Bar Rules Flashcards
Essential Terms for Real Estate Sales Contract
(1) the parties’ identities
(2) words indicating the parties’ intent to buy or sell
(3) an adequate description of the property
(4) the purchase price.
The Merger Doctrine
When the seller delivers the deed to the buyer, the sales contract merges into the deed. Consequently, any contractual guarantees about title disappear, and the buyer’s remedies for title defects are limited to the covenants of title contained in the deed.
Who bears the risk of loss during executory period? (Majority/Minority+?)
Majority Rule: the buyer (unless the contract states otherwise)
Minority Rule: the seller (“)
- (property is damaged = seller must convey property to buyer with a price reduction known as an abatement)
- (property is destroyed = buyer may cancel or rescind the contract and recover any deposit)
Two-funds rule of marshaling
if a senior creditor can foreclose on two properties of same debtor, and a junior creditor can foreclose on only one of the properties, then a court in equity may order senior creditor to proceed first against the property to which the junior creditor lacks access.
Identifying an equitable mortgage
1) whether the debtor keeps possession of the property
2) whether the debtor acutely needs money at the time
3) whether the transaction allows debtor to reclaim/repurchase property after making some payment
4) relationship between amounts paid to and repaid by debtor
5) whether debtor sells property for less than its fair market value
Adverse Possession Requirements
-Continuous
-Hostile under a claim of right
-Open and notorious
-For the Statutory Period
-Exclusive
Bona fide purchaser
one who purchases an interest in real property for value and without notice of a preexisting interest.
a wild deed
one that is outside a later buyer’s chain of title such that the later buyer cannot be expected to discover the deed through a reasonable records search. A wild deed does not provide record notice of the property interest reflected in that deed
estoppel by deed
applies if a grantor purports to convey property that he does not own to a grantee who lacks notice of this problem. If the grantor later acquires the property, then title immediately vests in the original grantee.
model penal code test for insanity
a person is not responsible for criminal conduct, if at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness (criminality) of his conduct or to conform his conduct to the requirements of law.
Necessity Defense
defendant must prove that her conduct was necessitated by a specific imminent threat of injury or harm AND that she had no viable, reasonable, and legal alternative to the action taken.
Common law murder
To be guilty of murder under the common law, a defendant must act with at least malice aforethought. Malice aforethought Malice describes several different mental states: (1) intent to kill; (2) intent to cause serious bodily injury; (3) reckless indifference to the value of human life; and (4) imputed mens rea, if a death results from the commission of a particular felony.
Larceny by false pretenses
A defendant must
1) knowingly make a false representation of material fact to a person,
2) with the intent to defraud, and
3) the false representation must cause the victim to pass title to something of value to the defendant
Entrapment
Entrapment is an affirmative defense. The defendant must show that law enforcement induced him to commit a crime he would not have otherwise committed. Merely providing an opportunity to commit a crime is not entrapment.
asportation
“carrying away” - larceny requirement - satisfied by even the smallest change in location
common law burglary
the breaking and entering of the dwelling of another, at night, with the intent to commit a felony therein.
common law assault
either attempted battery or a threatened battery. Attempted battery occurs if a defendant attempts but fails to cause an offensive or injurious physical contact. The second type is a threatened battery. Threatened battery occurs if the defendant puts the victim in reasonable apprehension of an imminent offensive or injurious physical contact, regardless of whether the defendant intends to cause the threatened contact.
MPC felony murder (difference from common law)
defendant can rebut the presumption that he acted recklessly and with extreme indifference to the value of human life
MPC conspiracy
requires overt act (except for first and second degree felonies) and is unilateral
Voluntary Manslaughter
Voluntary manslaughter is an intentional killing that occurs during an intense emotional state, sometimes called the heat of passion, that occurred due to adequate provocation. Classic examples of adequate provocation include mutual combat and catching a spouse in the act of adultery.
MPC Kidnapping
requires that the victim be moved for one of four specified purposes: (1) to hold for ransom or reward, or as a shield or hostage; (2) to facilitate commission of any felony or flight thereafter; (3) to inflict bodily injury on or to terrorize the victim or another; or (4) to interfere with the performance of any government or political function.
M’Naghten test for insanity
a defendant must show that he did not know the nature or quality of his criminal act or did not know that what he was doing was wrong
MPC Murder
a defendant is guilty of murder if he acts purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. Thus, even a defendant who does not intend to kill can be guilty of murder.
