Bar Exam — MBE (Multistate Bar Exam) flashcards

A post-verdict motion that allows a party who previously moved for JMOL during trial to renew that motion, asking the court to set aside the jury's verdict and enter judgment for the movant, if no reasonable jury could have reached the verdict based on the evidence.

• Must have filed a Rule 50(a) JMOL motion during trial to preserve the right to file a Rule 50(b) motion.
• Must be filed no later than 28 days after the entry of judgment.
• Challenges the legal sufficiency of the evidence *after* the verdict.

Memory trick: After the 'Verdict', you can 'Renew' your 'Judgment' or ask for a 'New' start.

Under common law, social hosts generally owe no duty to third parties injured by their intoxicated guests.

• Distinguished from commercial sellers (dram shops).
• Many states have modified this rule by statute.
• Focuses on the lack of duty to control an adult guest's off-premises actions.

Memory trick: Host's Hands Off, Unless Law Steps In.

An intentional physical invasion of another's real property without permission or privilege. It is actionable per se, meaning no actual damages are required.

• Intentional act (volitional movement, not necessarily intent to trespass).
• Physical invasion (person or object).
• Of another's land (possessory interest).
• Without permission/privilege.

Memory trick: Property boundaries are for keeping out the 'trespasser's bad surprises'.

A rule stating that owners of domestic animals are strictly liable for injuries caused by the animal only if they knew or should have known of the animal's dangerous propensities (e.g., a prior bite).

• Applies to domestic animals (not wild animals).
• Requires proof of owner's knowledge of animal's vicious or dangerous propensities.
• Often called the 'one bite rule' because a prior bite serves as strong evidence of such knowledge.

Memory trick: Wild animals are ALWAYS wild; domestic animals get ONE chance.

Federal Rule of Civil Procedure 8(c) requires a party to 'affirmatively state any avoidance or affirmative defense,' including but not limited to the statute of limitations, res judicata, collateral estoppel, and assumption of risk. Failure to plead an affirmative defense typically results in its waiver.

• Must be pleaded in the answer.
• Shifts the burden of proof to the defendant for that defense.
• Waived if not timely pleaded.

Memory trick: Defend with Motions or Answer with Affirmative Power.

Landlords generally owe a duty to tenants to maintain leased premises and common areas in a reasonably safe condition and to repair known defects.

• Duty to maintain common areas.
• Duty to warn of hidden dangers.
• Duty to repair defects in leased premises (often by statute or implied warranty of habitability).
• Liability for injuries caused by failure to repair known defects.

Memory trick: Landlord's Law: Keep it Safe or Pay the Price.

An easement that benefits a particular parcel of land (the dominant estate) and burdens another parcel (the servient estate), running with the land.

• Benefits a specific parcel of land.
• Requires two distinct parcels: dominant and servient estates.
• Transfers automatically with the sale of the dominant estate.
• Is typically binding on subsequent owners of the servient estate if recorded.

Memory trick: Appurtenant Appears to Attach to Property.

A tort that occurs when an individual acts intentionally or recklessly to cause severe emotional distress to another through extreme and outrageous conduct.

• Extreme and outrageous conduct.
• Intent or recklessness to cause severe emotional distress.
• Causation between conduct and distress.
• Severe emotional distress suffered by the plaintiff.

Memory trick: Assault, Battery, False Imprisonment, IIED: Personal Attacks.

A clear and unequivocal statement by one party to a real estate contract that they will not perform their contractual obligations before the performance is due.

• Allows the non-breaching party to sue immediately.
• Excuses the non-breaching party from performing conditions precedent.
• Commonly leads to specific performance as a remedy for buyer if seller repudiates.
• Must be a definite statement of intent not to perform.

Memory trick: Repudiation Rips Relations, Remedies Respond Rapidly.

An executory interest that divests a prior estate in a transferee (someone other than the grantor).

• Divests an interest in another grantee, not the grantor.
• Takes effect upon the happening of a condition subsequent.
• Can follow a defeasible fee or a remainder.

Memory trick: If condition, then to ANOTHER = Shifting Executory

A future interest created in a known, ascertained person that is certain to become possessory upon the natural termination of the preceding estate.

