Con, Civ Pro, Evid Flashcards
1
Q
AIS
A
The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on adequate and independent state grounds.
2
Q
“Third-party standing”
A
A person cannot generally raise the rights of someone else.
Exception: Parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction.
3
Q
Examples of Non-Justiciable Political Questions
A
- Guarantee Clause (protecting the republican form of government)
- Foreign Affairs
- Impeachment Procedures
- Political gerrymandering
4
Q
Commerce Clause
A
Congress can regulate:
- The channels of interstate commerce
- The instrumentalities of interstate commerce
- Intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce
5
Q
Taxing Power
A
Must be rationally related to raising revenue
6
Q
Congress and the Thirteenth
A
Congress has broad power to legislate against racial discrimination, whether public or private
- includes purely private racial discrimination
7
Q
Congress and the Fourteenth
A
Power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts
- legislation must have “congruence” and “proportionality.” That is, there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by the Supreme Court
8
Q
Congress and the Fifteenth
A
Power to ensure no racial discrimination in voting
9
Q
Presidential Veto Power
A
10 days to veto
any reason or no reason
Overriding a veto requires a 2/3 majority of each house
10
Q
Treaties
A
Negotiated by President
Require approval by 2/3 of the Senate. Once ratified, same authority as statute.
11
Q
Delegation of Powers
A
Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power.
12
Q
Comity Clause
A
Privileges and Immunities of State Citizenship under Article IV
There can be no requirement of residency for private employment.
13
Q
Dormant Commerce Clause
A
In the absence of federal regulation, state regulation of commerce is valid so long as:
1) No discrimination against out-of-state interests;
2) Regulation does not unduly burden interstate commerce; and
3) Regulation does not apply to wholly extraterritorial activity
14
Q
Exceptions to No Discrimination Against Out-of-State Interests
A
- State as Market Participant
- Subsidies
- Federal Approval
15
Q
State Taxation of Interstate Commerce
A
Discriminatory: Struck down unless Congress consents
Non-Discriminatory: Upheld unless unduly burdensome
1) Substantial nexus between the taxing state and the property or activity to be taxed
2) Fair apportionment of tax liability among the states
16
Q
Interstate Compacts
A
Agreements among states
States can make interstate compacts, but if the compact affects federal rights, Congress must approve
17
Q
Full Faith and Credit Clause
A
States don’t have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdiction to render a final judgment on the merits
18
Q
PDP: State Action
A
Government action.
Cannot:
- Facilitate private discrimination
- Profit from private discrimination
- Enforce a private agreement to discriminate
Not required to prevent private discrimination
19
Q
PDP: Deciding what kind of process is due
A
Balance:
1) Individual interest at stake (life, liberty, or property);
2) The value of the procedure in protecting that interest; and
3) The government interest in efficiency and cost.
20
Q
Federal Alienange
A
- Congress has plenary power over citizenship and naturalization
- Federal classifications based on US citizenship do not require strict scrutiny
Federal classification valid unless ARBITRARY and UNREASONABLE
21
Q
State and Local Alienage
A
States and localities cannot require US citizenship for access to private employment or for government benefits
- can bar non-US citizens from jobs that have a particular relevance to the role of government
- can require US citizenship for participation in government functions (voting, serving on jury, working in any kind of government)
22
Q
Vote Dilution
A
Racial gerrymandering
Unconstitutional if done with a discriminatory purpose
23
Q
Bill of Attainder
A
Legislative punishment imposed without judicial trial
Unconstitutional
24
Q
Ex Post Facto
A
Unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies retroactively or by increasing the penalty for past conduct
25
Contract Clause
Bars states from legislative impairment of existing contracts, unless there is an overriding need
26
Lemon Test
Establishment Clause
- Secular purpose
- Primary effect that neither advances nor inhibits religion
- avoids excessive entanglement with religion
27
Laws Regulating Expressive Conduct
Upheld if:
- Further an important interest;
- Interest is unrelated to the suppression of expression; and
- Burden on expression is no greater than necessary
28
TPM
Principally in a public forum
1) Content-neutral (on face and as applied)
2) Alternative channels for communication left open
3) Narrowly tailored to serve a significant state interest
Nonpublic: any reasonable regulation
29
Obscenity
- Sexy: appeal to prurient interest
- Society Risk: Patently offensive to average person in society
- Standards: must be defined by proper standards for what is obscene, not vague and/or overbroad
- Serious value: lack artistic, scientific, educational, or political value
30
Regulation of Commercial Speech
Most regs struck down, so long as advertising is truthful and informational it must be allowed.
