CA Bar Exam Mixed Review

Question 1

When are you allowed to introduce prior bad acts?

Answer 1

Evidence of prior bad acts is not admissible to show that a person acted in conformity with a particular character trait.

However, evidence of prior bad acts may be admissible for other purposes, for example, to show motive, opportunity, intent, preparation, common plan, knowledge, identity, absence of mistake, or lack of accident.

eg- Def claims murder of wife was by accident, but cop testifies to history of violent calls to home = intent to murder v. accident
eg 2 - womans previous shoplifting convictions (even if misdemeanours) by changing tag prices shows a “common plan” with her current crime

Question 2

When are dying declarations allowed as a hearsay exception?

Answer 2

An unavailable declarant’s statement made under the belief that his own death was imminent is admissible in a prosecution for homicide or in a civil case, if the statement concerns the cause or circumstances of the declarant’s death.

Question 3

When is a Witness qualified to testify?

Answer 3

A witness’s competency is the witness’s ability to testify truthfully and accurately. A person is competent to testify if the person has:
1) personal knowledge of the facts to which he will testify,
2) is able to relate those facts to the jury,
3) gives an oath or affirmation to testify truthfully, and
4) is neither a judge nor a juror in the case.
Under the FRE every witness is presumed to be competent unless proven otherwise.

Question 4

Explain the test for IIED and does the Vic have to have suffered physical harm?

Answer 4

IIED does not require physical harm.

IIED arises if an actor (1) engages in extreme and outrageous conduct, by which the actor (2) intentionally or recklessly causes a victim to suffer (3) severe emotional distress (that is, emotional distress beyond what a reasonable person should be expected to tolerate).
Conduct is extreme and outrageous if it goes beyond the bounds of human decency or if a civilized society would regard it as atrocious and totally intolerable.
*factors are (1) the actor’s abuse of power or authority over the victim; (2) the actor’s abuse of a special relationship of trust; (3) a prolonged pattern of offensive behavior; (4) the victim’s membership in a particularly vulnerable class, such as young children or the elderly; (5) the actor’s subjecting the victim to public humiliation; (6) racial or ethnic bias; or (7) the actor’s deliberate exploitation of the victim’s peculiar sensitivity, such as a phobia or a superstition.

Question 5

What is Battery? Can you consent to Battery?

Answer 5

Battery occurs if an actor
(1) intentionally
(2) causes
(3) harmful or offensive physical contact with a victim.
Contact is offensive if it would offend a reasonable person of ordinary firmness.
Contact is also offensive if made without the victim’s consent, at least if a reasonable person under the circumstances would find nonconsensual contact offensive.
(eg - surgery by someone other than whom you consented to is battery even if successful)

Question 6

Explain strict liability with livestock animals

Answer 6

The law of strict liability divides animals into three categories: livestock, domesticated animals, and wild animals.
For strict-liability purposes, LIVESTOCK includes animals
(1) that can normally be confined within fixed boundaries without significantly impairing their usefulness and
(2) whose intrusion upon another’s land will normally cause harm to land and crops.
A livestock owner (or other rightful possessor of livestock) is strictly liable for any foreseeable personal injury or property damage caused by trespassing livestock (that is, livestock intruding on another’s land).

• There is no strict liability for harms that would not foreseeably result from a trespass by the particular animal involved.

Question 7

What is the standard of care for a physician?

Answer 7

In most jurisdictions, the applicable standard of care for physicians is that of a typically careful, skilled, and prudent doctor
(1) in the class to which the doctor belongs
(2) acting in the same or a similar factual context.

Question 8

Steps to evaluate negligence per se

Answer 8

1. the law must set forth a mandatory and specific command that some particular thing must or must not be done in a specific situation.
2. the victim must be within the class of persons the law was designed to protect.
3. and relatedly, the law must have been intended to prevent the type of accident that caused the victim’s injury.

If the victim can show that negligence per se applies, and the actor has violated the law, then the victim will have established the elements of DUTY/STANDARD/BREACH

*HOWEVER To recover, the victim must still prove CAUSATION + DAMAGES
*WATCH OUT for McQ’s that say even if Def complied would not have prevented harm

Question 9

If there is no contract in place between two parties, but Def benefits, what are possible arguments of Plaintiff?

Answer 9

BEST - a party may recover in equity on a restitution or unjust-enrichment theory. A restitution-based recovery is measured by the reasonable value of any benefit conferred by the claimant on another party. An action in quasi-contract for the reasonable value of the benefit conferred is likely the best chance of a remedy.

2. PROMISSORY ESTOPPEL provides a basis for enforcing a promise when no binding contract has formed because there is no bargained-for consideration. However, promissory estoppel requires that a promisor make a promise to a promisee.
3. a contract might be reasonably IMPLIED-IN-FACT instead through the parties’ conduct.
4. A THIRD-PARTY BENEFICIARY is not a party to a contract but receives some benefit from a contract. A third-party beneficiary is an intended beneficiary if a reasonable person in the third party’s position would conclude that the parties intended for the third party to have enforceable rights under the contract.
   *In contrast, an incidental beneficiary receives some indirect benefit from the contract. Unlike an intended beneficiary, an incidental beneficiary has no right to enforce the contract.