3 types of immunity
Testimonial immunity - means only that the defendant’s testimony cannot be used.
Derivative-use immunity - prevents the use of both testimony and any evidence derived from it.
Transactional immunity - means that the witness cannot be prosecuted at all for the crimes about which he has testified.
A court must grant at least derivative-use immunity to remove a witness’s right to invoke the Fifth Amendment.
when does jeopardy attach in a jury trial?
when the jury is sworn in
What is required for the witness’s prior statement to be deemed inconsistent with the witness’s current testimony?
The inconsistency between the witness’s prior statement and current testimony must have a reasonable bearing on the witness’s credibility.
The substantial-factor test
finds actual causation if
(1) multiple forces combine simultaneously to cause the victim’s harm;
(2) any one force would have sufficed, on its own, to cause the harm;
(3) it is impossible to tell which force caused which portion of the harm; and
(4) the actor’s negligence was a substantial factor in causing the harm.
The classic example is two independently originated fires, one natural and one man-made, converging to destroy one structure
The alternative-causes doctrine
applies if
(1) multiple actors are negligent,
(2) at least one actor’s negligence causes the harm, and
(3) it is impossible to tell which actor’s negligence caused the harm.
If these elements are satisfied, each actor must disprove that his or her negligence caused the injury, or else risk liability.
The concurrent-causes doctrine
finds actual causation if multiple forces, one being the actor’s negligence, combine to cause the victim’s harm, and no single force, by itself, could have caused the harm.
when can a final pretrial order be modified?
only to prevent manifest inustice
when can a party amend a pleading?
(1) within 21 days after serving the pleading, or (2) if the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of certain Rule 12 motions, whichever is earlier.
Unilateral notice of dismissal vs motion to dismiss
a plaintiff may file a unilateral notice of dismissal if the defendant has not yet answered or moved for summary judgment.
Otherwise, a plaintiff may dismiss only by filing a motion to dismiss and obtaining a court order dismissing the case.
forum non conveniens
common-law doctrine that allows a federal court to stay or dismiss a case that is more appropriately heard outside the federal judicial system, whether in a foreign country or in a state court.
To decide a forum non conveniens motion, the court must weigh multiple factors, including the availability of witnesses and the other court system’s interest in the case.
when can a party intervene?
A party may intervene as a matter of right if it claims an interest in the subject of the case, and if disposing of the case may impair that party’s ability to protect its interests, unless the existing parties adequately represent the would-be intervenor’s interests.
A court may allow permissive intervention if the intervenor’s claim or defense shares a common question of law or fact with the existing case.
what happens to a claim that a court has supplemental jurisdiction over when all other claims are dismissed?
the court has discretion either to retain the supplemental claim or dismiss it.
requirements for a preliminary injunction or restraining order
1) The reason(s) for issuing the order;
2) The specific terms of the order; and
3) The act(s) enjoined, restrained, or required, providing a reasonable amount of detail.
what privilege rules apply in a federal diversity case?
Rule 501 of the Federal Rules of Evidence directs the federal courts to apply state privilege rules to any claim or defense governed by state law.
consent in fact
Consent in fact means that the victim is, in fact, willing for the actor’s conduct to occur. The victim will normally manifest consent in fact through words or actions. Yet silence or inaction can, in the right circumstances, manifest consent in fact. Further, consent is normally manifested to the actor herself, but it need not always be. Consent manifested to a third party can constitute valid consent in fact, if all the requirements are met. In that vein, there are three overarching requirements for consent in fact to be legally effective.
1) the consent must be informed, meaning that the victim knows all facts relevant to the decision whether to consent or not.
2) consent in fact must be voluntary. Voluntary means that the consent is the product of free choice. Accordingly, consent procured by duress or coercion is ineffective.
3) the victim must have legal capacity to consent. Incapacity, then, will defeat consent. Common grounds for incapacity include minority and mental deficiency.
when does the 6th amendment right to counsel attach?
when a criminal defendant is charged
right to a jury trial
A criminal defendant does not have a constitutional right to a jury trial under the Sixth Amendment unless the statutory maximum punishment exceeds six months of incarceration, regardless of the sentence imposed.
