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Monday, October 30, 2017

Your Crim Pro Final

Here.

Posted by Howard Wasserman on October 30, 2017 at 08:06 PM in Criminal Law, Howard Wasserman | Permalink

Comments

The A-F grade scheme for this exam will be replaced with:

Heckin Good Boi 12/10

Good Boi

Fren

A Frighten

Posted by: Derek Tokaz | Oct 31, 2017 7:47:25 AM

In determining whether the suspect had unambiguously requested counsel, I think the dog/dawg reference is a red herring. The two factors that weigh strongly against him are his decision to phrase his request as a conditional (i.e., "If y'all think I did it"), and as a rhetorical question (i.e., "Why don't you just give me a lawyer"). Based on the caselaw I've seen on this issue, these factors taken together would likely be enough to render his invocation of his constitutional right insufficiently express, clear, and unambiguous. Although a person in ordinary conversation would know what he wanted, courts tend to apply a higher standard for valid assertion of a constitutional right. The court's standard in this area likely disproportionately results in lower-income and less educated people being unsuccessful in attempting to assert their rights, because their colloquialisms do not satisfy the court's more formalistic requirements. One could imagine a rule requiring police to expressly clarify whether a person is requesting counsel when an ambiguous assertion is made.

Posted by: Michael T. Morley | Oct 31, 2017 10:24:31 AM

Thanks, Michael. I'm not a criminal law expert but I suspected the same thing as you've asserted (e.g., that it was how the request was phrased, rather if he wanted a dog lawyer).

I'm also interested in your last sentence. That seems like an appropriate rule to me. Police officers receive training. It seems fair to require the trained officers to clear up ambiguity rather than construing ambiguity against possible defendants.

Posted by: Matthew Bruckner | Oct 31, 2017 12:50:43 PM

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