EXAM REVIEW Flashcards
Action for Trespass
Defendant acted with intent to cause physical invasion of Plaintiff’s Property
Plaintiff must be in possession or have right to immediate possession
mistake is not a defense
Mandatory Injunction Elements
(1) Current/Imminent Loss of a Right
(2) Inadequacy of Legal Remedies (irreparable harm)
(3) Balance of Hardships
(4) Public Interest not Harmed
When are Legal Remedies (money damages) not Adequate
(1) where civil rights are at stake
(2) public health/environment at stake
(3) Money Damages are difficult to calculate
(4) Interest in R/E is infringed
(5) violations are discrete but repetitive
Elements of a Temporary Injunction or a Temporary Restraining Order
(1) Likelihood of Success on the Merits
(2) Money Damages Inadequate (irreparable harm)
(3) Balance of Hardships
(4) Public Interest not Harmed
(5) Bond must be posted for the amount of damages the opposing party would suffer if movant ultimately fails on the merits
What are the additional requirements for a TRO
(1) can get an ex parte proceeding only if movant attempted to provide notice, or movant reasonably believes notice will frustrate benefits of the TRO
Specific Performance
Availability and Elements
Available for breaches of contract legal remedy is inadequate:
(1) unique or scarce
(2) interest in real property
(3) Closely-Held Stock (no readily ascertainable mkt price and voting control)
(4) covenant not to compete
Unavailable where (1) personal services, or (2) ongoing cooperation btw parties.
Name some procedural errors or misconduct that would render a basis for a new trial
Wrongful admission/exclusion of evidence
Incorrect Jury Instruction
Communications between witnesses
Ex Parte communications with judge
Improper Jury Misconduct
Grounds for Appeal (FRCP)
FRCP
(1) Final Judgments (including partial)
(2) Preliminary Injunctive Relief
(3) Class Certification
(4) Certified Order
(5) Collateral Order
Elements of a Certified Order
FRCP (“DMC”)
D- on which there is a substantial difference of opinion
M- an immediate appeal will materially advance the ultimate resolution of the action
C- involve controlling questions of law
Elements of a Collateral Order
(1) order pertains to a matter collateral to merits
(2) order conclusively decides a particular Issue
(3) Delaying appeal until final judgement has issued would effectively deny appellate review of the issue
Draw Estates in Land Chart
Go find it, punk!
What are the elements of a vested remainder
(1) created in ascertainable person; and
(2) no cond’n precedent to 3P taking, other than term’n of prior estate
Property Waste
VOLUNTARY WASTE (volitional act): T cannot int’lly/neg’lly damage property/anything attached that negatively affects £’s value.
PERMISSIVE WASTE (omission): T when T fails to take reas steps to protect against damage to £.
AMELIORATIVE WASTE
C/L: T cannot make substantial alterations to £ w/ authorization even when improving value of property.
Modern Law: ameliorative waste allowed if (1) mkt value not impaired, and (2) either (a) improvement permitted by remaindermen, or (b) change to nature of property/neighborhood justifies improvement
REMEDY
Vested Remaindermen: dmgs/injunction
Contingent Remaindermen: injunction
To which interests does the Rule Against Perpetuities apply?
Executory Interests
Contingent Remainders
Vested Remainders Subject to Open
Right of First Refusal
Purchase Option
Real Property: Cotenants
Right to Profits
Rights to Rents
Duty to pay Taxes/Mortgage
Duty to Repair Premises
Duty to Make Improvements
PROFITS
if by effort of CoT1: CoT1 gets all. However, if CoT2 ousted, they must share equally
RENTS
Must share in equal proportion to interest of each cotenant
TAXES/MORTGAGES
Each must pay his/her proportionate share. If a cotenants lives on premises, they have primary obligation to pay, but may recover proportionate shares from other CoTs
REPAIRS
No direct duty to repair. If a Co-T chooses to repair, they do at own expense. But, if £ is rented, and co-t repairs it, the cost of repair can be offset against the 3P rent
IMPROVEMENTS
no duty to improve. If one co-tenant does improve, they do so at own expense. But, if property is subsequently sold, and the sale produces and increased sale price bc of the improvement, then the Co-T who made the improvement gets the add’l amount
What is the scope/extent of land one can acquire by Adverse Possession
Only land occupied by Adverse Possessor
Whole property if adverse possessor
(1) enters under Color of Title
(2) occupies a significant portion of parcel described in the flawed deed
Real Property: Covenant of Marketable Title
When does it apply
What does it promise
Remedies if Unmarketable
Exclusions?
