What's new

Crash Course - Law Roleplay

Limitless

Administrator
Joined
Mar 20, 2019
Messages
3,605
Location
San Andreas Supreme Court


Let us provide some background theory.

To become an attorney one must first pass a university-level degree usually called LL.B. (or Bachelor of Laws), such as the one offered by the Forestel Academy of Law on RCRP. Alternatively, a strenuous and long period of apprenticeship with a professional law firm may also result in earning the necessary skills and knowledge. By that point the student should have an idea of what area of law they wish to work in. Usually when we say law, we think about Criminal Law, which deals with putting people in jail or keeping them out of it. There are, however, multiple other branches of law - Tort Law, Contract Law, Business Law, Maritime Law, Administrative Law, Family Law, etc. Those are usually bunched together in the term Civil Law (as opposed to Criminal). On RCRP, the most common area of practice is Criminal Law followed by Tort and Contract.
Once a degree is completed the attorney-to-be has to pass a Bar Exam that tests their ability and knowledge of the law of the state they want to practice in. The Bar Exam is governed by a State Bar Association, which is the association of all lawyers certified to practice law, including judges. It also sets the rules of professional conduct, and organises professional development courses.

Once certified to practice law, one is faced with the choice of which route of employment to take. There are three general paths to take.
Firstly, state employment includes Prosecutor's Office, Public Defender's Office, government agency counsel, and other. Prosecution and public defence are exclusively reserved for Criminal Law while counseling a government agency, senator, and so on, is more often to do with Civil Law. These are usually safe jobs that come with lower pay and higher workload.
Secondly, private employment includes law firms sizing from the smallest one-man office to large companies with multiple partners and offices across the country, as well as being an attorney for a company doing business in a different area. These firms often specialize in which area of law they operate it, but not necessarily. Private firms can be very competitive but pay well.
Thirdly, NGOs (non-government organisations) and NPOs (non-profit organisations). Those are established by independent citizens usually in service of the community or to promote a certain cause, such as the NAACP (National Association for the Advancement of Colored People) and ACLU (American Civil Liberties Union). Work here varies greatly from place to place and includes both Criminal and Civil Law. Pay is generally low and the workload is high.


Now that we know how to become an attorney and where to work as one, it is time to look through some of the key concepts in lawyer work, with a slight emphasis on Criminal Law.

Before reading any further, please ensure you have read these two guides:


Motions
In a trial, a motion is used by an attorney to request the court (the judge) to do something, or to force one party to (not) do something. Can be submitted orally or in writing, at any point during a trial. Common motions are the motions for summary/default judgment, to suppress evidence, to strike a statement from record.

Judgments and verdicts
A judgment is given by a judge, and a verdict is given by a jury. There's multiple variants of judgments and verdicts but some of the most common ones are a default judgment (when the defendant fails to defend himself or respond at all), summary judgment (when there is no actual dispute of facts), and of course the standard judgment/verdict which proclaims a party guilty or not guilty. Judgments and verdicts are considered "final" but can be appealed. A verdict can only be appealed based on "issues of law" and not "issues of fact".

Issues/triers of law and fact
There are two distinct issues in each trial. One is the issue of law, which is to determine what laws were broken, was everything done according to the law and is anything unconstitutional or not; this is tried by a judge who is called the trier of law. On the other hand, there is the issue of fact, which is to determine what exactly happened and is the defendant guilty beyond a reasonable doubt; this is, naturally, decided by a jury (sometimes it can be decided by a judge and on RCRP it is nearly every time).

Jury
Everyone has heard of a jury. It consists of around a dozen people gathered to determine if someone is guilty or not. They get instructions from the judge on how to decide and on what issue. RCRP rarely uses juries.

Objections
Kind of similar to motions, objections can be raised during a trial. The purpose is to point out an error in procedure or the opposing attorney overstepping their rights. Such as, "Objection, your honor! Leading question." The first part always objects, directed at the judge. The second part describes why the objection is raised. Usually the description is a few words and requires no elaboration, but you may be asked to explain yourself. Frivolous objections can be subject to punishment.

