The Sixth Amendment right to counsel, how it applies to the states per the 14th Amendment, and the Martha Moxley case

The Sixth Amendment right to counsel applies directly to federal criminal cases only. However, due to the incorporation clause of the 14th Amendment, the Sixth Amendment, and the Bill of Rights in general, are also incorporated as to the states. Specifically, the 14th Amendment incorporates the 6th Amenment right to counsel in criminal matters as to the states, but only to *felony* cases, not misdemeanor charges, as per Gideon v Wainwright, 372 U.S. 335 (1963).

An interesting sidebar of the 6th Amendment right to counsel in criminal matters is the long-shot argument of "ineffective assistance of counsel" as a basis for a retrial. In the news just this week, Kennedy cousin Michael Skakel was granted a retrial in Connecticut Superior Court on these grounds. Skakel was convicted in 2002 for the murder of then neighbor Martha Moxley in the mid 1970s.

The 27th Amendment and the Government Shutdown

I am embarassed to say that when a friend asked me what the 27th amendment was, I did not
know. I had to look it up:

"No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

You will *never* be tested on this for the bar exam.

However, in light of current events, I thought it would be worth mentioning. Essentially, Congress votes itself pay raises, and no one can take away their pay except themselves.

The takeaway? The government was shut down by Congress, but they are still getting paid. Most all other government workers are not getting paid, though many will receive back-pay once the stalemate is over.

There it is, folks. Your government in action (inaction?)

John Gillis, Esq.

Commercial speech and free speech restrictions in sign ordinances

This is a common MBE and essay Constitutional Law question, but is typically a difficult area in Constitutional law, and land use law.

Your analysis must be as follows:

1) Is the content of the sign commercial in nature?

If so, the state has the ability to restrict the content of the message according to the intermediate scrutiny-level, four-part Central Hudson test:

a) the statements must be lawful and not misleading
b) there must be an important government interest served by restricting the content
c) the restrictions in the ordinance must directly advance the important governmental interest
d) the restriction must be no more extensive than necessary (narrowly tailored) to advance the interest

If the content is not commercial in nature, it is protectible free speech under the First Amendment. Things become more interesting when there is a mix of commercial and free speech in the content of your sign.

2) Does the content of the sign include protected free speech?

The state can restrict the content of non-commercial speech only if it meetsthe "strict scrutiny" test (the state rarely meets this burden).

However, the state can limit "how" or "where" you present the information, as long as the restrictions are neutral as to the content. These are also referred to as Time/Place/Manner restrictions.

The leading US Supreme Court case that applied free speech principles to sign ordinances is Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). 

Rules of Thumb
If a sign includes free speech, a sign ordinance will likely be held as constitutional if it includes only time/place/manner restrictions upon the sign that have a neutral effect on the content of the sign.

If a sign includes only commercial speech, the state can not only impose time/place/manner restrictions upon the sign, but can restrict the content as well, per the Central Hudson test.

Examples
- when a sign regulation prohibits signs that are visible from a highway
- when a local ordinance improves traffic safety by limiting the height or size of a sign

Other considerations
Especially on the MBE, also look to see if the ordinance is "unconstitutional on its face," or facially unconstitutional. This is usually either due to the ordinance being 1) too subjective or 2) the ordinance placing too much discretion within the authority of a zoning official or board of officials, such as a housing or redevelopment board.

July 4th bar prep task: read the U.S. Constitution

July 4th is a day to relax from the grind of bar prep. In the spirit of July 4th, however, we recommend a cursory reading of the Declaration of Independence, and a careful reading of the U.S. Constitution and its first ten Amendments, if you have not already done so.

As you read the Constitution and its amendments, take a step back and think of the different law subjects that different clauses, sections, and Amendments cover. Approaching your study in such a "crossover" fashion will help you solidify concepts. For example, Constitutional Law covers the Constitution itself and its Amemdments, with emphasis on the 1st Amendment. Criminal Procedure covers mostly the 4th and 5th Amendments, with some 6th and 8th Amendment coverage.

While Contract law is "private law" and is typically not associated with the Constitution, remember that the Constitution has the Contract Clause.

The Constitution and its Amendments provide protections for citizens in both civil proceedings (7th Amendment) and criminal proceedings. Use this as an opportunity to recall the differences in the rules between civil and criminal proceedings in the Federal Rules of Evidence.

Happy 4th!

July 1st is here: time to take stock of your study plan and recalibrate

Bar preparation, as in life, requires diligent study according to a plan or schedule. Perhaps the full-feature bar prep course you are taking set deadlines and goals for you. Maybe you used a schedule like we recommend in our bar prep materials, created one yourself, or a tutor is helping you.

If you were able to complete (or exceed) all action items defined and assigned by the full bar prep programs, by your tutor, or the schedule you created for yourself, congratulations! If you did not, which makes most of us, don't worry. Planning is not a perfect exercise. July is the time to take stock of where you are, and where you need to be in the next three weeks.

Bar preparation is a slow, steady process. Just about everyone has subjects that they find easier than others, the latter requiring more study and practice than the former. You have the next three weeks to fix the gaps in your understanding. Your goal in the next three weeks is to maintain the level of proficiency of your "good" subjects,  and get to "good enough" in your trouble areas through practice, repetition, and different ways of incorporating the same subject matter. Think "muscle memory" and "good enough," not perfection.

