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.

Attractive nuisance

Attractive nuisance is a "crossover" tort that combines the torts of negligence and tresspass to land, to protect young children. An attractive nuisance action is associated with premises liability of property owners, and involves an artificial  dangerous condition.

The rationale for the creation of the tort was that the presence of the dangerous condition amounted to an express invitation onto the land for young children to enter.

Elements
1) the property owner knows or has reason to know of a dangerous condition on their property which a child is likely to trespass upon (foreseeable)

2) the dangerous condition carries an unreasonable risk of bodily harm

3) the child, because of their age, does not discover/ does not appreciate the danger posed

4) the burden or cost of removing the dangerous condition is slight balanced against the risk posed by the dangerous condition

5) the property owner does not take reasonable care to eliminate the dangerous condition; AND

6)  a child suffers bodily harm as a result

There are many elements that you have to meet to support an attractive nuisance claim.
It is therefore UNLIKELY that a fact pattern on the multistate meets an attractive nuisance claim.

Analysis
Look for man-made structures on a private person's property that invite children to enter, like a swimming pool, trampoline, swing set, or tree house. Then, look for lack of a fence (too easy), or a poorly-maintained fence or unlocked gate such that access to the property is reasonably unrestricted.

Ponds and lakes are not artificial conditions, so attractive nuisance does not hold. However, drainage pits and wells are increasingly forming the basis of attractive nuisance actions.

Even a well-maintained and otherwise secure fence that is very short may create an
attractive nuisance action.

Landowners that live nearby schools and other places with a frequent number of small children have a greater burden.

Posting of warning signs, by itself, is not enough for property owners to eliminate the risk. However, this may bear on the issue of whether the child appreciated the risk.

The older the child, the more unlikely an attractive  nuisance doctrine holds (and vice-versa).  For example, a poorly-maintained fence around a private club swimming pool with large and prominent signs stating "Keep out: swimming pool" and "Shallow water: do not dive" would be analyzed differently for a 6-year old child versus a 12-year old child, for example.

Courts have frequently held that children who scale fences or gain access to otherwise secured areas appreciate the risk posed by the dangerous condition, and an attractive nuisance claim does not hold.

The Best Evidence Rule, and illustrative examples

More discussions on MBE and bar exam essay subjects like these, with illustrative examples, are available in our low-cost Multistate outlines and examples. See https://www.facebook.com/PassingTheMultistateBarExam and http://alfredzappala.com/multi.html for more information.
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The Best Evidence Rule ("BER") is always tested on the MBE. Usually, only one question on the MBE is focused on this issue. Though it is not a high value subject area like negligence, which typically has 4 or more questions, there is no good reason to miss a question on the Best Evidence Rule if you know the basics and can apply them.

In evidence law, a witness' testimony through personal knowledge is typically highest on the totem pole of admissibility. However, when information within a document is disputed by the parties, such as the quantity term for goods in a contract, the rule requires production of the the original writing as the "best evidence" to resolve the dispute. When a matter is disputed by the parties, courts also refer to the matter as being "at issue."

For these reason, the BER is also referred to as the "original document rule." While this sounds straight-forward, it is only through examples that illustrate when the rule applies and when it does not apply that truly solidify the concept.

The BER has a fairly narrow application. The rule almost exclusively applies to writings, such as court judgments, contracts, and deeds, but sometimes also applies to photographs and recordings. When there is independent proof of an event that can also be proved by a writing, the BER does not apply. Additionally, the power of the BER is somewhat undermined by the fact that courts in many cases allow a duplicate of the original document when the original is destroyed or not available.

Example 1: BER does not apply

In a murder case, you are on the witness stand and are asked to identify a photograph entered into evidence as a correct representation of a street corner in your neighborhood.

The BER does not apply. The contents of the photograph are not disputed, or "at issue."

Example 2: BER does apply

The same fact pattern, with additional information. The photograph is not available. The defense asks you if you recall seeing the photograph, and if you recall seeing a man other than the defendant in the photograph holding a jeweled dagger. The jeweled dagger is separately entered into evidence and is identified as the murder weapon.

The prosecution should immediately raise an objection based on the BER. This is because the "contents of the writing," which is the identity of the person holding the murder weapon in the photograph, are at issue. The contents of the photograph have independent probative value beyond the photograph itself. The judge should sustain the objection and demand that the defense produce the photograph.

Example 3: BER does not apply

The same fact pattern as Example 2, but the witness claims to have seen a man other than the defendant walking around town holding the jeweled dagger, and testifies to that effect.

Here, the witness would be testifying from personal knowledge.

Example 4: BER does not apply

You are on the witness stand, and are asked if Smith was married to Jones on a certain date. You attended their formal wedding ceremony, as did two other witnesses. Even though proof of the marriage is recorded in a written document, a marriage license, testimony provided under oath by witnesses through personal knowledge provides independent proof of the same event. As a result, the BER does not apply.