Warrants
Required document for a large portion of the arrests and property searches. The police submit it to a judge and the judge may approve or deny it based on probable cause. A warrant's legality and probable cause should be the first thing to examine when defending in a criminal trial.

Injunctions
These are used by the court to tell someone to (not) do something, but can be done at the court's discretion to prevent further harm, if applicable. In this, they are different from judgments because they do not require any guilt to be established. They are applied in both civil and criminal cases. A restraining order is an injunction. It is often wise to request injunctions explicitly, especially in civil trials, in order to prohibit the other party from getting rid of assets or money while the trial is ongoing.

Settlements
Those are the most common way of resolving civil disputes. Both parties weigh the likelihood of success, the fees, the likely winnings, and decide to make a deal to avoid a lengthy trial. The plaintiff ends up with less money than asked for but it is considered a success. Settlement should always be attempted before resorting to civil trial. It must be emphasized that the process requires concessions from both sides. A settlement is usually accepted by the court but it is never revealed what the settlement terms are (unless, of course, there is a breach of contract law e.g. misleading statements etc.)
There are other methods of dispute resolution out-of-court, such as mediation and arbitration. The difference between the two is that while mediation is a service to "mediate" and facilitate a fruitful negotiation, arbitration results in a binding decision.

Plea deals
Those are the most common way of resolving criminal disputes. Both parties weight the likelihood of success, the possible punishment, and decide to make a deal to avoid a lengthy trial. The defendant usually gets a significantly reduced sentence and/or less (and lesser severity) charges. Offering a plea deal should not be seen as a sign of weakness, as often the primary reason is not going to be that the other party knows their case is weak, but merely trying to save time or potential embarrassment if certain evidence is presented in court.
A plea deal still has to be accepted by the court.

Case law
In the United States, statutory law (written legislation) rules as much as case law. Case law is the historic rulings of various courts throughout the years. To determine if a case law applies to a certain trial, the judge must weigh the similarity of the circumstances, their relevance, and whether the case law has been decided by a court equal to or superior than the current one the trial is being reviewed at. If the case law comes from a higher court, the judge is almost certainly obliged to rule according to it.
There are hundreds of case laws only in the U.S. Supreme Court, which is also the only court RCRP is interested in. However, many case laws are famous and easy to remember, like Miranda v Arizona (gave the name to the "Miranda rights"), Tennessee v Garner (police may shoot a fleeing suspect only if the suspect poses a credible threat), Terry v Ohio (during a legal stop, police may perform a superficial pat-down for weapons) Pennsylvania v. Mimms (police may order the occupants of a vehicle out during a traffic stop), Michigan Department of State Police v. Sitz (highway sobriety checkpoint programs are consistent with the Fourth Amendment), Mapp v Ohio (prosecution is not allowed to present evidence that law enforcement secured during a search that was unconstitutional under the Fourth Amendment), and so on...
Glik v Cunniffe (filming police officers on duty is protected under the First Amendment) is not a Supreme Court ruling but is nevertheless treated as such.

Defence in criminal cases
A defending lawyer can employ several strategies to get their client out of trouble. They can attack the legal basis for the arrest, arguing this and that law does not apply to their client's case. They can attack the legality of the arrest, such as whether there was probable cause for it. They can try to claim the arrest was unconstitutional or anything else in the investigation is unconstitutional. They can claim their client acted from necessity, or in self-defence. They can attempt to lessen the severity of the punishment by arguing the crime was committed without intent or under duress. They can try to discredit the testimony of witnesses or the value of evidence. Of course, they can ask questions and offer statements that cast doubt over whether the defendant is guilty. There are many other techniques that can be used. The general idea is to analyse the prosecution's arguments in great depth and then attempt to discredit them or offer alternatives, as well as to ensure your client is telling you everything exactly as it went. To give a famous quote:

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
- Sun Tzu


Below are several excerpts from the Forestel Academy of Law which are tell-tale for the level of depth of the materials presented within the academy. Unfortunately, it would be impractical for me to share everything with the world for nothing as it took a lot of hard work to compile.
Yes, this is not a guide, it's an advertisement.

