OA Bar Prep With Heather! T3BE31

Transcript

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

0:00:00 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:00:08 Clip: I just know that you were going to kick that bar's butt out of here, you know? Come in here with a skull full of mush and you leave thinking like a lawyer.

0:00:31 Clip: My staff has flunked the bar exams six times.

0:00:36 Clip: You graduated from law school six years ago. What have you been doing since? Studying for the bar.

0:00:48 Thomas: The bar exam question 31 of the new era, but of course before that we've got to question 30. And don't we cut right to the chase and get on over to Heather, who can take us through the answer to last week's question right after this break, which you can avoid if you go to patreon.com/law. Avoid all the commercials, all the nonsense, the auto ads, they're terrible, you want to avoid them, avoid all that. Get bonus extra stuff on patreon.com/law All All right, Heather, how are you doing today?

0:01:21 Heather: Good. How are you?

0:01:22 Thomas: On pins and needles. I've been in suspense. I haven't slept, haven't that question really excited, I'm seriously excited for the breakdown because I think I might have just been missing something, or maybe I eventually got there, I don't know. Either way, why don't you remind us what this very interesting, possibly confusing question was, so we can get the answer.

0:01:41 Heather: This was our Quick Mart scenario. Uh, we had a cashier who was robbed and shot, and then we had a suspect who was in police custody, and we're trying to figure out what, whether he said to the police was going to be admissible in court. So

0:01:54 Thomas: Of to remind people the fact pattern a little bit. He was arrested in the police station, read the Miranda rights, and he said he understood. Two hours go by, police officers questioning him. He's silent. Then the cashier dies. The officer learns and says, hey, you should start talking if you want to get the best plea deal. And then the suspect confesses. So that's, yeah, that's kind of the order of what happened there. And I was just very confused by this. So let's hear it.

0:02:00 Heather: He Did Well Hopefully we can provide a little bit of clarity. So let's start here. So when we're thinking about, um, topics that are tested on the bar exam, if you look at the Conference of Bar Examiners who write these questions, they say that they test seven topics. That's torts, real property, constitutional law, evidence, contracts, civil procedure, and then they lump criminal law and criminal procedure together.

0:02:48 Thomas: See, you would want to say criminal law because we're in a crime thing, but I feel like this could be constitutional law because that's where your rights come from in terms of, like, and all that, ultimately, but one of those.

0:03:01 Heather: Well, you're not wrong. So it's testing criminal procedure. Glad that you said that about the constitutional law, because I like to refer to criminal procedure as con law three, as constitutional law three. Because when you're a law student, you take usually, not always, but depends on the law school you're at, you take usually a year-long class on constitutional law. And you also have the option, or maybe you're required to take a class called criminal procedure. It covers some amendments, which I'll talk about in a second. It And is covering a lot of constitutional law. So your casebook covers a ton of constitutional law, a ton that have been before the Supreme Court and some amendments. Like I said, I'll talk about it in a minute. And so it's not wrong to think that this is really based in constitutional law because it really is. But for the purposes of the bar exam, they treat treat it as a criminal procedure question. So it's, we refer to this as

0:03:13 Thomas: Gotcha.

0:03:53 Thomas: Oh,

0:03:53 Heather: Crim pro. So you might hear that as just like crim pro, you'll hear that around a lot. There's a couple of topics that are tested pretty heavily in crim pro, if you could guess based on some of the stuff in this question, what topic do you think it was testing you on? Well, if you, that's exactly it. See, you didn't Even know what you knew. The call to question just says, is the confession likely to be suppressed for violation of Miranda rights? I love these types of questions because you don't have to do too much hunting around to try to figure out what it's testing you on. It kind of throws it right at you, right in the call of the question. So I'm always a really big fan of these ones, and they kind of do the issue spotting for you.

You're like, yes, okay, I know this is criminal procedure and I know THIS is Miranda. So you can narrow right away. I promised I would talk a little bit about criminal procedure and what gets tested on the bar, what gets talked about in law school. It covers a lot of ground. So it covers the Fourth, Fifth, and Sixth Amendments, and sometimes the Eighth Amendment as well.

We've talked about this before, but I think it's a good time to kind of remind folks, it's okay if you don't carry a Constitution around in your pocket. That's all right. That's what we're here for. We'll do some, some of that reviewing for you in case you don't carry that around and don't have the Fourth, Fifth, Sixth, and Eighth Amendments just hanging out in your back pocket, you can't just pull that up. That's okay. We'll do a little bit of review.

The Fourth Amendment gets tested all the time on the bar exam, and that's searches and seizures by the government into what they refer to as areas of reasonable expectation of privacy, or REOP. It also tests the warrant requirements and to the warrant requirement as well. Just to give a really quick explainer, the warrant requirements means that the government has to have a warrant when they search you, they search your stuff, or when they arrest you or they take your stuff.

This idea of the reasonable expectation of privacy is a fancy way of saying that the Supreme Court has has heard tons of cases and there's tons of case law that's developed around places where the government needs a warrant to, again, take you, take your stuff with or without a warrant. So you'll see a lot of that. So I'll give you an example. Let's talk about putting your trash out on the curb.

0:04:06 Thomas: I don't know the subtopics. So Miranda writes, I know the we've had a question. Matt did a question on that recent, well within the new era. So yeah, I was going to bring that up too.

0:06:06 Heather: Do you remember whether or not the government needs to want to rifle through your trash, or to take your trash after you put out on the curb?

0:06:12 Thomas: The curb? No, but yeah, if it's like in your house or closer, I think you're right. If it's right by your house, then yes.

0:06:18 Heather: Yes. Story, right? Yeah. If it's in your house, if you're in your House or the stuff in your House, the government needs a warrant to search you, to search the things in your House. And same thing, the near your House is a little bit different. It's referred to as cartilage and government, you know, the fancy word that lawyers come up with near your home or not the police need a warrant. And a lot of times that's just referred to to as a place in which you have a reasonable expectation of privacy. Again, the government, generally speaking, needs a warrant, again, to search you, your stuff, to take you, or to take your stuff. And when I say take, I mean arrest. And so that stuff comes up a lot.

