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The New Lawyer Q&A

Nov. 24, 2008

Performance Test B

Analysis: This performance test has a single issue, custody, elucidated by three cases. Mathiason says that if the defendant volunteers for questioning and is immediately told he is not under arrest, there is no custody. We can argue that our facts meet this test, but they actually don't quite meet them, as the police told Duncan he was free to leave, not that he was "not under arrest."

The other two cases provide an eight-factor alternative. Cray...

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