• No condition precedent other than the end of the prior estate.
• Grantee is identified and alive.
• Can be alienated, devised, and inherited.

Memory trick: Vested = Verifiable, Certain, Definite

For purposes of diversity jurisdiction, the citizenship of an unincorporated association (e.g., a partnership, LLC, or sole proprietorship) is determined by the citizenship of *all* its members or, in the case of a sole proprietorship, its individual owner.

• Sole proprietorship: same citizenship as the owner.
• Partnership: citizenship of every partner (general and limited).
• LLC: citizenship of every member.
• This rule can make diversity jurisdiction difficult to establish for large unincorporated entities.

Memory trick: Diversity's 'Citizen' status depends on who's 'Home'.

For dangerous conditions on property not created by the owner, the plaintiff must prove the owner had actual knowledge of the condition or constructive knowledge (should have known because it existed for a sufficient time for discovery through reasonable inspection).

• Applies to conditions not created by the owner/occupier.
• Actual notice: Owner directly knew of the condition.
• Constructive notice: Condition existed long enough that inspection would have revealed it.
• No notice required if the owner created the dangerous condition.

Memory trick: Owners have a 'duty' to know about 'dangers' and provide 'warning'.

The distinction between elements required by statute (often directory) and essential elements for a valid conveyance at common law (mandatory).

• Common law essentials: grantor, grantee, words of grant, property description, signature, delivery.
• Statutory requirements (e.g., mailing address) are often directory unless statute states otherwise.
• Failure to meet directory requirements does not always invalidate the deed.

Memory trick: Common Law Essentials Trump Statutory Details

Venue specifies the particular federal judicial district where a lawsuit can be filed. It is distinct from subject matter jurisdiction and personal jurisdiction.

• Venue is proper in a district where any defendant resides, if all defendants reside in the same state.
• Venue is proper in a district where a substantial part of the events or omissions giving rise to the claim occurred, or where property is located.
• If neither of the above, venue is proper in any district in which any defendant is subject to the court's personal jurisdiction with respect to the action.

Memory trick: Venue is 'Where' the action 'Can Be'.

An easement acquired by open, notorious, continuous, adverse, and uninterrupted use of another's property for a statutorily defined period.

• Requires elements similar to adverse possession.
• Use must be 'adverse' or 'hostile' (without owner's permission).
• Statutory period varies by jurisdiction (e.g., 10-20 years).

Memory trick: OPEN HOSTILE CONTINUOUS for YEARS

Landlords generally owe a duty to tenants to maintain the premises in a reasonably safe and habitable condition.

• Includes duty to repair known defects.
• Especially applies to common areas or defects impacting habitability.
• May vary by jurisdiction (e.g., implied warranty of habitability).

Memory trick: Safe Homes Require Landlord Care.

The Supremacy Clause mandates that valid federal laws, including constitutional federal court orders, are supreme to state laws and must be obeyed by state officials.

• Federal courts can issue injunctions against state officials (*Ex parte Young*)
• State officials cannot invoke state law or privilege to defy valid federal orders
• Ensures the enforceability of federal law and judicial power
• A cornerstone of federalism, defining federal power over states

Memory trick: Federal court's order, states must comply, no border.

The ability of Congress to remove executive officers, which is generally unconstitutional except through impeachment.

• Congress cannot reserve a removal power for itself over officers executing federal law.
• Violates separation of powers.
• The only constitutional removal power for Congress is impeachment.

Memory trick: No Congressional Chains on Executive Hands for Removal.

Boycotts, especially those undertaken for political, social, or economic reasons, are often considered a form of symbolic speech or expressive conduct protected by the First Amendment.

• Protected under *NAACP v. Claiborne Hardware Co.*
• Government cannot compel or prohibit such expression without meeting strict scrutiny
• Distinguish from purely commercial boycotts or illegal activity
• Market participant exception generally does not apply to First Amendment rights

Memory trick: Speech is free, even when contracting with thee.

Congress can attach conditions to federal funds provided to states, provided the conditions are for the general welfare, unambiguous, related to the federal interest, and not unduly coercive.