STRATEGY for defence in criminal trial
Lack of Suspicion or Probable Cause
  • A criminal defense lawyer may argue that the law enforcement officer who stopped or arrested the defendant did not have the necessary reasonable suspicion or probable cause to justify the detention. It may be argued that the law enforcement officer had a predisposition to believe that the defendant was guilty and had no other indication that a crime was committed.
A Strong Cross-Examination of the Arresting Officer
  • Every aspect of the arresting officer’s circumstances, disciplinary record and training may be explored to aid in the cross-examination. Marks in his or her disciplinary record may be used to affect the credibility of the officer at trial. Even his or her memory of the events may be attacked, especially if only supported by a poorly written police report.
    Another way that a cross-examination may be effective is by challenging an officer who portrays himself or herself as an expert. This is more likely to occur in cases involving field sobriety tests initiated after suspicion of drinking and driving. For example, a law enforcement officer may state that he or she observed the defendant’s eyes jerking during the horizontal gaze nystagmus test. By attacking the officer’s credibility based on his or her lack of medical training or limited experience, the criminal defense lawyer can help build reasonable doubt.
Denial of a Legal Representative
  • If a criminal defendant asks for a lawyer clearly and unwaveringly, law enforcement officers should not continue to question the defendant. A criminal defendant has a right to legal counsel once he or she is in custody and is questioned. Law enforcement must wait a reasonable time to question the defendant after he or she asserts the right to legal counsel.
Mistakes by Law Enforcement
  • If a law enforcement hears or sees something incriminating because of a police mistake, this evidence may be thrown out as inadmissible due to the legal doctrine of fruit of the poisonous tree.
Anonymous Report
  • Sometimes, an anonymous report may not provide sufficient grounds for a law enforcement officer to make a stop.
Provide Feasible Alternative Explanation
  • There may be innocent explanations that can help explain suspicious behavior and characteristics such as unsteady balance, slurred speech, incomprehensible speech, red eyes and other factors. Factors such as bad weather, uneven ground, taking prescribed medication or having literacy problems may explain some of these behaviors.
Introduce Witnesses
  • The defense has the constitutional right to call witnesses that support his or her defense. Witnesses may provide an alternative observation that supports the defendant.
Undermine Opposing Witnesses
  • Demonstrate bias on the part of prosecution witnesses, who, therefore, may be lying. Challenge the believability of a witness's story on the grounds of logic or common sense.
Lack of Specific Intent
  • In some cases, the prosecution has the duty to show that the defendant had the specific intent to commit a particular crime. For example, in theft cases, the prosecution may have to show that the defendant had the intent to permanently deprive the owner of an item that he or she lawfully owned. Without this intent, the defendant cannot be convicted.

STRATEGY for a civil trial
Claim(s)
  • What are the claim(s)?
  • For each claim, what are the legal elements?
  • For each element of the claim, what facts in the complaint support that element?
  • For each fact supporting the element, what evidence is available to support or refute that fact?
  • For each piece of evidence, is it in the record? Is it testimony or a document? Can it be admitted at trial?
and so on for each count.
Defenses
  • Is there an answer?
  • What facts in the complaint are disputed in the answer?
  • Are there affirmative defenses?
  • For each affirmative defense, what are the legal elements?
  • For each element of the affirmative defense, what facts in the affirmative defense support that element?
  • For each fact supporting the element, what evidence is available to support or refute that fact?
  • For each piece of evidence, is it in the record? Is it testimony or a document? Can it be admitted at trial?
and so on for each affirmative defense.
Counterclaim(s)
  • Are there counterclaims?
  • For each counterclaim, what are the legal elements?
  • For each element of the counterclaim, what facts in the counterclaim support that element?
  • For each fact supporting the element, what evidence is available to support or refute that fact?
  • For each piece of evidence, is it in the record? Is it testimony or a document? Can it be admitted at trial?
and so on for each counterclaim.
Trial
  • Is summary judgment appropriate for either side? On any claims?
  • What facts will be weighed at trial?
  • Has a witness list been filed for each side?
  • For each witness, is there discovery of the witness?
  • What elements of the pleadings does the testimony support?
  • Is there rebuttal evidence?
  • What elements of the pleadings does the exhibit support?
  • In what order should your witnesses and exhibits be used?
  • In what order should your witnesses and exhibits be presented?