Regulation must directly advance a substantial government interest and be narrowly tailored to that interest
31
Regulatory Taking
Generally, a governmental regulation that adversely affects a person's property interest is not a taking, but when a regulation so substantially hinders a person's property interest as to make it virtually useless, the law may be considered a "regulatory taking."
1) Economic impact of the regulation on the property owner;
2) Extent to which the regulation interferes with the owner's reasonable, investment-backed expectations regarding the use of the property;
3) the character f the regulation (benefit to society, burden/benefit to property owners, owner's rights)
32
DJ Exceptsion
Probate and domestic relations actions cannot be brought in federal court under diversity jurisdiction.
33
Minimal Diversity Circumstances
- Federal Interpleader Act
- Class Actions with claims more than $500
- Interstate Mass Torts
34
Agreggation
One v One: can aggregate
One v Multiple: Yes if jointly liable, otherwise each D must meet AIC
Multiple Ps: Each P must meet AIC
- Supplemental: one P exceeds AIC then add'l Ps can be heard if 1) same tx/occur AND 2) diversity maintained
35
AIC Counterclaims
Does not need to exceed $75k if compulsory. Does if permissive.
36
Supplemental Cross-Claims
Supplemental Applies
- common nucleus of op fact with main claim
- does not matter if not diverse from co-P/D or amount
37
Multiple Ps/Permissive Joinder/Class Action
If claim of one diverse P against D1 satisfies amt, otherwise divers Ps who have related claim against D1 sharing common nucleus of op fact can also be heard even if their claims do not satisfy jx min.
38
SuppJ Not Permitted
- Claims against impleaded Ds under Rule 14
- Claims against Ds joined as necessary under Rules 19 and 20
- Claims by plaintiff intervenors under Rule 24
- Claims by Ps joined involuntary under Rule 19
39
Diversity Removal
AIC and Diversity met PLUS action brought in state of which no D is a citizen
must remove within 1 yr of commencement unless P acted in bad faith to make case non-removable
40
PJ Due Process
requires min contacts, such that consistent with fair play and substantial justice
- purposeful availment
- foreseeability
41
PJ Federal Exceptions
Federal Interpleader Act: nationwide Service
Bulge Provision
- impleading third-party Ds under Rule 14
- joining necessary parties under Rule 19
42
Federal Service on Individual
- Personal
- Dwelling or usual place of abode with person of suitable age and discretion
- authorized agent
Foreign Countries:
- registered mail, return receipt requested
43
Proper Federal Venue
- Where any D resides, if ALL Ds reside in same state; or
- where the claim arose ("substantial part of event or omissions" or property)
If neither:
- any district where D has been served
Auto proper when removed where the state court sits
44
Rule 15 Amendments (Relation Back)
Courts should allow P leave to amend C unless would cause undue prej to D
New Claim:
- orig C timely;
- new C arose same tx/occur
New Party:
- C same tx/occur
- new party received notice w/in 120 days of C
- new party knew/should have know action would have been brought against him but for a mistake of identity
45
Compulsory Joinder (Rule 19)
1) Party necessary
2) PJ over new party
3) SMJ (does not destroy diversity)
46
Necessary Party
- Court cannot afford complete relief without the party;
- Danger that the party would be harmed without joining; or
- Risk of inconsistent judgment or double liability
47
Factors if Party Necessary but would destroy diversity
1) Extent to which judgment would prejudice parties in person's absence;
2) Extent to which prejudice would be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether a plaintiff would have an adequate remedy if action were dismissed for nonjoinder
48
Claim Preclusion (Res Judicata)
- Same P and D
- Lawsuit 1 ended in valid final judgment
- Claimant is asserting the same claim as in lawsuit 1
49
Issue Preclusion (Collateral Estoppel)
- same issue actually litigated
- valid final judgment on the merits
- issue was essential to the judgment
- fair for the new plaintiff to assert the same issue
50
Permissive Joinder
any number if claims arise out of same tx/occur AND common question of law or fact
