Bar X-tra Flashcards
Minor Authority to consent to Search
- Child may have authority to permit the search of common areas of the home
- Locked rooms = no access
- Age left home then apparent authority
Arrest in house of another w/o search warrant
- plain view
- contest arrest
- STANDING = must have a reasonable and legitimate expectation of privacy in the place searched or the item seized.
- 3rd part can’t suppress plain view evidence - NO Standing or expectation of privacy in another’s house
- Can’t contest arrest
Excited Utterance requires
Personal Knowledge.
Confrontation Clause - Non-testimonial Evidence
Nontestimonial evidence includes situations where the primary purpose of the statement is to aid police during an ongoing emergency.
Fee Simple Subject to a Condition Subsequent - Terminates
- Automatically on the happening of a future event in favor of a third party.
A tenant has no obligation to ___ and the LL can __
make improvements, and the landlord can hold the tenant liable for any that were made.
A future covenant can be breached at -
- the time of closing or afterwards, and the grantee can sue at any time within the limitations period after the breach occurs.
A present covenant is breached -
- at the time of the closing, but in order for the breach to occur, the closing must happen.
- Once the closing occurs, the grantee has until the end of the limitations period in order to bring suit for the breach of the present covenant.
Standard of care Professionals -
- Lawyers, doctors, accountants, and architects = custom
- NO Breach if comply w/ custom
Intentional Misrepresentation - scienter (state of mind / knowledge) -
- knowing it to be false
or - reckless as to its truth or falsity.
Which is the “right type” of felony for Felony Murder?
- Listed in the Statue
or - both independent of the killing and inherently dangerous
Arson Type of Crime ? Not a Defense - Is Charring Enough ? Blackening ?
- Malice crime
- Vol. Intoxication = No Defense
- Charring is Enough
- Not Blackening
Violation of 6th Amend. Right to Counsel (Questioning in Jail - confession)
- Can it be Used at Trial ??
ONLY for IMPEACHMENT
Search Warrant - Look for =
Illegally Obtained PC for the warrant
- Improper video as basis for PC for Search Warrant -
Violation of Miranda rights - can statement be used at trial ?
Not substantively but
CAN be used to IMPEACH a testifying defendant.
Knock and Announce -
Do they have to?
What if no use ?
Yes Must Knock + Announce
but
– If FUTILE = Do NOT have to –
Crimes = look for
Mens Rea
Proximate Cause
Actus Reus
MR - Mental State or Intent that caused the injury
Proximate - But For action that caused the injury
Specific Intent
General Intent
- purposeful action - intended to create the HARM
- - knowingly/ reckless action - intended to do the ACT
Strict Liability
No mental state / mens rae required - violation of the statue constitutes crime / the act is sufficient for guilt
A case involves a state law whose meaning is unclear
- Supreme Court hear it ?
The Court would refuse to hear the case.
- Allow the state court an opportunity to interpret
State Electoral districts were drawn in a manner to favor a particular race.- Supreme Ct. hear it?
The Court would hear the case
- case is legal rather than political; it involves a challenge to a particular race.
Limit on Congress’s right to place restrictions on federal funds - size of funds
- The Funds must NOT BE so great as to be considered coercive to the state’s acceptance
If a state law merely incidentally burdens interstate commerce, the state must show:
(1) the regulation serves an important state interest; and
(2) the burden on interstate commerce isn’t excessive in relation to the interest served.
A private restrictive covenant that prevents the sale of property to certain buyers based on race
- is it ok?
- can they get a Ct to enforce it?
- Yes b/c they do not violate the Fourteenth Amendment
- No ; private parties may abide by the terms of such a covenant,
BUT they may not seek judicial enforcement of such a covenant, as that would be a state action
A waiting period to obtain unemployment benefits after establishing residence in a new state.
Viol = Privileges or Immunities Clause 14th Amend.
[ONLY One!]
includes the right to travel across state lines and establish residence in a new state
Lemon Test for violation of the Establishment Clause.
- a secular legislative purpose.
- must neither advance nor inhibit religion.
- not foster an excessive government entanglement with religion.