TIME
Applies at closing
PROMISE
Seller’s implied promise to deliver marketable title–title reasonably free from defect
“Defect”
(1) unpaid mortgage/lien (but not unmarketable if (a) proceeds from sale sufficient to pay lien/mtg, and (b) are in fact used to pay them simultaneously w/ transfer of land)
(2) covenants/easements restricting land use
(3) title acquired by adverse possession (not unmarketable if adverse possessor obtains judicial decree declaring ownership)
(4) existing statutory/zoning violation
REMEDIES:
(1) rescission
(2) get money damages, or
(3) specific performance with abatement
EXCLUSIONS
Can be excluded if expressly stated
Buyer’s remedies if title is unmarketable
Only on day of closing
(a) rescission
(b) dmgs for breach of K
(c) s/p w/ abatement of purchase price
Real Property: Covenants of Title
PRESENT COVENANTS (do not run w/ land: breach must be at closing):
(1) Seisin: grantor owns and possesses the property granted.
(2) Right to Convey: grantor has right to convey £.
(3) Against Encumbrances: no encumbrances on £ (beyond those expressly in deed) (encumbrance is any right in 3P that diminishes property’s value/use)
FUTURE COVENANTS (run w/ the land: can be breached at C or Y).
(4) Quiet Enjoyment: grantee will not be disturbed by a superior claim.
(5) Warranty: grantor will assist in defending title against lawful claims and will compensate grantee for losses sustained.
(6) Further Assurances: grantor will do anything real’y nec to perfect grantee’s title
If a new building is sold by the builder, what must the builder do
Must disclose any material defects that would violate any applicable building code. Must update at closing, if any changes occur.
If there are any misrepresentations, buyer may terminate the K.
What must the seller of one to four dwelling units do
Disclose physical cond’n of £ or state £ is sold “as is”.
How does the relation back doctrine work when a conveyance by deed is made through a 3P (escrow)
Escrow: when grantor gives deed to 3P and instructs to deliver, when 3P succeeds, date of conveyance relates back to date grantor handed deed to 3P.
A single cond’n will not defeat relation back doctrine (more will).
If grantor expressly retains right to reclaim deed from 3P, defeats relation back doctrine
Elements of Conveyance by Deed
(1) Writing: signed by grantor or conveyance proved by 2 witnesses
(2) Donative Intent: present intent to transfer interest immediately
(3) Delivery: Actual (presume transfer); grantor retains (presume no transfer); Escrow situations (blub)
(4) Acceptance
Lien Theory of Mortgages
Mortgagor gets RTP, rents, and profits unless foreclosure
Does not sever Joint Tenancy
Requirements of a Judicial Foreclosure Sale
(1) public,
(2) properly noticed,
(3) conducted in reas manner, and
(4) result in “fair” sale price (not unconscionable)
Real Property: Grantee “Assumes” the Mortgage
Grantee primarily liable Original Mortgagor (Grantor) SECONDARILY liable.
Mortgagor can be compelled to pay, but may:
(1) Recover from Grantee;
(2) Obtain Exoneration: court order compelling grantee to pay debt;
(3) Subrogation: if mortgagor pays off debt, he may be subrogated to the mortgage and the note. He can sue grantee (in personam) or foreclose
NOVATION
A novation can release the mortgagor
Deed of Trust
Debtor borrows money and executes deed to £. Lender selects 3P, who retains deed and returns it to debtor when debt is paid.
Same analysis as w/ mortgage (exc wrt foreclosure). A trustee conducting a foreclosure sale can apply its proceeds to discharge costs of executing trust.
SOL: enforceable for up to 10 years after last payment is due. Death of mtgee will toll SOL for 1 year
How may a gift causa mortis be revoked?
(1) donor expressly,
(2) donor doesn’t die as anticipated,
(3) donee dies before donor, or
(4) gift is necessary to pay debts of deceased donor
Types of Easements
PING - P
EXPRESS GRANT created expressly (SOF applies, yo)
EASEMENT BY PRESCRIPTION
20 years
IMPLIED - EASEMENT BY CONVEYANCE
(1) Common Ownership: of dom and serv estates, then severance;
(2) Quasi-Esmt (prior use): at severance, esmt already existed; and
(3) Reas Necessity: reasonably necessary that esmt exist.
EASEMENT BY NECESSITY
(1) Common Ownership: of dom & serv estates, then severance; and
(2) Strict/Absolute Necessity
PUBLIC USE EASEMENT
Public uses easement for statutory period
Methods of Terminating an Easement
(“PB SEAMEN”)
MERGER: if one person acquires both dom and serv estates.
