Essay and MBE missed questions Flashcards
6th amendment MEE rule statement?
The 6th amendment, which applies to the states through the 14th amendment, provides that in all criminal prosecutions, the D has a right to assistance of counsel during all critical states of a criminal prosecution after formal proceedings have began. THe right is also offense specific; if a D’s 6th amendment right to counsel has attached regarding one charge, he may be questioned without consel concerning another charge. Moreover, a police officers failure to inform a suspect that his lawyer is attempting to see him does not violate the 6th amendment, except with regards to charges for which judicial proceedings have commenced.
5th amendment Rule statement
Valid miranda warning rule statement
The 5th amendment, applicable to the states through the 14th amendment, provides that no person may be compelled to give self - incriminating testimony. The SC has held to protect this right, accsued must be given his miranda warnings prior to a custodial interrogation. If the accused invokes, questioning must cease untill an attorney is present or the defendant resumes questioning himself. However, the request for an attorney must be unambigoius and sufficiently clear. The police have no duty to clarify an ambigious request.
A valid miranda warning must be knowing and voluntary. Courts will look at totality of the circumstances to see if this standard was met. Circumstances to be analyzes are (1) length and time of interrogation (2) Police tactics (3) character of accused. Moreover, voluntary statements if miranda warnings are given will be admissable even if a lawyer is trying to contact the accused, as long as the 6th amendment does not apply.
Robbery - what does presence mean?
Can threat of force be used to retain the property following gaining of possession?
If force is used, what do it have to be?
Does not need to be their person, just reasonably close to them.
Yes.
Enough to overcome the victims resistance.
When does jeproday attach for purposes of 5th amendment?
Two crimes do not constitute an offense when..?
(1) When the jury is enpanneled and sworn in jury trial
(2) When first witness is sworn in during bench trial
If each crime requires proof of an additional element that the other crime does not require.
Under modern law, are joint tenancies favored or disfavored?
Does a mortgage sever joint tenancy?
Disfavored - “ a conveyance to two or more persons preumptively creates a tenancy in common, and that will only be overcome with clear expression of right of survivorship.
In states that follow lien theory, a mortage is regarded as lien on title, and one joint tenants execution of a mortgage on her interest does not cause a severance unless the property is foreclosed on. In a title theory state, it does sever the JT.
Is the promise to pay a debt barred by the SOL valid consideration?
Yes.
Can a party or judge require that all witnesses be excluded when other witnesses are testifying?
Yes - FRE 615.
Under the UCC, can course of dealing be used even if there is a completely integrated agreement?
Yes.
Are intentional criminal acts superceding events?
Yes, unless the circumstances make it reasonably foreeseable. - high crime neighboorhood for example.
What is the lesser crime rule?
You cannot be concivted of both a target crime and a lesser crime. A lesser crime is a crime which shares all the elements of the higher crime. - ROBBERY AND LARCENY
What is the UCC parol evidence rule?
A final written expression may not be contradicted by any prior agreement, but it can be explained or supplemented by course of dealing or usage of trade or by course of performance.
What are the three ways in which an easement is created?
(1)Express grant (2) implication (3) presciprtion.
Three types of easements by implication are (a) intented easement based on a use that existed when dominant and servient estates were severed (b)an easement implied from a recorded subdivision plan (c) an easment by necessity.
An easement by necessity is created when the owner of a tract of land sells a part of the tract and by this division deprives on lot of access to a public road or utility line.
What must every deed contain?
(1) indication it is a deed (2)A description of the land involved (3) Grantor signature (4)identifying grantee.
Are easement holders required to make necessary repairs?
Yes.
What is an exception to the common law pre - existing duty rule?
WHen an unforseen difficulty is so severe it arises to the level of impractiablitiy, the consideration required for modification will be considered satsified.