• Derived from Article I, Section 8, Clause 1 (Taxing and Spending Clause)
• Allows Congress to influence state policy without direct commandeering
• Must not be 'unduly coercive' (e.g., withholding a disproportionately large amount of funds)

Memory trick: Congress offers cash, states can choose to comply or pass.

Congress can regulate purely intrastate activities if, when viewed in the aggregate, those activities have a substantial effect on interstate commerce.

• One of the broadest sources of congressional power
• Expanded significantly during the New Deal era
• Limited by cases like *Lopez* and *Morrison* regarding non-economic activity
• Applies to channels, instrumentalities, and activities substantially affecting commerce

Memory trick: Commerce Clause: Channels, Instruments, and Substantial Effects.

The Fourth Amendment generally requires a warrant based on probable cause for searches, with limited exceptions.

• Protects against unreasonable searches and seizures.
• Warrants require probable cause.
• Exceptions include exigent circumstances, plain view, consent, and searches incident to arrest.

Memory trick: Warrant Exceptions: Hot Pursuit, Plain View, Consent, Auto, Admin, Incident to Arrest.

The Privileges and Immunities Clause of Article IV, Section 2, prohibits states from discriminating against citizens of other states with respect to fundamental rights or essential activities.

• Protects 'fundamental' rights/activities (e.g., right to pursue a livelihood)
• Applies only to *citizens* (not corporations or aliens)
• State discrimination must be justified by a substantial reason, and the means must be closely related
• Distinguish from Fourteenth Amendment P&I Clause (rarely used)

Memory trick: Privileges and Immunities: Don't deny citizens their rights when they come from other states.

State laws requiring candidates to reside in the state for a specified period, typically subject to strict scrutiny.

• Implicates fundamental rights to travel and to vote/run for office.
• Subject to strict scrutiny.
• Must be necessary to achieve a compelling government interest and narrowly tailored.

Memory trick: Fundamental Rights Need Strict Scrutiny, No Exceptions.

The level of judicial scrutiny applied to laws regulating the right to bear arms, typically intermediate scrutiny for most restrictions.

• No definitive Supreme Court standard, but intermediate scrutiny is common.
• Strict scrutiny for core prohibitions or highly restrictive laws.
• Rational basis is generally considered too deferential.

Memory trick: Guns need 'Intermediate' thought, not just a 'Rational' glance.

The Nondelegation Doctrine prevents Congress from delegating its essential legislative power to other branches of government without providing 'intelligible principles' to guide the delegate's exercise of that power.

• Derived from the separation of powers principle
• Ensures accountability and prevents arbitrary exercise of power
• Rarely successfully invoked in modern era, but still exists
• Requires Congress to set boundaries, not just objectives

Memory trick: Congress can't just hand over the law, without a clear guide to draw.

Governmental action that prohibits speech or expression before it can take place. It is subject to strict scrutiny and is generally disfavored under the First Amendment.

• Presumptively unconstitutional
• Government bears heavy burden to justify
• Must have clear, objective standards to avoid arbitrary enforcement

Memory trick: No 'Prior' approval for 'Speech' unless the rules are 'Restrained' and clear.

The standard of review for laws regulating the right to vote involves a balancing test, weighing the extent of the burden on the right against the state's asserted interests. This is often referred to as an 'undue burden' standard.

• Not automatically strict scrutiny for all voting regulations
• Severe burdens or discrimination against suspect classes may trigger strict scrutiny
• Minor burdens may only require rational basis
• A 'flexible standard' or 'undue burden' test is typically applied, balancing interests

Memory trick: Voting rights: Don't unduly burden, but state interests learn.

Corporations possess First Amendment rights to engage in political speech, and independent expenditures generally cannot be banned.

• Corporations have First Amendment rights.
• Independent political expenditures are protected speech.
• Government can regulate contributions, but not generally ban independent expenditures.

Memory trick: Corporations Speak Freely, Cash is King (but can be limited).

Congress has the power to regulate economic activities that substantially affect interstate commerce, including manufacturing and sales of goods in a national market.

• Broad interpretation since the New Deal era
• Includes regulating channels, instrumentalities, and activities with substantial effect
• Manufacturing, even if local, is part of a larger commercial scheme
• Fuel efficiency directly impacts a national industry and energy consumption

Memory trick: Commerce Clause: From factory floor to distant shore.