WRITTEN RELEASE: holder executes unilateral release that satisfies SOF.
ABANDONMENT. (1) Holder stops using easement, and (2) words/conduct showing intent to abandon.
ESTOPPEL: (1) holder engaged in conduct that leads owner of servient estate to believe easement isn’t going to be used any more, (2) the owner detrimentally relies on that belief, and (3) reliance was reasonably foreseeable.
SEVERANCE (only for esmt appurtenant): Esmt holder’s attempt to sever easement from dominant estate will result in term’n of the easement.
PRESCRIPTION: owner of servient estate interferes w/ use of esmt continuously for statutory period.
SALE OF SERVIENT ESTATE TO BFP: Esmt usually runs w/ land. But sale to one w/o notice and for value will terminate esmt.
END OF NECESSITY (applies only to esmt by necessity): the strict/absolute necessity ends.
Licenses
(a) creation
(b) transferability
(c) termination
(d) revocability
LICENSE: personal right to enter property of another
Transfer- not w/o licensor’s permission
Termination- death of licensor; or transfer of serv estate
Revocability- freely revocable, unless (a) couple w/ interest (b) detrimental reliance
PROFITS (for fun): right to enter property and take something
Creation- express writing; or prescription
Analysis- same as easements
Elements of Covenant
Elements of Equitable Servitude
Relief for breach of Covenant and Breach of E/S
COVENANT (PINT)
(1) Touch and Concern: Servient Estate: reduces use and enjoyment of servient estate. Dominant Estate: enhances or increases use or enjoyment of dominant estate.
(2) Intent: for restriction to run w/ land (bind future landowners). IMJ-proof of T&C shows intent to run.
(3) Notice (only serv side): servient estate must take w/ notice of the restriction.
(4) Privity:
Horizontal: privity of K in connection w/ land (but not just any K wrt the land). Usually must be Grantor-Grantee (deed); Mortgagor-Mortgagee (Mgte); LL-T (lease).
Vertical Privity: privity of estate. On servient side, there must be transfer of entire ownership interest to new owner. On Dominant side, any transfer is sufficient.
EQUITABLE SERVITUDE (TIN)
RELIEF
Covenants: money damages
E/S: injunction
Termination methods for Covenants and Equitable Servitudes
(“CREAM”)
C- Changed Circumstances - circumstances change so that reason reason for restriction no longer valid
R- Express Written Release
E- Estoppel- same as easements
A- Abandonment
M- Merger
Rules for Lateral/Adjacent Support and Subjacent Support
LATERAL/ADJACENT SUPPORT
If natural condition, S/L
If Improvement, and it did not cause subsidence: S/L
If Improvement did cause subsidence: Neg’l
SUBJACENT SUPPORT
S/L for natural conditions and improvements before agreement.
Improvements made after agreement: neg’l
Defenses to paying rent
FAILURE TO DELIVER POSSESSION
ACTUAL EVICTION: physical removal from all/part – total defense to any rent payment
CONSTRUCTIVE EVICTION: substantial interference with use and enjoyment of property
Tenant must move out within a reasonable time
Total: defense to any payment
Partial: rent abated
SURRENDER: Tenant surrenders possession to landlord and landlord accepts
DESTRUCTION: (modern) defense to any payment, unless T is at fault.
OTHER CONTRACTUAL DEFENSES: frustration of purpose; impossibility; violation of quiet use and enjoyment
CONTRACTUAL OFFSET
Warranty of Habitability (residential leases): fit for human habitation. T does not need to move out. T must notify landlord and give reas time to fix. If not fixed, T may fix and offset amount.
What are the elements of a crime (MBE)
ACTUS REA: voluntary, conscious act that causes unlawful result (or omission, if duty to act)
MENS REA: Guilty state of mind
CONCURRENCE: the criminal state of mind must actuate (set in motion) the act that produces the criminal result
CAUSATION: actual and proximate cause
Actual cause: (1) but for test; (2) substantial factor test; or (3) acceleration (only homicide)
Proximate Cause: harm produced was within objectively foreseeable range of possibility
(homicides additionally require CORPUS DELECTI: proof V is actually dead, and proof death resulted from a person’s criminal act)
Mens Rea: Criminal States of Mind (MBE)
INTENT: Purpose or knowledge.
PURPOSE: ∆ acts w/ conscious desire to produce prohibited result.
KNOWLEDGE: ∆ engages in conduct he knows, w/ substantial certainty, will produce prohibited result.
WILLFUL: ∆ acts w/ purpose or knowledge and moral turpitude.