Question 10

IF a party delegates his duties under a contract, what rights does the original contracting party have?

Answer 10

A delegation transfers the obligation to perform under a contract from an obligor to a third party.

An effective delegation requires the delegator’s and delegate’s mutual assent. Delegation does not require a separate contract, but practically speaking, there is usually a separate contract between the delegator and delegate. In that separate contract, the obligee is an intended third-party beneficiary with a right of enforcement against the delegate.

Question 11

If a party delegates his duties under a contract, what responsibilities does the delegator have?

Answer 11

Unless the obligee consents, a delegation does not relieve the delegator of his duty to the obligee. To discharge the delegator of his duties to the obligee, a novation is required

Question 12

What are the criteria to evaluate an attractive nuisance claim?

Answer 12

(1) the child’s injury arose from an artificial condition on the land;
(2) the possessor knew or had reason to know that children were likely to trespass;
(3) the possessor knew the condition posed a risk of death or serious bodily harm;
(4) the child was unable to appreciate the danger;
(5) the usefulness compared with the danger posed; and
(6) the possessor failed to use REASONABLE CARE UNDER THE CIRCUMSTANCES TO ELIMINTATE the danger or otherwise protect the child trespasser.
*Because the doctrine requires that the injured child be unable to appreciate the danger associated with the condition, the likelihood that the attractive-nuisance doctrine would apply decreases as the child becomes older and, thus, better able to appreciate the danger. EG - a “bright 12 year old” can read and appreciate some dangesrs

Question 13

When can a delay violate due process rights?

Answer 13

Even if a criminal indictment is brought within the prescribed SOL, it may still violate due process.

To establish a due-process violation based on pre-charging delay, a defendant must show that
(1) the government deliberately delayed charging the defendant for tactical reasons or to harass the defendant, and
(2) the delay resulted in actual and substantial prejudice to the defendant.

*However, an unsubstantiated claim that the delay diminished witnesses’ memories or otherwise led to the loss of evidence is INSUFFICIENT to establish prejudice.

Question 14

What is claim preclusion?

Answer 14

An earlier judgment has a claim preclusive effect, when:
1. a valid, final judgment on the merits, involve the same parties or sufficiently related parties as a later action, and
2. involve the same cause of action as a later action.

Judgments NOT adjudicated on the merits, such as:
- a voluntary dismissal without prejudice
- an involuntary dismissal for lack of jurisdiction, improper venue, or failure to join a party,
DO NOT have preclusive effect.

Question 15

What are the requirements for strict liability related to an abnormally dangerous activity?

Answer 15

1. the victim’s injury arose from the abnormally dangerous aspect of the actor’s abnormally dangerous activity.
2. provided the activity is UNUSUAL OR OUT OF PLACE in the community where the injury occurred.
3. carries a high risk of significant harm even if all participants exercise reasonable care
4. harm/risk foreseeable

Question 16

What is the alternative causes doctrine?

Answer 16

the doctrine of alternative liability. This test applies if
(1) multiple actors were negligent;
(2) at least one of the actors caused the victim’s harm; and
(3) it is impossible to tell which actor’s negligence caused the harm.

*If the alternative-causes doctrine applies, the burden at trial will shift to each negligent actor

NOTE **all actors must be shown to have participated in the action that caused the harm.

Question 17

For an abnormally dangerous activity, when can the actor be liable?

Answer 17

An actor may be strictly liable (that is, liable even if the actor exercised reasonable care) for injuries arising from the abnormally dangerous aspect of an abnormally dangerous activity, that is, an activity carrying an inherent high risk of serious harm even if all participants, including the victim, exercise reasonable care.

Question 18

When are co-conspirators statements admissible as non-hearsay?

Answer 18

The FRE excludes from the definition of hearsay a statement that was made by the party’s coconspirator DURING AND IN FURTHERANCE OF THE CONSPIRACY and being offered against an opposing party.
IF THE coconspirator’s statement about the defendant’s involvement in the conspiracy occurred after, and not in furtherance of the conspiracy, this statement is not admissible as a coconspirator’s statement.

Question 19

What are the rules for a past recollection recorded?

Answer 19

a witness may read into evidence a recollection recorded in a hearsay writing if
(1) the witness once knew the recorded information but lacks present recollection of the matter at trial,
(2) the record was made while the matter was fresh in the witness’s mind, and
(3) the record accurately reflects the personal knowledge the witness once had at the time the record was made.

*The proponent of the record may not offer the record itself as an exhibit, but the opposing party may.

Question 20

What does DRIPS stand for in relation to a Witness being unavailable?

Answer 20

Don’t Remember
Refuses
Ill or Dying
Privilege Invoked
Subpoeana can’t reach

Question 21

When can a prior bad act be admitted as evidence in trial?