Limits states' power to enact laws that unduly burden interstate commerce, even if non-discriminatory, using the Pike balancing test.

• Applies when Congress has not acted.
• Non-discriminatory laws are reviewed under the Pike balancing test.
• Burden on interstate commerce must not be clearly excessive relative to local benefits.

Memory trick: Dormant Clause: No state roadblocks on the interstate trade highway.

Academic freedom, though not explicitly mentioned in the Constitution, is generally understood to be protected by the First Amendment's guarantee of free speech, especially in public educational institutions.

• Protects teachers' right to teach and students' right to learn diverse ideas
• Limits government's ability to dictate curriculum based on viewpoint
• Content-based curriculum restrictions face strict scrutiny
• Balance with legitimate pedagogical concerns and age-appropriateness

Memory trick: Schools teach, but speech must reach.

The Public Forum Doctrine determines the extent to which the government can restrict speech on property it owns. Restrictions depend on the type of forum.

• Traditional Public Forum: Streets, parks (strict scrutiny for content-based restrictions)
• Designated Public Forum: Public property intentionally opened for speech (strict scrutiny)
• Limited Public Forum: Public property opened for specific speech topics (reasonable, viewpoint-neutral)
• Non-Public Forum: Government property not opened for speech (reasonable, viewpoint-neutral)

Memory trick: Forums for speech, each with its own reach.

The Twenty-First Amendment grants states broad authority to regulate the importation, sale, and distribution of alcoholic beverages within their borders.

• Repealed Prohibition (18th Amendment)
• Grants states unique power over alcohol regulation
• Can override Commerce Clause concerns in some cases

Memory trick: Twenty-First gives states the final say on the wine.

The Supremacy Clause dictates that valid federal laws and treaties are supreme to conflicting state laws, leading to preemption.

• Federal law is supreme when it conflicts with state law.
• Preemption can be express, field, or conflict.
• Conflict preemption occurs when it's impossible to comply with both or state law impedes federal objective.

Memory trick: Federal F-A-C-T: Federal Always Controls, Trumping State.

The principle under the Tenth Amendment that prohibits the federal government from compelling states to enact or enforce federal regulatory programs.

• Congress cannot force states to legislate or execute federal law.
• States retain sovereign authority over their own governmental functions.
• Financial incentives are permissible if not unduly coercive.

Memory trick: Federalism Fences: Congress can't force states to dance to its tune.

A First Amendment-derived protection for universities to determine their curriculum and teaching methods free from undue governmental interference.

• Protects a university's autonomy in academic affairs.
• Includes who teaches, what is taught, how it's taught, and who studies.
• Especially strong against ideological mandates from the state.

Memory trick: Education's Liberty: Academic Freedom for Minds, Not State Chains.

The Supremacy Clause (Article VI, Clause 2) establishes that the Constitution, federal laws, and treaties are the 'supreme law of the land,' overriding conflicting state laws.

• Federal law can preempt state law in three ways: express, field, or conflict preemption.
• Express preemption: Congress explicitly states federal law is exclusive.
• Field preemption: Congress intends to occupy the entire field.
• Conflict preemption: State law makes it impossible to comply with federal law OR frustrates federal purpose.

Memory trick: Federal law reigns supreme, like a king in a dream.

A limitation on Congress's Spending Power, where conditions attached to federal funding must not be so coercive as to leave states with no real choice but to accept the federal mandate, thereby infringing on state sovereignty.

• Established in *South Dakota v. Dole*
• Conditions must be unambiguous, related to the federal interest, and not violate other constitutional provisions.
• The financial inducement cannot be so large as to be coercive.

Memory trick: Uncle Sam can't 'Spend' you into a 'Coercion' trap, even with a 'Highway' offer.

Government can impose restrictions on the time, place, and manner of speech in public forums, provided they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

• Applies to traditional and designated public forums
• Must be content-neutral (i.e., not based on the message)
• Must be narrowly tailored (not necessarily least restrictive means)
• Must serve a significant government interest (e.g., public safety, noise control)

Memory trick: Time, Place, Manner: No bias, good reason, other ways to speak.