RECKLESS: ∆ is subjectively aware his conduct creates an unjustifiable risk, but ignores that risk and engages in the conduct.
CRIMINAL NEGLIGENCE: ∆ is not subjectively aware that his conduct creates an unjustifiable risk, but a RP would have been aware of the risk created. Requires a gross deviation from the reasonable standard of care.
MALICE: intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful result will occur
Specific Intent and General Intent (MBE)
SPECIFIC INTENT: ∆ intended to produce the particular result
May be negated by (1) an honest, but unreasonable mistake of fact; or (2) voluntary intoxication.
GENERAL INTENT: merely requires commission of an unlawful act w/ a criminal state of mind
May be negated only by an honest and reasonable mistake of fact.
Legal duties that make omissions criminal (MBE)
statutory (PO officer);
contract (lifeguard);
relationship;
voluntary undertaking later abandoned;
omission after creating risk
Define Malice (MBE)
Express Malice
Implied Malice
MALICE: Intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful result will occur.
EXPRESS MALICE: ∆ acted (a) w/ purpose to kill; (b) w/ knowledge conduct will kill; or (c) w/ intent to inflict grievous bodily harm.
IMPLIED MALICE (a) ∆ caused death w/ extreme reckless or criminally negligent conduct that creates extreme risk manifesting a wanton disregard for human life; or (b) felony murder.
Proximate Cause Analysis for Crimes (MBE)
Main analysis: an intervening event will supersede ∆’s responsibility when event is objectively unforeseeable
Foreseeable: simple negligence. Intervening causes that were dependent/responsive to ∆’s conduct (supersedes only when totally abnormal).
Unforeseeable: gross neg’l/recklessness. Independent/coincidental intervening causes (will supersede unless foreseeable)
Felony Murder Components (MBE)
UNLAWFUL KILLING
RIGHT TYPE OF FELONY: (1) enumerated felony or (2) a felony that is both collateral to the killing and inherently dangerous.
Collateral: primary felonious purpose CANNOT be serious physical harm
“Inherently Dangerous”: inevitable secondary effect of the felony is serious risk to human life in all contexts (in the abstract)
RIGHT CONNECTION TO FELONY: resulting death must be a foreseeable outgrowth of the felony
RIGHT TIME: harm that results in death must be btw when ∆ could be convicted of attempt and when crime terminates (∆ reaches a place of temporary safety)
Mayhem (MBE)
(1) intent to maim or do bodily injury and (2) either
(a) dismember victim (loss of body part),
(b) disable use of body part useful for fighting, or
(c) permanently disfigure (modern)
(S/I)
Rape (MBE)
C/L: (a) carnal knowledge (vaginal penetration) (other than wife); (b) against V’s will (V must resist); (c) by force or threat of force (causally connected to V’s submission). Mistake is not a defense
Modern: (a) Sexual penetration of another (b) w/o V’s reasonable consent. Mistake is a defense today if reas and honest.
[G/I]
Defenses to Inchoate Crimes (MBE)
CONSPIRACY Withdrawal (C/L and MPC): complete and voluntary withdrawal made timely to all co-conspirators (defense to future crimes--pinkerton) Renunciation (MPC): (a) withdrawal and (b) performs affirmative act to thwart conspiracy's success (defense to future crimes and conspiracy itself)
ATTEMPT:
C/L: no defense
Modern: voluntary and complete abandonment; legal impossibility
ACCOMPLICE LIABILITY
C/L: (1) put principal on notice of withdrawal and (2) nullify prior assistance (defense to future liability)
Modern: either (1) nullify prior assistance, (2) provide police with timely warning, or (3) affirmative act to thwart perpetrator’s success
Criminal Self Defense (MBE)
SELF DEFENSE (a) ∆ is victim of unlawful threat; (b) ∆ reasonably believes he is in imminent danger of bodily harm; and (c) ∆may use force reasonably necessary to prevent such harm.
INITIAL AGGRESSOR
c/l: initial aggressor must completely withdraw to use self defense
Modern: may use self defense (1) upon complete withdrawal perceived by initial V; or (2) if initial V responds w/ excessive force
DEADLY FORCE: only permitted in response to imminent threat of death or grievous bodily harm
C/L: must retreat to the wall
Modern: stand your ground
Criminal Law Necessity Defense (MBE)
(a) necessary to avoid immediate threat of greater harm to persons/property,
(b) no reas alternative to breaking law to avoid the greater harm; and
(c) ∆ is not responsible for causing the greater threat.
C/L: not defense to murder, unless to negate underlying felony for felony murder.
