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DRAFTING A MEMORANDUM FOR LEGAL RESEARCH CLASS

THE ASSIGNMENT
You are a paralegal for the District Attorneys Office. The facts are as follows: In the course of an arrest for assault, a crack pipe was recovered from the defendants possession. The police officer stated that he didnt see any crack in the pipe, though he could smell it. The police department laboratory analyzed their contents and reported cocaine residue on the sides of the pipe, but never put a numerical weight to the substance. The defendant was then arraigned on an information charging him with criminal possession of a controlled substance in the seventh degree (Penal Law 220.03) and assault in the third degree (Penal Law 120.00). The defendant moved to suppress the controlled substance and to dismiss the information. The court granted the motion to dismiss the assault count, but denied the remainder of the motion. The case proceeded to trial. At trial, the chemist for the police department stated that the amount of crack-cocaine, a controlled substance was residue and was not usable. At the end of the trial, the defendant was convicted of criminal possession of a controlled substance. The defendant moved to set aside the verdict on the ground that the People failed to satisfy every element of the criminal possession of a controlled substance in the seventh degree count. Defendant argued that the possession of a mere trace of cocaine couldnt constitute a crime. Defendant contends that the Legislature meant to punish only possession of usable drugs, and that possession of minute amounts does not threaten the societal interests protected by the crime of unlawful possession. The court asked for memoranda of law addressing the question as to whether an unusable cocaine residue (that has not been quantified) found on the sides of a crack pipe in defendants possession support a charge of criminal possession of a controlled substance in the seventh degree.

FROM PROBLEM TO MEMORANDUM OF LAW STEP ONE: IDENTIFY ISSUES


1 2 3 Read problem Gather any laws cited and read the law (if statutes, read the Practice Commentaries [e.g., Penal Law 220.03]) Reread the problem keeping in mind the law you have read Legal terms are the words and phrases in the problem that need to be defined or flushed out legally (e.g., motion to set aside the verdict, controlled substance) 4 Identify legal terms and issues Issues are the legal questions you need to address (e.g., W hat is needed in order to make a motion to set aside a verdict; what must a movant prove? and In order to convict a defendant for criminal possession of a controlled substance, must the substance be usable?)

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STEP TWO: LEGAL RESEARCH


1 2 3 4 5 6 7 Look up the legal terms identified in step one Plan. Determine how to research the issues identified in step one (e.g., do you use McKinneys, Corpus Juris Secundum, and/or New York Digest) Find the primary law (if you use the Practice Commentaries or the Notes on Decisions in McKinneys, or you use CJS or NY Digest, you will need to find the cases cited) Clean Law Only. Make sure the law you are using is up to date (i.e., Keycite or Shephardize the law). Read it! Find additional law , if necessary (e.g., read law contained in the cases, if necessary) Understand it! (Reread or find additional law to explain the law)

STEP THREE: DRAFT A MEMO


1 Outline the Paper PURPOSE. W hat is the memo about? (e.g, The court asked for memoranda of law addressing the question as to whether an unusable cocaine residue (that has not been quantified) found on the sides of a crack pipe in defendants possession support a charge of criminal possession of a controlled substance in the seventh degree.) a. Remember what you are doing. b. If it is a predictive memo [e.g., a memo that predicts how the court would rule] you will lay out both sides of every argument. c. If it is a persuasive memo, you will argue one side (the clients). For example, if you are working for the DAs office, your persuasive memo will be all about denying the defendants motion.

SUMMARY. Lay out a summary of the relevant facts (include procedural history [e.g., After a trial, the defendant was found guilty of . . . . ]) State your conclusion ADDRESS ISSUES. Go through each issue (follow Neumanns paradigm for structuring proof [see page 101 of your Legal W riting text]). State the primary rule that supports the conclusion Prove and explain the rule through citation to authority, description of how the authority stands for the rule, etc. Apply the rules elements to the facts. Restate your conclusion for that issue 2 3 4 CONCLUSIONS. Finish with your conclusion(s) Simple First Draft. W rite your first draft without citing law (no quotes quotes allow you to lazily present the law and not use the law) Second Draft w ith Law . Rewrite the draft adding cites (i.e., any legal rule you present must come from somewhere: cite the law you found it in) Test the Second Draft. Have a person who does not know law read your draft to see if they understand it; whatever they do not understand, clarify in your writing. Remember, good legal writing is understandable to those who do not know law also the audience you are presenting this document to (i.e., the lawyer) has not done the research you have done and has not read all the law; they want you to save them time.

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Third Draft w ith Clarifications. Rewrite the second draft to incorporate any clarifications (There is no such thing as good writing. There is only good rewriting [Justice Brandeis]). Hand in the draft to the instructor. Never hand in your first draft; first drafts usually stink! Fourth Draft incorporating Comments. Rewrite the draft incorporating any comments from the instructor. NOTE: Only hand in something you would use as a writing sample.