Some Constitutional protections in criminal procedure




Fourth Amendment - Exclusionary Rule
The Exclusionary Rule is available to a Defendant in a criminal case as a remedy for illegal searches that violate the rights set forth in the Fourth Amendment. When applicable, the rule dictates that the evidence illegally obtained must be excluded as evidence under the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643 (1961). One important corollary to the Exclusionary Rule is the “fruit of the poisonous tree” doctrine. This rule holds that in addition to the material uncovered during the illegal search being inadmissible, any evidence that is later gathered as an indirect result of the illegal search will also be excluded. See Wong Sun v. United States, 371 U.S. 471.
EXAMPLE (1): The police illegally search D’s car and find drugs. The drugs will be excluded as evidence in the case against D in accordance with the Exclusionary Rule.
EXAMPLE (2): The police conduct an illegal search of D’s home and find a map showing the location of a well-hidden, remotely located outdoor marijuana field. The police go to the field and seize the marijuana. Under the doctrine of "fruit of the poisonous tree," the marijuana will be excluded as evidence in the case against D as it stemmed directly from an illegal search.
There are two important exceptions to the “fruit of the poisonous tree” doctrine:
  • If the police had an independent source of knowledge of the evidence aside from the fruits of the illegal search, then the doctrine will not exclude the discovered evidence.
  • If discovery of the evidence was "inevitable", the evidence may be admitted, as it was not then the illegal search that caused the evidence to be found. “Inevitable” is a strong word, and in order to admit evidence under this exception, a court must find that police would have discovered the evidence whether or not they conducted the unreasonable search.
EXAMPLE (1): The police conduct an illegal search of D’s home and find a map showing the location of an outdoor marijuana field located 50 feet behind the loading dock of a busy commercial strip. The police go to the field and seize the marijuana. The marijuana may be admitted as evidence by a court. Although the police were led to the field by information discovered during an illegal search, a court could find that discovery was inevitable, given the field's proximity to heavily used areas and the fact that the field was not well hidden.
EXAMPLE (2): Officer Brady illegally searches Donald’s barn and discovers documents identifying Donald as the culprit behind an internet scam. The next day a confidential informant e-mails Officer Brady the same documents. The documents are admissible as evidence because there was an independent source for the evidence besides the illegal search.
EXAMPLE (3): The police perform an illegal search of Fred’s residence and discover stolen goods. On the counter they find a notepad on which Fred wrote the following: Reminder - place newspaper ad “Computer stuff for sale; cheap and hot! Call Fred 555-1234.” Based on this, the police call the number and that leads them to more evidence against Fred. The discovery was not inevitable as the ad never ran. The evidence will be excluded.
There is also one important exception to the Exclusionary Rule. When a search is conducted with a good faith belief that it is a legal search, the evidence discovered may be admitted. See United States v. Leon, 468 U.S. 897 (1984). If the officer believes that a warrant is not required for a search, or conducts a search pursuant to a warrant, which he believes to be valid, the officer can be said to be acting in good faith.

Fifth Amendment - Miranda Rights and the Right to Avoid Self-Incrimination
Most people in the United States have, at some point, seen a television show or a movie in which, while arresting a suspect, the police officer “reads him his rights.” The “rights” here are based in the Fifth Amendment, and the reasons for the reading of the rights by the police officer stem from the privilege against self-incrimination, which may be waived or asserted. The rights, as read by police officers, are something to this effect:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one will be provided for you by the court."
The Fifth Amendment itself, however, does not contain this language that we have come to know so well, nor is this language found in any statute. This language, which has come to be known as the “Miranda warnings,” comes to us from the case of Miranda v. Arizona, 384 U.S. 436 (1966).