Answer 21

When it is being offered not to link propensity of the Def to commit the crime, but if for a purpose such as MIMIC
Motive
Intent
Mistake
Identity
Common plan or scheme

Question 22

What are the Hearsay exceptions when the Declarant is UNAVAILABLE?

Answer 22

STDS + 6th
Statement v. Interest
Former Testimony
Dying Declaration
Statement of Family History

+6th Amendment Confrontation Rights

Question 23

What are the Hearsay exceptions when the Declarant is AVAILABLE relating to RECORDS?

Answer 23

BLAGR
Biz Record (except cops in criminal)
Learned Treatise
Ancient Doc (before Jan. 1, 1998)
Gov’t/Public Records
Past Recollection Recorded

Question 24

What are the Hearsay exceptions when the Declarant is AVAILABLE related to CONDITION?

Answer 24

PECS
Present Sense Impression *must be happening or just have happened

Excited Utterance/Spont Stmt

Condition - physical/mental/emo *what am I thinking/feeling at this moment (statements of memory/belieft N/A unless related to a will)

Statement for Medical Treatment

Question 25

What items are considered NON-HEARSAY?

Answer 25

PASSI Prior Inconsistent Statement Act of Legal Significance (verbal) State of Mind of Speaker Show Effect on Listener ID Prior

Question 26

Explain what statement of a party opponent is. Why is statement of a party opponent available as a Hearsay exemption?

Answer 26

Some statements of a party-opponent are exempted from the definition of hearsay because the party has the opportunity to explain, clarify, or mitigate the importance of the statement at trial. Specifically, a statement by an opposing party is not hearsay if the statement is offered against the party who made the statement. This exemption is very broad and covers almost any relevant statement made by an opposing party or a representative of the party. The statement may have been made in an individual or representative capacity and need not have any additional guarantees of trustworthiness. Thus, the statement need not be against interest, made under oath, or offered for a particular enumerated purpose.

Question 27

Explain the State of Mind Hearsay exception

Answer 27

FRE provides an exception for hearsay statements of the declarant’s then-existing state of mind (e.g., motive, intent, or plan) or emotional, sensory, or physical condition (e.g., mental feeling, pain, or health). *the state-of-mind condition had to exist when the statement was made. A statement referring to a declarant’s future intent is also admissible. For example, a declarant’s hearsay statement regarding an intent or plan is admissible to show that the declarant later acted in accordance with that intent or plan.

Question 28

What are EXCLUSIONS from Hearsay?

Answer 28

1. Statement by a Party Opponent (or Co-con, employee, agent) 2. Co-conspirator admissions (Conspiracy existed, statement was made DURING active conspiracy and can be proved independently) 3. Prior Witness Statements

Question 29

What happens if a zoning bylaw and a restrictive covenant contradict each other?

Answer 29

The more restrictive of the two prevails

Question 30

What is the RAP?

Answer 30

A future interest is invalid if there is any possibility that it could vest more than 21 years after the end of all relevant lives in being when the interest is created.

Question 31

Describe a landowner's duties to a LICENSEE v. an INVITEE? what are limitations on duty for a Licensee?

Answer 31

An INVITEE is one on the premises with the possessor’s consent for business dealings beneficial to the possessor A LICENSEE (social license gets less) is one on the premises (1) with the possessor’s gratuitous consent or (2) under some overriding privilege to occupy the premises regardless of the possessor’s consent Landowner must carry on all activities on the premises with reasonable care under the circumstances to avoid creating an unreasonable risk of harm to the LICENSEE, at least insofar as (1) the possessor should expect that the licensee will not discover or realize the danger, and (2) the licensee DOES NOT KNOW or have reason to know of the possessor’s activities or the associated risk. *LICENSEE responsible for risks they know of! (grandpa tripping on toys)

Question 32

What is the standard of care that must be proven in a med Mal case?

Answer 32

Medical malpractice is a specialized negligence claim. If the defendant physician is a specialist, such as an orthopedist, the standard of care is a uniform, national standard of care, namely what a reasonably careful, skillful, knowledgeable, and prudent doctor in the specialist’s discipline would have done under the circumstances. If the specialist fell below this standard of care and, so doing, actually and proximately caused harm to the patient, then the specialist may be held liable OBJECTIVE STANDARD needs to be established by plaintiff

Question 33

What is Battery?

Answer 33

Battery is an intentional tort in which an actor INTENTIONALLY causes harmful or offensive physical contact to a victim. The actor displays the required intent if either (1) his conscious objective is to cause the harmful or offensive contact, or (2) the actor knows, with substantial certainty, that such contact will result from his actions. *the actor's desire to prevent injury is not relevant - look at their intention to contact the plaintiff

Question 34

WHEN is the privilege of necessity applied?

