I was having lunch with a 1L friend today and we were discussing the legal reasoning I struggled with below in my brief. I have an oral argument tonight, and I am pretty nervous, because the judge’s questions really throw me off.
The standard that I am arguing is that the police officers knew or should have known that their actions would elicit an incriminating response from someone they were holding in their custody—that is, that the man in custody experienced the functional equivalent of interrogation.
But this confuses me, because this seems to be an issue of fact (and this is an appeal). Whether a person should or shouldn’t be expected to know something seems to me to be a question for social scientists to weigh in on more than just random cases in different circumstances that were decided in the past.
But in describing my woes to my friend, I had a (possibly incorrect—is there a lawyer in the house?) breakthrough. If we say that this standard is a matter of law, then I guess it is like saying ‘what does the law think a reasonable officer should expect.” So, it’s like imagining the law as a person, we’ll call him Law, and then arguing what he would think a cop should know. We figure out what he would think from what he has written on the subject (i.e. the case law).
Maybe this is really obvious to everyone else, but to me, it’s a breakthrough because it is much easier (and more interesting) for me to try to get into someone’s head (Law’s) then it is to imagine a headless, faceless, amalgam of opinion (law).
February 23, 2008 at 1:05 pm
Thanks for sharing your breakthrough. I have Moot Court, and I am going to remember it. I was on a jury once, and sometimes I imagine what the jurors would have said or thought about the various issues I am thinking about.
I can also relate. I have been working on my Moot Court brief for over 6 weeks now. I swear, it was just last weekend did it dawn on me what we were arguing about. That means I turned in an entire brief without really understanding what was going on.