But you might also remember, there's a ton of exceptions to this warrant requirement, right? There's a time, and you'll get a lot of questions on those in the bar. Then for the Fifth Amendment, that the privilege against forced self -incrimination. And what comes up with that That is custodial interrogations, confessions, Miranda warnings, a waiver of rights, and then our rights to silent and to an attorney, and then some of those exceptions.

Also get the Sixth Amendment right to counsel, which is different than the Fifth, a right to a jury trial, some witness identifications. You're going to hear these as photo arrays, which are like a photo book, and also the corporeal identifications, which just is just a fancy way of saying a

0:06:32 Thomas: Yeah, Yeah, that's right.

0:07:31 Thomas: Yeah.

0:07:31 Heather: Lineup at a police station. And it also covers double jeopardy, making sure that someone is not tried more than once for the same exact crime. Then the last one that may or may not get tested either in law school or on the bar exam is our prohibition against criminal punishment, which is the death penalty. So that might come up too. So those are like our very quick and dirty about criminal procedure. And to be frank, a lot of this case law in this area develops around police misconduct. So if you're, sorry, I'm laughing because, so if like you're a law student, think this was one of those classes for me that was really eyeopening in law school and really informative. AndI think this is one of my students, I hear this from a lot of my students who feel that this is a class that everyone should take because it's really informative, especially around your rights as people feel like this is great class to take in order to learn more about your rights, just as a citizen in the United States and just a person living around here.

So it's a really good place to learn about to do. Hopefully we're not, nobody is in this context where no one's arrested, but what to if that happens, what happens if you get pulled over, what's the, what are the best things to do to protect yourself and that that sort of thing. So really eye -opening kind of experience, and how to protect. So this in context, that's what comes up.

Also, like I said, I was really glad to hear you say both criminal law and constitutional law, because criminal procedure is the exact place where those two things overlap. Do you remember anything about the case of Miranda Miranda? Versus Arizona? Can can talk about it briefly. It's a case from 1966 that went up before the Supreme Court. It was a consolidation of a bunch of cases. Turns out this was a really hot topic at the time about

0:07:58 Thomas: Yeah. And a lot of the stuff that's legal is police misconduct, too.

0:09:06 Thomas: Yeah.

0:09:06 Heather: Whether or not police should have to inform suspects about their rights. And this is a really high topic. A lot of conservative folks in police officers were saying, "No, we don't think that we should have to inform subjects of their rights. If that's the case, then we're never going to be able to move forward, uh, effectively with our cases." It's funny to hear that in the context of 2024, right, in which it's been, you know, at least for my whole life, uh, Miranda, there's been no controversy or very little over Miranda, right?

0:09:36 Thomas: Like it's existence. I mean, there's still been plenty of edge cases or police trying to get around that, I'm sure. But like, I think broadly, The public would be like, "Yeah, we have the right to remain silent. We have the whatever." Whatever, but the minute conservatives wanted to, they would switch on the dime and be like, "Ah, too many people are getting away with this," and they'd go right back to 1966, boy.

0:09:42 Heather: Yeah. Well, We've done that. We're on the, we're to around the anniversary of, um, and those two cases aren't terribly far apart from from each other in time. To your point, yeah, sorry. Yeah. And so Miranda versus Arizona was, um, Miranda Ernesto Miranda was charged with kidnapping and sexual assault. And after two hours of questioning while under arrest by the Phoenix police, he signed a confession, uh, and he was never told of his rights prior to the questioning. Um. So, uh. And he was, uh and so, uh when he wrote out his confession, he wrote at the top of each page that eventually that his confession was voluntary. Kind of how the case went forward. And it ended up at the Supreme Court. Again, it was a consolidation of cases, meaning there was a bunch of them dealing with the same topic. When

0:10:01 Thomas: That's a good point. Yeah.

0:10:32 Thomas: Oh.

0:10:32 Heather: It got up there, it Was, it was interesting case is a lot of interesting stuff to read, but it was a 5 -4 decision. There was a really close case in that case. And they decided that the ultimate decision that we are familiar with is that suspects must be read of their rights while they're in an interrogation context prior, right? Otherwise, subsequent statements that suspects make, they're inadmissible, right. You had a really good question while you were working through this particular question about Miranda rights, about getting read your rights, being Brandeis and about violation. Do you remember the kind of the questions that you were asking around that, whether they were separate rights or that sort of thing?

0:10:38 Thomas: Wow. Yeah. Yeah.

0:11:08 Thomas: I was confused because when someone says like, "Oh, Miranda rights were violated," I would think like, "Oh, so he wasn't read his Mirinda rights." But then I also the bundle of rights which are described by Miranda rights and you could violate that. So like if I refuse to give you if I'm the police and you say I want an attorney and you're like, no, I guess that's also violating the Miranda rights. Even if you read me my Miranda rights before that. So I did never thought of it as two different things. And I was very confused for a second.

0:11:23 Heather: Yes. Yeah, you're right. You bring up a really great points about that. But you're absolutely right that Miranda not being read your Miranda rights, that and of itself is a violation. And also Miranda houses, like you were saying, some rights inside of it. So the court in Miranda v. Arizona, they found what they decided was that the Fifth Amendment against self -incrimination, that it requires that law enforcement have to tell suspects about rights before, while in police custody and before they start questioning. Questioning. To your point, if someone doesn't get their Miranda rights read to them, there's no Miranda warnings, that's another way to say it, then that can be a violation if a person provides statements after and they try to use them in court, right? So if there's no rights, the suspect says a bunch of stuff and then let's say the prosecutor tries to use those statements in court.

