I always wondered what kind of questions they asked in a bar exam. I came across one website dealing with the Feb. 2005 NY State Bar Exam. It had a question which dealt with self defense, firearms, etc. Thought people might be interested in seeing it.
____________________
FEBRUARY 2005
NEW YORK STATE
BAR EXAMINATION
QUESTIONS AND ANSWERS
One night, Dobson and Vance were in a local bar. Vance threatened and taunted Dobson, and a fight ensued. Brent, the bartender, ejected Vance from the bar. Later that evening when Dobson left the bar, Vance approached him in the parking lot brandishing a knife. The two men fought, and Dobson was stabbed in the arm. Dobson knocked Vance to the ground and ran to his car which was parked 50 feet away. Dobson grabbed a loaded pistol from the glove compartment of his car and returned to where Vance was just getting up off the ground. Vance, still holding the knife, lunged at Dobson. Dobson shot Vance, killing him. Dobson ran back to his car and drove away. Brent, who was watching from inside the bar and had a clear view of the entire incident, called the police.
Oakes, the investigating officer, arrived at the bar and questioned Brent. Brent told Oakes what he had observed earlier that evening in the bar and in the parking lot. He provided a description of Dobson and of the car and also provided a license plate number. He described Dobson to Oakes as a white man of about 35 years of age, short with a slight build, closely cropped hair and a short, neatly trimmed beard. Brent told Oakes that, although the person he described was a regular patron of the bar and Brent recognized him as such, he did not know his name.
Oakes determined that the car Brent described was registered to Dobson. Oakes then went to Dobson’s home to question him about the events. Dobson voluntarily spoke to Oakes, but denied being in the bar that evening and denied any involvement in the shooting. He further denied that he knew Vance.
Oakes asked Dobson to accompany him to the police station and to participate in a lineup, "to clear things up." Dobson voluntarily agreed and was taken to the police station where he was placed in a lineup. There were four other men in the lineup of the same race, and of the same general age, height and build as Dobson. All of the men had similar facial characteristics and hair styles, except Dobson had a beard and none of the other participants in the lineup had any significant facial hair. Brent picked Dobson out of the lineup and identified him as the man he had seen fighting with Vance in the bar and in the parking lot, and whom he had seen shoot Vance.
After the lineup, Dobson was taken to an interrogation room by Oakes, and Oakes read Dobson his Miranda rights. Dobson said that he wanted to speak to a lawyer and would have to retain one, as he did not have a lawyer. Dobson was then taken to a jail cell. Two hours later, Dobson called for Oakes and said that he changed his mind and that he was willing to talk to him without a lawyer. Oakes again read Dobson his Miranda rights, and Dobson then signed a written waiver of his rights. Oakes then interrogated Dobson, who confessed that he shot Vance. Dobson was then arrested and charged with murder and unlawful possession of a loaded weapon.
Dobson was arraigned on the charges, and an attorney was retained to represent him. After Dobson was indicted, his attorney moved (a) to suppress the lineup identification on the ground that the lineup was improperly conducted. Dobson’s attorney further moved (b) to suppress any in-court identification by Brent on the ground that the improper lineup tainted any subsequent identification. Finally, Dobson’s attorney moved (c) to suppress Dobson’s confession on the ground that it was taken in violation of his right to counsel.
At the suppression hearing, Brent testified to his prior familiarity with Dobson and to his opportunity to observe him over an extended period of time on the night of the shooting, both in the bar and in the parking lot. Oakes testified to the circumstances surrounding the lineup and Dobson’s confession.
The court granted the motion (a) to suppress the line-up identification, but denied the motions (b) to suppress the in-court identification and (c) to suppress Dobson's confession.
At trial, Brent testified to the events he observed on the night of the shooting. Dobson took the stand and testified that, on several occasions prior to the night of the shooting, Vance had approached Dobson and threatened to kill him. He further testified that, twice before, Vance assaulted Dobson, but, although Vance was a larger and stronger man, Dobson was able to escape from Vance’s attack. Dobson admitted that he shot Vance, but claimed that he did so in self-defense because Vance had already stabbed him and was again threatening him with a knife.
QUESTIONS
Was the ruling of the court correct as to each of Dobson’s motions?
Analyze the legal issues relating to Dobson's claim of self-defense.
___________________________
ANSWERS
1. a. The issue here is if there is any violation of the defendant’s constitutional rights, including due process and right to counsel.