MPC & friends: defense to any charge, even homicide if ∆ kills 1 to save many.
Criminal Insanity Defense Tests (MBE)
M’NAGHTEN TEST: at time of crim act (1) ∆ suffered from severe mental disease/defect; AND
(2) as a result, he was “totally incapable” to know either
(a) nature/quality of his act, OR
(b) what he was doing was wrong.
IRRESISTIBLE IMPULSE TEST: (a) ∆ has severe mental disease/defect, and (2) ∆’s incapable of controlling the impulse to commit a crime.
MPC TEST: (1) ∆ has mental disease/defect; AND
(2) ∆ lacked “substantial capacity” to either
(a) appreciate the criminality (wrongfulness) of his conduct, OR
(b) conform his conduct to the reqs. of law.
DURHAM RULE (New Hampshire Rule) (Produce Rule): ∆’s unlawful act was product of mental disease/defect
Criminal Duress Defense (MBE)
Duress. excuses criminal conduct when (a) ∆ reas’ly believes that only way to avoid unlawful threats of great bodily harm/imminent death is to engage in unlawful conduct. Not a defense to murder, unless to excuse underlying felony in felony murder.
FRCP Supplemental Jurisdiction Analysis
Step 1: supp’l claim must arise from same T/O as claim w/ juris.
Step 2: If anchor claim predicated on Div/Juris, no S/Juris for claims by plaintiffs against persons made parties under Rules 14, 19, 20, 24, or claims by persons made parties under R19 or R24.
Step 3: court may exclude S/Juris: (a) claim involves novel & complex issue of state law; (b) claim “subst’ly predominates” anchor claim; (c) court dismissed anchor claim; (d) other compelling reasons
Federal Common Law in Federal Courts pertains to what issues?
(1) maritime/admiralty (2) foreign relations (3) commercial rights/liabs of federal government (4) £ rights/liabs of federal government
Erie Analysis
STEP 1: APPLY FEDERAL LAW. Apply valid federal statute or CXal provision that is on point.
Validity: the federal law is CXal. If FRCP, it does not “abridge, enlarge, or modify any substantive right.”
On Point: This is a question of interpretation. There is no spelled-out rule.
STEP 2: AVOID UNFAIRNESS AND FORUM SHOPPING: If no on-point, valid federal/CXal law, federal court should follow its ordinary practices, unless doing so would lead to the preference for one court system over another (forum-shopping) or to fundamental unfairness.
What must a complaint include (FRCP)
(1) Short and plain statement of the grounds for the court’s jurisdiction.
(2) short and plain statement of the claim showing that the pleader is entitled to relief: this stt must include “sufficient factual matter” to state a plausible claim that is more than merely possible.
Fraud/Mistake: must describe fraud/mistake w/ particularity.
(3) Demand for Judgment and Relief
When does an amendment to a pleading relate back (to avoid SOL)?
NEW CLAIMS/DEFENSE: relates back if new claim/defense arises from same T/O as an existing claim/defense.
NEW PARTIES: relates back if (a) party had notice of the action so that it will not be prejudiced in defending it; and (b) party should have expected to be named as a ∆, but for a mistake concerning the proper party’s ID.
How to serve process in federal court
(1) Manner Prescribed by a State
manner prescribed by state courts where federal court sits OR state courts where ∆ will be served.
(2) FRCP 4:
Natural Persons: (1) deliver personally; (2) leave at ∆’s abode w/ person of suitable age and discretion who resides there; (3) ∆’s registered agent; (4) mail process w/ service waiver form—if ∆ declines to waive service, he is responsible for cost of service.
Corps./P’Ships/Ass’ns: serve (1) officer; (2) managing/general agent; (3) Agent authorized to receive service—If agent is authorized by law, and law requires service by mail, process must be served both by hand and by mail
(3) CATCHALL
DPC requires that π took steps reas’ly calculated to inform ∆ of action against him; if ∆ has notice, SofP isn’t necessarily required
When is permissive joinder appropriate (FRCP)
can join if (1) joined parties can claim relief (πs) or face liability (∆s) arising out of same T/O, and (2) common questions of law or fact
Class Actions
REQ. 1: CAN CLASS BE FORMED (“CANT”):
Commonality: questions of law or fact common to the class;
Adequate Representativeness: representative parties will fairly and adequately protect the interests of the class;
Numerosity: class is so numerous that joinder of all members is impracticable;
Typicality: claims of the representative parties are typical of those of the class, ensuring class rep will have incentive to litigate in ways that protect class.