Judgement of Acquittal
Only where evidence viewed in light most favorably to the prosecution - could a reasonable jury find guilt beyond a reasonable doubt
4th Search - def
Physically trespass on a person’s home, papers,, or effects or where that person would have a reasonable expectation of privacy
- must be reasonable pursuant to a valid warrant or an exception
4th Search - Exclusion
Must be a violation of 4th and the person must have standing (ownership or possessory interest)
Def of Abandonment
Majority - NO Abandonment defense when more than mere preparation (thus no abandonment of attempt)
> Can only abandon before do anything
Minority rule is before crime complete can abandon or withdraw
a. Must be completely voluntary
b. Cannot be motivated by extrinsic circumstances
Attempt - ele.
a. Specific intent crime - purpose perform the act + a wish for the consequences that result
b. Significant overt act in furtherance of that intent
c. Actual attempt beyond mere preparation
Amend a Complaint (2)
- As of Right - w/in 21 Days from Complaint service or Answer
- w/ Permission of the Opposing party or w/ Permission of the Ct.
Domestic Animal -
“known dangerous propensities.”
- Reas. owner Animal presented a danger of death or INJURY (ANY pretty much)
A man brought suit for personal injuries
- unit functioning properly
- self contained
Recovery?
Yes - Res Ipsa Loquitur - can infer negligence b/c wouldn’t have happened w/o Negligence
Passive Trespasser Deterrent
- fishing line , electric fence, etc. -
Is it OK ? Can they Recover ?
Yes, because, without warning known trespassers, the homeowner used more force than was reasonably necessary to protect his property.
- Artificial Condition that involves risk of death or serious bodily harm
A) Reasonable care to warn if
(1) the trespassers are known
and
(2) reason to believe that the trespasser will not discover it or realize the risk
Some drama and injury occurs - liability - Look for answer where …
First Act by the Def was Possibly Negligent
Damages - Comparative Negligent
Reduced by the amount that P was negligent
ex: 25% = $75,000 recovery
Excessive - Unforeseeable Harm
- some harm from being pushed to the ground was a foreseeable injury
» if the type of injury is foreseeable, D is liable even if the EXTENT is not foreseeable
» Eggshell Plaintiff
Rescuer - Caused injury ..did they ..??
Act Reasonably
- once action is taken - standard of reasonable care Thus, a rescuer must act with due care
Ex: Shouldn’t move injured person + cause more injury
Civ Pro Numbers -
6 , 10, 14, 14, 21, 21, 21
6 - Jurors
10 - Depositions as of right
14 - Days to request Jury Trial after last responsive pleading (ans. or R 12b)
14 - TRO
21 - Days to Amend Compl / Ans as of Right
21 - Days to Respond to Compl. - motion to dismiss, answer, etc
21 - Days “Safe Harbor” R 11 viol.
Civ Pro Numbers -
25, 28, 30, 30, 60, 90, 90, 90
25 - Interrog. for each
28 - Days After Loose to renew JMOL / New Trail
30 - Days to Appeal
30 - Days to Remove
60 - Days to Respond to Compl. if Waive Service
90 - Respond to Compl. if Waive Service + Foreign D.
90 - Days to Disclose Experts
90 - P. must serve D w/ Compl w/in 90 days of filing
Files a motion to dismiss, he must include the defenses in the motion or else forfeit
- -lack of personal jurisdiction,
- improper venue,
- insufficient process, or
- insufficient service of process
When can a party move for Summary Judgement?
Up to 30 days after the Close of Discovery
Fed Dist. Cts. do NOT have JDX to hear –
Ruling Denying a Motion to Dismiss (for any reason) cannot be appealed until the entire litigation is concluded.
- bc it’s an interlocutory ruling and NOT a Final Judgement
What is the only type of murder that can be Attempted ?
– Intentional Murder –
> > It is legally impossible to commit :
“attempted depraved-heart murder”
attempted serious-bodily-injury murder
attempted felony murder
Objections to Jury Instructions have to be made both:
(1) before closing arguments; and
(2) before the instructions are read to the jury.
Conflict of Laws Diversity - Statute of Limitations
State Statutes of Limitations should apply in federal claims based on diversity,
Lack of PJ must be asserted __ or else it’s __
In a Motion to Dismiss or
Answer
– or the defense will be waived.
Affirmative Defenses must be asserted ___ or else __
First Responsive Pleading
– waived
Venue - proper where ?