A defendant has a right of due process under both U.S. Constitution and New York Constitution. In a pre-charge line-up, the line-up process must not be unreasonably suggestive or otherwise discriminating and improper. If there is violation, such identification should not be admitted. Here, the pre-charge line-up is very suggestive. The witness described that the suspect has a neatly trimmed beard, but none of the other participants in the line-up had any facial hair. The witness definitely will identify the defendant in the line-up. There is a violation of the due process right and according to the exclusion rule and such evidence must be excluded.
It is also notable that there is no violation of the defendant’s right under the 5th or 6th Amendment, as it is not a custodial situation and no Miranda rights attach. Also, it is not a post-charge situation and no right to counsel attaches. But there is a violation of due process and the evidence should be excluded. The court was correct to grant the motion to suppress.
b. The issue here is if an in-court identification must be excluded when a previous line-up identification is tainted.
According to NYCPL, an in-court identification is admissible if the witness identified the defendant in court based on his previous knowledge which is trustworthy and obtained by him in previous transactions, even if the line-up identification is tainted. Such in-court identification is regarded as independent evidence and will not be excluded.
Here, Brent identified the defendant in court, based on his prior familiarity with the defendant. His testimony is trustworthy and the evidence is independent. Even though the prior line-up was tainted, the in-court evidence is admissible. The court was correct to deny the motion to suppress.
c. The issue here is if the defendant’s confession was obtained in violation of his 5th or 6th Amendment right.
As discussed above, if evidence, including confession, is obtained in violation of the defendant’s constitutional right, such evidence must be excluded under the exclusion rule. In New York, the defendant has an indelible right to counsel. Such right attaches when: 1) the defendant is in custody and requests a counsel, 2) in assignment, and 3) filing of charging instrument. Once the indelible right attaches, the right cannot be waived if the counsel is not in presence.
Here, when the defendant was taken for interrogation, he asked for a lawyer. Though such a requirement must be specific and otherwise will not trigger the attachment of right to counsel, the defendant here was clearly requiring a counsel. The indelible right attached. Though he later changed his mind, his right to counsel could not be waived because there was no counsel. It was not a "blur-out" situation because the police actually interrogated him. Therefore, the defendant’s right to counsel was violated and the court was wrong to deny the motion.
2. The issue here is self-defense.
Self-defense is a justification of an otherwise unlawful act. In New York, self-defense is a defense to a defendant, but not an affirmative defense. The general rule is that a person can use reasonable force to protect himself against unlawful acts. The force he can use must be reasonable. To use deadly force, there must be danger of serious injury or threat of life. Also, self-defense is only available for current and immediate danger, instead of future danger. In New York, when using deadly force, the person has an obligation to retreat if such retreat is safe. In some situations, such as burglary and arson and if it is in one’s dwelling, retreat is not required.
Here, the defendant claimed self-defense, but the facts show that he was able to safely retreat. He did run to his car and could have driven away. As he did not retreat, his self-defense defense is not valid. Also, he cannot claim that he used self-defense because the victim threatened him repeatedly. There was no imminent danger and no self-defense available.
ANSWER
1. a. The issue is whether a line-up violates the due process rights of a suspected person when none of the other participants in the line-up has facial hair that was material for the description by the identifying witness.
The Due Process Clause of the 14th Amendment is violated when a line-up is unnecessarily suggestive and has the likelihood of misidentification. Here, the facial hair and beard of Dobson were essential in the description by Oakes. Besides the slight build, closely cropped hair and the short, neatly trimmed beard, none of the characteristics given by Oakes were special. The age of 35 years and the size are very general. Therefore, a line-up in which only the suspected person has the special characteristics while all other fulfill only the very general characteristics of race, age, height and build, but not the special characteristics as to facial hair, is unnecessarily suggestive. This has the likelihood of misidentification, since the witness, who has testified mainly to the special characteristics, will pick the one with the facial hair characteristics he described.
As a result of the violation, the line-up identification must be suppressed under the exclusionary rule. It should be noted, that Dobson had no right to have counsel present at the pre-charge line-up. Thus, the court was correct in granting this motion.
b. The issue is whether an in-court identification must be suppressed as poisoned fruit of a pre-charge line-up in violation of the due process rights.
Generally, all fruits from unlawfully obtained evidence are regarded as "poisoned" by the former violation and must be excluded. However, in the case of a line-up, there is an exception that applies here. When the witness recognized the suspected person from observations independently from the former line-up, his in-court identification can be based on this independent source and thus must not be excluded. Here, Brent can testify that he had an extended period of time to observe Dobson on the night of the shooting. Thus, he can recognize him independently from the former line-up. Therefore, the in-court identification by Brent must not be excluded and the court was correct in denying the motion.
c. The issue is whether a waiver of the right to counsel by someone in custody is valid when made without the presence of a lawyer.
