Crim Pro Flashcards
Incompetency to stand trial
A defendant is incompetent to stand trial under the due process standard if, because of her present mental condition, she either: (i) lacks a rational as well as a factual understanding of the charges and proceedings; or (ii) lacks sufficient present ability to consult with her lawyer with a reasonable degree of understanding. Incompetency to stand trial does NOT depend on the defendant’s mental condition at the time of the crime. It depends on a defendant’s mental condition at the time of trial, unlike insanity, which turns on a defendant’s mental condition at the time of the crime. Incompetency is NOT a defense to the criminal charge; it is a bar to trial.
Peremptory Challenge: Race or Gender
In exercising a peremptory challenge, neither the prosecutor nor the defendant may exclude a juror based on the potential juror’s race or gender.
Foreclosure: Judicial Sale
Foreclosure is a process by which the mortgagor’s interest in the property is terminated. Almost all states require foreclosure by sale, in which the land is sold to satisfy the debt in whole or in part. All states—NOT only a minority of jurisdictions—allow judicial sale. About one-half also allow nonjudicial sale under a power of sale, but often only for deeds of trust and not for mortgages. Foreclosure sales ARE conducted by auction, with the highest bidder taking the property, even if they are judicial sales. The lender may bid at the sale, and in many cases the lender is the sole bidder.
Life Tenant: Mining Profits
A tenant for life is entitled to all the ordinary uses and profits of the land during his life. However, a life tenant usually does not have the right to exploit natural resources on the property. There is an exception to that rule: When prior to the grant, the land was used in exploitation of such natural resources, so that in granting the life estate the grantor most likely intended the life tenant to have the right to exploit, the life tenant may do so. In addition, the more restrictive open mines doctrine provides that if minerals were already being extracted, the life tenant may continue but is limited to the mines (or wells) already open.
Assignments: When Writing Required
A writing is usually not required to have effective assignment, but an assignment of wages must be in writing. Whether an assignment is for value does not affect whether the assignment must be in writing. Neither an assignment of the right to proceeds under an insurance contract nor an assignment of proceeds from the sale of real property need be in writing. While an assignment of the proceeds of sale need not be in writing, an assignment of an interest in the real property itself requires a writing.
Reservation of Annual Rent: Due Monthly
The majority view is that a lease at an annual rent, payable monthly, creates a periodic tenancy from year to year, and not a month-to-month periodic tenancy. A tenancy at will is a tenancy that continues only until the landlord or the tenant gives notice and time to quit. Although a tenancy at will can arise when a lease has no set termination date, a provision requiring annual rent payments will convert it to a periodic tenancy. A tenancy for years is a tenancy that continues for a fixed period of time and then ends automatically on its termination date. A lease with no stated duration is not a tenancy for years.
Products Liability Based on Intent
A products liability action based on intent arises when the product seller knows that harm is substantially certain to occur to the buyer from using the defective product; this establishes the requisite intent for the intentional tort of battery. Products liability cases may be based on negligence, strict liability, and breach of warranty, but these actions are defined differently and do not require the product seller to know that harm is substantially certain to occur.
Free Speech: Public Monument
Placement of a permanent monument in a public park is not protected speech within the First Amendment. The First Amendment restricts government regulation of private speech; it does not address or limit government speech. A permanent monument on public land is considered government speech and thus does not give rise to First Amendment concerns. Refusal to salute the United States flag was found to be a form of speech within the First Amendment, and the Supreme Court found that the government could not force a public school student to salute the United States flag against his will; the First Amendment protects the freedom not to speak in some cases. Display of a state license plate motto was also found to be a form of speech within the First Amendment. And the Supreme Court has held that a state could not punish a driver for covering the state motto on a license plate when the motto reflected ideas with which the driver disagreed (i.e., “live free or die”). Organization of a private parade was also found to be protected expression. Thus, the Supreme Court held that private organizers of a parade could not be forced to take parade entrants expressing a (pro-gay and lesbian) view with which the organizers disagreed.
Prior Consistent Statement
Where the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), counsel may introduce into evidence a prior consistent statement made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some noncharacter ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility. However, a prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions, acts of misconduct, or reputation for untruthfulness. Under the Federal Rules of Evidence, a prior consistent statement that is admissible to rehabilitate a witness’s credibility is also admissible as substantive evidence of the truth of its contents. (Note that prior consistent statements also may be admissible if they fall within some hearsay exception.)
Cross Easement for Support
If a driveway is located partly on the property of each of two adjoining landowners, each landowner has a cross-easement for support in the driveway. Absent an express agreement, courts will treat a common driveway as belonging to each landowner to the extent that it rests upon her land. Courts will also imply mutual cross-easements for support, with the result that each party has the right to use the driveway, and neither party can unilaterally destroy it. Each landowner does not have an easement in gross in the driveway. The holder of an easement in gross has the right to use another’s land (the servient tenement) independent of her ownership or possession of another tract of land; i.e., there is no dominant tenement.
Withdrawal of Repudiation
A repudiating party may at any time before his next performance is due withdraw his repudiation unless the other party has canceled, materially changed her position in reliance on the repudiation, or otherwise indicated that she considers the repudiation final. The key is whether the repudiation, not the withdrawal of the repudiation, has caused the other party to materially change her position. If a nonrepudiating party has fully performed under the contract (i.e., he has nothing further to do) at the moment of repudiation, he must wait until the time originally set for performance by the repudiating party. Until that time, the repudiator has the option to withdraw the repudiation and perform. Withdrawal of the repudiation need not be made in the same manner as the repudiation, it may be in any manner that clearly indicates intention to perform, but must include any assurances justifiably demanded.
MIMIC Admissibility
Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible in civil and criminal cases, without a preliminary ruling, as long as: (i) there is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., the standard of Federal Rule 104); and (ii) its probative value on the issue of motive, intent, identity or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice (i.e., the test of Federal Rule 403).
Diversity: Class Actions
In a class action lawsuit, diversity is determined by looking at the citizenship of the named members of the class who are suing. Thus, there is considerable room for maneuvering to create diversity if the class has members who are citizens of several different states. The citizenship of the unnamed members of the class is irrelevant for diversity jurisdiction purposes. Thus, citizenship is not determined by looking at the citizenship of all the members of the class or by looking at the citizenship of the unnamed members of the class only. It is not correct that class action lawsuits cannot be brought based on diversity jurisdiction; they can be brought as long as diversity is present for the named members of the class
Right to Speedy Trial Violation
The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice.
Waivability of Right to Counsel
the Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver
Non-discriminatory State Tax
In assessing whether a nondiscriminatory state tax on interstate commerce is valid absent any federal legislation in the area, typically a court will consider three things: 1. Whether there is a substantial nexus between the taxpayer and the state; 2. Whether the tax is fairly apportioned; and 3. Whether there is a fair relationship between the tax and the services or benefits provided by the state.