Batson Challenge
Under Batson, a justification for striking a member of the jury pool may be idiosyncratic, unpersuasive, or implausible, as long as it does not reflect discriminatory intent.
requirements for guilty plea
plea must be knowing, intelligent, and voluntary
defendant understands he is waiving his right to:
jury trial
confronting witnesses
remaining silent
defendant was informed of the punishment range and elements of the charged offense
The Compulsory Process Clause
guarantees a criminal defendant’s right to compel unwilling witnesses to testify at trial through the subpoena process.
Confrontation Clause
prohibits the prosecution from offering testimonial hearsay of a witness if the witness is unavailable to be called as a live witness at trial, unless the witness’s hearsay statement was made under oath and subject to cross-examination by the defendant under oath
Statements are testimonial if made for the primary purpose of aiding in a criminal investigation or securing a conviction
The United States Supreme Court has held that the death penalty cannot be imposed on any of the following types of defendants
(1) a defendant who committed the capital offense prior to the age of 18;
(2) a defendant who had a mental disability at the time of the offense, generally defined as an IQ under 70; and
(3) a defendant who currently lacks a rational understanding of why he is being executed
Maximum sentence for defendant under 18 under eighth amendment for:
-homicide
-nonhomicide
homicide - life imprisonment (not automatic) without parole AFTER a hearing at which the defendant is permitted to offer mitigating evidence
nonhomicide - life imprisonment with possibility of parole
Double Jeopardy - Two offenses are considered the same if
they have identical elements, or if one offense contains all the elements of the other offense, plus additional elements. If each offense contains an element that the other lacks, the offenses are considered separate offenses for double-jeopardy purposes.
automobile exception standard
probable cause (not reasonable suspicion)
drug dog sniff
not a search under 4a so don’t need probable cause, however, police cannot unreasonably delay the stop while waiting for the drug dog to arrive.
Miranda Doctrine
prior to any custodial interrogation, law enforcement must
(1) inform the suspect of his rights and
(2) make reasonably certain that the suspect has knowingly, intelligently, and voluntarily waived those rights
rule 403
evidence may be excluded if its probative value is substantially outweighed by the danger of unfairly prejudicing or misleading the jury, among other things
when a judge must conduct hearings on preliminary questions outside of the jury’s presence
1) if the hearing involves a confession’s admissibility
2) if a criminal defendant is a witness and requests the jury not hear the proceedings
3) if the interests of justice require it
when are leading questions permitted?
on cross-examination, and on direct examination if a party calls a hostile witness, an adverse party, or a witness identified with an adverse party
lay opinion is admissible if it is
1) rationally based on the witnesses perception
2) helpful in understanding the witness’s testimony
3) not based on any scientific, technical, or other specialized knowledge that would make it expert testimony
expert witness qualifications
- specialized knowledge will help the trier of fact understand evidence or determine fact
- based on sufficient facts or data
- based on reliable principles and methods
- expert reliably applied principles and methods
prior inconsistent statement - hearsay exception
Rule 801(d)(1) provides that a prior inconsistent statement is not hearsay if:
1) the witness testifies and is subject to cross-examination about the prior statement;
2) the prior statement is inconsistent with the witness’s present testimony; and
3) the prior statement was given under penalty of perjury at a trial, hearing, deposition, or other proceeding.
The business-records hearsay exception
a record of a regularly conducted activity is admissible despite being hearsay if
(1) the record was made at or near the time of the event based on someone’s knowledge;
(2) the record was kept in the course of a regularly conducted activity of a business, organization, or profession;
(3) the record was made as a regular practice of that activity;
(4) these conditions are established by a qualified witness or certificate; and
(5) the opponent fails to show that the record is untrustworthy.
recorded collections hearsay exception
The exception applies if the record
(1) is about a matter the witness once knew about but now cannot recall well enough to testify fully and accurately,
(2) was made or adopted by the witness when the matter was fresh in the witness’s memory, and
(3) accurately reflects the witness’s knowledge.
