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California Bar Exam Questions

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Summer 2014 Bar Question 4

Criminal Procedure


One summer afternoon, Officer Prowl saw Dan, wearing a fully buttoned-up heavy winter coat, running down the street. Officer Prowl ordered Dan to stop. Dan complied. As Officer Prowl began to pat down Dan’s outer clothing, a car radio fell out from underneath. Officer Prowl arrested Dan and took him to the police station.

At the police station, Officer Query met with Dan and began asking him questions about the radio. Dan stated that he did not want to talk. Officer Query responded that, if Dan chose to remain silent, he could not tell the District Attorney that Dan was cooperative. Dan immediately confessed that he stole the radio.

Dan was charged with larceny. He retained Calvin as his attorney. He told Calvin that he was going to testify falsely at trial that the radio had been given to him as a gift. Calvin informed Dan that he would make sure he never testified.

Calvin filed motions for the following orders: (1) suppressing the radio as evidence; (2) suppressing Dan’s confession to Officer Query under Miranda for any use at trial; and (3) prohibiting Dan from testifying at trial.

At a hearing on the motions a week before trial, Dan, in response to Calvin’s motion for an order prohibiting him from testifying, stated: “I want to represent myself.”

1. How should the court rule on each of Calvin’s motions? Discuss.

2. How should the court rule on Dan’s request to represent himself? Discuss.

All questions © 2014 California State Bar Exam. All rights reserved



Criminal Procedure
Question 4, Summer 2014

1. Calvin’s motions:
(1) Suppressing radio. 4th Amendment Search & Seizure.
The 4th amendment remedy for an unreasonable government search or seizure is to exclude the evidence obtained. To be unreasonable, the following must be met:
Government conduct. Officer Prowl, a police officer, searched D. Therefore there was government conduct.
Reasonable expectation of privacy
D’s standing. D must have had a possessory interest in the place searched. Here, D’s body was searched. D has a possessory interest in his body. Therefore D had standing to object to the search.
Private place. Society must consider the place searched as private. Society does treat individuals’ bodies as private.
No warrant. Here, there was no warrant.
Therefore the search is unreasonable unless a warrant exception applies.

Exception: Stop and Frisk. A reasonable articulable suspicion that a person is carrying a weapon permits police to pat down the exterior of the detainee’s clothing.
Suspicion. Dan’s fully buttoned up heavy winter coat on a summer afternoon and running down the street was sufficient for police to stop him and question him.
Weapon. Stop and frisk searches are justified only when the police have a reasonable articulable suspicion that the detainee has a weapon. Here, although D was acting suspiciously and was probably hiding something under his coat, we are not told any facts–such as a report of an armed robbery in the area and the suspect resembling D-- that police could articulate that would cause him to suspect a weapon.

If police can show they had reason to suspect a weapon, then any contraband found during the pat down is admissible.

Generally, evidence is uncovered during a stop and frisk in this way: the pat down reveals a suspicious-feeling object. The officer’s suspicion then ripens into probable cause which then allows a more instrusive search, under the exception, search incident to a lawful arrest. That is not what happened here.

In this case, while the police were patting down Dan an object fell to the ground—a car radio. The question is whether the evidence of the car radio was admissible as part of a search exception.

Plain view. Evidence is admissible where:
1. police was in a lawful vantage point.
2 police had lawful access to the location where the evidence is located
3. the illegality of the evidence is immediately apparent.

Lawful vantage point. Prowl was on a public street conducting a pat down search. If the pat down search was justified, then he was in a lawful vantage point. if the pat down search was not justified by a suspicion that Dan had a weapon, then Prowl may not have been in a lawful vantage point.
Lawful access. The car radio is now the ground. Prowl had lawful access to an object lying on a public sidewalk.
Illegality apparent. A car radio is certainly suggestive that the object has recently been stolen from a vehicle on the street, but the radio in and of itself, is not apparently illegal.. Since it requires the prosecution to add other facts as to why a car radio is suggestive of illegality, it cannot be said that the car radio – without more – is obviously illegal.
Therefore, plain view fails and the radio is excluded

(2) Dan’s confession.
5th Amendment.
The 5th amendment excludes incriminating statements obtained during custody and interrogation, without first administering the Miranda warning.

Custody. Prowl arrested Dan and he was taken to the police station. Therefore, he was in custody
Interrogation. Query began asking Dan questions about the radio.
Miranda. No Miranda warning had been given
Dan confessed that he stole the radio during questioning.
Therefore Dan’s confession should be suppressed.

14th Amendment and 4th Amedment Police coercive interrogation.
Sourced variously in the 14th amendment due process clause and in the 4th Amendment, extracting confessions through use of physical and psychological coercion violates the defendant’s constititional rights.  However what conduct is coercive and what is merely acceptable police questioning is not clear. For that reason, the protections under this theory are not as certain as those under the %th Amendment Miranda rights.

Here, Dan said he did not want to talk. Query responded that he could not tell the D.A. that Dan was cooperative. Query implied that Dan’s refusal to talk (his constitutional right) would result in harsher prosecution. Dan immediately confessed.