REQ. 2: PROPER FOR ADJUDICATION AS CLASS ACTION (“IGAPS”)
(1) Inconsistent/Impair: separate actions would create risk of Inconsistent judgments or judgments that would substantially Impair the ability of a nonparty member to protect his interests;
(2) Generally Applicable: Party opposing class acted in way Generally Applicable to class; or
(3) Predominate/Superior: court finds that (a) common questions of law or fact predominate over individualized questions and (b) class action is superior to other available methods for the fair and efficient adjudication of the controversy
Class Actions: Subject Matter Jurisdiction and Removal (FRCP)
For state law claims, all representative πs and ∆s must be completely diverse. However, C/As over 100 members that seek damages over $5M may enter federal court if 1 π is diverse from 1 ∆.
Removal: home-state ∆ exception does not apply. Only need 1 ∆ to remove entire case
Discovery of Experts
Non-testifying Experts: not discoverable unless (a) extraordinary need and (b) no other way to obtain such info.
Expert Testifying at Trial (“ACID”): discoverable to limited extent;
I- expert’s initial disclosure;
C- comm’ns wrt compensation for expert’s study/test’y;
D- comm’ns re data provided by att’y to expert;
A- comm’ns re any assumption the attorney asked the expert to make in developing expert opinion.
Sanctions for failing to comply with a motion to compel (FRCP; R37)
(a) court order establishing facts in favor of moving party; (b) court order prohibiting non-moving party from presenting certain claims/defenses; (c) stay/dismissal of entire action; (d) order of contempt
When does the FRE not apply?
MBE: GAP BOSS Grand jury Admissibility, preliminary questions of (except privilege Preliminary hearings Bail proceedings Obtaining warrant Sentencing/probation hearings Summary contempt
Judicial Notice
what are the types
when can it be raised
what is its effect
Substitute for evidence: court accepts facts as true w/o formal presentation of evidence
TYPES
- Facts commonly known in the jurisdiction
- Facts capable of accurate, ready determination by sources of unquestionable accuracy
TIMING
before trial, after trial, on appeal
EFFECT
Civil: jury must accept
Criminal: jury may accept
FRE 403
Relevant evidence may be excluded if its PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED by danger of
- (1) unfair prejudice
(2) confusion of issues
(3) misleading the jury
(4) undue delay
(5) wasting time
(6) needless presentation of cumulative evidence
FRE: Character evidence
What type can be used in civil cases
In what instances can it be used in civil cases
ROSA: reputation, opinion, specific act
When character is an essential element of the claim:
Negligent Entrustment
Negligent Hiring
child custody
defamation
Misrepresentation/Deceit
Assault/Battery, if claiming self defense
FRE: When can character evidence be used in a criminal case
when ∆ opens the door with testimony of his own good character or of the victim’s bad character (prosecution can then attack/bolster either). Must be pertinent character trait
Special Homicide Exception: if ∆argues self-defense, prosecution can use evidence of V’s good (peaceful) character, even if ∆doesn’t open door
Heavily Tested: prosecution can cross examine character witness and impeach that witness with specific acts of ∆. (must be in GF)
MIMIC-KOP!
When can character evidence can always be admitted in a criminal case?
When it’s admitted for a purpose other than to prove character: MIMIC-KOP
Motive Intent M- lack of mistake/accident Identity Common scheme/plan Knowledge Opportunity Preparation
This evidence admitted can be an act/testimony that happened before, during, or after the offense.
Subsequent remedial acts: when are they admissible and when are they not
ADMISSIBLE
impeachment
If controverted, to show
ownership or control
feasibility of precaution
INADMISSIBLE To show negligence, culpability, design defect, or need for warning
What’s the deal with settlement offers?
Not severable: admission/evidence does not sever from the settlement offer
Can be used to show: bias/prejudice; negate allegation of undue delay, show effort to obstruct criminal investigation/prosecution
Psychotherapist-Patient Privilege
Definition of Psychotherapist
Definition of Patient
Exceptions to Privilege
Psychotherapist: actually licensed mental health specialist (especially social workers and marriage counselors)
Patient: person who consults, is examined, or interviewed by a mental health specialist
Exceptions: commitment proceedings; court-ordered eams; when medical condition is part of the claim (Personal injury; malpractice) future crime or fraud
Marital Communications Privilege
What Types of Cases?
Holder?
What kind of marriage is required?
Effect of Divorce/Death?
What types of information does it protect?
When is it waived?
What are exceptions to it?