Under the 5th Amendment of the U.S. Constitution, as applied to the states through the 14th Amendment, a person in custody has a right to counsel when interrogations take place. Once he claimed that right, any interrogation as to any crime has to stop. The police cannot start further interrogations on their own. However, if the suspected volunteers to answer on his own, the police might ask him.
Under the NYCPR, one cannot waive his right without the presence of one’s lawyer once the indelible right to counsel has attached. Under the 6th Amendment of the U.S. Constitution, a person has a right to counsel after formal charges are brought. Applying these rules to the facts, Dobson first claimed his right to counsel when he was first interrogated (asked by the police by explaining the Miranda rights) when in custody (here in a jail cell). Thus, the 5th Amendment rights attached. The 6th Amendment rights did not yet attach, because no formal charges were brought. After Dobson has asked for counsel, all interrogations needed to cease and they did so. When the police started the new interrogation, it was because Dobson came on his own. Thus, generally the police could make new interrogations. However, since Dobson had claimed his right to counsel when first asked, the indelible right to counsel attached, and he could not waive it without presence of his counsel. It is irrelevant that he has not yet determined a counsel.
Therefore, the confession made in violation of the indelible right to counsel must be suppressed and the court erred in denying the motion.
2. At issue, is what a defendant has to show when making the affirmative defense of self-defense.
Self-defense is an affirmative defense. To have this defense, a defendant must show that he reasonably believed that force was about to be used on him and that the amount of force he used was reasonable. When using deadly force, he must show that he reasonably believed that deadly force was about to be used against him. Under the NYCRP, he has a duty to retreat before using deadly force when he safely can do so.
Here, Dobson was first justified in knocking Vance because Vance provoked him, stabbed him in his arm, and thus committed battery against him. However, the attack ceased when Vance was on the ground and Dobson at his car. When Vance, just getting up off the ground, lunged at Dobson, Dobson could reasonably believe that force (and because of the knife and the former battery), even deadly force, was to be used against him. However, since he was at his car, he could safely retreat and had a duty to do so. Although he arguably could claim that Vance made a continuing attack all the time, he attacked him several times before as Brent testified and had attacked him just reasonably, there is no right to self-defense because of a latent attack and no right when one has a safe way to retreat. Thus, Dobson cannot claim self-defense here.
____________________
FEBRUARY 2005
NEW YORK STATE
BAR EXAMINATION
QUESTIONS AND ANSWERS
One night, Dobson and Vance were in a local bar. Vance threatened and taunted Dobson, and a fight ensued. Brent, the bartender, ejected Vance from the bar. Later that evening when Dobson left the bar, Vance approached him in the parking lot brandishing a knife. The two men fought, and Dobson was stabbed in the arm. Dobson knocked Vance to the ground and ran to his car which was parked 50 feet away. Dobson grabbed a loaded pistol from the glove compartment of his car and returned to where Vance was just getting up off the ground. Vance, still holding the knife, lunged at Dobson. Dobson shot Vance, killing him. Dobson ran back to his car and drove away. Brent, who was watching from inside the bar and had a clear view of the entire incident, called the police.
Oakes, the investigating officer, arrived at the bar and questioned Brent. Brent told Oakes what he had observed earlier that evening in the bar and in the parking lot. He provided a description of Dobson and of the car and also provided a license plate number. He described Dobson to Oakes as a white man of about 35 years of age, short with a slight build, closely cropped hair and a short, neatly trimmed beard. Brent told Oakes that, although the person he described was a regular patron of the bar and Brent recognized him as such, he did not know his name.
Oakes determined that the car Brent described was registered to Dobson. Oakes then went to Dobson’s home to question him about the events. Dobson voluntarily spoke to Oakes, but denied being in the bar that evening and denied any involvement in the shooting. He further denied that he knew Vance.
Oakes asked Dobson to accompany him to the police station and to participate in a lineup, "to clear things up." Dobson voluntarily agreed and was taken to the police station where he was placed in a lineup. There were four other men in the lineup of the same race, and of the same general age, height and build as Dobson. All of the men had similar facial characteristics and hair styles, except Dobson had a beard and none of the other participants in the lineup had any significant facial hair. Brent picked Dobson out of the lineup and identified him as the man he had seen fighting with Vance in the bar and in the parking lot, and whom he had seen shoot Vance.