The July 2013 bar exam, in most jurisdictions, takes place on the last day of July and the first day of August 2013, so you have almost a full month left. However, you want to reserve the last week for scaled-down review, sleep, and activities that reduce stress and hone focus.

If you have an aggressive July schedule already mapped out, but have not achieved all of your
June goals, take the time today to discover your strengths and weaknesses, and how much you are behind in each subject. Don't spend the time to get completely caught up on your prior schedule before tacking new subject matter. Otherwise, you will get behind on the new/unstudied material, and feel the need to cram, risking your retention of both new and previously reviewed material.

Instead, shave 2-3 hours here and there from multiple days on your July schedule for review of material not covered/not mastered from June. Also consider increasing your current hours of study by two hours for every second or third day, but take longer breaks on those days. For the MBE, if you are behind, particularly focus on the high-value areas that have multiple questions, such as negligence and intentional torts for Tort law, present/future estates and mortgages in Property, relevance, personal knowledge, and hearsay for Evidence, the 1st Amendment and Separation of Powers in ConLaw, contract formation/statute of frauds/parol evidence/UCC in Contracts, and knowledge of specific vs general intent crimes and conspiracy for Criminal Law.

Moreover, you should know by now if your strengths lay more towards MBE/multiple choice than essay, or vice-versa, and adjust your schedule accordingly to spend more time on the weaker one.
 

Silence is NOT golden: Miranda, and when you need to expressly invoke your 5th Amendment rights

In an earlier post, A Meander through Miranda, we discussed the Miranda warning at length. Among other things, we stated that when a criminal suspect invokes their 5th Amendment right against compelled self-incrimination, they must do so  1) clearly and 2) unequivocally ( important buzz words). In June 2013, the SCOTUS decided Salinas v. Texas, which reinforced this concept.

The Miranda protection provides that a " ... witness need not expressly invoke the privilege where some form of official compulsion denies him a 'free choice to admit, deny, or refuse to answer.' "

However, when a suspect volunteers information, the element of official coercion/compulsion is removed, and the suspect must therefore expressly
invoke the privilege thereafter.

In Salinas, a criminal suspect in custody for murder first volunteered answers to some questions posed by police, but later remained silent on others. Specifically, an officer asked the suspect if a ballistics test would show that shell casings found at the crime scene would match the suspect’s shotgun, to which the suspect made no response. The state of Texas found him guilty of murder, using his failure to answer as evidence of his guilt.

The Court in Salinas, in a 5-4 decision, ruled that a criminal defendant does not invoke their 5th Amendment right against compelled self-incrimination by remaining silent, if they have already volunteered to speak with the police. In prior cases, the Court had also ruled that the privilege is not "self-executing."

The key to the ruling is that the suspect first volunteered answers to some questions before remaining silent on the shotgun shell question. When the suspect first volunteered information, it took him out of the scope of the Miranda protection. This is because it was undisputed that  his interview was voluntary. To place him back under the protection of Miranda, the suspect would have needed to voice his right to remain silent, and in response, the police would have had to terminate the interview.

The bar exam is a marathon, not a sprint!

This sounds trite and you may have heard this before, but it is very true. Bar preparation is a cumulative, steady exercise. In addition, the marathon analogy is especially appropriate and dear to our hearts here in Boston.

All marathoners pace themselves to complete the great distance required. Just as some runners are better starters than finishers, or have more difficulty with hilly stretches than others, you must plan and pace your bar preparation, and anticipate the topics and subjects that don't know as well, or perhaps never quite completely mastered during law school. You will need to budget extra time for these topics, just as marathoners dedicate more training time to their trouble areas.

Marathoners often hit plateaus of distance or time during their training. They must work hard and practice to overcome these. While you generally need to master one subject before beginning the next, you will hit plateaus associated with difficult topics in each subject. One way to overcome these is to perform a morning daily review of the prior concepts that give you trouble before beginning any new material.

Marathoners typically run their own race without following the crowd, and eliminate distractions to achieve their goal. You must do the same, whether in your bar exam study, or in life, for that matter. While locking yourself in a room for 6-8 weeks without contact from friends and family is an unnecessary extreme, setting limits and boundaries that minimize interruptions and outside commitments help you focus. It is far better to have three or four hours of uninterrupted, focused study than to have eight or nine hours of on-again, off-again, distracted study. Think quality, not quantity.

Just as marathoners accept water at watering stations, you must refresh yourself through exercise, proper sleep, and planned downtime with friends. Just as marathoners stick to water or juice for refreshment, you need to limit or avoid alcohol intake during your study. You can party after the exam.

And, the vast majority of marathoners are grateful to just cross the finish line. The analogy for the bar exam is that you do not need a perfect score to cross the finish line. Most jurisdictions use a combined score between the MBE/MPT/UBE and essay performance, where excellence in the MBE, for example, can offset a weaker essay performance, and vice versa. Moreover; in many jurisdictions, the equivalent of a C or even a D passing grade is enough to make it to the finish line.