Cannot defeat diversity
Supplemental applies if diversity maintained
51
Intervention
Outsider volunteers to enter lawsuit
As of right: when outsider claims may be compromised by disposition of pending action
Permissive: common Q of law or fact
NO SUPPLEMENTAL JX
52
Interpleader
Resolve problem of competing claims to same property
Fed Interpleader Act
- Supp JX exceed $500
- Nationwide service
- Venue where any claimant resides
- Minimal SMJ
53
Counterclaims
Compulsory (lost if not pleaded): same tx/occur
Permissive: Require independent JX base because not same tx/occur
54
Impleader (Third-Party Practice)
- Citizenship of TP D does not matter
| - AIC against TP D does not matter
55
Class Action
Numerousness
Common Q of law/fact
Typicality of claims by reps
Adequacy of representation
56
Class Action Fairness Act of 2005
- More than 100 members
- More than $5M
- Minimal diversity
57
Oral Deps
- under oath
- 10 unless more allowed
- 1 day, 7 hours unless allowed
- any notice to party
- subpoena to nonparty
58
Interrog
- Only against parties
- 25 unless allowed more
- responses in 30 days
59
Physical and Mental Exams
only if condition in controversy and good cause shown
60
Immediate Sanction Imposition
1) Failure to attend own dep
2) Failure to respond to Rogs
3) Failure to respond to request for docs or things
61
Electronically Stored Info
Should be preserved
If lost through unrx cond, ct may order measures to cure prej to other party
if destroyed with intent to prej, may instruct jury to presume info unfavorable
62
Judgment as a Matter of Law
by D at close of Ps case, or both sides at close of ALL evidence
viewing the evidence in light most favorable to the opposing party, the evidence cannot support a contrary verdict
63
Final Judgment Rule
appeals lie only from final judgments
- resolves all claims of all parties on the merits
notice of appeal filed w/in 30 days of entry of judgment (tolled by rJMOL or new trial motion)
64
Interlocutory Orders
Immediately Appealable
- Injunctions
- Any order changes or affects possession of property
Discretionary
- involves a controlling question of law; AND
- immediate appeal materially advances the termination of the litigation
65
Appellate Standars of Review
Questions of law: De Novo
Jury Verdicts: affirmed if supported by substantial evidence
Judges Facts: affirmed unless clearly erroneous
Judges Conclusions of law: De Novo
Matters of Discretion: abuse of discretion
66
Fair Play and Substantial Justice
- interest of the forum state in adjudicating the matter
- burden on D of appearing in the case
- interest of the judicial system in the efficient resolution of controversies
- shared interests of the states in promoting common social policies
67
Evidentiary Ruling Challenge
- Affects a Substantial Right
- Notifies Judge
1) Objection/M2S (specific ground)
2) Offer of Proof (Relevance and Admissibility)
68
Witnesses who may not be excluded
- parties
- officer/employee corporate rep
- Advisory or Expert witness
- victim
69
Relevance
Probative: any tendency to make fact more/less probable
Material: Is of consequence in determining the action
70
403
Probative value is substantially outweighed by danger of:
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay/waste of time
- needles presentation of cumulative evidence
71
Defendant Character Civil
- Inadmissible to prove conforming conduct
- Admissible if essential element of claim or defense
Reputation, Opinion OR Specific Instance
72
Defendant Character Criminal
Defendant may FIRST present positive character evidence inconsistent with type of crime being charged (opinion or reputation)
Prosecution may THEN introduce negative character evidence relating to the same trait
NO SPECIFIC INSTANCES unless MIMIC
73
Victim Character Criminal
Defendant may introduce if relevant to one of the defenses (opinion or reputation)
Prosecution may then offer good character evidence
74
Post-Trial Juror Witness
May:
- extraneous prejudicial information
- outside improper influences
- mistake in entering verdict on form
May not:
- statements during deliberation
- effect of anything on particular juror's vote
- any juror's mental state
75
Dead Man Statute
A party that has a financial interest in a civil case is prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate.
