CA Bar Exam 練習答案: Criminal Law & Procedure (Feb 2003)

Bar Review Course作成のEssay答案は完璧すぎ＆長すぎて参考にならないという方向けに、過去に書きためた答案を公開していきます。公開するのは、私が実際に1時間計って解いた答案を、ギリギリ合格ラインまたは合格ライン少し上になるように手直ししたものです。手直しにあたっては某Bar Review Courseの採点表を参照しています （あくまで自己採点です）。

問題文

February 2003 Question 3
https://nwculaw.edu/pdf/bar/February%202003%20Essays%20and%20Sample%20Answers.pdf

Don was a passenger in Vic’s car. While driving in a desolate mountain area, Vic stopped and offered Don an hallucinogenic drug. Don refused, but Vic said if Don wished to stay in the car, he would have to join Vic in using the drug. Fearing that he would be abandoned in freezing temperatures many miles from the nearest town, Don ingested the drug.

While under the influence of the drug, Don killed Vic, left the body beside the road, and drove Vic’s car to town. Later he was arrested by police officers who had discovered Vic’s body. Don has no recall of the events between the time he ingested the drug and his arrest.

After Don was arraigned on a charge of first degree murder, the police learned that Wes had witnessed the killing. Aware that Don had been arraigned and was scheduled for a preliminary hearing at the courthouse on that day, police officers took Wes to the courthouse for the express purpose of having him attempt to identify the killer from photographs of several suspects. As Wes walked into the courthouse with one of the officers, he encountered Don and his lawyer. Without any request by the officer, Wes told the officer he recognized Don as the killer. Don’s attorney was advised of Wes’s statement to the officer, of the circumstances in which it was made, and of the officer’s expected testimony at trial that Wes had identified Don in this manner.

Don moved to exclude evidence of the courthouse identification by Wes on grounds that the identification procedure violated Don’s federal constitutional rights to counsel and due process of law and that the officer’s testimony about the identification would be inadmissible hearsay. The court denied the motion.

At trial, Don testified about the events preceding Vic’s death and his total lack of recall of the killing.

1. Did the court err in denying Don’s motion? Discuss.
2. If the jury believes Don’s testimony, can it properly convict Don of:
(a) First degree murder? Discuss.
(b) Second degree murder? Discuss.

答案

Criminal Procedure + Evidence + Criminal Law の3科目コンボです。