The statements will likely be suppressed because there were no warnings given, in, right? And that's a violation of Miranda. And also to your point, it also houses the other Fifth Amendment rights as well, the right to counsel and the right to remain silent. So if an attorney isn't provided or if the police don't honor, we'll talk about this in a second, but if they don't honor your right to remain silent, those are also violations as well. Yeah. So does that help to clear it up? Because you were spot

0:12:05 Thomas: Hmm. Yeah,

0:12:57 Heather: On about, yeah.

0:12:57 Thomas: We'll see. So?

0:12:58 Heather: Okay, good. So in order for Miranda to trigger it requires a custodial interrogation, because, like, again, we like to increase the difficulty, uh, when it comes to thinking about this kind of stuff. So a custodial interrogation means that a person has to be in custody, so that just means a reasonable person would not feel free to leave. So it's not what I think, it'snot that I don't feel free to leave, it's that anybody kind of looking at the circumstance would say, "Oh, yeah, right to leave."

0:13:26 Thomas: Like if your friend invites you to their shitty improv troop, like I would feel like I'm under arrest because I can't leave, I'd feel too awkward, but like a reasonable person might be like you could just leave, and I'd be like, no. So, okay, I get it. So?

0:13:40 Heather: Yeah, precisely.

0:13:40 Thomas: I should be read my rights before that is what you're saying, someone?

0:13:45 Heather: And then we've also got to have an interrogation. And this means that any conduct where the police knew or should have,

0:13:51 Thomas: Give me a job, I, you, sir, tell me a job or an item around the house, no, I know my rights, damn it, lawyer, lawyer. So if a police officer is in a improv troupe, I think they have to read you Miranda rights before the show, actually, now they think about it. Okay, this is helping

0:14:11 Heather: That's what I'm hearing. Listen, this is the new Supreme Court. These are the new rules. It starts here. And so then there has to be an interrogation too, because the custody isn't enough, right? We've got to have the interrogation also. And that's going to be any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect, right?

0:14:12 Thomas: Yeah, Okay.

0:14:30 Heather: And then they've got to administer the warnings, right, and you had hit on some of those, so do you remember what those are? Do you want to repeat some of them? What the warnings are, yeah.

0:14:30 Thomas: Oh, Have a right to remain silent, uh, have right to have an attorney, anything say could be used you against you, uh, can't remember if there's another right, or if it's, it's just more descriptions of stuff.

0:14:41 Heather: Yeah, Yeah, That's pretty much it, um, you have to, um, the person that, an attorney will be appointed to them if they can't afford one, um, then you have to ask the suspect if they understand the rights, yeah. But

0:14:47 Thomas: Ah, yeah, yeah. Right, right. In terms of the rights, it's just to be silent and to have an attorney, essentially. Interesting.

0:15:02 Heather: Yeah, Yeah, you also, and I can't remember if you said this, so I apologize, um, just let people know that anything that they say can be used against them in court, because we want to make sure that they know about that self-incrimination piece, right?

0:15:02 Thomas: Okay.

0:15:12 Thomas: Term of the right, so it is like there that is required in that warning, which is telling you the rights and like going them to understand what the rights mean. But the actual couple of rights, I was wondering if I was forgetting one or if they always leave one off of the television shows that was like too boring. Like I was, you know, there might be some other right. Like you also have a right not to have a pie thrown at your face in the interrogation. It's weird that we have to say that, but then they cut it out of every law and order. I wouldn't know. I would know that, you Know, so I was ordering, but there isn't that there's just the two rights, which is to be silent and have an attorney. And then there's some other window stuff you have to say, but it's still ultimately those two rights, right?

0:15:16 Heather: Yes. Yeah, that's exactly it. And way that the court talks about it is that you don't have to use those exact words. And you're just trying to get the substance across, And right? Especially to your point, you're trying to get folks to understand what those two main rights are when it comes before the police can initiate their questioning, then, right. Obviously, to your point about the to attorney, if the person requests it, then they have to be provided with one. So that's invoking. So they must invoke the right. And in order to do so, it has to be unambiguous. It must be clear and unambigious.

0:16:14 Thomas: Right. Yeah, the famous lawyer dog. Racist decision that's saying I want a lawyer dog somehow didn't mean I want to lawyer. Haven't heard of the lawyer dog?

0:16:24 Heather: Really? You might have to remind me because now I'm... Listen, I was picturing

0:16:28 Thomas: It was pretty recent. I want Google it right now. I a lawyer dog, I'm pretty sure that guy lost. Crossed so five years ago, Jesus, okay, I thought that was like two years ago. Well, anyway, five years ago, no, six years ago, okay, a 6-1 decision, Louisiana Supreme, Supreme Court, refused to hear an appeal by someone who, during the thing, said, here's what he said, this if is how I feel. If y'all think I did it, I know that I didn't do it. So why don't you just give me a lawyer, dog? Cause this is not what's up. They didn't give him a lawyer. So it wasn't, it was, it was unclear and ambiguous.

0:17:03 Thomas: And They're like, there's no such thing as a lawyer, dog. First off. I don't know if that's true. There might be a lawyer I've seen some excellent television show. There should be one. Secondly, that's obviously stupid. I don't know if he ever went any higher than that, but, but yeah, that was the Louisiana Supreme Court anyway. Six to one said, if you ask for a lawyer, dog, then you don't get a lawyer.

0:17:25 Heather: Can't see my face right now, but I think you can imagine what it looks like, somebody asking for a lawyer, in my opinion.

0:17:30 Thomas: Seems to me.

0:17:32 Heather: And I didn't know, know that. Okay.

0:17:34 Thomas: Now, you know, dog. So what's what's the rest of this question?

0:17:36 Heather: Yeah, the request has to be clear and unambiguous, all the same thing is true in invoking your, your right to silence, right? And unambigious, as soon as you invoke your rights, then, especially when, uh, it's a little bit different, it's generally similar, but it's a little bit different in invoke your right to silence, we can, but we'll come back to that, all, then let's peek down to answer, uh, choice D, there says, yes, because the suspect invoked his Miranda rights by remaining silent in the face of police questioning for over an hour, right? Made a really good statement here. You were saying that you're feeling like you're missing something as you're reviewing this question, right. You did a great job walking through your thinking and the logic in this question. I really liked how you started by talking about that the logic doesn't make sense. And in order to invoke your right to silence, that choice means that you would have to be silent to do that. And that doesn't really make any sense, right?