A Defendant’s statement made while in custody, and in response to interrogation, cannot be used to establish the defendant’s guilt in a criminal trial, unless the Defendant was appropriately advised of his Fifth Amendment privilege and voluntarily chose to waive that privilege.

In Miranda, the court decided that:
"Prior to any questioning, the suspect must be warned that he has a right to remain silent, that any statement the suspect does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed, and that the defendant may waive effectuation of these rights."

There are two distinct rights spelled out here – the right to remain silent and the right to have an attorney present during questioning – and they have different ramifications for questioning suspects.

The right to remain silent must be asserted contemporaneously with the questioning, meaning that a defendant cannot answer a question and then later try to exercise the privilege against self-incrimination regarding that question and "cancel" the previous answer. She may, however, exercise the privilege regarding any future questions.

Once the “right to remain silent” has been asserted, all questioning regarding that matter must cease. It is permissible, however, to question the defendant about unrelated crimes or incidents. In other words, the right to remain silent is "offense specific," and following a break and fresh Miranda warnings, questioning may continue along different lines.

The right to the presence of an attorney during questioning operates in a substantially different manner than does the right to remain silent. While the right to remain silent may be exercised by doing just that – remaining silent – a demand for counsel must be explicit. That is, the defendant must assert the right by requesting counsel and stating that she will not answer any further questions outside the presence of counsel.

As with most rules of law, there is an important exception to the Miranda requirements. If there is a public safety concern, the individual’s rights are temporarily outweighed by the need to protect the public. In such a case, even if police question a suspect prior to Mirandizing, the responses can be used at trial.
Example: Officer Kobruh comes upon an armed gunman in a crowded supermarket. The radio dispatcher had indicated that at least two gunmen were involved. After not-so-gently subduing and handcuffing the gunman, Officer Kobruh asks “Where’s your gun?” The scared gunman replies “I was just the lookout. The other guy is hiding behind the fish display. I dropped my gun over there when I was trying to run away.” When the smoke clears, Officer Kobruh reads both assailants their Miranda warnings. The gunman’s statement is admissible as evidence against him because locating the gun was important enough to public safety so that it effectively outweighed the Fifth Amendment rights of the suspect.
In addition to this exception, there are some other limits on the Fifth Amendment privilege. First, the privilege may be asserted only by natural persons (it cannot be asserted on behalf of the corporation). Second, the privilege applies only to self-incriminating statements. In other words, the responses of a suspect in a burglary investigation who was not Mirandized can be used to convict his accomplice at trial, but cannot be used to convict the suspect himself. Finally, only testimonial evidence is covered by the privilege. That is, evidence which is elicited from questioning a witness or suspect. Physical evidence, such as the results of a blood test, are not covered by the Fifth Amendment and can be used regardless of whether a suspect was Mirandized and regardless of whether that suspect asserted or waived her privilege.

One similarity between the Fourth Amendment protection against unreasonable searches and seizure and the Fifth Amendment privilege against self-incrimination is the "government agent" requirement. The privilege here can only be asserted against a questioner known by the suspect to be a government agent.

We noted earlier that the Miranda requirements protecting the Fifth Amendment privilege against self-incrimination apply only to a defendant’s statement made while in custody. It is essential, therefore, that we be able to determine whether or not a Defendant is in custody.

As you may have gathered from the defined Terms for this section, it is difficult to give a non-circular definition of custody. While all arrests entail taking a person into custody, one can be in custody even while not having been arrested. Simply being lawfully detained, or lawfully restrained against one’s will, can be sufficient to meet the custody requirement found in Miranda. One way of looking at it is that, at a minimum, the police must have limited someone’s freedom of movement for that person to be considered to be "in custody" for Miranda purposes.