After the lineup, Dobson was taken to an interrogation room by Oakes, and Oakes read Dobson his Miranda rights. Dobson said that he wanted to speak to a lawyer and would have to retain one, as he did not have a lawyer. Dobson was then taken to a jail cell. Two hours later, Dobson called for Oakes and said that he changed his mind and that he was willing to talk to him without a lawyer. Oakes again read Dobson his Miranda rights, and Dobson then signed a written waiver of his rights. Oakes then interrogated Dobson, who confessed that he shot Vance. Dobson was then arrested and charged with murder and unlawful possession of a loaded weapon.
Dobson was arraigned on the charges, and an attorney was retained to represent him. After Dobson was indicted, his attorney moved (a) to suppress the lineup identification on the ground that the lineup was improperly conducted. Dobson’s attorney further moved (b) to suppress any in-court identification by Brent on the ground that the improper lineup tainted any subsequent identification. Finally, Dobson’s attorney moved (c) to suppress Dobson’s confession on the ground that it was taken in violation of his right to counsel.
At the suppression hearing, Brent testified to his prior familiarity with Dobson and to his opportunity to observe him over an extended period of time on the night of the shooting, both in the bar and in the parking lot. Oakes testified to the circumstances surrounding the lineup and Dobson’s confession.
The court granted the motion (a) to suppress the line-up identification, but denied the motions (b) to suppress the in-court identification and (c) to suppress Dobson's confession.
At trial, Brent testified to the events he observed on the night of the shooting. Dobson took the stand and testified that, on several occasions prior to the night of the shooting, Vance had approached Dobson and threatened to kill him. He further testified that, twice before, Vance assaulted Dobson, but, although Vance was a larger and stronger man, Dobson was able to escape from Vance’s attack. Dobson admitted that he shot Vance, but claimed that he did so in self-defense because Vance had already stabbed him and was again threatening him with a knife.
QUESTIONS
Was the ruling of the court correct as to each of Dobson’s motions?
Analyze the legal issues relating to Dobson's claim of self-defense.
___________________________
ANSWERS
1. a. The issue here is if there is any violation of the defendant’s constitutional rights, including due process and right to counsel.
A defendant has a right of due process under both U.S. Constitution and New York Constitution. In a pre-charge line-up, the line-up process must not be unreasonably suggestive or otherwise discriminating and improper. If there is violation, such identification should not be admitted. Here, the pre-charge line-up is very suggestive. The witness described that the suspect has a neatly trimmed beard, but none of the other participants in the line-up had any facial hair. The witness definitely will identify the defendant in the line-up. There is a violation of the due process right and according to the exclusion rule and such evidence must be excluded.
It is also notable that there is no violation of the defendant’s right under the 5th or 6th Amendment, as it is not a custodial situation and no Miranda rights attach. Also, it is not a post-charge situation and no right to counsel attaches. But there is a violation of due process and the evidence should be excluded. The court was correct to grant the motion to suppress.
b. The issue here is if an in-court identification must be excluded when a previous line-up identification is tainted.
According to NYCPL, an in-court identification is admissible if the witness identified the defendant in court based on his previous knowledge which is trustworthy and obtained by him in previous transactions, even if the line-up identification is tainted. Such in-court identification is regarded as independent evidence and will not be excluded.
Here, Brent identified the defendant in court, based on his prior familiarity with the defendant. His testimony is trustworthy and the evidence is independent. Even though the prior line-up was tainted, the in-court evidence is admissible. The court was correct to deny the motion to suppress.
c. The issue here is if the defendant’s confession was obtained in violation of his 5th or 6th Amendment right.
As discussed above, if evidence, including confession, is obtained in violation of the defendant’s constitutional right, such evidence must be excluded under the exclusion rule. In New York, the defendant has an indelible right to counsel. Such right attaches when: 1) the defendant is in custody and requests a counsel, 2) in assignment, and 3) filing of charging instrument. Once the indelible right attaches, the right cannot be waived if the counsel is not in presence.
Here, when the defendant was taken for interrogation, he asked for a lawyer. Though such a requirement must be specific and otherwise will not trigger the attachment of right to counsel, the defendant here was clearly requiring a counsel. The indelible right attached. Though he later changed his mind, his right to counsel could not be waived because there was no counsel. It was not a "blur-out" situation because the police actually interrogated him. Therefore, the defendant’s right to counsel was violated and the court was wrong to deny the motion.
2. The issue here is self-defense.
Self-defense is a justification of an otherwise unlawful act. In New York, self-defense is a defense to a defendant, but not an affirmative defense. The general rule is that a person can use reasonable force to protect himself against unlawful acts. The force he can use must be reasonable. To use deadly force, there must be danger of serious injury or threat of life. Also, self-defense is only available for current and immediate danger, instead of future danger. In New York, when using deadly force, the person has an obligation to retreat if such retreat is safe. In some situations, such as burglary and arson and if it is in one’s dwelling, retreat is not required.