Answer 34

A licensee is one on the premises either (1) with the possessor’s gratuitous consent or (2) with some privilege to be on the land over the possessor’s objection. A trespasser is one on the land without either the possessor’s consent or some overriding privilege to be on the land. In some instances, a possessor of land may be privileged to use nondeadly force to expel a trespasser. But if the occupant has an OVERRIDING PRIVILEGE (EG - NECESSITY) to be on the land, then the possessor may not use force to expel him, for he is a licensee and not a trespasser.

Question 35

What is Trespass to Land?

Answer 35

Trespass to land is the (1) intentional (an act that causes unlawful entry, not intent to enter) and (2) unlawful (3) physical entry onto real property (physical, direct or indirect entry) (4) in possession of another. Accordingly, an actor may commit trespass to land even if the actor reasonably believes that his presence on another’s land is lawful. An actor’s physical entry onto someone else’s real property is unlawful if the actor enters without either (1) consent from the property’s lawful possessor or (2) some other legal privilege to enter the property (eg - NECESSITY). entry beneath the surface can constitute trespass

Question 36

What does subsequent remedial measures exception from hearsay require?

Answer 36

Actual acts - words aren't enough

Question 37

What does business records hearsay exception rule require?

Answer 37

That the records were made in ordinary course of business by someone who routinely performed this. eg - a doc letter to employer saying why a patient had missed work is ad hoc, not a biz record

Question 38

What does hearsay exception of offer to settle require?

Answer 38

That a legal claim/dispute exists already and the statement is made to avoid or settle it. If the declarant was called for help and offers to fix the problem, this isn't enough.

Question 39

When is a dying declaration hearsay exception available?

Answer 39

* In CA only if the declarant dies 2. Declarant must be UNAVAILABLE 3. In homicide cases - no other criminal proceedings 4. In civil cases 5. When the declaration is about the cause of death

Question 40

What happens if a restrictive covenant is violated?

Answer 40

A party might be able to get an injunction or damages - but violation of an RC would not affect title. An RC involves a promise to use/not use land in a certain way, but does not affect TITLE.

Question 41

When does a restrictive covenant become binding?

Answer 41

when it is reflected on the deed at the time of conveyance. *in common plan developments, knowledge that others have RC's on their adjacent lots doesn't affect you if it wasn't on your deed.

Question 42

When is a deed effectively transferred?

Answer 42

When the Grantor has the present intent of transfer - which can be evidenced by words/actions and is rebuttable if PHYSICAL transfer of the deed occurs (handed it to grantee). Recording is irrelevant. The Grantee must ACCEPT the transferred deed.

Question 43

What is estoppel by deed?

Answer 43

Aka AFTER ACQUIRED TITLE. Grantor gives a warranty deed to land he doesn't own. Grantee accepts. Later Grantor acquires the property. At that moment the deed transfer becomes effective (after acquired title). If the Grantor later tries to prevent the transfer, he'll be "estopped" from denying the earlier transfer.

Question 44

What is battery?

Answer 44

Intentional and harmful contact. People consent to the ordinary contact of daily life, eg - touching on subway, unless they make it known otherwise, which would not amount to Battery.

Question 45

What is conversion?

Answer 45

(1) intentionally exercises control over (2) the personal property (chattel) of another and thus (3) seriously interferes with the other’s possessory rights in the chattel. The interference must be so severe as to justify requiring the actor to pay the chattel’s full value, determined at the time and place of conversion. Conversion does not require that the actor intend to interfere with someone else’s possessory rights in chattel. All it requires is the intent to do an act that happens to interfere with those rights. Thus, an actor may commit conversion even if he mistakenly but reasonably believes that the chattel belongs to him.

Question 46

How does implied consent work within a defence to Battery claim?

Answer 46

consent is a complete defense to liability for any intentional tort, including battery. the law will imply consent if an emergency makes it apparently necessary for the actor to make physical contact with the victim, before she can consent, to prevent harm to the victim. However, for implied consent to arise, it is not enough that the actor subjectively intends to help or save the victim. Rather, an emergency must make it apparently necessary for the actor to physically contact the victim to prevent harm to the victim, and the actor must have no reason to believe that the victim would withhold consent if given the chance. Thus, though intent to rescue will often exist in cases involving implied consent, intent to rescue is not, strictly speaking, a legal requirement for implied consent.

Question 47

Who are foreseeable victims of negligence?

Answer 47

Under the prevailing view on the existence and scope of a duty, an actor owes a duty of care only to those whom the actor’s negligence might reasonably foreseeably harm. **Foreseeable victims generally include not only the direct victim, but also those who might foreseeably be injured in assisting the direct victim or, presumably, addressing the consequences of the actor’s negligence.

Question 48

When does the best evidence rule apply?

Answer 48

IF a witness’s only personal knowledge of the facts to which she is testifying comes from having viewed a writing or photograph or having heard a recording, then the best-evidence rule does apply to that witness’s testimony. Under those circumstances, the original of the writing, photograph, or recording must be produced unless an exception applies.

Question 49

How can duress work to disaffirm a contract?