Example 5: BER does apply

The prosecution calls as a witness a technician that viewed a videotape of a convenience store robbery, and asks the technician to describe how the robbery was carried out.

The BER applies. The prosecution is trying to prove facts of an event by offering testimony that describes video of the event, instead of offering the video itself. The technician lacks personal knowledge of the event, as the technician witnessed a representation of the event, the video, and not the event itself as it occurred.

Example 5: BER does apply

The prosecution calls as a witness an expert on automated tollbooth equipment. The witness testifies
that the defendant crossed the US border into Mexico based on the witness' analysis of data logs from the automated tollbooth equipment installed at the border crossing. The defendant has already been charged with possession of narcotics. At issue is whether the defendant crossed the US border into Mexico.

The BER applies. Note that  the witness never actually saw the defendant cross the US border into Mexico, the witness inferred this based on data in a log file. The witness lacks personal knowledge
of the event.  The prosecution must produce the data logs themselves.

The prosecution can then ask the witness to comment on the content of the data logs to support the argument that the defendant crossed the US border into Mexico. The defense can then rebut these statements with analyses of the data logs of their own expert witnesses, provide evidence showing that the automated tollbooth equipment was not functioning reliably at the time of the alleged border crossing, etc.

An approach to addressing BER questions
1) Determine if a document, photograph, or other writing is mentioned in the fact pattern
2) Ask the question "are the *contents* of the writing at issue?

If  both (1) and (2) are true, the BER holds.

A meander through Miranda

Overview
The Miranda warning is a procedural safeguard to ensure that criminal suspects are appraised of their 5th Amendment right against self-incrimination in criminal matters, and that they are reminded of their 6th Amendment right to counsel in criminal matters.

The reading of your Miranda rights is not required by the U.S Constitution.  However, in Miranda v Arizona, the U.S. Supreme Court created a presumption that custodial interrogation by police is inherently coercive, enough to intefere with your 5th Amendment right against self-compelled incrimination in criminal matters.

As a result, the Court created the Miranda warning, and the requirement that police recite it, in order to provide a necessary procedural safeguard against this presumption.

Definition
Police must recite the Miranda warning to suspects of an alleged criminal act, when those suspects are subject to a 1) custodial 2) interrogation by the police.

Whether on the Multistate or in an essay, you *must* analyze these two prongs, for *each* criminal charge.

Custody
Typically, you are in custody if you believe you are not free to leave, or your freedom of movement is reasonably restricted. Clear examples are when you are handcuffed or told you are under arrest.

The interesting examples, upon which you will most likely be tested, though, are the ones where you are not restrained or placed under arrest. Instead, you are simply asked to wait in your car while the police officer questions another driver, or calls in a drug-sniffing dog, to name a few examples.

Interrogation
Usually associated with "express questioning" or functional equivalent, where a police officer asks you questions "reasonably likely to elicit an incriminating response."

The opportunity to argue if the questioning constituted an "interrogation" is frequently essay territory.

When your "right to remain silent" is implied under Miranda
You do not need to expressly invoke your 5th Amendment right against compelled
self-incrimination where some form of official compulsion denies you a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S, 424 U.S at 656-657.


When you must expressly invoke you "right to remain silent"
Once you have waived your Miranda rights, you are no longer covered
by its protections until you expressly invoke them.

Invoking your Miranda rights
You must state this 1)clearly and 2) unequivocally (more important buzz words). A nod of the head or a "thumbs up" sign by a suspect is usually not enough.

Once you invoke your Miranda rights, police interrogation must immediately cease.

Waiving your Miranda rights
Your statement expressing your desire to waive your Miranda rights must be 1) voluntary 2) knowing and 3) intelligent. These are important keywords to mention and briefly discuss with any fact pattern involving a waiver of Miranda rights.

Terminating interrogation, and resuming/ re-engagement of interrogation
When a suspect invokes their 5th Amendment rights, they are also free  to waive them thereafter, and re-invoke them, (lather/rinse/repeat, etc.)

Be on the lookout for fact patterns where the suspect starts volunteering information a few minutes after invoking their Miranda rights, and then states "I've said enough already, I need a lawyer!" At this point, the police must again cease interrogating the suspect.

Exceptions
The public safety exception relaxes the requirement that police recite the Miranda warning prior to custodial interrogation.  Based on public policy, police have fairly wide latitude when exigent circumstances (emergencies) exist.

This is frequently a matter of intense debate. The questioning of one of the suspects in the aftermath of the recent Boston Marathon bombings brought this exception front and center in the media over the last 3-4 months.

Miranda and the Fruit of the Poisonous Tree doctrine
An ill-applied or non-existent Miranda warning will often result in a suspect's criminal testimony being "thrown out," or inadmissible during the prosecutor's case-in-chief against the suspect.