Through case law, it has been settled that probation interviews and routine traffic stops fall short of placing the person in custody. It is therefore not necessary to provide Miranda warnings to people in these circumstances in order to prevent infringing on their Fifth Amendment privilege. See Berkemer v. McCarty, 468 U.S. 420 (1984).

Custody is not necessarily determined by the presence or absence of physical restraint. Nor is somebody necessarily in custody merely by virtue of being in an office in a police station. See Beckwith v. United States, 425 U.S. 341 (1976). The test is whether a reasonably prudent person would believe that her freedom of movement is significantly restrained, given the totality of the circumstances. If someone would reasonably conclude under the circumstances that she is not free to leave the room, or office, or police station or other location, then she is likely in custody for Miranda purposes. Whether she actually believes herself so constrained, and whether the police officer actually believes that she is so constrained, are not relevant.
EXAMPLE: Joe Citizen walks into the police station to report that his house has been burglarized. Detective Vendredi invites Joe into his “office” to take the report, as the station is hectic that night. The officer tells him that if he wants to leave and do this another time, there would be no problem arranging it. After Joe sits down within the confines of a three-sided cubicle into which the officer led him, Vendredi says "Hey, you know, you look an awful lot like a guy I was chasing after a mugging last week. Was that you?" Joe Citizen, being an avid television cop-show fan, sees his opportunity to stick it to the officer. "Yeah, that was me, and I bought lots of drugs with the money I took, too. Too bad you didn’t read me my rights and can’t use this statement against me!" At that point Vendredi jumps up, cuffs Joe, and reads him his rights. Unfortunately for Joe, he was not in custody at the time of the statement, and it can be presented as evidence against him in court.

The Fifth Amendment privilege applies to a defendant’s statement made while in custody and in response to interrogation. So, the first step in determining whether Miranda applies is to ask whether or not the person whose statement is sought to be used against him was in custody at the time that the statement was made. If so, we must then ask whether the statement was made in response to interrogation. If there has been no interrogation, there is no privilege against self-incrimination and the statement may be used at trial against the suspect.

Police need not even directly question a suspect regarding a specific act in order for questioning to fall within the meaning of the term "interrogation."

The suspect's being in custody, in and of itself, also falls short of satisfying the interrogation requirement. Some additional form of compulsion or coercion is required to trigger Miranda. Actual direct questioning, however, is not necessarily required. Interrogation can be achieved by placing a “confession form” before a suspect, but not by merely taking the suspect into custody. Some words or actions which are reasonably likely to lead the suspect to make incriminating remarks are required.
EXAMPLE (1): Police approach Reverend S. Martin who is suspected of stealing money from a church fund. After arresting him, they place the Reverend in a room containing a table and two chairs. On the table is an empty collection basket from the Reverend’s church. No police officer bothers to Mirandize the Reverend. After a few minutes, Officer N. Chalant comes into the room and starts talking about the sin of greed, the sin of lying, the sin of theft, and anything else he can think of. He uses religious language to speak about the joy of being cleansed and his own experiences of having been forgiven for his transgressions as a youth. At no point does the officer ask any questions, but simply goes on for about 20 minutes speaking of sin, hell, forgiveness, etc. After ending his diatribe, Officer Chalant picks up the collection basket, turns it over to emphasize that it is empty, and shakes his head sadly. “What a shame,” he says, “that those in need will go cold and hungry this winter.” He then looks Reverend Martin in the eye, as which point the Reverend says quietly “I couldn’t help myself. I needed the money to improve my rare book collection. It is so paltry compared to Reverend Cye M. Schuster’s.” At trial, the confession will be excluded as evidence gained through a custodial interrogation without Miranda warnings. See Brewer v. Williams, 430 U.S. 387 (1977).
EXAMPLE (2): While Officer Chalant is interrogating the Reverend by using his own guilty conscience against him, Dirk Diggler is in the adjoining room waiting for someone – anyone – to come talk to him. He was arrested for the murder of his live-in girlfriend several hours earlier and was brought to this room 45 minutes ago, at which point the door was locked behind him. At no point did anyone read him his rights pursuant to Miranda. After ten minutes alone in the room he began wringing his hands. Fifteen minutes later he began pacing. For the last twenty minutes he has continued his pacing and has been mumbling to himself. After finishing his discussion with Reverend Martin, Officer Chalant opens the door to Diggler’s room. “I killed her! I killed her!” He screams, and falls sobbing into the unsuspecting Chalant’s arms. Because there has been no interrogation, Diggler’s statement can be used as evidence against him in his murder trial despite the lack of a Miranda warning.
Compare the comments made by Officer Chalant in the first scenario above, coupled with his eye contact, with the following scenario. Bear in mind that the crucial question is supposed to be whether the police have spoken or acted in such a way as to make it likely that a suspect would respond and incriminate himself. This determination is made based upon the totality of the circumstances.
EXAMPLE: After arresting Donald the drug dealer, Officers Harskey and Stutch are transporting him back to the station in the back of their car. Harskey and Stutch discuss baseball, their favorite cars, and otherwise make small talk. It is a long ride back to the station. Donald looks out the window in silence, fuming about having thought that these undercover officers were just a pair of lowlifes – like him. At one point Harskey says to Stutch “You know, I heard about this guy who went to the big house last year and before his lawyer could get him out, he lost three fingers and an eye in a nasty fight.” Stutch replies “Yeah, I heard about that dude. Too bad he didn’t just cop to the crime and cut a deal with the arresting officers to supply information. He might still be able to eat solid food today if he would have.” Suddenly, Donald leans forward and says “Hey, I know you caught me selling smack. But if you let me off the hook for the crimes I did today, I can tell you where to find the biggest, baddest, drug-dealin’ dude in town.” Because Harskey and Stutch were merely engaged in a dialogue, which did not invite Donald’s participation, his unsolicited remarks were not in response to interrogation, and the fact that he was not Mirandized will not prevent their use against him in his criminal trial.