Answer 49

A party may disaffirm a contract on grounds of duress if the party’s assent was induced by an improper threat that left the party no reasonable alternative but to assent. *For duress to apply, the threatened party must have NO REASONABLE ALTERNATIVE but to assent. This rule generally means that the threat, if carried out, would subject the threatened party to irreparable harm. For example, if one party to a contract threatens another party to the contract with nonperformance to induce the other party to agree to a contract modification, there is no duress if the threatened party could find substitute performance at a reasonable, if higher, cost.

Question 50

What is the substantial factor test?

Answer 50

The substantial-factor test for ACTUAL CAUSATION (AS OPPOSED TO PROXIMATE) applies if (1) multiple forces combined simultaneously to cause the victim’s harm, (2) any one of these forces would have been sufficient by itself to cause the harm, and (3) it is impossible to tell which force caused which portion of the harm. *If an actor’s negligence was a substantial factor in causing the harm, then that negligence will be treated as an actual cause of the injury, NOTWITHSTANDING ANY INDEPENDENT FORCES, LIKE A HURRICANE!

Question 51

Can a mortgagor waive her equitable right of redemption in a mortgage contract?

Answer 51

NO Courts almost universally hold that a mortgagor cannot waive their equitable right of redemption before a foreclosure sale, making any mortgage clause attempting to eliminate this right unenforceable. *watch out for McQ's that have mortgage contract limiting mortgagor to a statutory right or other waiver/change of equitable right

Question 52

Does an easement by necessity need to be in writing?

Answer 52

No, exception to SoF

Question 53

What is a valid defence to Battery?

Answer 53

Consent - and if in an emergency, then consent can be implied from the circumstances. *The actor must have reason to believe that the person would not decline to consent if given the opportunity, or else the law will not imply consent. This rule protects so-called Good Samaritans.

Question 54

Explain MALICE with respect to a homicide charge?

Answer 54

Most murder statutes require proof that the defendant acted with malice. Malice does not mean ill will or hatred toward the victim, but rather refers to certain mental states. The contemporary definition of malice includes: 1. an intent to kill or cause grievous bodily harm, 2. an intent to commit a felony other than murder, or 3. knowledge that death or grievous bodily harm is likely.

Question 55

When is a complaint due after being served in a civil matter?

Answer 55

GENERALLY 21 days If a defendant in a civil suit does not waive formal service of process, the defendant must answer the complaint within 21 days of being formally served with process. *In contrast, if a defendant agrees to waive service, he receives extra time to answer the complaint: 60 days from the date of the plaintiff’s waiver request if inside the United States, and 90 days for defendants receiving the waiver request outside the United States.

Question 56

When can you file a motion to dismiss for failure to state a claim?

Answer 56

Unlike motions to dismiss for -lack of personal jurisdiction, -improper venue, -insufficient process, and -insufficient service of process, *A motion to dismiss for failure to state a claim NEED NOT BE consolidated in a party’s initial Rule 12 motion.

Question 57

When do FRE rules not apply in a criminal context?

Answer 57

The Federal Rules of Evidence apply to criminal cases and proceedings, but not to: - grand-jury proceedings; -proceedings related to issuing an arrest warrant, criminal summons, or search warrant; or -proceedings in which the court considers bail, supervised release, or probation.

Question 58

Who can give an opinion on a Defendant's mental state if it is an element of their criminal offence?

Answer 58

An opinion on an ultimate issue, whether from a lay witness or an expert witness, is admissible if it is helpful to the trier of fact. However, an expert opinion on the ultimate issue of whether a defendant in a criminal case had the mental state required as an element of a charged crime or defense is inadmissible under FRE. *A lay witness is allowed to opine on a criminal defendant’s mental state if the foundational requirements for lay testimony are otherwise met.

Question 59

What is Assault?

Answer 59

Assault is typically defined as either (1) an attempted battery or (2) intentionally placing another in reasonable apprehension of an imminent battery.

Question 60

Is it a crime to keep lost property that you find?

Answer 60

A person can commit larceny by keeping lost, mislaid, or misdelivered property. The elements of that type of larceny are that (1) the person comes into control of property of another (2) that she knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient and (3) with purpose to deprive the owner thereof (4) she fails to take reasonable measures to restore the property to a person entitled to have it.

Question 61

Are you guilty of kidnapping if you move someone only a small distance?

Answer 61

Under the Mode Penal Code, kidnapping requires removing the victim from his place of residence or business, or a substantial distance from the vicinity where he is found, for a specified purpose. Slight movement of the victim incidental to the commission of another crime is insufficient. *C/L it is sufficient to have small distance movement

Question 62

What is the appellate court standard of review for: 1. Matters of law; and 2. Matters of evidence?

Answer 62

1. De Novo 2. The appellate standard of review for determining whether evidence should have been excluded as irrelevant or highly prejudicial is abuse of discretion.

