Here is an example of an easy question I missed:

A mechanic and his former employee were indicted for automobile theft. Unbeknownst to the mechanic, the former employee confessed to the crime and implicated his employer. In exchange for favorable treatment by the prosecutor, the former employee agreed to cooperate in the prosecution of the mechanic. The police were also investigating the mechanic for an alleged plan to kill another person who was to serve as a witness for the state at the mechanic’s trial. The mechanic sought a meeting with the former employee. Upon learning of the proposed meeting, the police wired the former employee in order to record the conversation between the mechanic and the former employee. The police directed the former employee to encourage the mechanic to talk about his criminal activity. At the meeting the mechanic made incriminating statements about stealing automobiles. The mechanic’s lawyer filed a pretrial motion to suppress these statements on the grounds that his client’s right to counsel was violated.

Should the court grant this motion?

A. No, because the statements were obtained by police during an investigation of a possible crime, a plan to murder a witness, for which the right to counsel had not attached.

B. No, because the mechanic initiated the meeting with his former employee.

C. Yes, because the police knowingly used the former employee to elicit incriminating statements from the mechanic about the charged crime.

D. Yes, because the police used a secret agent to obtain the incriminating statements.

Ready?  Okay, let’s go through it together…

…A mechanic and his former employee were indicted for automobile theft…  Okay, now, once a person is indicted for a crime, their 6th Amendment right to counsel automatically attaches.  This is not to be confused with your 5th Amendment right to counsel, which must be affirmatively invoked after you are in police custody.

…Unbeknownst to the mechanic, the former employee confessed to the crime and implicated his employer. In exchange for favorable treatment by the prosecutor, the former employee agreed to cooperate in the prosecution of the mechanic…Now, you need to be thinking about what the police want to do with this guy.

…The police were also investigating the mechanic for an alleged plan to kill another person who was to serve as a witness for the state at the mechanic’s trial…Interesting.  Now recall I said that when a person is indicted their 6A right to counsel attaches.  However, that right is attached only for the crime in which he’s been indicted.  He has not been indicted for conspiracy to commit murder.  Are they trying to catch you here?

…The mechanic sought a meeting with the former employee…Hmm.  Note here that even if you have a right to counsel, you can get in trouble if you ignore that right and volunteer statements.

…Upon learning of the proposed meeting, the police wired the former employee in order to record the conversation between the mechanic and the former employee… Okay, the cops can do this.

…The police directed the former employee to encourage the mechanic to talk about his criminal activity… Ah ha!  Note that word in bold.  The entire question pivots on this one word.  The police cannot violate your ConX rights.  A private citizen can.  If your neighbor smells your reefer, busts into your house while you’re gone and turns that evidence over to the cops, it CAN be used against you.  But, the police cannot use that person as an agent to violate your rights for them.  That’s what happened here.  However, if they directed him to ask about murder, that’d be okay.  Remember, no 6A right for that.  But they didn’t.  They said to talk about criminal activity.

…At the meeting the mechanic made incriminating statements about stealing automobiles… Gah!  Why’d you have to do that?!

…The mechanic’s lawyer filed a pretrial motion to suppress these statements on the grounds that his client’s right to counsel was violated.

Should the court grant this motion?… You have an answer yet?

A. No, because the statements were obtained by police during an investigation of a possible crime, a plan to murder a witness, for which the right to counsel had not attached…Wrong.  But this is their first trick they use to get you.  This is good law.  It just doesn’t apply here the way we need it.  This was just a distraction.

B. No, because the mechanic initiated the meeting with his former employee… Wrong.  But congratulations, you’re only as stupid as me.  I read this and as I said previously, even if you’ve got your 6A right, you can still have statements used against you that you volunteer.  Apparently cops have been known to just go hang out in holding cells pretending to be in trouble too in order to get information.  They just can’t actively interrogate.

C. Yes, because the police knowingly used the former employee to elicit incriminating statements from the mechanic about the charged crime… Ding Ding Ding!  Remember when I said that the cops can’t use an agent to violate your ConX rights?  I passed on this because I missed the word “directed“.  I thought they were just wiring him knowing he was going to talk regardless.

D. Yes, because the police used a secret agent to obtain the incriminating statements.  Do not be fooled just because it uses the word secret agent.  But yeah, in this case for the reasons I’ve said above, this isn’t the answer. 

How’d you do?  Alright!  Only 199 more to go!

Damn you 90’s Country! I bite my thumb at you!

Bar Tally: 326 Hours