Criminal Law, Tort Law, and Agencies

Question 1

How can you successfully appeal the decision of an administrative agency?

Answer 1

1. Fraud
2. Bad Faith
3. Abusive
4. Intentional Wrongdoing
5. No substantial Evidence
6. Arbitrary or Capricious
7. Malice, bribery, or prejudice
8. Unreasonable (Rarely Successful)
9. Unconstitutionality (Your only real chance at appeal)

Question 2

What is required for most crimes?

Answer 2

Act (actus reus)

&

Intent (Mens Rea)

Question 3

Types of Intent

Answer 3

1. Specific Intent (You need to have intended the result): (arson)
2. General Intent (Intended the act): (assault)
3. Gross Negligence: (voluntary manslaughter)
4. Ordinary Negligence: Negligent Homicide
5. No Intent: (nuisance, most traffic violations, most drug offenses)

Question 4

Homicide

Answer 4

The killing of a living human being within one year and one day.

Question 5

When is homicide justifiable?

Answer 5

In the performance of a legal duty.

Question 6

When is homicide excusable?

Answer 6

a) By accident
b) Self-Defense
c) Killer lacks legal capacity (insanity defense)

Question 7

What are the four tests for insanity?

Answer 7

1. McNaughton Test (right and wrong test
2. Irresistible Impulse Test
3. Durham Test
4. Model Penal Code Test

Question 8

When is homicide murder?

Answer 8

a) Intent to kill or cause great bodily harm
b) willful act tending to cause great bodily harm
c) during a felony

Question 9

When is homicide manslaughter?

Answer 9

Without malice or forethought:

a) Voluntary Manslaughter: Intent, but under sudden adequate provocation.
b) Involuntary Manslaughter: Gross Negligence

C) Involuntary Homicide: Not a felony. It’s a first degree misdemeanor.

Question 10

How does a judge issue multiple sentences for the same person?

Answer 10

Sentences can either be concurrent or consecutive.

Question 11

When is a criminal eligible for parole?

Answer 11

At 3/4 of the minimum sentence.

Question 12

What kinds of torts are there?

Answer 12

1. Intentional Torts (fault)
2. Negligence (fault)
3. Strict Liability Torts (no fault)

Question 13

What are the crimes and torts that have the same name?

Answer 13

Assault, battery, trespass, and nuisance

Question 14

What kinds of intentional torts are there?

Answer 14

1. To the person: assault, battery, and false imprisonment

2. Property: conversion trespass to personal property, trespass to land, and waste

Question 15

Assault

Answer 15

Intentionally placing someone in fear or apprehension of immediate physical harm or injury.

Question 16

Battery

Answer 16

Intentional touching that results in injury.

Question 17

False Imprisonment

Answer 17

Intentionally detaining someone against their will.

Question 18

Trespass to Land

Answer 18

An unpermitted intrusion onto someone’s land.

(requires a voluntary act, not intent)

Defense: Easment: Right of Way

Question 19

Conversion

Answer 19

Intentionally depriving someone of their personal property.

Question 20

What types of property are there?

Answer 20

Real Property: land, buildings, and fixtures

Personal Property: Tangible & Intangible

Question 21

Fixture

Answer 21

Something that was originally personal property (movable) that has now become an integral part of the estate.

Question 22

Larceny

Answer 22

Taking and carrying away of the personal property of another with the intent to steel it.

Question 23

What is a BFP?

Answer 23

Bonafide Purchaser

1. Gives value
2. in good faith: honestly
3. without notice

Question 24

What types of civil cases are there?

Answer 24

Legal:
Remedy = Damages
Requires a preponderance of the evidence to win.

Equity:
Remedy = extraordinary remedies (such as an injunction or mandamus.

Question 25

Injunction

Answer 25

A court mandate to stop. Types: - permanent - temporary - TRO - CPO

Question 26

Mandamus

Answer 26

- A court mandate to do something. - no jury (judge) - clear and convincing evidence (75%)

Question 27

Trespass t personal property:

Answer 27

An unpermitted intrusion to someone's personal property.

Question 28

Waste

Answer 28

Intentionally injuring someone's future interest in property.

Question 29

Life Estate

Answer 29

Reverse Mortgage (The property goes to the "remainder man")

Question 30

Intentional Torts

Answer 30

1. To the Person 2. To Property 3. To Economic Relations 4. Others

Question 31

Intentional tort to economic relations

Answer 31

1. Disparagement: Discrediting the quality or title 2. Unfair Competition: Stealing trade secrets etc. 3. Interference: Sabotage

Question 32

Other Torts (no intent required)

Answer 32

1. Intentional, reckless, or negligent infliction of neutral or emotional distress. 2. Fraud: a) misrepresentation b) of a material fact C) Knowledge or reckless indifference to the truth D) Intent to Deceive E) Reliance F) Injury 3. Invasion of Privacy 4. Abuse of Process: malicious misuse of the civil process 5. Malicious Prosecution: malicious misuse of criminal justice

Question 33

Defense to Intentional Torts

Answer 33

1. lack of intent 2. Consent: a) express (oral/written) b) implied based on conduct 3. Privilege: Such as a police officer using a reasonable amount of force.

Question 34

What are Negligence Torts?

Answer 34

- Always unintentional - They require: 1. Duty of Care 2. Breach of that duty 3. Proximate Cause 4. Substantial Injury

Question 35

What is the test of proximate (close) cause?

Answer 35

Foreseeability

Question 36

Joint Tort Feasors

Answer 36

Joint tort feasors are jointly and severally liable (It must be determined what proportion feasor is responsible for)

Question 37

Feasor

Answer 37

One that commits or is guilty of a tort.

Question 38

Right of Contribution

Answer 38

The right of one joint feasor to collect from another joint feasor after a judgement has been made.

Question 39

What are the Defenses to Negligence?

Answer 39

1. Contributory Negligence: - When the plaintiff was also negligent - Plaintiff gets nothing 2. Comparative Negligence: - This weighs the fault of each party and awards money based on the percentage of fault - most states have a "50% comparative negligence" statute 3. Assumption of the Risk: - "Plaintiff knew of the specific danger" 4. Unavoidable Accident 5. Doctrine of Last Clear Chance: - Only applies to contributory negligence - It is a defense to the contributory negligence defense

Question 40

What is a "Res Ipsa Loquitur" case? What about a "Per Se" Case?

Answer 40

- Res Ipsa Loquitur = The thing speaks for itself - This puts the burden on the defendant to prove that they were not negligent. - In a "Per Se" case", the negligence of the defendant is even more obvious.