Question 63

What is required of an expert in order to provide testimony? Explain the FRE test and CA test

Answer 63

Expert testimony must be RELIABLE and RELEVANT. The United States Supreme Court in Daubert defined a flexible test consisting of five nonexclusive factors regarding the reliability of expert testimony: (1) the testability of the technique or theory; (2) peer review or publication, if any, of the technique or theory; (3) the rate of error; (4) the existence and maintenance of standards and controls; and (5) the degree of general acceptance of the technique or theory in the scientific community. Kelly-Frye test in CA is mostly on #5 - scientific method used is generally accepted by community

Question 64

What is involuntary manslaughter at C/L?

Answer 64

At common law, involuntary manslaughter can be committed in one of two ways: criminal-negligence manslaughter and unlawful-act manslaughter. Criminal negligence manslaughter occurs if a defendant causes a victim’s death without malice aforethought, but under circumstances manifesting a grossly unreasonable disregard of a foreseeable and unreasonable probability of death to another. Unlawful-act manslaughter occurs if the victim’s death results from the defendant’s unlawful act that is not inherently dangerous, such as a misdemeanor, or in some jurisdictions, a felony that does not trigger the felony-murder rule.

Question 65

What is the contracts clause of the constitution? Who does it apply to?

Answer 65

If a court finds that a STATE LAW substantially impaired a contractual relationship, then the state must show (1) the law serves a significant and legitimate public purpose, and (2) the impairment is reasonable and appropriately tailored to that purpose. *Under this standard, states may impair contracts to meet SOCIAL EMERGENCIES and to achieve goals within the scope of their police powers. Should not target individuals. *Look out for McQ's that involve Fed action - contracts cl does not apply to Fed, only to State action. If Fed law interferes with a K it is prob a TAKINGS action, not a contracts cl action

Question 66

What does the Free Exercise clause provide?

Answer 66

the government “shall make no law . . . prohibiting the free exercise [of religion] . . . .” This clause generally prohibits the federal and state governments from enacting laws that DISCRIMINATE AGAINST OR EXCESSIVELY INTERFERE with a person’s exercise of religious beliefs. Laws that only incidentally burden religion are reviewed differently from laws that deliberately target or penalize religion. Thus, if a generally applicable law only incidentally burdens religion, the law is subject to MINIMAL SCRUTINY = law valid, plaintiff burden, legit and rationally related

Question 67

What does the necessary and proper clause provide?

Answer 67

That Congress take any actions necessary to legislate/enact - stemming from Constitutionally enumerated rights/powers. If not in Const, then necessary/proper is not applicable

Question 68

What does the taxing power of Congress provide?

Answer 68

authorizes Congress to raise revenue for the federal government through taxation (for defence or general welfare). The USSC has interpreted Congress’s taxing power broadly. Courts will generally uphold a tax if it (1) produces some revenue and (2) does not function as a penalty. *Congress may also use the taxing power to incentivize or discourage behavior, e.g., by imposing a tax for doing or failing to do something. *watch for mcQ's that look like they are discriminating against a group (only state B mines alpha mineral), but the language of the statute applies to all = if applies to all then const

Question 69

When are set asides proper?

Answer 69

Under equal-protection jurisprudence, governments may not treat similarly situated individuals or classes of individuals differently without sufficient justification. *In a set-aside, a certain portion of a contract, or a portion of a set of contracts, is reserved for businesses owned by racial minorities. Applying strict scrutiny, the United States Supreme Court has struck down this practice if the government uses it to address GENERAL SOCIETAL DISCRIM. **On the other hand, the Court has found that set-asides serve a compelling government interest, and are therefore permissible, if the government is attempting to correct injustice resulting FROM ITS OWN past racial discrimination.

Question 70

What does a Pl require to have standing in Fed case pursuant to Constitutional justiciability rules (not civ pro rules)?

Answer 70

To have Article III standing, a plaintiff must prove (1) an injury in fact (concrete, specific, actual, imminent - affects Pl personally. Already happened or reas imminent) (2) that was caused by the defendant and (3) that is redressable by the courts.

Question 71

When can a state burden interstate commerce?

Answer 71

Despite the Dormant Commerce Clause, a state may burden, discriminate against, or otherwise regulate interstate commerce if Congress has EXPRESSLY AUTHORIZED the state to do so OR the non-residents are the source of the evil the gov't intends to correct and the law directly addresses.

Question 72

When does the Supreme Court have original jx? When does USSC have appellate jx?

Answer 72

original jurisdiction over cases in which a state is a party and cases involving ambassadors, public ministers, and consuls. In all other cases, the Court’s jurisdiction is appellate, meaning that it may review a lower court’s FINAL decision.

Question 73

When can an easement be validly reserved upon transfer of prop?

Answer 73

A grantor creates an express easement by reservation when conveying property but retaining an easement for their own benefit, and in most jurisdictions, this easement CANNOT BE reserved in favor of a third party.

Question 74

When can a court order a new trial or change a jury's verdict?

