Pleasantville police officers Fred and Barney were dispatched to investigate a robbery alarm call at the Hop-In liquor store. Central dispatch advised the responding units that they had attempted to call the store by phone, but there had been no answer. Upon arrival at the Hop-In, responding officers found the front door standing wide open and a male store clerk lying on the floor inside, deceased from an apparent gunshot wound to the chest. The cash register was empty and the store had been ransacked. Officers quickly reviewed the store’s security videotape for evidence. The video depicted two male suspects, one wearing a red hooded sweatshirt and the other wearing a green T-shirt and blue baseball cap. Officers broadcast the suspects’ descriptions to other Pleasantville officers, and within an hour, two suspects were under arrest for the robbery and murder of the store clerk. The suspects were identified as Larry and Moe. Larry and Moe were booked into the Pleasantville jail and placed in separate cells pending follow-up by Pleasantville detectives.

The following morning Detective Smith interviewed the suspects separately about the robbery and murder. Detective Smith advised each of the suspects of his rights under Miranda. Both Larry and Moe refused to make any statement (invoking their Fifth Amendment protections) and demanded that they be placed back in their respective cells. Detective Smith called for jail guards to take the suspects back to their cells. As the guards were doing so, they noticed graffiti on the jail cell walls. In Moe’s cell, the wall read, “Sorry God for what I have done, no one was meant to die.” In Larry’s cell, the wall read, “I am innocent of murder, I may be guilty of robbery, but I didn’t kill anyone, it was Moe!”

Larry and Moe are charged criminally for the robbery and murder of the store clerk. During the trial the prosecutor attempts to enter the writings on the jail cell walls as evidence against both defendants. The prosecutor calls the jail guards as witnesses to testify that the graffiti writings were not on the wall prior to Larry and Moe being placed in their individual cells. The attorneys for Larry and Moe object to the writings being admitted as evidence. They base their objection on the fact that each defendant had clearly invoked his Fifth Amendment rights.

The judge advises the courtroom that she will need a few minutes to review the defendants’ objection and orders the court into a thirty-minute recess. Now it is your turn to be the judge. While reviewing defense counsels’ objection, you must decide the following:
1.Should the writings be allowed into the trial as evidence?
2.Can Moe's writing be used against him? Why or why not?
3.Can Larry's writing be used against him? Why or why not?
4.Can Larry’s writings be used against Moe? Why or why not?