On the one hand, Query’s tactic may not shock the conscience sufficiently to exclude the confession. On the other hand, Query is explicitly contradicting the rights the Miranda warning guarantees—the right to remain silent.

The Miranda warning contained the conclusive presumption that any response to custodial interrogation without the warnings and waiver was coerced. Because of the specificity of the Miranda rule, it provides better protections for Dan than the more vague protections under 14th Amendment Due Process.

Conclusion: Dan’s confession should be excluded under the 5th Amendment, and perhaps also under the 14th Amendment and 4th amendment.

Confession a result of Unreasonable Search--Fruits.
Where an initial government procedure is unconstitutional, evidence obtained later that is based entirely on the earlier unconstitutional action is the fruit of the first procedure and is likewise excluded.

Here, the 4th Amendment was violated in one or both ways:
1. The pat down search was not based on reasonable suspicion that Dan had a weapon. Even if pat down was valid,
2. Plain view exception failed to justify the evidence of the radio which fell out from under Dan’s coat during the pat down search.

Since the 4th Amendment excluded evidence of the radio, the arrest and questioning of Dan were fruits of the initial 4th Amendment unreasonable search, Dan’s confession should be suppressed.

 (3) Professional Responsibility.
D’s plan to testify falsely—Duty of Loyalty, Confidences and Secrets vs. Candor to the court.
Duty of Loyalty, Confidences and Secrets
An attorney has a duty of loyalty to his client not to reveal confidences of his client. Here, Dan told Calvin he was going to testify falsely at trial that the radio was a gift. This is a confidence, and Calvin is under a duty not to reveal it.

Counervailing Duty of Candor to the Court
In tension with the duty of loyalty to the client is the countervailing duty an attorney owes to the court to prevent a fraud on the court. Here, Dan intends to commit perjury, and this is a fraud on the court. Calvin has a duty to the court to prevent the fraud.

Because it is difficult for an attorney to satisfy both of these duties, he must do everything he can to mitigate any harm to his client. The attorney must first try to dissuade the client from perjuring himself on the stand. If the client is not dissuaded, the attorney must withdraw from representing the client, if he can do so at this point in the proceedings without causing prejudice to his client. If the attorney learns of the client’s plan too late to be able to withdraw without causing his client prejudice, the attorney must continue to represent him, but must not rely on the perjured testimony in his arguments. The attorney is even permitted to make a “noisy withdrawal,” This means that the attorney’s withdrawal from representing the client is implicitly because of the client’s planned perjury.

What Calvin has done, however, goes well beyond any pretense of protecting his client. While failing to withdraw as his counsel, Calvin has made a motion that Dan be prohibited from testifying. This reveals both to the judge and the prosecutor that Dan was going to commit perjury. Furthermore, it deprives Dan of his constitutional right to defend himself by taking the stand.

The duty of candor to the court is paramount over the duty to the client, and Calvin has succeeded in satisfying his duty of candor to the court. But the prejudice he has caused his client was egregious. Therefore, Calvin has violated his duty of loyalty to his client.

Moving to prohibit Dan from testifying—Duty of Fairness, Decisions,
Certain matters are exclusively the province of the client to decide. Among the most important of these is the client’s right to decide whether to testify in a criminal trial. By making a motion to prohibit Dan from testifying, Calvin has violated the ethical duty of fairness to permit the client to decide whether to testify.

Therefore, Calvin has committed serious ethical violations.

In the hearing on the motions a week before trial, the Judge became aware of Calvin’s ethical violations and of the complete breakdown of communication and trust between Calvin and his client, Dan.

The judge had two possible courses of action:
1. He could have declared a mistrial. Even though trial had not yet begun, Calvin has now notified the prosecutor that Dan’s alibi is perjured. Anything short of striking the pretrial hearing record and declaring a mistrial will not resolve the prejudice to Dan.

2. He could have ensured that Calvin withdraw and appointed a substitute counsel, along with a postponement to give the substitute counsel time to prepare Dan’s defense. Arguably, since Calvin’s motion occurred pretrial and outside of the hearing of the jury, this may be sufficient to protect Dan’s rights.

Instead, Dan has requested to represent himself. Dan has a right under the 6th Amendment to represent himself. The judge can protect Dan by appointing standby counsel to assist Dan or take over from Dan if necessary.

The question is whether granting Dan’s motion, even with the appointment of standby counsel, is sufficient to repair the damage Calvin did.

Granting Dan’s request does remove Calvin from representing Dan and does put in place a substitute counsel. However, the prosecutor of Dan’s case is now aware that Dan was planning on committing perjury. That may change his trial strategy and virtually guarantees that Dan cannot risk taking the stand and be subjected to cross-examination.

It appears that the most conservative course of action is best both to protect Dan’s constitutional rights and to ensure that judicial resources not be wasted in a trial that could result in a mistrial. The Judge should deny Dan’s request to represent himself and instead declare a mistrial.

Answers © 2014 Vivian Dempsey, The Writing Edge™ All rights reserved.


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