Answer 74

Under Rule 59, a court in its discretion may order a new trial based on 1. the court’s belief that the jury’s verdict is against the manifest weight of the evidence. 2. A court also has the power to reduce the size of a jury’s verdict in a process called remittitur. *Remittitur can be justified if the verdict was so large as to shock the conscience, was the result of passion or prejudice, or was against the manifest weight of the evidence. *In ruling on a motion for a new trial, a court therefore may combine its powers and order a new trial unless the party who won at trial agrees to accept a reduced damages award.

Question 75

What burden of proof applies to sentencing factors?

Answer 75

In criminal cases, the Due Process Clause of the Fifth Amendment requires the government to prove every element of a criminal offense beyond a reasonable doubt; HOWEVER, sentencing factors do not require this level of proof unless they would increase the penalty beyond the statutory maximum.

Question 76

When is a zoning ordinance not constitutional?

Answer 76

Zoning regulations are constitutional under state police powers unless they are arbitrary, unreasonable, or unrelated to public welfare, but spot zoning, which treats one parcel differently from others in the same area, is generally not allowed.

Question 77

When can a contract be rescinded?

Answer 77

Parties may validly rescind a contract as long as both parties have remaining duties of performance, but if only one party has duties remaining and the other has fully performed, the rescission is invalid.

Question 78

Voluntary M/S definition at common law v. MPC?

Answer 78

Under C/L voluntary manslaughter is an intentional homicide in which the defendant’s malice is mitigated by passion and provocation, with the defendant acting immediately without time to cool off. Under MPC = extreme emotional or mental disturbance

Question 79

When are restitution damages appropriate and when can they NOT be claimed?

Answer 79

Typically, a nonbreaching party will choose to recover expectation or reliance damages rather than restitution damages, but restitution damages are available and may provide a larger recovery if the nonbreaching party would have sustained a loss on the contract; HOWEVER, a nonbreaching party cannot recover in restitution if they have fully performed and the other party's sole remaining duty is the payment of a fixed sum, with the contract price THEN being the limit of recovery.

Question 80

Where is venue proper?

Answer 80

venue is proper in (1) a judicial district in which any defendant resides, ONLY IF ALL defendants reside in the same state; (2) a judicial district in which a substantial portion of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or (3) if there is no district in which an action may be brought as provided in (1) or (2), in ANY judicial district in which ANY defendant is subject to the court’s personal jurisdiction.

Question 81

What are the two main types of errors that can exist in trials and what is the result of each?

Answer 81

trial error and structural error. For TRIAL errors, the prosecution has the burden of proving beyond a reasonable doubt that the error was harmless, meaning that the defendant would have been convicted even without the error. Decisions concerning the admission of evidence are usually trial errors subject to harmless-error analysis. STRUCTURAL error is an error that fundamentally undermines the reliability and fairness of the trial. Unlike trial errors, structural errors require REVERSAL of the trial judgment AND DO NOT require proof that the result would have been different. ex - denial of the defendant’s right to self-representation, a biased trial judge, or the improper denial of a public trial by closing the courtroom.

Question 82

When does trespass occur?

Answer 82

Trespass occurs when an actor physically enters someone else's real property without consent or legal privilege, which requires causing a physical object to enter the property and DOES NOT include intangible phenomena like light, sound, or smells.

Question 83

If a judgment is based on incorrect case law, what could the Court do if this is brought to their attention?

Answer 83

FRCP 59 sets out procedures for moving for a new trial or to alter or amend the judgment. It provides procedures for litigants in both jury trials and bench trials. *A party moving under Rule 59 following a nonjury trial must show a manifest error of law or mistake of fact. In ruling on the motion, the district court may, in its discretion: 1. open the judgment if one has already been entered, 2. take additional testimony and evidence, 3. amend findings of fact and conclusions of law (or make new ones), and 4. direct the entry of a new judgment.

Question 84

What can a prior inconsistent statement be used for at trial v. former testimony?

Answer 84

A party may impeach a witness's credibility by introducing evidence of prior inconsistent statements, which are extrinsic and often hearsay, and under the FRE, these statements are admissible only for impeachment, not as substantive evidence. Former Testimony made under oath can be used for impeachment AND as substantive evidence.

Question 85

When does a lineup require counsel?

Answer 85

The Sixth Amendment right to counsel attaches to critical stages of pretrial proceedings. Therefore, a suspect has a right to counsel during any identification procedure once adversarial proceedings have begun, even pre-indictment. A post-indictment, pretrial lineup is a critical stage of a criminal proceeding to which a defendant has the right to the assistance of counsel. Testimony from a post-indictment, pretrial identification made without counsel is inadmissible at trial without the defendant’s intelligent waiver of the right to counsel.

Question 86

When would JMOL be awarded?

Answer 86

A motion for JMOL asks the court to bypass the jury to enter judgment in favor of the moving party on a particular claim or defense. To succeed, a movant must show that there is NO LEGALLY SUFFICIENT EVIDENCE to support a verdict for the nonmovant, such that a reasonable juror could only conclude in the movant’s favor. *In deciding a motion for JMOL, a court may not weigh the evidence or make credibility determinations. In making a JMOL determination, the court views the evidence in the light most favorable to the nonmoving party. If there is conflicting witness testimony on a claim or defense, then JMOL on that claim or defense is inappropriate.