CASE TYPES: civil and criminal
HOLDER: both spouses
MARRIAGE REQUIREMENTS: valid marriage required
DIVORCE/DEATH: no effect
INFORMATION PROTECTED: *confidential *communications made *during marriage
confidential: not intended for others; made privately
communications: not observations
during marriage: communication must be made during marriage
WAIVER: only by both together
EXCEPTIONS:
Crimes/torts committed by one spouse against the other or THEIR child
adversarial proceedings
joint participation in a crime
Spousal Immunity Privilege (Testimonial Privilege)
What Types of Cases?
Holder?
What kind of marriage is required?
Effect of Divorce/Death?
What types of information does it protect?
When is it waived?
What are exceptions to it?
CASE TYPES: Criminal only
HOLDER: witness spouse
MARRIAGE REQUIREMENTS: valid marriage required
DEATH/DIVORCE: divorce terminates privilege
INFORMATION PROTECTED: It protects ALL evidence, regardless of confidentiality, can be communication or observation, both before and during marriage
WAIVER: can be waived by the witness spouse
EXCEPTIONS:
adversarial proceedings;
suits involving a child of EITHER spouse
PASI
In preliminary hearing
Effect of asserting PASI on jury
Testifying at preliminary hearing doesn’t waive privilege at trial. ∆’s attempt to enforce PASI at preliminary hearing can’t be used as evidence at trial.
In civil case, jury may draw adverse conclusion from assertion of this privilege. But it cannot in a criminal case
When can a juror testify during the current proceeding?
(a) extraneous prejudicial information improperly brought to juror’s attention
(2) outside influence improperly brought to bear on any juror, and
(3) clerical/secretarial errors
How may a witness be impeached
(1) bias/prejudice
(2) sensory defects
(3) prior inconsistent statements
(4) character trait for untruthfulness
Impeaching a witness because of witness’s character trait of untruthfulness
When is character of untruthfulness of a witness permitted? In what forms is it permitted?
Bad Act Impeachment
Impeachment by Evidence of Felony Conviction
Always allowed: character for untruthfulness is always material and may be attacked by opinion or reputation. Once attacked, can be bolstered by opinion/reputation.
BAD ACT IMPEACHMENT (Collateral Matter Rule applies)
On cross examination, may use specific instances of prior unconvicted* acts (bad acts) to impeach
IMPEACHMENT BY EVIDENCE OF FELONY CONVICTION
If ∆ is the W (in a criminal case): admissible if “probative value outweighs its prejudicial effect”
If ∆ is not W: Admissible if passes R403
IMPEACHMENT BY EVIDENCE OF CRIMEN-FALSI: evidence of crimes requiring dishonest acts or false statements are always admissible
if 10 years have elapsed since conviction or release from confinement, whichever is later, evidence is admissible if its probative value substantially outweighs its prejudicial effect (and must give notice)
When are leading questions permitted
PARCH
P- preliminary background information A- adverse witness R- refresh recollection C- child witnesses H- hostile witnesses
Rule of exclusion/sequestration, does not exclude
(1) parties
(2) essential witnesses (experts)
(3) statutorily exempt people (victims)
Violation of the rule results in mistrial
FRE
What are the requirements for lay witnesses?
What may they testify to?
What are they not allowed to do?
Lay witnesses must have personal knowledge
VEMPS
V- value of one’s own property
E- emotional states
M- measurements
P- physical states (e.g., sickly, intoxicated, fat)
S- sensory descriptions (e.g., bad smell, bright blue)
S- Sanity of Testator
Cannot state testimony in conclusory terms or provide a legal conclusion
FRE- Expert Testimony
Qualified + Relevant + Reliable
QUALIFIED
Special skill, knowledge, education, experience, training
RELEVANCE: must be relevant/helpful to factfinder
RELIABLE - TAPES T- Tested (methodology) A- Accepted (generally by relevant community) P- Peer Reviewed E- Rate of Error S- Standards
FRE- “Not Hearsay”
it is a statement not offered for its truth
(1) effect on the listener
(2) state of mind
(3) verbal acts: independent legal significance (tortious words/transactional words)
(4) legally operative facts: words accompanying ambiguous physical actions (“this is a gift”)
(5) impeachment
FRE- “Non Hearsay” (Definitionally Not Hearsay)
Admitted for substantive truth
(1) ADMISSIONS (statement by party opponent)
Direct
adoptive (silence where RP would deny)
authorized
vicarious
co-conspirator (C existed by POTE; D is member; STT in furtherance of C; stt made during C)
(2) PRIOR STATEMENT: declarant must testify and be subject to cross examination
- PINS (sworn)
- PCS (rehabilitate after inference of recent fabrication)
- PID (made after perceiving person)
FRE - Hearsay Exceptions: R803
(1) Present Sense Impression.