Evidence of measures taken after an injury or harm, which would have made the injury or harm less likely to occur, is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.

• Applies to product liability, negligence, and other actions.
• Purpose is to encourage repairs and safety improvements.
• Exceptions exist for proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

Memory trick: Some Evidence Rules EXCLUDE, Even If Relevant.

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

• Hearsay exception under FRE 803(2).
• Declarant's availability is immaterial.
• Must be spontaneous and made under the immediate influence of the startling event.

Memory trick: Hearsay's exceptions: Some People Really Do Care About Getting Medical Help For Injured Kids.

A privilege, recognized in most states but generally not by federal common law, that protects confidential communications between a patient and a physician made for the purpose of medical diagnosis or treatment.

• Exists in most state jurisdictions by statute.
• Generally NOT recognized under federal common law (FRE 501).
• In federal court, state law on physician-patient privilege applies only when state law supplies the rule of decision regarding an element of a claim or defense (e.g., diversity cases).
• Similar to attorney-client, it belongs to the patient and can be waived.

Memory trick: Privileges Protect Private Personal Professional Secrets.

Specific instances of a witness's conduct, for the purpose of attacking or supporting the witness's character for truthfulness, are generally not admissible by extrinsic evidence. However, the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness has testified about.

• No extrinsic evidence for specific instances of conduct (unless conviction under FRE 609).
• Can be inquired into on cross-examination.
• Must be probative of truthfulness/untruthfulness.
• Court retains discretion under FRE 403.

Memory trick: Credibility: 'C.H.A.R.A.C.T.E.R. T.R.U.T.H.' (or lack thereof)

A statement made by an opposing party and offered against that party is not hearsay and is admissible. It can be the party's own statement, an adopted statement, a statement by an authorized person, an agent, or a co-conspirator.

• Defined as 'not hearsay' by FRE 801(d)(2), not a hearsay exception.
• Must be offered against the party who made or adopted the statement.
• No requirement for personal knowledge or unavailability of the declarant.
• Includes direct statements, adoptive admissions, statements by agents/employees, and co-conspirator statements.

Memory trick: Some Statements Aren't Hearsay, They're EXCLUDED.

Even if evidence is relevant, a court may exclude it if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

• Probative value must be SUBSTANTIALLY outweighed.
• Prejudice must be UNFAIR, meaning it induces decision on improper basis.
• This rule provides a balancing test for judges (FRE 403).

Memory trick: Relevant? Yes! But does Prejudice PUSH it out?

A statement made by a witness, inconsistent with their current testimony, used to challenge their credibility.

• Admissible to impeach, not for its truth (unless made under oath and subject to cross-examination).
• Witness must be given an opportunity to explain or deny the statement.
• Opposing party must also be given an opportunity to examine the witness about it.

Memory trick: Every witness has a CHIP on their shoulder if you wanna impeach 'em.

In a criminal case, the defendant may offer evidence of the victim's pertinent character trait (e.g., violence in an assault case) to show the victim was the initial aggressor.

• Offered by the defendant to prove the victim's conduct.
• Must be a 'pertinent' trait (relevant to the charges).
• Can be proven by reputation or opinion testimony (FRE 405(a)).
• If defendant opens the door, prosecutor can rebut with evidence of victim's good character or defendant's bad character.

Memory trick: Character evidence: General rule is NO, unless it's an EXCEPTION for a PERTINENT TRAIT.

A confession is admissible only if it was made voluntarily, without coercion, considering the totality of the circumstances under the Due Process Clause of the Fourteenth Amendment.

• Voluntariness is assessed by looking at all circumstances surrounding the confession.
• Factors include the defendant's age, education, intelligence, physical condition, and experience with the criminal justice system.
• Also considers the nature of the interrogation, length, presence of threats or promises, and time of day.
• Separate from Miranda rights, though Miranda compliance is a factor in voluntariness.

Memory trick: Confessions Must Be Free, Knowing, and Wise.

Witness credibility may be attacked by evidence of a criminal conviction if the crime was a felony or involved dishonesty/false statement, subject to certain time limits and balancing tests.