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A SAMPLE MEMORANDUM OF LAW

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An unusable cocaine residue found on the sides of a crack pipe in the defendants possession supports a charge of criminal possession of a controlled substance in the seventh degree.3, 4 In the course of an arrest for assault, a crack pipe was recovered from the defendants possession.5 The police officer stated that he didnt see any crack in the pipe, though he could smell it. The police department laboratory analyzed their contents and reported cocaine residue on the sides of the pipe, but never put a numerical weight to the substance. The defendant was then arraigned on an information charging him with criminal possession of a controlled substance in the seventh degree (Penal Law 220.03) and assault in the third degree (Penal Law 120.00). The defendant moved to suppress the controlled substance and to dismiss the information. The court granted the motion to dismiss the assault count, but denied the remainder of the motion. The case proceeded to trial. At trial, the chemist for the police department stated that the amount of crack-cocaine, a controlled substance was residue and was not usable. At the end of the trial, the defendant was convicted of criminal possession of a controlled substance. The defendant moved to set aside the verdict on the ground that the People failed to satisfy every element of the criminal possession of a controlled substance in the seventh degree count (CPL 330.30). Defendant argued that the possession of a mere trace of cocaine cannot constitute a crime. Defendant contends6 that the Legislature meant to punish only possession of usable drugs, and that possession of minute amounts does not threaten the societal interests protected by the crime of unlawful possession.7

This m em o was written by a student. It is not perfect. In fact, it is a B /B + quality assignm ent. The footnotes are m y com m ents.

This is the conclusion. Try reading it out loud. D o you find it hard to say an unusable cocaine residue...? If so, you would want to re-write that sentence: A clear sentence is no accident. V ery few sentences com e out right the first tim e, or the third (W illiam Zinsser). The next sentence or paragraph should explain what this is all about (i.e., the defendant was convicted and now m oves to set aside the verdict [C P L 330.30]. The P eople oppose).
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A centered title here would be useful to tell the reader what this section is (i.e., facts and procedural history). B e careful of tenses: stick to either past or present tense, but do not use both unless it is necessary. This presents the facts of the case in the context of the procedural history of the case: what is this case all about and how did it

get here.

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The court asked for memoranda of law addressing the question as to whether an unusable cocaine residue (that has not been quantified)8 found on the sides of a crack pipe in the defendants possession support a charge of criminal possession of a controlled substance in the seventh degree. Can an unusable cocaine residue found on the sides of a crack pipe in the defendants possession support a charge of criminal possession of a controlled substance in the seventh degree? Yes.9 When reviewing the legal sufficiency of evidence in a criminal case the court must determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (Jackson v Virginia, 443 US 307, 319 [1979]; People v Contes, 60 NY2d 620 [1983]).10 The defendant was convicted of criminal possession of a controlled substance in the seventh degree (Penal Law 220.03): A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance. In order to be found guilty of this offense, the People must prove beyond a reasonable doubt the following elements: (1) (2) (3) The defendant possessed a controlled substance; The possession was unlawful; and The defendant knowing possessed the controlled substance.

The second element is not at issue.

THE DEFENDANT POSSESSED A CONTROLLED SUBSTANCE

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There is no requirement under the statute that the defendant possessed a particular amount.12 All that is required under this statute is that quantity be sufficient to permit proper identification as a controlled substance;

R esidue is defined, but usable is not usable should be defined.

This lays out the issue in the form of a yes/no question and then answers it. You can just as easily present it as a conclusion: A n unusable cocaine residue found on the sides of vials in defendants possession is enough to support a charge of crim inal possession of a controlled substance in the seventh degree.
10

This lays out the standard for review. The writer should be citing and using C P L 330.30 here. This is the first sub-issue. It deals with the first elem ent. This is the conclusion.

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the amount is immaterial (People v Smith, 138 Misc 2d 531 [Crim Ct, Kings County 1988]; People v Rencher, 141 AD2d 676 [2d Dept 1988]).13 The defendant is arguing that it cannot be considered a controlled substance because the amount possessed is so minute that it is unusable. However, there is no requirement under the law that the amount be usable. The legislative purpose is not limited to punishing possession of drugs in amounts likely to be used (People v James, 138 Misc 2d 920, 922-923 [Crim Ct, Kings County 1988]). If the test were to be applied to refer to an amount appropriate for defendants use it would require testimony involving defendants habit, bringing us close to if not within the constitutionally prohibited area regarding defendants status as an addict (Robinson v California, 370 US 660, as quoted in People v Mizell, 72 NY2d 651 [1988]).14

THE DEFENDANT KNOWING POSSESSED THE CONTROLLED SUBSTANCE

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The defendant further argues that since the quantity cannot be seen, the People could not prove beyond a reasonable doubt that the defendant knowingly possessed the controlled substance.16 It is settled that knowledge may be proven circumstantially 17 and that, generally, possession suffices18 to permit the inference that possessors know what they possess, especially when it is on their person (People v Reisman, 29 NY2d 278, 285 [1971]).19 Since the defendant was found with a crack pipe with the substance in it, knowledge has been circumstantially proven. Therefore, since all the elements have been satisfied, the People proved the defendants guilty beyond a reasonable doubt.
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It m ight be better to present cases in the order of the hierarchy of authority [i.e., C ourt of A ppeals, A ppellate D ivision, then trial

courts].
14 This was one of the reasons I started prohibiting quotes. W hy not just state the m eaning of the quote unless the quote is so great (e.g., uses poetry)? 15

This is the second sub-issue. It deals with the second elem ent.

The writer does not start with a conclusion, instead she starts with what the defendant is arguing and then counters the argum ent. It would be stronger to start with the conclusion; m aybe she though that the title would work as the conclusion.
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W hen you use a legal term such as circum stantially it m ight m ake sense to define it. D o you think this writer uses suffices in every day language? U se your words!

18

W ell settled: used when an older case that is still good law is used. Think about it, well settled is used m ore as an insult than anything else. The problem with this ending is that it does not go to the ultim ate conclusion dealing with the m otion at hand. The writer should have ended with som ething like: Therefore, the m otion to set aside the verdict should be denied.
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