4.13.11 Criminal & Family Law

Common Issues with Bail Memo
- Strict adherence to IRAC format may not be best voice for advocacy.
- What is the call of the question? Clarify who you're writing for and to what end.
- Short and tight sentences that link the law to the facts.
- Outline everything before you write.
- Or write as you would normally and then go back and remove unnecessary language.
- Precision. Be very, very careful in summarizing.

-IRAC- Doesn't necessarily need a separate paragraph for each. IRAC can be accomplished in a single sentence.
- Use headers in place of introductory sentences. Not a Danger, Not a Flight Risk, etc.
- Prosecutorial misconduct

-Warrants-
Const. 4th Amend. & Art. 1, sec. 7
Exceptions- Time
Detective must present probable cause to Objective Fact Finder (Judge)
- Search - Scope? Whole house? One room only?
- Arrest - Who? Whole family? Carpenter who is there working?
Even where authority exists (warrant) there is always a question of scope.

Investigator must present reviewable evidence, which must be preserved. Affidavit.
Must define scope, time, and particularities of those involved. If it does not then it is invalid.
If the facts support an innocent explanation there is not probable cause.
Facts do not have to add up to certainty, only reasonable conclusion.

Facts look different in a law office than they do to a police officer in the field.

Warrant and crime must revolve around safe nexus of facts.
Contraband- something you're not permitted to have.

- Motion -
Request of court. Tell what you want and why.

Format
-Plea -Comes now the Defendant/Plaintiff and requests that...
-Authority - this motion is based on rule/law/files of this case
-Facts - As you see them. Be careful not to lose the judge here. Either by Affidavit or as will be presented at hearing. Include only legally significant facts. If the fact does not fit into a crucial legal argument, then it should not be included (unless there is an ulterior motive, emotionally significant, etc.).
-Law -"In a similar situation involving --- the Supreme Court said, (quote)." Quotes allow you to use stronger language then you would be permitted personally.
-Analysis -Logical and unavoidable conclusion. Law and analysis should always be linked.

Motion to Suppress
1. Basis for Stop
2. Littering
3. Arrest
4. SIA
5. Possession

Is there an alternative theory?
1. Suspicious VW "No WTO" written on side of car
2. Big protest
3. Reasonable Suspicion
4. Investigation

1. Erratic driving
2. Contact justified
3. Plain view (smell)

I. Motion
II. Facts
III. Argument/Authority
a. Officer lacked PC
b. Officer Exceeded Legitimate Scope
c. Legitimate Purpose Ended

List legally significant facts for each scenario
Evaluate which argument is strongest? Justify order.
Outline of motion we will draft for next week.