STATE ONLY (or fed if state law applies)
76
Witness's Character for Truthfulness
Reputation, Opinion, may ASK about specific instances on cross (regarding witness or another witness if GOOD FAITH BELIEF IN MISCONDUCT)
77
Impeachment with Criminal Conviction
Dishonest Crime 10 years: yes
Other Serious Crimes
- Criminal Defendant: prob val outweighs prej effect
- Other Witness: MUST unless prob val subst outweighed
More 10 yrs: Flips 403 and prob val substantially outweighs risk of unfair prej PLUS notice to opposing counsel
78
Juvenile Convictions
Cannot impeach defendant
Can impeach witness if
- CRIMINAL case
- would be admissible if adult conviction would be
- necessary for fair determination of guilt or innocence
79
Prior Inconsistent Statement (Impeachment)
May impeach
does not need to be sworn
EE ok but must have opp to explain (not for collateral matter)
No need to explain if
- impeaching hearsay
- admission of party opponent
80
Bias
- relationship to party or victim
- interest in outcome
- interest in testifying
Foundation must be laid of EE
81
Present Recollection Refreshed
- examine anything
- may not use while testifying
- not introduced into evidence
Opposing Counsel
- right to see and inspect
- can introduce into ev
82
Past Recollection Recorded
A memorandum or record regarding a matter about which a witness once had knowledge, but now has insufficient recollection upon which to testify
May be admitted into evidence
83
Qualifying Expert
1) possess knowledge, skill, experience, education, or training
2) based on sufficient facts or data
3) product of reliable principles and methods
4) principles and methods applied to the facts
Reasonable degree of certainty
84
Authenticating X-Rays or Electrocardiograms (PMOC)
1) accurate PROCESS
2) MACHINE working properly
3) qualified OPERATOR
4) show chain of CUSTODY
85
Ancient Docs
i) More than 20
ii) condition not suspicious
iii) place where likely found
86
Handwriting Verification
CANNOT BECOME FAMILIAR WITH HANDWRITING FOR LITIGATION PURPOSES
Trier of Fact Comparison
Non-Expert with personal knowledge
87
Telephone Verification
- recognize voice
- speaker knew facts that only particular person would
- ID self after calling number believed to be his
- business number and spoke about regular business
88
Original Unavailable and Duplicate Will Suffice
- all originals lost or destroped
- not obtained through judicial process
- party against whom fail to produce after notice
- collateral matter
89
Inadvertent disclosure of protected information
No waiver if
- took rx steps to PREVENT; and
- took rx steps to RECTIFY
90
No Physician Privilege
- info for reasons other than treatment
- phys condition at issue
- part of commission of crime or tort
- dispute between
- contractually waived
- fed court and state law not apply
91
No Psychotherapist Privilege
- mental condition at issue
- communication part of court-ordered exam
- case is commitment proceeding against patient
92
Subsequent Remedial Measures
Inadmissible to prove negligence, defective product or design, or culpable conduct
May show ownership/control or for impeachment
93
Compromise Offers or Negotiations
Offers, conduct, statements during not admissible
EXCEPT
- negotiation w/ gov't agency may be use in later criminal
- bias, prejudice of witness, obstruction, negate claim of delay
94
Victim's Sexual Conduct
Behavior/disposition not admissible (even for impeachment)
Criminal Exceptions:
- source of semen/injury
- victim consent
- if offered by prosecution
Civil Exceptions:
- Victim places into controversy
- probative value substantially outweighs any unfair prejudice
14 DAYS NOTICE
95
Defendant Sexual Conduct
Criminal: admissible if accused of sexual assault, rape, or child molestation
- can be used for propensity
- 403
15 DAYS NOTICE
96
Not Offered to Prove Truth of Matter Asserted
- Legally operative fact (statement was made)
- Effect on Listener
- Mental State/State of Mind
- Impeachment
97
Non-Hearsay
- Prior inconsistent under oath (substantive and impeach)
- Prior consistent oath or not (before reason to fabricate)
- Prior identification
- Party (or representative) admission
98
Adoptive Admission
- party present, heard, understood
- ability and opportunity to deny
- reasonable person similarly situated would have denied
99
"Unavailable"
- Privilege
- Refuses despite court order
- Unable (death, infirmity, physical/mental disabled)
- Absent and cannot otherwise be made to hear
100
Five Unavailable Declarant
1) Former Testimony
2) Dying Declarations
3) Statements Against Interest
4) Statement of Personal/Family History
5) Unavailable due to wrongdoing
101
Declarant Availability Immaterial
1) Present Sense Impression
2) Excited Utterance
3) Statements of Mental, Emotional, or Physical Condition
4) Purposes of Medical Diagnosis/Treatment
5) Record Recollection
6) Business Records
7) Public Records
8) Learned Treatise
9) Judgment of a Previous Conviction
10) Residual/Catchall (807)
102
Recorded Recollection Hearsay
- about matter witness once knew about
- made/adopted while matter still fresh in mind
- record accurately reflects knowledge
- witness cannot recall well enough to testify
(may read into evidence)
103
Business Records Hearsay
- kept in course of reg. cond. business activity
- making was regular practice
- made at/near time by someone with knowledge
