, Sean, and Viv, DRN1000, DRN1023, Adam, Sensual Kazoo, John Barwood, John McMartin, John Tanzer, M.H. Farnsworth, Santa Laos or Nika Laus, but it has a capital L and it's one word, okay, I don't know, and finally, Tuba or not Tuba, that is the question.

Thank you so much to our quote unquote new patrons, and most importantly and finally, we thank our top patrons, our Hall of Famers, our all-time greats, at patreon.com/law, this is the final quartile, so you so much to Philly, Basement Bar is Back in Action Baby, Drinks on the House, Edgy Veggie Guy, Chapman, the Solutions Archaeologist, Elect Thomas Smith President, American Honkytonk Bar Association, Balticate, Philip Kizer, Ending a Sentence With a Preposition, "A preposition is something up with which I will not put," the 501st and Rebel Legion, Want You Cosplayers, Doing Good, Milo Mead, Song Cert Petition Was Denied, ah, already, boo, I'm sorry, wow, that seems quick, FRED R GROOTHUIS, Malika Chandler, Malcolm the Dragon, the Precious Variant, Big Easy Blasphemy, RhondaTheDork.com, Chris Waltrip, Mitchell, and Bye Felicia.

Felicia, that's a, that is a good one to be top patron. I'll tell you though, is approaching By Felicia, as I don't know what the rules are on warning Felicia. Felicia, but I'm just looking at the numbers here. Bye Felicia is at risk of being no longer top patron in a few, possibly months. So that's big news. All number one in my heart, except not really. Bye Felicia is officially number one right now. So, but it could be Mitchell any day now.

Else has got some work to do. So, right. Well, that's the show. Forward to next week's answers to this very tricky question's, of course, Rapid Response Friday. So I'll see you then.

0:43:51 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.