Everything Flashcards
A plaintiff seeking a preliminary injunction must establish what?
(i) she is likely to succeed on the merits;
(ii) she is likely to suffer irreparable harm in the absence of relief;
(iii) the balance of equities is in her favor; and
(iv) the injunction is in the best interest of the public.
Who may be addressed in Interrogatories?
Interrogatories maybe used only on parties
BOCB - Buyer in the ordinary course of Business - Requirements?
A buyer is a BOCB if he:
(i) buys goods,
(ii) in the ordinary course of business,
(iii) from a merchant who is in the business of selling goods of that kind,
(iv) in good faith, and
(v) without knowledge that the sale violates the rights of another in the same goods.
Attachment in Security Interest - Requirements?
(i) value has been given by the secured party,
(ii) the debtor has rights in the collateral, and
(iii) the debtor has authenticated a security agreement that describes the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.
best evidence rule
requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.
Evidence is relevant if
(i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and
(ii) the fact is of consequence in determining the action (i.e., material)
Hearsay definition?
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.
Hearsay exceptions?
- Unavailable Declarant:
a) Former Testimony
b) Dying Declarations
c) Statements Against Interest
d) Statements of Personal or Family History
e) Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing) - Declarant’s availability immaterial
a) Present Sense Impression
b) Excited Utterance
c) State of Mind
d) Statements Made for Purposes of Medical Diagnosis or Treatment
e) Past Recollection Recorded
f) Business Records
g) Public Records
h) Learned Treatises (scientific, historical, or medical)
i) Judgment of Previous Conviction
j) Reputation
Claim Preclusion
The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action.
For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action.
Issue Preclusion
The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
Other elements necessary for issue preclusion to apply are that
(i) the issue sought to be precluded must be the same as that involved in the prior action;
(ii) the issue must have been actually litigated in the prior action;
(iii) the issue must have been determined by a valid and binding final judgment; and
(iv) the determination of the issue must have been essential to the prior judgment.
Are Lay opinions admissible?
Lay opinions are admissible with respect to commonsense impressions. To be admissible, the opinion must be
(i) rationally based on the perception of the witness and
(ii) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.
When does the Sixth Amendment apply
The Sixth Amendment right to counsel automatically attaches when the State initiates prosecution with an indictment or formal charge.
Subject Matter Jurisdiction - Requirements?
Under federal law, a U.S. District Court has diversity jurisdiction over a matter if no plaintiff shares the state of citizenship of any defendant and the amount in controversy in the case exceeds $75,000.
Common Law Murder
Common-law murder is the unlawful killing of another human being with malice aforethought.
Felony-Murder Rule
Unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (BARRK - Burglary, Arson, Robbery, Rape, Kidnapping)
Voluntary Manslaughter
A homicide committed with malice aforethought, but also mitigating factors.
Involuntary Manslaughter
Unintentional homicide committed with criminal negligence (grossly negligent)
Larceny
- Trespassory
- Taking and
- Carrying away
- of the personal property
- of another
- with specific Intent to permanently deprive the owner of the property
Robbery
- Larceny +
- From the person or presence of the victim
- By force or intimidation
Burglary
- Breaking and
- Entering
- of the dwelling
- of another
- at night
- with the specific intent to commit a felony therein
Arson
- Malicious
- Burning
- of the welling
- of another
Extortion
The taking of money or property from another by threat
- Making the threat is the essence of the crime
- The threat need not be of immediate harm or of a physical nature
- the property need not be on the victim or in his presence
Larceny by trick
- Larceny
- Accomplished by fraud or deceit
- That results in the conversion of the property of another
Forgery
- Making
- of a false writing
- with apparent legal significance
- with the intent to defraud
Embezzlement
- Fraudulent
- Conversion
- of the property
- of another
- by a person who is in lawful possession of the property
False pretenses
- Obtaining title to the property
- of another person
- Through the reliance of that person
- on a known false representation of a material past or present fact
- Representation is made with the intent to defraud
Battery
- Unlawful
- Application of force
- To another person
- That causes bodily harm to that person or constitutes an offensive touching
Assault
- Attempt to commit battery;
OR - Intentionally placing another in apprehension of imminent bodily harm
Mayhem
A common-law felony battery that causes the dismemberment or permanent disfigurement of a person
Kidnapping
- Unlawful
- Confinement of a person
- Against their will
- Coupled with either:
- -> Movement OR
- -> Hiding of that person
False Imprisonment
- Unlawful
- Confinement of a person
- Without consent
Rape
- Unlawful
- Sexual Intercourse
- With a female
- Against her will by force or threat of imminent force
Inchoate Offense - Requirement
- An attempt requires a specific intent to commit a criminal act coupled with a substantial step taken toward the commission of the intended crime.