If the exception applies, then the witness may read the recorded recollection into evidence. However, the recorded recollection itself may be received into evidence as an exhibit only if it is offered by an adverse party.
statements against interest - hearsay
A statement against interest is a statement so contrary to an unavailable declarant’s penal, proprietary, or pecuniary interest that a reasonable person in the declarant’s position would not have made the statement if it were not true. If the statement is offered in a criminal case as one that tends to expose the declarant to criminal liability, Rule 804 also requires that a statement against interest be supported by corroborating circumstances that clearly indicate the statement’s trustworthiness.
when is a witness unavailable for purposes of FRE 804?
if the declarant
(1) is exempted from testifying due to a privilege,
(2) continuously refuses to testify despite a court order to do so,
(3) testifies to a lack of memory about the subject matter,
(4) is dead or has a long-term physical or mental illness, or
(5) is absent and cannot be located via subpoena or some other reasonable means despite a diligent search.
primary purpose test for testimonial statements
a statement is testimonial if the primary purpose of the statement was to gather evidence against the defendant or to create a substitute for trial testimony
FRE 807 - residual exception for hearsay
a statement must
(1) have equivalent circumstantial guarantees of trustworthiness as statements permitted by the Rule 803 and 804 exceptions;
(2) be offered as evidence of a material fact;
(3) be more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) serve the general purposes of the evidentiary rules and the interests of justice by its admission.
Additionally, if a statement satisfies Rule 807’s requirements, it may be admitted provided the proponent gives an adverse party reasonable notice of its intent to admit the statement.
when is evidence relevant?
Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.”
standard for witness competency
that the witness is minimally capable of observing, recalling, and communicating events and understands his obligation to testify truthfully.
foundation
A party introducing evidence must first lay a foundation for that evidence. The foundation includes any preliminary facts needed to establish that a particular piece of evidence is what the party says it is (i.e., that the evidence is authentic) and relevant to be admitted.
evidence of insurance policy
only to show ownership, NOT to show negligence or ability to pay a civil judgment
contracts question: first point of analysis?
UCC or Common Law? (i.e. is the contract for a sale of goods?)
exception to the preexisting duty rule
a promise modifying a duty under a contract not fully performed on either side is binding even if not supported by consideration if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made
also preexisting duty rule doesn’t apply to UCC if modification is made in good faith
duress (contracts)
A contract is voidable on the ground of economic duress by threat when it is established that a party’s manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative.
statute of frauds (UCC)
a contract for the sale of goods for a price of $500 or more is not enforceable against a party unless there is a writing sufficient to indicate that a contract has been made that is signed by that party or an exception applies.
option contracts
revocation
Promissory Estoppel
1) the promisor, when making the promise, should have reasonably expected that the promisee would change position in reliance on the promise
2) the promisee actually changed position in reliance on the promise
3) the change in position must have been to the promissee’s detriment
4) injustice can be avoided only by enforcing the promise
Material Benefit Rule
Although a benefit given in the past generally does not provide consideration, the
material benefit rule acts as an exception. If a party makes a promise after receiving a
significant benefit, then the court may enforce the promise if necessary to prevent
injustice.
may a party prove a witness’s character with specific instances of conduct during direct examination?
no. only reputation testimony in the form of an opinion.
Evidence of prior bad acts may be admissible for what purposes?
to show
POMPKILA
Preparation, Opportunity, Motive, Plan, Knowledge, Identity, Lack of accident, Absence of mistake
subsequent remedial measures
NOT admissible for:
to prove negligence, culpable conduct, product design defect, or a need for a warning or instruction
Admissible for:
other purposes, including proving ownership, control, or the feasibility of precautionary measures if these issues are in dispute.
exception to the collateral evidence rule
extrinsic evidence of a witness’s improper bias or interest is not subject to the collateral-evidence rule. Unlike evidence of prior inconsistent statements, extrinsic evidence that a witness has an improper bias or interest is never collateral. Parties may question a witness about the witness’s alleged bias or interest as well as prove the existence of that bias or interest by introducing extrinsic evidence.
standard for restricting commercial speech
law must be narrowly tailored to serve a substantial government interest
can a residing judge testify as a witness in a trial over which he is presiding?
no
Evidence of insurance
not admissible to prove a person acted negligently or wrongfully, but is admissible to show motive, ownership, and other purposes.
what happens when goods identified at the time the contract was made are totally destroyed before the risk of their loss has passed to the buyer and without the fault of either party?
the contract is avoided and each party is relieved of its respective obligation to perform
Doctrine of equitable conversion
if the contract is silent regarding the risk of loss, that risk goes to the party with the equitable title. Equitable conversion occurs when the contract is capable of specific performance.