(2) Excited Utterance.
(3) Then-Existing Mental, Emotional, or Physical Condition (not wills)
(4) Statement Made for Medical Diagnosis or Treatment.
(5) Recorded Recollection (personal knowledge; made/adopted by W when fresh in W’s memory; accurately reflects W’s knowledge)
(6) Records of a Regularly Conducted Activity.
(7) Absence of a Record of a Regularly Conducted Activity.
(8) Public Records.
(9) Public Records of Vital Statistics.
(10) Absence of a Public Record.
(11) Records of Religious Organizations Concerning Personal or Family History.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies.
(13) Family Records.
(14) Records of Documents That Affect an Interest in Property.
(15) Statements in Documents That Affect an Interest in Property.
(16) Statements in Ancient Documents.
(17) Market Reports and Similar Commercial Publications.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets.
(19) Reputation Concerning Personal or Family History.
(20) Reputation Concerning Boundaries or General History.
(21) Reputation Concerning Character.
(22) Judgment of a Previous Conviction.
(23) Judgments Involving Personal, Family, or General History, or a Boundary.
R804: Hearsay Exceptions–Declarant Unavailable
Requires Declarant be Unavailable: PRISM P- Privilege R- Refusal I- Incapability/Incapacity S- Subpoena M- Memory
“Fire Fighter PAD”
(1) FORMER TESTIMONY
Sworn Statement,
given by W in a proceeding on the same subject matter, and
party testimony is being used against had an opportunity and similar motive to examining the W
(2) DYING DECLARATION (civil cases; criminal *homicide cases)
(3) STATEMENTS AGAINST INTEREST
Statement against declarant’s interest when made; and
Declarant is a non-party;
If W is ∆, and stt is against declarant’s penal interest, corroboration is required
(4) PEDIGREE (statement of personal/family history)
(5) FORFEITURE BY WRONGDOING
Confrontational Clause
criminal cases
Declarant must be available for cross examination if offering testimonial evidence
What does the Best Evidence Rule Require
When does it apply
When does it not apply
Requires originals of writings, recordings, and photos
APPLICABILITY: only applies when
(1) when contents of writing are in issue, AND
(2) no independent source to prove the issue (i.e., W w/ personal knowledge)
NON-APPLICABILITY (“LOCS”)
L- lost/destroyed (unless BF)
O- opponent has original and won’t deliver
C- collateral (not related to controlling issue)
S- Subpoena (original cannot be obtained by judicial procedures)
Additionally,
(1) Duplicates: valid to the extent of original, unless question of duplicate’s authenticity
(2) Public Records
(3) Summaries of Voluminous Writings: may be presented in chart, summary, calculation. the original records must be available for both parties.
Alford Plea
Allows a defendant to recognize the elements of the offense and the weight of the evidence, without admitting guilt.
The effect is that of a guilty plea.
The defendant waives the right to confront witnesses as well as a trial by jury and appeal
Contracts:
How to determine whether a hybrid contract is for goods or services
predominant purpose rule: consider
(1) the language of the K
(2) nature of supplier’s business
(3) Relative value of goods vs. services
What is the Parol Evidence rule
Exceptions?
Ks intended to be final and complete expression of agreement, contemporaneous or prior parol evidence is inadmissible to contradict or supplement the terms.
If parol evid explains/interprets terms: always admissible
If parol evidence supplements terms: admissible unless completely integrated.
If used to contradict terms: parol evidence is not admissible if completely integrated or terms are integrated
EXCEPTIONS
subsequent agreements
collateral agreements
attack on validity of agreement: failure of oral condition precedent and absence of consideration. (also, normal defenses)
Anticipatory Repudiation
A/R OCCURS WHEN:
(1) definitive statement that the party will breach; or
(2) voluntary/affirmative act that renders the party unable to perform or apparently unable to perform.
IF NO A/R: if there are reasonable grounds for insecurity (i.e., reas grounds to believe other party won’t perform), insecure party may demand adequate assurances.
UCC: demand must be in writing
Other party must respond with reasonable assurances w/in reasonable time (UCC: 30 days), or else this will constitute A/R.
REMEDIES WHEN THERE’S AN A/R:
(1) cancel K
(2) S/p
(3) ignore repudiation (continue under K)
RETRACTION OF REPUDIATION (by breaching party): A/R may be retracted until insecure/aggrieved party
(a) acts in reliance of the repudiation
(b) positively accepts repudiation by signifying this to the breaching party, or
(c) filing lawsuit