- At common law, once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime because of a change of heart.
- Upon the completion of a substantial step, the crime of attempt is completed; there can be no abandonment or withdrawal.
- Factual impossibility not a defense (legal impossibility is a defense)
Solicitation
- Enticing, encouraging or requesting another person
- To commit a crime
- With the intent that the other person commits the crime
- -> Voluntary renunciation may be a defense if D thwarts the commission of the solicited crime
Conspiracy
- An agreement
- Between two or more people
- To accomplish an unlawful purpose
- With the intent to accomplish that purpose
CL: No overt act required
MPC: Overt act required
–> Scope:Pinkerton: substantive crimes committed in furtherance of the conspiracy
–> Withdrawal:
CL(Majority): possible if D gives notice to police and/or co-conspirators
MPC: possible if D acts voluntarily to thwart the success
Accomplice Liability
- Aid and abet the principal before or during the crime
- Intent:
- -> Intent to help
- -> Intent to help for the crime at issue
- Liability questions (foreseeability)
Withdrawal from accomplice liability
- Repudiate prior aid
- Do all that is possible to prevent the crime AND
- Do it before the event occurs
Accessory after the fact
Someone who helped after the committed crime
Insanity Theories
All require Mental defect, AND:
- McNaghten: not know the nature of their conduct
- Irresistible Impulse: this prevents them from conforming their actions
- Durham: the crime would have not been committed but for the defect
- MPC: McNaghten OR Irresistible Impulse
Intoxication
Voluntary:
- Prevents specific intent
Involuntary:
- Prevents malice, general, and specific intent
Causation
- Actual and Proximate cause
- Negligent Hospital is not unforeseeable –> still liable
Malice requirement for murder
- Intent to kill
- Intent to inflict serious bodily injury
- Reckless indifference to human life
- felony murder
First & Second Degree Murder
Only used when not Common Law]
- Difference:
- -> Premeditated (Time to plan and reflect)
- -> Deliberate (Dispassionate decision)
Fourth Amendment
Prevents unreasonable searches and seizures
- Must be government conduct
- Defendant must have reasonable expectations of privacy (home)
Seizure of a person
- Physical Force OR Authority
- Test: Would a reasonable person feel free to leave?
Types:
Arrest (Needs warrant OR probable cause)
stop & frisk (Needs reasonable suspicion)
Police checkpoints (Needs non-discrimination)
traffic stops (Needs reasonable suspicion)
Search
- When the govt conduct violates the D’s reasonable expectation of privacy
- Usually requieres valid search warrant
- -> Execution of search warrant (Knock, good faith)
- Exceptions:
- -> Terry Stop & Frisk (on reasonable suspicion)
- -> Lawful arrest (probable cause & within immediate area)
- -> Automobile exception (probable cause)
- -> Plain view
- -> Exigent circumstances (danger, pursuit)
- -> Consent
Consequences of 4th amendment violations
- Exclusion of evidence + fruit of poisonous tree
- Exceptions:
- -> Inevitable Discovery
- -> Independent Source
- -> Passage of Time
- -> Good Faith Reliance
5th Amendment
- No self-incrimination (only testimonial evidence, NOT physical evidence)
MIranda Warning
- Required in custodial (free to leave) interrogations (questioning or actions that elicit an incriminating response)
- Can be waived if knowing and voluntary (affirmative statement)
- D can still waive by giving uncoerced statements
Miranda Rights
- Right to counsel (must unambiguously assert that right)
- Right to remain silent
- D who assert their rights can only be re-approached after 14 days after custody ends
Exclusion of statements
- Involuntary Statements (under duress) always inadmissible
- Voluntary Statements always admissible
- Everything is based on circumstances!
- Second confessions (admissible if 1st confession was based on good faith mistake)
- Voluntary statements in violation of Miranda (Not admissible as substantive evidence, but OK to impeach D)
- Physical evidence (OK as long as it’s from voluntary statement)`
6th Amendment
Right to counsel (at all critical stages)
- Starting at indictment or formal charge
- Crime specific (does not apply to other investigations)
negligent infliction of emotional distress
if the plaintiff demonstrates that:
(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
(ii) the threat of physical impact caused emotional distress.
impracticability
(i) an unforeseen event occurs;
(ii) the nonoccurrence of which was a basic assumption on which the contract was based; and
(iii) the party seeking discharge is not at fault.
Proper Venue (Fed Court)
(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or
(ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
