criminal hypothetical

Reprinted from NALP Bulletin, November 2006. NALP 2006. All rights reserved. This article may be printed for personal use only. Any reproduction, retransmissionor republication of all or part of this material is expressly prohibited unless NALP or the copyright owner has grantedprior written consent. For reprint permission contact the NALP office at (202) 835-1001 or www.nalp.org.

The Criminal Hypothetical and Other UniqueAspects of the Criminal Law Interview Processby Nicole Vikan and Jory H. Fisher

Criminal law is a unique practice area with a dis-tinctive interview process. Whether studentschoose to pursue prosecution, defense, or bothduring their job search, they will no doubt encoun-ter challenging interview questions that are quitedifferent from those faced during other public sec-tor interviews. A small investment in preparationcan make for a much more successful meeting anda future offer. So how can a student train for theseinterviews?

From the Perspective of a FormerProsecutor

First and foremost, students must know about theoffices they are seeking to join. Each prosecutorsoffice will be known as a District, State, Common-wealth, or County Attorneys Office,1 with oneelected District Attorney and a staff of AssistantDistrict Attorneys who prosecute all of the crimi-nal cases in the region. Students should know thename of the District Attorney, which party he orshe represents, and how long the District Attorneyhas been in office. This information should beavailable online and in local newspapers.

Students should also research the size of the staffand how the office handles its caseload: Some of-fices prosecute vertically, with an Assistant Dis-trict Attorney (ADA) handling a case from arrestthrough trial, and possibly through appeals as

well. Other offices may prosecute horizontally,with different ADAs staffing intake, arraignment,grand juries, hearing and trial parts, and appeals thus passing a case along to be handled by anumber of Assistants.

In contrast to summer associate hiring at large lawfirms, interviews for summer internships withDistrict Attorneys (DAs) Offices are shorter,one-meeting processes. Summer jobs do not leaddirectly to offers for permanent positions, thoughgaining knowledge of an Office and making a pos-itive impression will no doubt assist an applicantduring the interview process.

When a student applies for a permanent position ata DAs Office,2 typically she or he will have threeto four interviews: an initial meeting, which takesplace with one interviewer and is perhaps half anhour; a panel interview, which consists of three ormore interviewers and criminal hypothetical ques-tions (discussed below); perhaps a third-round in-terview with a Director of Hiring or other Execu-tive ADA, which may last up to two hours; and afinal interview with the District Attorney, which isoften short but during which the student mustremain completely professional and poised.

What questions should a student expect?

Throughout the process, each student must be ableto answer the critical question: Why do you wantto be a prosecutor? The student should articulate

1 In this article these offices will all be referred to as District Attorneys Offices, though some may be known as State or County

Attorneys Offices and the attorneys as Assistant State or County Attorneys.

2 When students choose where to apply for post-graduate positions with DAs Offices, they must determine whether a given office

will hire law graduates who have not yet taken or passed the state bar examination. The policies regarding bar exams vary, so stu-

dents face tough choices as to whether they will wait for possible offers from offices that do not make hiring decisions until the

bar exam results are released.


why his or her experiences and education led tothe decision to prosecute. A record of criminallaw-related classes (Criminal Law, Criminal Pro-cedure, Constitutional Law, Evidence, Trial Ad-vocacy) and clinics displays interest. Public sectoremployment and volunteer work demonstrate acommitment to public service. Many interviewerswill appreciate prior clinical or internship workwith public defenders offices, as long as the stu-dent can explain why she or he chose those experi-ences and is committed to prosecuting. Even a stu-dent with a demonstrated record of public interestwork must verbalize why she or he has selectedprosecution instead of another form of publicservice work.

The candidate must also address the question:Why do you want to prosecute in this office?Students who are dedicated to prosecutorial workshould apply to as many offices as possible, al-though they should research the District Attorneysand their policies because offices can vary signifi-cantly in terms of which crimes receive more at-tention and resources. In New York City, each ofthe five boroughs (the Bronx, Brooklyn,Manhattan, Queens, Staten Island) hires sepa-rately, and students are often questioned aboutwhere they would choose to go if given multipleoffers. A suggested answer could be as follows:If I am fortunate enough to have such options, Iwould consider where I would start off in each of-fice and think about the people I met during the in-terview process. From my research thus far, I amparticularly interested in your office because. . . .The respondent could continue by praising aunique program for victims of domestic violence,a novel drug treatment approach, a vertical prose-cution system, or even the respondents childhoodin the area and desire to make an impact on herhometown.