Invoke your right to silence, that you could stay silent, that wouldn't really make sense. I thought that was a really great approach to this question and to the logic of this answer choice. You also were talking about a bit about waver too. You started talking about maybe waiving this right. And do you remember that conversation a little bit?

0:18:02 Thomas: Yeah.

0:18:40 Thomas: Think if they say you have the right to remain silent and you say you understand, and then you just start talking, I think you're waving that, right that in that instance.

0:18:48 Heather: That's exactly it, right? A person can knowingly and voluntarily waive their rights after the warnings are given, And we know that silence alone isn't enough. To your point, that doesn't make sense. The logic doesn't make sense there. Anything from the answer or the fact pattern that might suggest that the waiver may or may not have happened in

0:19:08 Thomas: So from what you've said, just piecing it together, glad I do that I sussed out that I was missing something, because I I think what I was missing was, and maybe I kind of hinted at this in the question, but I think What I Was Missing is the possibility that by remaining silent for a little while, the police would have to stop questioning you because you've invoked your right to remain silent.

I think that's what I meant, because I thought they could keep asking you questions for some amount of time to see, but now that I think about it again, I guess it makes sense if you're like, hey, I'm remaining silent, then guess they have to be like, okay, Because otherwise they could just question you forever, even though you're remaining silent. That would suck. So now that I think about it, that makes a little bit of sense.

So now knowing that possibly, although I don't know the exact constraints of that rule, DES because the suspect invoked his Miranda rights by remaining silent in the face of police questioning for over an hour. There's definitely a possibility now. I see the logic of that one, which would be like, hey, enough is enough. He's remaining silent, but you have said it needs to be clear and unambiguous. So maybe you need to actually say it's a contradiction in order to remain silent. You have to break the silence to say, I would like to be silent.

0:20:18 Heather: That's exactly it. Make sure to clearly communicate that you're invoking one of those rights, whether it's to silent or or to your right to an attorney. At So any point in the fact pattern, is silent? Is the suspect unambiguously invoking? What's the suspect doing in relation to the police questioning? Questioning.

0:20:36 Thomas: Are remaining silent. I guess the question will be if you stay silent for like two hours, that unambiguously invoking your right to remain silent? In which case we might have a problem here. Still not clear to me that it would be D though, just because of the cashier's death. I don't know if that adds anything to it or if that's purely a red herring, But

0:20:56 Heather: No, that's a great question. So the first question is, is there an amount of time? Time? Or silent sufficient? And the answer is no. And unambiguous. Usually, for the sake of questions like this means they'd have to say something. We have a suspect here who would have to Say, I am invoking my right to silence. Questions like This typically would do something like this, which It's either the person remains silent or they do something that is kind of ambiguous. That's how these fact patterns work typically. But the answer is no, he was silent. And there's no amount of silence in questions like this that's enough to raise to clear an unambiguous invocation of the right. So we don't have him saying, no, I'm invoking my right to silence. And therefore, yeah,

0:21:07 Thomas: Yeah.

0:21:33 Thomas: Here's how I'm gonna remember this one. It's like when a bad relationship, maybe someone's just quiet and you're like, is something wrong? And they don't say anything. Ask them if something's wrong a hundred times, and if they're silent the whole time, something's right. But If they said right away, no, nothing's wrong, then, oh, okay, then maybe they just want to be quiet. I think that's how that's it works, like that, I think. There's no amount of saying no, nothing's wrong, that means nothing's wrong. Yeah.

0:21:45 Heather: Exactly.

0:22:02 Heather: Exactly. And to your point earlier too, there's no time element to the silence as invocation. It's like, oh, it's two hours. He's been quiet. Now he's invoked. There's that. Yeah, that's exactly it. Yes. It'S the same thing. ItS not like, well, I've asked her six times and now all of a sudden I know that since because she was quiet, everything's like okay, or it's not okay. So D, to D is out. D is the wrong answer choice. Great job identifying that, walking through that and getting rid of that question. Choice. Then we see C and this was your second choice answer. It Did says yes, because the suspect did not receive fresh Miranda warnings before he was told of the cashier's death. And this kind of brings up to your point a little a second ago about whether the cashiers death adds anything to this question. So do we think that learning about the cashers death changes any of the rule here? Do you think after we've kind of talked a little bit about Miranda, do

0:22:12 Thomas: Yeah. Yep.

0:22:49 Thomas: Don't Think it's going to impact this question. I a world in which it might make sense, but I think for this question, don't think it's gonna matter. But

0:22:59 Heather: And you also said initially when you were working through the questions that you made a really good point by saying, yeah, don't know at the time, police don't know at a time of an arrest, whether the crimes against a particular person, presuming that they kind of nab the person, Right? The correct person. So they won't know. So it was also a really good approach. Also mentioned in the answer choice here about fresh Miranda brand of warnings. That's just another way of saying that they're giving a new set of warnings and a rule that says that fresh warnings are required when the defendant or the suspect is released from custody and of a break and break.

So usually that means like we've go, they go home, maybe they go back into the general population for prison, let's say they're jail in or prison and then they come back sometime later. Then they want to re-interrogate. Let's say some time later, they bring that person back in for questioning and they want re-enterrogate them. Then they have to give fresh Miranda warnings to questioning. That's when the fresh warnings are required. So based on this fact pattern, do we have that situation where there's a break in time

0:23:08 Thomas: Yeah. Yeah. Okay.

0:23:56 Heather: Between, yeah. What do we think when we revisit C? Do we think the fresh, yeah,

0:23:56 Thomas: Doesn't seem Like it. No. Yeah. I don't think, see, I mean, I didn't think it was right then, I just, I was trying to figure out the way I could be wrong, and I thought maybe that would be it, but we've eliminated both the yes answers, I guess, right? Right.

