One bar exam down, one to go

This weekend I had the pleasure of taking a full length practice bar exam.  Yesterday was the essay exam, and today was the multiple choice.  I have to correct my essays on my own, and although they gave me the model answers, it's kind of hard to judge whether my mediocre answers are adequate, because the model answers include everything possible to write about in response to the question, not just the minimum requirement to pass.  The multiple choice answers were graded online, and I got a nifty score report that told me what I already knew....I don't know much about evidence.  The bar prep company told us that on this first practice exam, we should aim to get 50% of the questions correct.  I'm pleased to report that I exceeded 50%, and my score on this exam would have been exactly the minimum required to waive into D.C.

On the one hand, this makes me happy, because I still have a month to improve even more (and add a little cushion so hopefully I'll do a little better than just scrape by), but coming out of the exam, there were only about three questions that I KNEW I got right, out of 200, and it makes me nervous to feel like I guessed the answers to at least half the questions.  So, this is a good reminder for me that even if I don't feel confident after the bar exam, that doesn't mean I didn't do well.  

Now I'm going to have a practice post-bar celebration, which will involve watching television and reading a magazine.

More on rappers and the law

I had a great time in Puerto Rico, but it was really hard to come back to D.C. to keep studying for the bar when all I really wanted to do was extend my trip, go to the beach, and start a new life in the Caribbean, which would probably involve island-hopping just to make sure I leave a complicated trail for the student loan people who will eventually want their money back.

I think I found a little bit of my motivation again, which is a huge relief, because although cramming has always worked for me in the past, there's only so much information I can cram into my head and retain for a twelve hour exam, so I actually need to study and learn for real this time.  I had mentioned to my parents that I hit a studying slump though, so today when I checked the mail, I was pleasantly surprised to find a Bar Exam Care Kit from them (I didn't figure out why BECK was listed as the sender until I opened it up).  It definitely made my day, and came at just the right time, so thank you Mom and Dad.  

Finally, here is another analysis for you concerning rappers and the law:

Yesterday I saw a headline when I was logging into my Yahoo! email account that 50 Cent is suing his son's mother, Shaniqua, for defamation for her statement "[h]e tried to kill me and his own child....I know this came from 50 Cent" that she made after the home she lived in with her son (50 Cent actually owns the home) burned down.

I'm not sure how successful 50 Cent's defamation claim will be.  Defamation is basically the publication of a fact about the plaintiff (50 Cent) that is false and defamatory that causes harm to the plaintiff's reputation.  Here, the defamation could be slander, since it was spoken. However, if Shaniqua made the statement to reporters, rather than the police, it may be libel, since it would then be permanently preserved on the internet, radio, or television.  Whether it's slander or libel will affect the type of damages that 50 Cent would recover (50 Cent would recover better money damages if the statement is libel, since he won't have to prove he suffered special damages, which are basically economic harm).

50 Cent is a public figure (even though my parents may not have heard of him), so he'll need to show that Shaniqua acted with actual malice or reckless disregard for the truth, which basically means that there has to be sufficient evidence to allow the conclusion that his ex had serious doubts as to the truth of the statement when she made it.  I think this might be the point on which 50 Cent's claim would fail, because considering he and Shaniqua already had a pretty big, ongoing legal battle over child support and the $1+ million dollar home, it doesn't seem like Shaniqua would have had such serious doubts the statement was false when she made it, since 50 Cent wanted her out of the house.  

So 50, in the (paraphrased) words of Jay-Z, "I ain't passed the bar, but I know a little bit," so I'm thinking that based on the celebrity gossip news available to me, your defamation claim will fail.

All my friends are getting married, I'm learning the exceptions to hearsay

This is the summer of weddings for a lot of my friends.  It was bound to happen at some point, but I'm a little sad that they all decided this summer was the summer, because I had to turn down half of the invites.

This weekend I'll be heading to Puerto Rico for the second wedding of the summer, for an old high school friend.  I would have loved to turn this one into an extended vacation for myself, but it falls pretty much right in the middle of my studying.  So, what will I be packing for this 36 hours in the Caribbean (Puerto Rico is in the Caribbean, right?  Since I'll be there for such a short time, I haven't even bothered to look at where it is on a map or find out what's there, since it'll just be disappointing that I can't see it/go there)?  Well, I will be bringing my digital and film cameras, sunblock, a dress to wear to the wedding, my bathing suit in hopes that the beach is right outside of the hotel, a million flash cards, a few books of substantive law, and my iPod filled with lectures on Evidence, Constitutional law and the like.  

This week the studying has been more difficult, as Evidence has been the focus.  Each day when I start studying, it feels like the first time I've ever looked at this stuff, and at each lecture, it feels like the first time I've ever heard the rules, even though I've been looking at it/listening to it for four days.  It's like Groundhog's Day.  I'm just moving on to Con. law now to feel better about myself, and am praying that the bar examiners will forget to put an Evidence question on the essay exam this year.  That seems unlikely, since it's been on every bar exam ever, so I'll make sure to bring a couple $20s into the exam with me, so I can slip them into my Evidence answer booklet when I forget all 30 exceptions to the Hearsay rule.  (Please note sarcasm.  Additionally, am too poor as a law school graduate to be slipping my twenties to bar graders).