Here, the defendant claimed self-defense, but the facts show that he was able to safely retreat. He did run to his car and could have driven away. As he did not retreat, his self-defense defense is not valid. Also, he cannot claim that he used self-defense because the victim threatened him repeatedly. There was no imminent danger and no self-defense available.
ANSWER
1. a. The issue is whether a line-up violates the due process rights of a suspected person when none of the other participants in the line-up has facial hair that was material for the description by the identifying witness.
The Due Process Clause of the 14th Amendment is violated when a line-up is unnecessarily suggestive and has the likelihood of misidentification. Here, the facial hair and beard of Dobson were essential in the description by Oakes. Besides the slight build, closely cropped hair and the short, neatly trimmed beard, none of the characteristics given by Oakes were special. The age of 35 years and the size are very general. Therefore, a line-up in which only the suspected person has the special characteristics while all other fulfill only the very general characteristics of race, age, height and build, but not the special characteristics as to facial hair, is unnecessarily suggestive. This has the likelihood of misidentification, since the witness, who has testified mainly to the special characteristics, will pick the one with the facial hair characteristics he described.
As a result of the violation, the line-up identification must be suppressed under the exclusionary rule. It should be noted, that Dobson had no right to have counsel present at the pre-charge line-up. Thus, the court was correct in granting this motion.
b. The issue is whether an in-court identification must be suppressed as poisoned fruit of a pre-charge line-up in violation of the due process rights.
Generally, all fruits from unlawfully obtained evidence are regarded as "poisoned" by the former violation and must be excluded. However, in the case of a line-up, there is an exception that applies here. When the witness recognized the suspected person from observations independently from the former line-up, his in-court identification can be based on this independent source and thus must not be excluded. Here, Brent can testify that he had an extended period of time to observe Dobson on the night of the shooting. Thus, he can recognize him independently from the former line-up. Therefore, the in-court identification by Brent must not be excluded and the court was correct in denying the motion.
c. The issue is whether a waiver of the right to counsel by someone in custody is valid when made without the presence of a lawyer.
Under the 5th Amendment of the U.S. Constitution, as applied to the states through the 14th Amendment, a person in custody has a right to counsel when interrogations take place. Once he claimed that right, any interrogation as to any crime has to stop. The police cannot start further interrogations on their own. However, if the suspected volunteers to answer on his own, the police might ask him.
Under the NYCPR, one cannot waive his right without the presence of one’s lawyer once the indelible right to counsel has attached. Under the 6th Amendment of the U.S. Constitution, a person has a right to counsel after formal charges are brought. Applying these rules to the facts, Dobson first claimed his right to counsel when he was first interrogated (asked by the police by explaining the Miranda rights) when in custody (here in a jail cell). Thus, the 5th Amendment rights attached. The 6th Amendment rights did not yet attach, because no formal charges were brought. After Dobson has asked for counsel, all interrogations needed to cease and they did so. When the police started the new interrogation, it was because Dobson came on his own. Thus, generally the police could make new interrogations. However, since Dobson had claimed his right to counsel when first asked, the indelible right to counsel attached, and he could not waive it without presence of his counsel. It is irrelevant that he has not yet determined a counsel.
Therefore, the confession made in violation of the indelible right to counsel must be suppressed and the court erred in denying the motion.
2. At issue, is what a defendant has to show when making the affirmative defense of self-defense.
Self-defense is an affirmative defense. To have this defense, a defendant must show that he reasonably believed that force was about to be used on him and that the amount of force he used was reasonable. When using deadly force, he must show that he reasonably believed that deadly force was about to be used against him. Under the NYCRP, he has a duty to retreat before using deadly force when he safely can do so.
Here, Dobson was first justified in knocking Vance because Vance provoked him, stabbed him in his arm, and thus committed battery against him. However, the attack ceased when Vance was on the ground and Dobson at his car. When Vance, just getting up off the ground, lunged at Dobson, Dobson could reasonably believe that force (and because of the knife and the former battery), even deadly force, was to be used against him. However, since he was at his car, he could safely retreat and had a duty to do so. Although he arguably could claim that Vance made a continuing attack all the time, he attacked him several times before as Brent testified and had attacked him just reasonably, there is no right to self-defense because of a latent attack and no right when one has a safe way to retreat. Thus, Dobson cannot claim self-defense here.
I would not argue "panic" though.
Argue that Dobson did it intentionally because he had no other choice after he had come back to call for an ambulance and give CPR and soothe Vance's wounds with his tears and hugs. 