0:24:11 Heather: Yeah, so I guess we're down to the two no's. All right. So let's take a peek at B. This is no because the suspect statement was not made in response to a question from the police. You were looking at this one thing. It was a strong contender, but that at first, Yeah, but the police get a lot of latitude. Do you want talk about that a little bit more? And

0:24:11 Thomas: Oh, OK.

0:24:24 Thomas: At first. Yeah. Once I understood more of what the context of the question, like I feel like this would make sense in a case where, you a little fuzzy whether or not you're under arrest. I think they do that on purpose and I think that correct me if I'm wrong. I feel like that the whole, hey, am I under arrest or am I am I being detained? Like that becomes like actually kind of a relevant thing to ask, because if you know, can you leave or not kind of determines whether or not some other stuff happens. Right. Like to your point, if a reasonable person would feel they could leave kind of thing. So this answer B struck me as more about like the police are talking in an informal way and trying to prevent it from being like an interrogation and there might be some wiggle room there. Is that kind of right?

0:25:15 Heather: Especially to your point earlier about um, that question about am, am I free to leave, right? Because again, Miranda's triggered by that custodial interrogation, it's triggered by what a reasonable person, like you're saying, free to leave, and also that interrogation part, right, where any any conduct that police know or should have known might eliminate an incriminating response from the subject, and it's really getting any conduct in it relates to. So this answer choice is really getting at that any conduct part. And it doesn't say specifically question, right? That help?

0:25:41 Thomas: Oh, OK. Well, no, I just mean this also might not exactly be a true thing. You know, we have the true and also best answer. Answer, It sounds like there's also not a free get out of jail. That's a bad get get them into jail free card for the police to like creatively get around having asked them a question.

0:25:50 Heather: Yeah.

0:26:06 Heather: Yeah, exactly. Yeah, because this, especially this really is more broad than just asking a question, right? Because if it was only in response to questions to your point, then that would be very narrow, right? There's a famous case where the police officers are driving a suspect around and they're saying stuff. They're like, hey, could you believe, oh God, who in their right mind would do this terrible, awful, horrible thing to a child? And they're talking just to each other. They aren't talking to him.

They are talking to each other. And guy, the suspect is so overcome that he confesses and he tells them exactly where to find the child. So that case goes up before the Supreme Court, Because they're not asking any questions. They're not asking questions to him, but they're just talking to each other. And the question before the court was about whether the conversation between the officers was considered an interrogation. Because it's obviously, not to be weird, it's honestly custody. He's, listen, he's locked up in the back of a police car, right? And there's two policemen in the front. And so the question was about weather or not that was an interrogate. Because they're having that conversation, did they know that what they were saying was going to elicit an incriminating response from him such that, like, he was going to say, "I did it," and I'm going to take you to where the kid is, essentially.

0:27:20 Thomas: And You're saying he won on that, like it wasn't admissible? Uh

0:27:23 Heather: He lost.

0:27:24 Thomas: No?

0:27:24 Heather: A lot of times police have to know, they need to know, or should know, that the things they're saying are going to elicit that response, suspect. Sorry.

0:27:33 Thomas: So The confession wasn't transmissible, it was admissible.

0:27:36 Heather: Was. Yeah.

0:27:37 Thomas: But then you just said they, yeah.

0:27:40 Heather: To know or should know. As to your point earlier, the Supreme Court can take a broad stance in relation to criminal suspects police.

0:27:49 Thomas: It's just the context of you bringing that up really made it seem like that guy would have won. So the whole context was it's not necessarily, it has to be a question, like, can't get out of this by trying to trick people and doing something that's slightly different than questioning a suspect. And then that gets you out of the trouble of Miranda and all that. But then now you're saying that did work. So if you do take someone to custody and you're like, oh, sure, do you hate people who do this? Then you are fine as a police officer.

0:27:55 Heather: Yeah.

0:28:11 Heather: It Yeah. In that case, right, and we can imagine a scenario in which maybe they turned around and they said those things directly to him, right, the court might have a different response. Right, we see here that especially in the criminal procedure context, to some of your comments a little bit earlier, we see a different treatment to different groups, right. In this particular area, they tend to be very friendly, and especially during Yeah.

0:28:41 Thomas: For sure. Yeah, of course.

0:28:42 Heather: Towards, and that's why, because, revisited this topic, I went back to that case specifically, and I thought, oh, for sure he was going to win, right? Because, of course, like two guys in the front seat having that conversation, and sure enough, and he didn't. And that is why I was surprised, um, in that context. But a lot of times it's not question, I think my point here is that it's not questions only that are going to get us there. A lot of these cases will be, to favor

0:29:08 Thomas: Then how do we think about B in this case? Because at first it sounded like the idea was, or not, it was a response to the question wasn't going to matter. Basically, okay, here so fact pattern, the question stays the same except instead of saying, "Boy, you sure, sure should start talking," the officer just says, "Hey, did you do it?" And then he confesses. That doesn't really change anything, I think that's the point. Right? Wait,

0:29:31 Heather: Because Because there, to your point, it have to be a question. It can be a statement and versa, right? Because we know that the rule gets us to any conduct. And that any conduct can also be, let's say, the police officer getting physically close, right? Because conduct doesn't necessarily just mean words. It can also mean a number of things that be considered coercive pressures on that suspect.

0:29:50 Thomas: Okay. So the trick of answer question B is, is trying to make you think, is this technically an interrogation? Because, oh, I remember something about, like, you, law school, I remember something about, like, what technically makes an interrogator. And maybe if they didn't actually ask a question, maybe that wasn't an interrogated. But like, that this is kind of neither here nor there, because this has been an interrogating this whole time. It's not like it changed over the course of two hours, right?