Blelvis

After my bar prep class tonight, Joe and I met one of my law school friends and her husband at our neighborhood bar.  On our walk home, Joe and I met this guy: http://www.washingtonpost.com/wp-dyn/content/article/2007/08/13/AR2007081301133.html

It was the most entertaining walk home I've had, particularly when Blelvis was serenading us outside the building, and another tenant walked in and shouted, "hey, Blelvis!"

99 problems, and the bar is one

One of my old roommates during my first year of law school was a big Jay-Z fan, and he and my other roommate (who were dating) would joke that Jay-Z's "99 Problems" was their song.  So I had heard the song plenty of times before I got to my first year criminal law and procedure class, and it came to mind when we were studying probable cause for a search.  Well, last night in bar prep, we were covering criminal procedure, and now that I'm a law school graduate and full time bar exam studier, I see more than just the lack of probable cause issue (although I don't think I've spotted all 99 of the problems, but this is just one part of the song).

The specific part of the song I'm thinking of is:

So I...pull over to the side of the road

I heard "Son do you know what I'm stoppin you for?"

Cause I'm young and I'm black and my hat's real low

Do I look like a mind reader sir, I don't know

Am I under arrest or should I guess some mo'?

"Well you was doin' fifty-five in a fifty four"

"License and registration and step out of the car"

"Are you carrying a weapon on you, I know a lot of you are"

I ain't steppin out of shit, all my paper's legit

"Well do you mind if I look around the car a little bit?"

Well, my glove compartment's locked, so is the trunk and the back

And I know my rights, so you're goin' to need a warrant for that

"Aren't you sharp as a tack, you some type of lawyer or somethin', 

somebody important or somethin'?"

I ain't passed the bar, but I know a little bit,

Enough that you won't illegally search my shit.

"Well we'll see how smart you are when the canine comes."

I got ninety-nine problems......

-Jay-Z, 99 Problems (Def Jam 2003).

First, in the event the officer actually searched the car and found anything that shouldn't be there, Jay-Z's lawyer should file a motion to suppress the evidence.  To have standing to bring a motion to suppress, Jay-Z would need to have a reasonable expectation of privacy in the area searched.  A person has a reduced reasonable expectation of privacy in a car.  

Here, the officer did not have a warrant, so any search and seizure is assumed to be invalid, though there are many exceptions.  

There is the stop and frisk exception, under which police can order the driver out of the car when there is a reasonable, articulable suspicion (which means more than a hunch, but is an easier standard to meet than probable cause) that criminal activity is afoot and this person detained is involved.  Here, going 55 mph in a 54 mph would definitely not amount to probable cause, or a reasonable articulable suspicion for the officer to search.  So, the search is still invalid.

There's also the consent exception, which the officer is trying to employ here.  If Jay-Z said, "Sure, go ahead, search my car," then it doesn't matter that there was no warrant.  Although Jay-Z hasn't passed the bar (something we have in common), he is quite correct that you can withhold consent to a police search of your car.  Police also don't have to tell you that you can withhold consent to the search, so then on occasion, the actual voluntariness of the search can come into question.  Jay-Z did not consent to a search, so this exception isn't going to work for the police either.

The problem with the consent exception is that it then leads to the plain view exception.  Once the officer has established some legal right to search (a warrant, consent, a different exception), any item in plain view can be legally seized.  Since Jay-Z didn't consent, plain view is pretty meaningless, except for the reduced expectation of privacy you have in a car.  

Also, a note on the locked glove compartment, trunk, and back of Jay-Z's car.  Once an officer has probable cause to suspect there's contraband in the car, even though they don't have a warrant, they can lawfully search anywhere in the car consistent with that suspicion, including the trunk, glove compartment, and containers in the trunk, if it is possible that the object they're searching for could be in any of those areas.  However, if you've been stopped and are being patted down (because the police had a reasonable, articulable suspicion that you were involved in criminal activity that's afoot), the police can only frisk outside your clothes and pat you down for weapons.  The officer can't reach in your pockets or look for anything but weapons until s/he has probable cause.  Here, the officer clearly didn't have probable cause to search for contraband, so this would be an invalid, warrantless search if the officer proceeded.

Basically, the officer here would have been much better off doing administrative searches of vehicles.  For the officer to make that a valid, warrantless search, he would have had to stop every car or every third car, but not stop a car on a random hunch (such as the driver being young and black and wearing his hat real low).

The "can't search the trunk" exception only seems to come into play when police are searching you incident to a lawful arrest.  Once you're arrested, the police can search you, and the area in your wingspan, which can include the car, but not the trunk.  This search is typically for an officer's protection and/or to prevent you, the arrestee, from lunging into your car and grabbing and destroying your contraband.

Oh, and canines aren't considered to be a "search" because they're just sniffing your drugs, not actually looking through your bag or your car, so it's not intrusive.  Tricky, huh?

The court would grant Jay-Z's motion to suppress any evidence that was found if the officer proceeded with the search, since it would be the "fruit of the poisonous tree," meaning it was found incident to an unlawful search (although there are exceptions to that too, but I need to go answer contracts questions now).