Students must also be prepared to tackle the eco-nomic and practical day-to-day realities of beingan ADA. A student interested in becoming anADA should consider his or her financial situationbefore an interview and be candid about his or herability to handle the salary offered. The candidatemust recognize that he or she will not have a per-

sonal secretary and will be answering his/her ownphone, making his/her own photocopies, and pay-ing for his/her own dinners on late nights. (When Iwas an ADA, we paid $60 each for the annual Hol-iday Party.) Students may be asked about theirawareness of these aspects of government work,and acknowledging that they know of these chal-lenges and are positive nonetheless will make agood impression.

The Criminal Hypothetical is the most unique andoften dreaded aspect of interviewing with DistrictAttorneys Offices. Hypotheticals often do nothave clear legal answers; the interviewer is assess-ing the students ability to issue-spot and addresslegal and ethical concerns. Candidates should ad-dress opposing viewpoints to show that they un-derstand the multiple issues, but they must makedecisions when asked to do so, and demonstratethat they can stand up for their choices when chal-lenged. Below are a few recurring hypotheticals.

Keep in mind that the responses are merely

suggestions of issues to discuss.

Hypothetical #1:

Question: You are prepared to try a case inwhich the defendant is accused of driving whileintoxicated and injuring a blind man. Your onlywitness to the alleged crime is an elderly woman,but you are confident that she has identified thedefendant accurately and that he is guilty of thecrimes charged. The defendant repeatedly turnsdown your offer of one to three years of jail and hefaces up to seven years if convicted after trial. Onthe morning of the trial, you learn that your wit-ness has died. As you are walking up the court-house steps, the defense attorney races toward youand says, My client has changed his mind andwants the one to three year offer! What do youdo?

Response: How did the woman die? In a suspi-cious manner?

Question: No, she had a heart attack. Thats notan issue.


Response: There is no legal obligation to revealher death. The facts of the case havent changed,just the strength of your case because you haveno witness. The womans death does not affect thedefendants culpability.

Hypothetical #2:

Question: You are about to start a gun posses-sion trial. The defendant was arrested after he waspulled over for running a red light. The arrestingofficer testified in the grand jury that he saw thegun lying on the passengers seat as soon as the heapproached the defendants vehicle. At 9:00 amon the morning of the trial, the arresting officersays he needs to talk to you. He explains that thearrest happened as he explained in the grand jury,except that he came on the scene after the actualseizure of the gun. The officer who saw the run-ning of the red light and found the gun was at theend of her shift and asked this officer to cover thecase. What do you do?

Response: The officer has committed perjury. Iwould definitely speak with a supervisor aboutthis, because there could be ramifications for othercases as well as for the officers job. For this case,the defense attorney needs to be told, I need tospeak with the officer who actually found the gun,and the case should be reassessed.

Hypothetical #3:

Question: You have been asked to handle an-other ADAs hearing concerning the search andseizure of a pound of cocaine. The notes you haveabout the case indicate that the arresting police of-ficer saw the defendant driving erratically and sohe pulled the defendants car over. When the offi-cer asked the defendant for his license and regis-tration, the defendant said he didnt have them.The officer arrested the defendant and searchedthe car. He found a pound of cocaine in a gym bagin the trunk. What questions do you have for theofficer before you analyze how to argue for ad-mission of the cocaine in front of the hearingjudge?

Response: I would want to know what is meantby erratically what exactly did the defendantdo while driving? Did the defendant stop when or-dered to do so? Was he alone in the car? Did theofficer question the defendant about why helacked a license and registration? Did the officerrun the license plate and VIN [vehicle identifica-tion number] and find out to whom the car wasregistered or if it had been reported stolen? Whenwas the vehicle searched at the scene of the ar-rest or back at the precinct? Was the trunksearched at the same time? Was the gym bagsearched at the same time? Was an Inventory Re-port completed? Did anyone ask for a search war-rant? Was the gym bag visible as soon as the trunkwas opened? How was the cocaine packaged inthe gym bag? Was the bag open and the drugs inplain view, or was the cocaine sealed within thebag? Did the defendant make any statementsabout the drugs?

Hypothetical #4:

Question: A police officer comes to your officewith an arrest. She tells you that she heard about arobbery on her police radio; during the robbery,three guys knocked down an old lady and grabbedher purse. The officer started driving to the sceneof the crime and she saw two men running downthe sidewalk. One man was holding somethingbulky under his coat. She ordered them to stop.She searched them and the one with the bulky coathad a purse under his jacket, so she arrested themboth for robbery. Would you write up the case?

Response: I would have some questions for theofficer. How far from the alleged crime was theofficer when she received the radio call? How farfrom the scene did she see the men? Did she have adescription at all? Did she speak with the men atall before searching them? Was there any identifi-cation procedure? If so, how soon after the rob-bery, and what were the circumstances of the ID?Was the purse identified as the victims? Whenand under what circumstances? Did the man whowas not carrying the purse have any incriminatingevidence on him? What did the men say?