0:30:13 Heather: That's exactly what this answer choice is getting at, right? Or not, you can recognize that it doesn't have to be a question by itself. Questions alone aren't make that determination that is interrogation. If what it wasn't a question, that doesn't matter. That's not the determining factor about whether or not it's an interrogation. So that's how we end up with B being a wrong answer choice. And so now we're left with answer choice A, which is no, because the suspect waived his Miranda rights by making the statement. Thing I remember you saying was they might do this all the time, if that was the case, if there was kind of a waiver involved, and might be something that kind of comes up a lot of the time. There anything you wanted to add?

0:30:46 Thomas: No. No. So that was so what happened was when I talked about answer A, that was when I was thinking about whether he had been read his Miranda rights properly. And that was what he was waving by making a statement. Then I realized, oh, wait, no, we're talking about the literal right to remain silent, not the right to be told about your right to remains silent or whatever. And so then that didn't make sense. So that's why at first I was like, oh is wrong. And then once I like switch the frame, I was looking at it in. And that was why I switched to A being my ultimately the answer I picked was because it's like, oh, no, that make sense. If you're talking about the right to remain silent itself, and that is something that you could waive by making a statement.

0:31:25 Heather: Exactly. Waivers here for the purposes of criminal procedure, and especially for Miranda, are made knowingly, voluntarily, and intelligently after warnings are given. Again, silence alone doesn't get us to waver. And so we've got a really important sentence here that you hit on when you're reviewing the question, which is, an officer read the suspect his Miranda rights, which he stated he understood. So when the suspect said he understood his rights, that was the suspect knowingly and voluntarily waiving his Miranda rights. And that's how we end up with A, being our best answer.

0:31:54 Thomas: He waived his Miranda rights by saying he understands them.

0:31:58 Heather: Then what he did after that, which is, then he confessed, so

0:32:02 Thomas: That's what waived is Miranda, right? Right.

0:32:04 Heather: It was a combination of him saying he understood, him confessing, yes, yeah.

0:32:07 Thomas: Think if someone reads me the Miranda rights and I say I understand that does I've not I've not waived anything. I could still say, I understand. Give me an attorney and I'm silent. Okay. So what waived the Miranda rights was making the statement about what he did, like his confession, not the statement I understand, right?

0:32:13 Heather: No. Yes.

0:32:24 Heather: Saying you understand by yourself is not a waiver. It In when order to wave it, that waiver always has to been done knowingly, involuntarily, uh,

0:32:31 Thomas: Course. Yeah. Yeah. So, it was a prerequisite to waiving the Miranda Rights that he understood them. Yeah, sure.

0:32:33 Heather: Yes. Yes. Exactly, that's precisely it. So then his confession, so then when him saying he understood, um, the fact pattern's way of saying, uh, that he did so knowingly, involuntary, oh,

0:32:39 Thomas: Okay. Think you might have misspoke because I'm pretty certain you said when he said he understood he waived his Miranda rights, which I don't think I'm pretty sure he said that. And I was like, there's no way that's right.

0:32:51 Heather: Yeah. No, yeah. I didn't mean that. Sorry. Yes. Yeah. No, it's not right, yeah. Thank you for catching that. Yeah. Sorry.

0:32:57 Thomas: Okay. Okay, I'll go back.

0:32:58 Heather: No.

0:32:58 Thomas: Maybe I misheard you. I always find out when I go back over. I'm like, oh, damn it. I misheard you. And I'm an idiot, but we'll see. Think what were saying is answer A and I've nailed it again. Okay well I'm gonna need you to get some sort of air horn or something. You know there's got to be more fanfare because that one, that was a difficult one. And I somehow got there. Holy crap. Mean, I think maybe it wasn't that hard for people who went to law school, but that was a lot to work through for me. Puts me at now with that celebratory air horn. I definitely put in there and post that I'm going to say Heather has.

0:33:08 Heather: You have have

0:33:33 Thomas: I'm at 65.38%. I'm 17 for 26. Sweet. Have the right to remain at a passing percentage. That's not very good. I need Matt for the puns. Right so in looking at the answers it seems everybody in the internet got this right I will say I'm so glad there was so much participation that's awesome way more than before I don't know if that's because of skipping a week. Actually, I don't think it is. It looks like the participation was pretty contemporaneous. Maybe it was because this was an easy for everybody.

Lot of people saying I'm overthinking it. And hey, maybe. But I also think like the reason I was overthinking it was the fact that because it seems so obvious, I was like, this obviously seems admissible. So what am I missing was kind of and I think I was missing an element. I like to try to fully understand the question and the answers. So I think it was missing something and you know, I got there. So, but anyway, congrats to all of us. Want to first go to reddit.com/r/openargs, and I've got a winner there. I'm excited to read. There's so many good ones, but user homininet

0:33:37 Heather: That's great, the

0:34:37 Thomas: Says, "First ever answer to a T3BE and I'm going with answer A." Well, you're going to win right saying that's your first answer. That's super cool. Me, this just seems like the kind of thing that happens all the time. Person of a crime, read them their rights. Person shuts up, as is their right. Then cops say something that makes them panic and spill the beans. B seems like nonsense. Why does an omission have to be a reply to a question specifically?

C seems like a totally unrealistic standard. And D seems like if it were true, it would be one weird trick to get out of every crime. So yeah, Neil, you pretty much nailed it. Congrats to Reddit user Hamananet. And now that means we've got to head over to patreon.com/law to get our patron answer. And for this one, I'm going to to choose Matthew from Talking About the Big Stuff podcast. Three things, Matthew's says.

One, I think you made this harder than it was, and the answer is A. He had the right to remain silent, but didn't. I don't think they have to stop questioning him unless he asked for a lawyer to be present. At least that's what all the TV shows I watch tell me. Yeah, no, pretty much. Two, of course, when you get it right, so do a lot of other people. We listen to you explain it. We have a great advantage over you.

We have you walking us through the question and answer. Oh, thank you. I appreciate that. However, I also think that sometimes they're just easy questions and people get them right. That's okay, though. I do appreciate the answer. Then three, by day, I'm in digital marketing. By night, I listen to your podcast. As a digital marketer, I am a little concerned about the way you're getting T3BE winners now.