Because the Fifth Amendment privilege against self-incrimination, as interpreted by the Miranda court, is a right that can be waived by the defendant, it is important to understand what constitutes a waiver for Miranda purposes and what are the consequences of such a waiver.

A Miranda waiver will not be implied merely from a Defendant’s silence, and the prosecution bears the burden of showing that Defendant had waived her Miranda rights. Although a Defendant can waive her Miranda rights expressly or impliedly, a court finding of an implied waiver requires conduct that evidences an intent to knowingly and voluntarily waive her rights.

EXAMPLE (1): Jerry Costansa is in police custody being questioned for public lewdness. After reading the Miranda warning, Officer Newman hands Jerry two pieces of paper and indicates that the first should be signed to acknowledge that he has been read his rights and the second should be signed only if he wishes to waive those rights. Jerry signs both. Clearly, Jerry has waived his rights.
EXAMPLE (2): In a nearby precinct, Mr. A. Teterman has been arrested for fraud. Apparently, his “Suburban Sombrero,” which he claims is made in a small village in Mexico which he discovered on a cold, rainy night in January, while looking for an ancient soup recipe, is actually made by inmates in the Ohio Correctional system. After being read the Miranda warning, Mr. Teterman is handed forms similar to those given to Jerry in the previous example. Before he even looks at the forms, however, Mr. Teterman launches into a lengthy story about the incredible quality attained by otherwise brusque men in their small cells. He admits to having intentionally defrauded his customers. Although he did not sign the forms and did not ever say, “yes, I waive my rights,” Mr. Teterman’s action – telling his story – evidences a knowing and voluntary waiver of his right to remain silent and his right to have an attorney present during questioning.
It is important to note here that Teterman’s actions in the previous example do not prevent him from later asserting his Fifth Amendment right to remain silent regarding any future questions asked of him. The Miranda court held that the privilege is not waived “if the individual answers some questions or gives some information on his own, prior to invoking his right to remain silent.”

In short, whether someone has waived her Fifth Amendment privilege to remain silent and have an attorney present will depend on the totality of the circumstances, bearing in mind the duration of custodial interrogation as well as the sophistication of the Defendant and any other relevant factors.

