Answers to Summer 2014
Summer 2014 Bar Question 4
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.
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1. Calvin’s motions:
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.
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:
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.
(2) Dan’s confession.
Custody. Prowl arrested Dan and he was taken to the police station. Therefore, he was in custody
14th Amendment and 4th Amedment Police coercive interrogation.
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.
Here, the 4th Amendment was violated in one or both ways:
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.
Counervailing Duty of Candor to the Court
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,
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:
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.
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