All hypothetical criminal questions raise a varietyof issues that may be handled in many differentways. Candidates should remind themselves thattheir thought processes and ethical awareness willbe valued more than a correct legal answer. Ifstudents engage in conscientious thinking abouttheir own interests, skills, and understanding ofthe law, they will be well prepared to tackle thedistinct challenges of an interview with aprosecutors office.

From the Perspective of a FormerPublic Defender

Students aspiring to work in a public defender of-fice would be wise to follow many of the sugges-tions offered above. Interview preparation, for ex-ample, is vital to students success whether theywish to prosecute or defend.

As a first step, students need to research applica-ble statutes regarding the establishment of publicdefender offices in the states in which they wish towork. To illustrate: Does Colorado have a state-wide public defender system? If so, the interestedstudent will want to find out if he or she will inter-view in a main office but be assigned to an officeelsewhere in the state. The student will also wantto find out if he or she has a choice of locations ormust accept whatever assignment is received.

Additionally, attorneys in public defender officeshave specific and varying job titles. Studentsshould check office websites to be sure they usethe correct titles during their interviews and to besure they know the professional backgrounds ofthe interviewing attorneys. Students should alsocome to interviews equipped with previously pre-pared questions. It would be appropriate to ask theinterviewer about the jurisdictions and dockets forwhich the attorneys are responsible, caseload size,training and support, office camaraderie, and thelong-term opportunities for advancement.

Based on a canvassing of offices in the Common-wealth of Virginia, hypotheticals do not seem tobe used as frequently during interviews in public

defender offices as they are during interviews forprosecutorial positions. Nonetheless, studentswould be wise to research the Fourth Amendment.In defense work, it is the most commonly usedportion of the Constitution and could easily lenditself to an interview question.

One example of a hypothetical used frequently ina public defender office in Virginia concerns pro-fessional responsibility: What would you do ifyou appeared for Court and saw the Common-wealths witness in the wrong courtroom? Wouldyou notify the judge or Commonwealths Attor-ney when the witness failed to show in the correctcourtroom? The answer the public defender wasseeking was, No! You cannot help the prosecu-tion to the detriment of your client. Such hypo-theticals are hard to predict. Students can help pre-pare themselves, however, by researching thestates Code of Professional Responsibility to de-termine what conduct is expected of criminal de-fense lawyers and what conduct would bedeemed in violation.

Be sure to advise students that, for attorneys whowork in public defender offices, the pay is low andthe caseloads are heavy. Nonetheless, the trainingis excellent, bar none. Because many recent lawschool graduates seek government trial attorneypositions solely to develop their litigation skills(with no intention of remaining in the public sec-tor), students should be prepared for the ultimatequestion, Where do you see yourself in fiveyears? Each student needs to be able to articulatea reasonable plan for his or her future that reflectsa strong, genuine commitment to public service.Public defenders consider training new attorneysan honorable part of their responsibilities; under-standably, however, they prefer to hire attorneyswhom they believe will remain dedicated to thecause.

When interviewing applicants, public defenders,perhaps even more than other employers, look forthe intangibles. With low pay, heavy caseloads,and an abundance of difficult clients, it is impera-tive that highly stressed attorneys work with col-leagues they enjoy! Students need to project up-beat, friendly personalities during their inter-


views. Students should look for common groundwith their interviewers to help the conversationsmove in positive directions. Students should notanswer questions as if they were being cross-ex-amined. Rather, they should expand creativelyupon their answers using confident, positive, con-versational tones. To persuade interviewers thatthey would fit well in the office environments, stu-dents should consider revealing the lighter sideof their personalities. (When stress is high, andlife and liberty are at stake, working with col-leagues who possess appropriate senses of humoris essential to job satisfaction. Law students whoseem humorless and arrogant need not apply.)

Public defenders can train newly hired attorneysin the finer points of criminal law and courtroomstrategy. It is manifest interview preparation, ademonstrated commitment to public service, and apleasant personality that will catapult a student tothe top.

Nicole Vikan is Associate Director at theCareer Planning Center at FordhamUniversity School of Law. She had awonderful time working as an AssistantDistrict Attorney for the New York CountyDistrict Attorneys Office and is grateful forthe training she received and friendshipsshe developed during her time with theOffice. Jory H. Fisher is Associate Dean forCareer & Professional Development atLiberty University School of Law. Shegreatly enjoyed serving as an AssistantPublic Defender in Lynchburg, Virginia, andthanks her former colleagues and long-termfriends for their generous contributions tothis article. This article was submitted onbehalf of the NALP Public Service Section.

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