• Crimes involving dishonesty or false statement (e.g., perjury, fraud) are generally admissible regardless of felony status, subject to time limits.
• Felonies not involving dishonesty are admissible against a witness if the probative value outweighs the prejudicial effect to the defendant (in criminal cases) or under FRE 403 (in civil cases).
• Evidence of conviction is generally not admissible if more than 10 years have passed since the conviction or release from confinement, whichever is later, unless its probative value substantially outweighs its prejudicial effect.

Memory trick: Credibility Can Be Questioned By Prior Statements, Bad Acts, or Convictions.

A witness's testimony can be challenged by presenting evidence that contradicts their statements or that shows they had a diminished capacity to observe, remember, or recount the events they testified about.

• Can be done through cross-examination or extrinsic evidence.
• Relates to the accuracy of the witness's testimony, not necessarily their character for truthfulness.
• Subject to FRE 403 balancing test.

Memory trick: Impeach a Witness: 'C.O.N.T.R.A.D.I.C.T. P.E.R.C.E.P.T.I.O.N.'

A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health) is not excluded by the hearsay rule.

• Must describe a then-existing condition, not a past one.
• Can include motive, intent, plan, mental feeling, pain, or bodily health.
• Cannot be used to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Memory trick: Many Exceptions Help Avoid Rules, Sometimes.

Protects confidential communications between a client and their attorney (or agents of the attorney) made for the purpose of seeking or rendering legal advice.

• Applies to communications, not underlying facts.
• Confidentiality is key; privilege can be waived if not maintained.
• Extends to agents of the attorney (e.g., investigators, paralegals) if assisting in legal advice.

Memory trick: Attorney-Client: 'C.L.I.E.N.T.S.' Confidential Legal Information for Every New Transaction, Secretly!

A record of an act, event, condition, opinion, or diagnosis if it was made at or near the time by — or from information transmitted by — someone with knowledge, kept in the course of a regularly conducted business activity, and if making the record was a regular practice of that activity.

• Applies to records made in the regular course of business.
• Must be made at or near the time by someone with knowledge.
• The source of information or the method or circumstances of preparation must not indicate a lack of trustworthiness.
• Declarant's availability is immaterial.

Memory trick: Business Records are exceptions because they are Reliable and Routine.

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

• Probative value must be *substantially outweighed* for exclusion.
• Unfair prejudice means an undue tendency to suggest decision on an improper basis.
• Favors admission, as the threshold for exclusion is high.
• Applies to all types of relevant evidence, including photographs.

Memory trick: Relevant Evidence Is Admissible, Unless Substantially Outweighed.

A statement offered against an opposing party that was made by the party in an individual or representative capacity, or by a person whom the party authorized to make a statement concerning the subject, or by the party's agent or employee on a matter within the scope of that relationship and while it existed, or by a coconspirator during and in furtherance of the conspiracy.

• Not considered hearsay under FRE 801(d)(2).
• Can be used as substantive evidence.
• Does not require personal knowledge by the declarant.

Memory trick: Hearsay: Hear Say? No Way! Unless it's a 'D.E.A.D. P.A.R.T.Y.' admission!

The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against them. This means 'testimonial' out-of-court statements cannot be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

• Applies only in criminal cases.
• Only to 'testimonial' statements (those made for litigation purposes).
• Requires unavailability AND prior opportunity for cross-examination.

Memory trick: Confrontation: 'C.R.A.W.F.O.R.D.' says Testimonial? Cross-Examine or it's Closed!

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

• Applies when the contents of the document/recording are 'at issue'.
• An 'original' includes the document or any counterpart intended to have the same effect.
• Duplicates are generally admissible unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

Memory trick: Original: 'O.R.I.G.I.N.A.L.' is the best way to prove it!

The Sixth Amendment right to counsel attaches once adversarial judicial proceedings have begun (e.g., formal charge, indictment) and prohibits the government from deliberately eliciting incriminating statements from a defendant in the absence of counsel.

• Applies post-attachment of adversarial proceedings.
• Prohibits 'deliberate elicitation' by government agents, including informants.
• Offense-specific: applies only to the crime for which the defendant has been charged.

Memory trick: Miranda (5th) is Pre-Charge Silence; Sixth is Post-Charge Lawyer.