Now, I think the initial reason for the contest was to get people to tweet it out or Facebook share the episode's announcement. This was to getting our followers to hear about you. By taking winners from Patreon and Reddit, you're losing that marketing opportunity. Matthew, it doesn't take a digital marketer to think of that. That's obviously true, but several considerations. For one, Twitter is kind of dead since everybody left after Elon, feels like a weird.

So I wasn't, like, super I concerned with trying to get retweets on there. Maybe I should be. Facebook is just outright garbage when it comes to like pages, so people matter really, and three, I just really like how the Reddit thing is, and so I think it's more fun to have a cool interface to sort of play the game and keep track.

I just think that's more fun and important, than so I figured the trade -off of a you people to go to the Patreon to be picked as a winner, and be creating more of a Reddit community and it's a great place to play the game, so you, I think the just makes sense. I appreciate your concern, and I am certainly open to any other advice you want to give me on that, if that's what you do by day. But either way, Matthew from Talking About the Big Stuff podcast is the big winner. Congrats. Right. To another question after this break.

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0:39:25 Thomas: Right, Heather. Well, I I want a four question streak. So why don't you go and blow that for me? Can't once you give me, give me a, give me one of the top shelf hard. No, I was just kidding. It's gotta be be random, but let's see if I can keep that going. Keep that magic alive.

0:39:36 Heather: Let's do it! Landowner owned 200 acres of land.

0:39:39 Thomas: Real property. [Bleep]. Oh, Oh, I can't curse. Damn it. Okay. Yeah. No, I get it. There's a regulation that says every time I get enough right, you have to do real property so that my streak has ended. I get that. That's in somewhere in the backend Okay, okay.

0:39:55 Heather: Owned 200 acres of land in a rural district 50 miles outside of a major metropolitan area and airport. To a field of vision problem pilots experienced in the vicinity of the landowner's property, the county determined it was necessary to erect a 100 -foot -tall aviation light signal on the land owner's property.

0:40:11 Thomas: All right. Okay man.

0:40:13 Heather: Pursuant to its authority under a state law regarding air travel, the County installed the aviation light on a corner of the the landowner's property that he did not use. Landowner requested compensation for the installation, but the county refused to pay him. Landlord subsequently sued the county. Is the land owner constitutionally entitled to just compensation? No, because the light signal was installed on an unused portion of the landowners property. No because the county's action is rationally related to a legitimate government interest. C, yes, because the county installed a permanent structure on the landowner's property. D. Yes, because the county's action adversely affected the land owner's property interest.

0:40:58 Thomas: Oh, what a good question. Oh boy. I'm not sure if I'm going to get this one. Okay, so I, it was real property and, and it might be, but I'm almost wondering, could it be constitutional in the, like, domain type stuff. I don't know. It could be, maybe that kind of thing. So I'm not sure which one of those things is true now that I have a full look at it.

But it won't really matter because I have the same toolkit to answer it regardless of what the topic is. So, of vision problem, determined it was necessary to erect a thing. Pursuant to its authority under a state law regarding air travel, the county installed the light aviation on a corner of the landowner's property that he did not use. The landowner requested compensation, but the county refused to pay him. The land owner constitutionally entitled? There you go, man. We're talking constitutional law.

Is the landlord constitutionally titled to just compensation? So, yeah, maybe this is more of a eminent domain type thing. I'm glad I noticed that. Constitutionally, I think that, I don't know if it'll make a difference, but I do think it kind of tips this, that it's not exactly just about like real property per se. It seems to me right away, like, government the is just doing something on your land because it feels it has to, that, like, they should have to pay you for it.

Like, that, my strong inclination is like yes, but you've got this, you know, wrinkle that's like, well, the landowner doesn't use that part of the land. Is there going to be something about that? Is there something? I've never, I don't have any frame of reference for this.

I don't recall a question, or I don't have any, like, or like knowledge base of, like, yeah, there is some exception where if you're not using a part of your land, the The government gets, you know, to do stuff like that. I don't, so that nothing's coming up for me in my brain about that. But, so it's, it's plausible. I, so I'm leaning though toward they should have to pay the guy, but I'm not like super sure. Like, it's totally possible that they don't have to.

Okay, let's go through the answers. A, no, because the light signal was installed on unused portion of the landowner's property. Okay, so that's, I mean, I'll tell you, I can't outright eliminate that based on, you I know, or more importantly, what I don't know. Like, I isn' t how it is. So I think I kind of have to keep A alive. B, no, because the county's action is rationally related to a legitimate government interest. Thought that domain involves compensating the owners.

I thought that that, is that constitutional, constitutionally guaranteed? I, it was, strikes me as like, wouldn't that have to happen before all this? Like, I feel like whether or not you get paid isn't whether or not it's related to a legitimate government interest.

I feel if you were trying to fight it, if you're trying to say, like, no, you shouldn't be able to eminent domain my property, I feel that's where you would have to have a battle over, like, well, yeah, but is it rationally related to a legitimate governmental interest? Cause my understanding is if it is, I think the government can kind of do whatever it wants, um, in terms of that.

But the caveat that I think they have to, I think they have to pay you for it. So B strikes me as something that isn't really going to be related to the compensation is more. Cause, like, what if it isn't, you know, it's like, oh, okay, it's not rationally related, then they're like, okay, so we have to pay you if it's not rationally related, we don't have to pay you. If it is, either way, we can put it there.

I just don't think that's how it works. So I'm going to eliminate B. Yes, because the county installed a permanent structure on a landowner's property. That is absolutely a plausible answer to me. Sometimes the bar likes to disguise the real answer is pretty boring sounding, like, wait a minute, you're just restating something that happened in the question.

Question, but I have found that often that's the bar's way of saying, like, yes, that you know everything about the rule, this is the conclusion, um, it'll highlight the important point in a boring way that doesn't seem like it's saying much.