However, your otherwise inadmissible statements can still be used against you for impeachment purposes, such as during cross-examination. (Sidebar: this is one of many good reasons as a defense attorney to discourage your defendant from testifying under oath, or "taking the stand.")

The July bar exam is upon us.

Many of you have signed up or already started your full-feature bar preparation course. It is large, and the information is overwhelming. It is all too easy to succumb to "information overload," and "analysis paralysis," if you will.

This is where the Multistate Digest truly shines. Its concise, low-cost outlines provide you with the black-letter law you need to pass the Multistate portion of the bar exam, a requirement in most jurisdictions. It also provides many concrete examples.

The full Multistate Digest that covers all multistate subjects comes in printed and kindle/kindle reader versions, and includes an invaluable section on "How to study for the bar exam."  Alfred Zappala's 20+ years of experience as a bar preparation author, lecturer, professor, and private tutor have helped thousands of folks pass the bar exam.

The full Multistate Digest printed version runs about 210 pages and costs $99. 00, and the full Kindle/kindle reader version costs $69.99. The kindle/kindle reader format also allows you to order a la carte for only $9.99 per Multistate subject.

Please visit Alfred's web site at  http://alfredzappala.com/multi.html for more information.

Routine for last week before exam

Sleep and diet will help you more than anything now.

Get 8 hours of sleep each night. If you haven't already
started to, get up each day at the same time you need
to get up for the testing days.

If you are staying in a hotel near the test facility, arrange
a wakeup call now.

Fruit, protein, lots of water, no alcohol. 

See a movie this weekend.

Keep Sunday to 6 hours of study.

During study, take 15 min breaks every hour, or hour and 1/2.

Exercise, even just a 20 minute walk per day, helps
relieve stress and clear your mind.

They day before the test, preferably, don't study at all.
If you must study, stop at 2pm. You need to rest your brain
for the next two days of testing.

You can do this!

Some thoughts a week before the exam

The February bar exam is approaching next week in most jurisdictions. Cram time is over, but you cannot take your foot off the gas quite yet. It is time to eat well, sleep well, and fill those gaps in
your knowledge base, especially in your essays. Push the protein, blueberries and fruit, and shy away from the junk food and soda (good advice for after the exam, too!)

For your MBE problem areas, it is much better at this point to narrow down to two answers, guess,
and quickly move on. Mark the question as one you want to go back to, if you have time.

For essays, focus on making sure you are reasonably competent in each testable subject. You will likely not excel on all questions, but you do not need to in order to achieve your goal: to pass!
On the subjects that give you the most trouble, focus on issue spotting rather than writing full formal essays now, to maximize your points.

Write terse sentences and do not neglect grammar and neatness. A well-organized answer that uses proper grammar often receives a higher score than a poorly-organized one with marginal grammar that raises more issues.

If you have not already done so, *please* make a dry run of the testing facility, NOW. Do not visit the testing facility for the first time on exam day.

Best quality, lowest price MBE outlines anywhere!

Our MBE outlines and examples cannot be matched for organization, content, conciseness, quality of presentation, attention to detail, and price, whether book or kindle ebook! Whether you use them as review materials, as a complement to the big-bar study materials, or as base study material, we have your back, and for much less!

Your choice of book-bound for $99, or kindle/kindle reader app for $9.99 per-subject, or $69.99 for all subjects plus a detailed introduction on how to prepare your mind and body for the exam!

The kindle version is not just a Word document that was automatically run through some conversion tools to create what passes for many ebooks these days. We know the tools of the trade, and personally create our own kindle version from the original manuscript. This avoids many of the formatting and display pitfalls you typically see for ebooks:

1. Each larger table and graphic is carefully rendered as a bitmap for readability and starts at the top of a new page. No table or graphic spans more than a single page on a Kindle Fire/original Kindle.
2. Every page is carefully and personally tested on actual Kindle Fire/Kindle readers, Macs/PCs/iPads and other tablets that run the free Kindle Reader App, and even iPhones (though the iPhones have a harder time displaying some of the tables).
3. The Table Of Contents is built by hand with manual anchors and hyperlinks for improved color contrast and compactness of display: no sloppy Table of Contents that span more than the width of one screen or that have too many "....." in their listings!
4. the text is carefully re-worked from the original manuscript to take the most advantage of the free-form display of the e-reader format while preserving important outlining heading numbers and indentation.

When you purchase our bar exam preparation materials, you are purchasing a top-quality product  that has been personally authored, edited, formatted, and published by the authors.

Thank you, and good luck on the bar exam!

Alfred M. Zappala, Esq. and John J. Gillis, Esq.

The intentional tort of tresspass to land requires intent to enter (not intent to trespass)!
As a result, mistake is not a defense.