1) Dist. where ANY Defendant resides, if each of the defendants reside in the SAME State; or
2) where a substantial portion of events occurred
Denying college financial aid to non-citizens who would not affirm their intent to apply for citizenship / non-citizens?
14th Equal Protection Clause - any state action which discriminates against non-citizens will, as a general rule, be subject to strict scrutiny
- except -
voting, holding elected political office, gov’t jobs
Local Ordinances
A reasonable regulation is valid under the city’s police power.
Establish third-party standing to challenge this ordinance?
(1) it would be difficult for the injured party to assert their own rights; and
(2) there is a special relationship between the claimant and the third party.
* * Supreme Court has recognized a buyer-seller relationship as sufficient to establish third-party standing - ex: no skating ord. rental
PJ Regularly Causes Severe Mental Anguish
Residency, Consent, Service, Minimum Contacts, At Home (such contacts are so substantial that they are “essentially at home)
Face to Face Contract Offer terminates ___?
At the end of the face to face conversation
Fed SMJ - Fed Statute but statute does not specifically
authorize suit for damages?
If a federal statute does not provide a federal remedy for a violation = NO Fed JDX
Supplemental Jurisdiction - 2 Plaintiffs = P-1 under a Fed Stat.; P-2 State Law, diverse, but AIC less than $75,000 - Can P-2 bring claim?
Yes if
(1) the same transaction or occurrence `or~
(2) a common nucleus of operative facts.
Removal must be filed w/in ?
If there is a new Def added, then …?
- 30 days
- that defendant has another 30 days to remove
Master of claim under diversity - removal
Even if claim could have been filed in Fed Ct under diversity - if the P filed in State Ct - AND -
» Def is a citizen of THAT State - then Def CANNOT REMOVE
Supplemental Jurisdiction - 1 P vs. 2 D - diversity // new D is not diverse
New D cannot destroy Diversity for Supplemental JDX by P against multiple D
Aggregate - P vs. D - multiple claims
Can aggregate multiple unrelated claims against 1 Def for AIC
Delegation - duty / obligation:
May seek to transfer or delegate his contractual obligations to a third party - then who’s responsible ?
If the third party accepts this delegation, it becomes liable under the contract.
Even if he did NOT notice the original contractor
Quasi-contract - emergency medical aid
Implied-in-law contractual obligation arises where there is an equitable imposition of a would-be contract
- where one party bestows a benefit on the other
What does a counter offer do to the power of acceptance ?
Terminated by his making of a counteroffer
Face to Face Rule - contracts
Offer expires at the conclusion of a face-to-face conversation
Offer to sell - advertisement : Has to be ___ to be considered an offer instead of puffery ?
Specific Item or terms (first come first served)
For a “reasonable price” - is this an offer?
This language evidences ONLY an intention to invite a reasonable offer
- NOT an offer
Durational Requirement - out of state / in state
Privileges or Immunities Clause of the Fourteenth Amendment
Removal -
D can NOT remove if:
Diversity + D is RESIDENT of removal state
Contract - mental incompetent
- At time of K
- obligated to return any goods
- liable for damages or reasonable value for use
- Necessities reasonable value
- Voidable by him
Excluding Witnesses
Not authorize excluding:
(a) THE PARTY to action
(b) an officer or employee of a Corp. person- Designated Representative
(c) a person ESSENTIAL to presenting the party’s claim
(d) a person authorized by statute
Wrong Jury Instructions
New Trial
Unanticipated circumstances leading to required contract modification include:
Pre-existing Duty Rule
- UCC = no consideration
(agree to modifications (increased payments) in good faith, the modifications are enforceable)
- - Common Law - Consideration needed
> Construction must do for price unless consideration
Exceptions to warrant requirement
ESCAPES Exigent circumstances; Search incident to arrest; Consent; Automobiles; Plain view; Evidence obtained from administrative searches; Stop and frisk
Age limit Fire / Police - 14 th
Rational Basis
- ensuring that they are physically fit to do the job
Redemption
Right at any time after default, but before foreclosure, by paying the debt due
No Guns in School - can state do?
state police power gives states the power to regulate for the general health, safety, and welfare of society
5th vs 14th - whos doing it?
5th = Fed
14th = State
REMEBER to Look BEFORE Leaping !