But anyway, C, yes, so to repeat, C, yes, because the county installed a permanent structure on the landowner's property, I wouldn't be surprised if it's C, just because it's like, yeah, of course you have to, you can't argue that you're not actually eminent domaining because, like, it's a permanent structure, he can't, you it if he wants.

And that is, you taking something from him or taking his property in some way or whatever, I don't know what the proper word would be, like, yes, you have to pay. So, point is, I wouldn't be surprised if C is right, but here's the real tricky, tricky part. D, can I differentiate, let's see. So D, yes, because the county's action adversely affected the landowner's property interest.

I mean, I think, I think that is true, like, I think that if, say, you hypothetically could buy two completely equal properties in every single way except this, and you're like, well, they're both a million dollars exactly, one of them has this tower on it, you cannot do anything to that, you can't touch it, you You can't do anything, the other doesn't have that, I feel like you'd be like, well, obviously by the other one, there's no, like, it has to be some sort of adverse effect in some way, I don't know how much it is, but, like, that's got to take some value, or it does infringe, adversely affected the landlord's property interest.

Yeah, it adversely affects the landlord property interest, that it has to. So I think that's definitely true, but is that going to be that? So it strikes me that a lot of these, this, these answers seem to be around, like, what will technically be considered eminent domain. There's probably some test like what qualifies as that.

Like, feels like in order to maintain the roads, it has to, like, you clear some brush a little bit into your property because of the property line or something, something, I feel like that's going to be just something it does and it doesn't have to, like, pay you for it. Whereas if it's building a structure on your property like this, maybe that does qualify, or maybe not. Maybe if it is, like, yeah, but the structure is on an unused part and it really doesn't impact anything.

Maybe that will be how the government gets out of having to write a check. I don't know, those are all the possibilities. So, what am I going to guess, yes, is the real state of things? Well, I guess the important thing is, can I differentiate between C and D right now? Because right now I've got A, C, and D as all alive. Would, I think it's yes, because the county is just permanent structure, done, can't really argue about it.

D, yes, because the county's action adversely affected the landowner's property interest. I guess, to it logically, remember, we're just talking about whether or or not the landowner is entitled to payment. So that means D, yes, because the county's action adversely affected the land owner's property interest, that would mean that there could be things that the government would do, and it could do to your land, as long as it doesn't adversely affect your property interest, then it doesn't have to pay you.

That's kind of what that implies, versus if C was the right answer, if the county installs a permanent structure, it has to pay you, there's no ifs, ands, or buts about that. I guess a couple ways to try to answer this, do I think that the government could install a permanent structure and not have to pay you, or, weirdly, I think I'm lean toward D actually of the two.

So if I were to try a pickled yes answer, it could be C, it's a close call, I could see C being like, yeah, no, that, that's just the rule, you can't, but I could also see D being the more right answer, the more correct answer, because it's like if important test is whether or not it adversely affects the landlord's property interest, and I could see the government doing things that, like, yes, they affect your property in some way, yes, they, maybe they could even involve in installing a permanent structure, I don't know, but, like, but not really affecting your property interest, like, it's not reducing the cost of your, you know, the value of your property, or, so, like, I think D could be maybe plausibly the more specific test that matters.

And so if I'm choosing a yes answer, I might with D over C. So that would leave me between A and D. So do I think, though, that because the light signal was installed on an unused portion of the landowner's property, it doesn't have to pay, versus D, because the county's action adversely affected the landowner's property interest?

Know, I kind of think I'm going to go with A, because I just feel like the government, I feel like the way it would have, I have no information, I'm just going all theoretical on what I think might be true. I trying to think, like, power line, I guess that's sort of a private and public.

I imagine the rule being, look, to prevent the government from having to just, like, pay out all this stuff and just make it really hard to do anything, as long as the government does something, but it's like an unused, like, you know, it's not going to affect your property really, it's an unused portion, so it doesn't really matter, as long long as it does that, it doesn't have to pay you. I of could see that being the rule.

Like, I, I'm not, I'm sure, obviously, on this, but, like, that would be plausible to me. So I think I'm between A and D, and I'm going to go with final answer, A. If you'd like to play, make sure to go to, first, patreon.com/law, and you can play there, or reddit .com r slash open args.

Find the post and submit your question, and, by the way, I hope people will do both, doing both of those things, way, I pick patrons if they're on Patreon, and if you want to do your answer on Reddit so that it gets tracked by that bot, which is awesome, do that, and

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0:52:30 Thomas: Now it's time to thank our new patrons. Have caught all the way up to March 7th. We're getting there, we're getting there. So uh let's bite off a chunk of those new patrons who, again again, made this all possible. So thank you to Christina Uld, Lennon, Frito Pandejo, Michelle Chowning, Tom Pandolfo, Andrew Koppel, Victor Carey, Eric Day, Jen Lytle, White, Kevin Anderson, Ben Weatherall, Patrick R. Norha, Andy, placeholder for a clever patron name, Thank you so much for pledging at that crucial time. We're catching up to modern days slowly, but surely. We're almost there. There a few more weeks, maybe months. Oh, of course, now we have to thank our top patrons, our Hall of Famers, at our all -time greats at patreon.com/law. These are patrons who pledge at that five dollar level and above for at least a month. I skipped last week, so that turned a quintile month back to a quartile month, so is that first quartile?

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Looking Rapid Response Friday, we're going to cover the Chevron case with a special guest, but Matt is also there. Recorded ahead of time because Matt is on a trip, having a good time, I hope. It's still Rapid Response -ish because there were a lot of Supreme Court cases to which we needed to rapid respond. That's one of them. So I'll see you Friday for that.

0:54:44 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.

0:55:02 Thomas: Domain, yeah, eminent domain, right? Not imminent domain, eminent domain? You can answer, it's not important to the question, is Eminent.

0:55:10 Heather: It's eminent domain, not eminent.

0:55:11 Thomas: Okay. Thank you. Appreciate it. The domain is not imminent. We've got some time. Okay, so

0:55:12 Heather: Yeah, You're welcome.