Recently, in Berghuis v. Thompkins, 560 U.S. 370 (2010), the United States Supreme Court held that mere silence is insufficient to invoke the right to remain silent. There, the suspect chose to not speak, but after hours of questioning eventually gave some response. The lower court held that his hours of silence was enough for police to know that he had invoked his right to remain silent. The Supreme Court disagreed and held that the defendant must specifically invoke the right to remain silent before police must stop questioning. The Court further held that unless the suspect invokes his right to remain silent, any responses made to police would be deemed a waiver of that right.

Sixth Amendment - Right to Confront Witnesses
The Sixth Amendment gives the accused the right to confront witnesses adverse to his interests. This, of course, does not mean that a Defendant has the right to “get in a witness' face” or grill the witness under a hot light. It merely means that a defendant has the right to insist that the witness testify in the defendant's presence and that the defendant has the right, usually through his attorney, to cross-examine the witness.

The rationale behind the confrontation clause, according to the Supreme Court, in California v. Green, 399 U.S. 149 (1970), is (a) to limit the likelihood that a witness will lie, by making her swear an oath and expose her to risk of prosecution for perjury if she testifies falsely, (b) to force the witness to endure cross-examination, and (c) to allow the jury to observe the witness giving the testimony in order to better assess credibility.



From source.


All of the above is routinely used by attorneys on both sides of the aisle to craft their litigation strategies (litigation strategy means the strategy of how they are going to present the information and win the case, litigation = court trial). Learning how to do this effectively is not something one can lay out in one guide due to the sheer amount of possible scenarios that can happen. Not for a lack of desire though; being an engineer IRL really makes me want to quantify everything in a neat little table for y'all to use, but law doesn't work that way. To learn law, you have to practice it, and I encourage you to try it out, or get in touch with me if you are not confident and I can point you in the right direction whether that would be a piece of advice, reading, or suggestion to enrol in the Foerstel Academy.

Please let me know if you want to see something included in this guide, or if anything needs further clarification.




Here are some ideas for lawyer character personalities, borrowed from popular media.

- The young and ambitious
A (moderately) recent law school graduate, either a paralegal at a mediocre firm or an intern of a famous lawyer. She is eager to prove herself, to get to work in the courtroom and rise up the ranks.
This one also gets divided based on "slimy" and "idealistic". The idealistic will be out there playing by the book, putting in the long hours and looking forward to getting untouchable criminals behind bars, or saving innocent people from incarceration. The slimy one will be out there looking out only for himself and will take the shortcut whenever presented with the opportunity.

- The classic
A level-headed lawyer, usually with experience, who still follows the rules. For him, justice doesn't come for free - it comes from the people who are willing to put in the good work. And if justice didn't happen to come, oh well, there is always next time. No system is perfect but we can all work together to make it better.

- The cynic
He's seen his fair share of cases in his career. Once confident in the rule of law, he has witnessed it fail too many times to still believe in it. He knows all the rules so he can break them to get things done while getting away with it. Probably started off as the "idealistic" when he was young, now he smokes like a chimney sitting in his office, foul-mouthed, wearing a suit from the 90s, and ready to retire early if he could.

- The heavy baller
This guy has been around for a while. He's an attorney to mobsters and CEOs, can usually be mistaken for either of them for the way he walks, talks and dresses. Loaded with cash, to afford his fees you need to have very deep pockets. He's well-known at the court and has contacts all over the place.

Of course each person is different and cannot fit a category like that, and you are free to develop your characters in any (realistic) way you see fit. It is good to align your character with your own OOC knowledge and experience - roleplaying the 'heavy baller' while having no prior roleplay experience as an attorney is probably a bad idea.

 

wsasRO

Gold Member
Joined
Oct 21, 2017
Messages
2,697
Location
Romania
ive always wanted to roleplay an attorney but never had the time to get it done. when i get the chance ill take it, but until then these guides are going to come in handy. props to u bro
 
Top