Question 87

When can claim preclusion be used against a different party than was in the original litigation?

Answer 87

Claim preclusion prevents a claimant from splitting his cause of action; when the claimant loses a judgment, all possible grounds for relief arising out of the same transaction or occurrence are barred in future litigation between the same parties. Although claim preclusion typically operates to prevent relitigation between the same parties, it also operates in favor of ENTITIES THAT ARE IN PRIVITY with the parties. EG - a company is in privity with its truck driver (based on the employer-employee relationship), so the company cannot be found liable for the drivers acts if he is not found liable in the first trial.

Question 88

What happens if a plaintiff voluntarily dismisses a complaint two times?

Answer 88

Fed rules of Civ Pro rule 41 provides that a second voluntary dismissal of the same claim(s) operates as an adjudication on the merits. Therefore, the plaintiff cannot refile the same claim(s).

Question 89

What is the difference in the necessity defence from public nuisance to private nuisance?

Answer 89

The necessity defense allows trespass or conversion to avoid greater harm, with public necessity being a complete defense for averting imminent public harm; in contrast, private necessity, a partial defense, applies to preventing serious harm to a person or property but requires compensation for any resulting damage.

Question 90

What is the UCC rule for instalment contracts if one delivery is not perfect tender?

Answer 90

The Uniform Commercial Code governs contracts for the sale of goods and generally requires perfect tender, allowing a buyer to reject goods that fail to conform to the contract in any respect; HOWEVER for installment contracts a buyer may cancel only if a nonconforming installment SUBSTANTIALLY IMPAIRS the value of the entire contract.

Question 91

When can a Witness testify about out of court events?

Answer 91

Testimony about out-of-court events that are not out-of-court statements is not hearsay, because such testimony does not describe the content of an out-of-court utterance ex - I saw [X...] this happen is an OOC event, not "a statement" (statements can be oral or expressive, eg. pointing)

Question 92

What can a witness be asked about in the realm of character evidence?

Answer 92

If evidence of a person’s character is admissible, a party may ask a character witness about specific instances of the person’s conduct during cross-examination to test the witness’s knowledge and credibility; however, prior conduct of an extremely personal or private nature (extra marital affairs, for ex) may be outside the scope of testing the character witness’s knowledge or credibility with respect to the person.

Question 93

What does Pike balancing test state?

Answer 93

A generally applicable state law that does not facially discriminate against interstate commerce is valid under these negative implications from the Commerce Clause if (1) the law has a legitimate objective, (2) the law is rationally related to that objective, and (3) the burdens imposed on interstate commerce are not clearly excessive when compared to the local benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

Question 94

When is a contract for goods still valid even though the offeree adds extra terms?

Answer 94

Under the UCC, an acceptance of an offer is effective even if it states additional or different terms, UNLESS the acceptance is expressly conditioned upon the offeror’s assent to the additional or different terms.

Question 95

When can you enter evidence of prior crimes involving trustworthiness?

Answer 95

A court must admit evidence of crimes involving a witness’s character for truthfulness, regardless of the type of crime, the type of witness, or how prejudicial the evidence is.

Question 96

What are reasons you can ask for relief from a court judgment? When do you have to file by?

Answer 96

Under FRCP Rule 60, a party may move for relief from judgment on various grounds, such as mistake, newly discovered evidence, fraud, a void judgment, satisfaction or discharge of the judgment, or any other justifiable reason. A Rule 60 motion is required to be made within a reasonable time and, for grounds of: mistake, newly discovered evidence, or fraud, WITHIN 1 YEAR of the judgment.

Question 97

If someone purchases 2 adjoining lots that have an easement, what happens to the easement?

Answer 97

Easements are terminated by merger, that is, when the same person owns both the servient and dominant estates. Subsequent transfer of the separate properties does not revive a terminated easement.

Question 98

How does the Model Penal code treat C/L felony murder?

Answer 98

The Model Penal Code does not include common-law felony murder but defines murder as a reckless killing under circumstances showing extreme indifference to human life, allowing a defendant to avoid murder liability by rebutting the presumption of recklessness and extreme indifference during the commission of certain felonies.

Question 99

What is the standard of review applied by an appellate court on a trial court's factual findings?

Answer 99

CLEARLY ERRONEOUS A factual finding is clearly erroneous if the appellate court has a definite and firm conviction that the district court made a mistake.

Question 100

What are the elements of trespass to chattel? Are you guilty if you think the property is yours?

Answer 100

Trespass to chattel arises if an actor (1) intentionally exercises control over (2) the personal property (also sometimes called chattel) of another and thus (3) interferes with the other’s possessory rights in the property. YES guilty even if you think the property is yours bec elements require control and interference.