Final Exam Flashcards
5 Elements of Crime
- Actus Reus
- Mens Rea
- Concurrence
- Causation
- Harmful Result
Elements of a trial
- Jury selection
- Opening statement
- Presentation of prosecution’s case
- Questioning of a witness
- Pieces of evidence
- Presentation of defense
- Closing statements
- Jury instructions
Four types of evidence
- Physical: can be picked up and has standards of admission
- Documentary: papers and documents
- Testimonial: stated under oath by a witness
- Judicial notice: judge acknowledges as fact of common knowledge
Sources of law
- Constitutions: federal and state
- Statutes: laws passed by politicians and primary source of US law
3: Judicial decisions: cases - Administrative regulations: IRS, Social Security, FDA, Government agencies
6 methods of discovery
- Depositions
- Interrogatories
- Request for production of documents (RFP)
- Request list of experts
- Request of court order to have a doctor provide physical/mental examination
- Request for admission or admissions
Defenses to crime
- Insanity: not responsible for actions due to severe illness
- Intoxication: involuntarily intoxication
- Infancy: age a child becomes responsible for crime
- Necessity: lesser of two evils
- Entrapment: government persuades or entices person to commit a crime
- Duress: committing a crime because you are forced to do so
Divorce (disillusionment)
Legal judgement that dissolves a marriage
Divorce explained
Previously fault-based, no longer fault-based
Irreconcilable differences (single person declaration)
Irretrievable breakdown of marriage (single person decl.)
Both parties entitled to 1/2 of everything
Fault plays no part in assets, debts or child custody
Minor Courts
City & County: lesser crimes, traffic, misdemeanor and shoplifting
Municipal: low level criminal and civil matters
Trial Courts
Determine the facts and apply the law to the facts
Common Law
Law created by the courts
Legal Actors
Judge: decision maker & referee
Lawyer/attorney
Legal advisor
Legal scholars
Pleadings
Documents that begin a lawsuit – a complaint or an answer
Voir Dire
Examination of prospective jurors to see if they are fit to serve as juror
Two types of voir dire strikes
Peremptory: strike juror for any reason – reason need not be given (Strikes: Felony 5, Capital Murder 12, Misdemeanor 2)
Challenge for Cause: unlimited strikes (personal connection to someone, related, bias or racist)
Stare Decisis
Doctrine: once court decides one way on an issue, it and other courts in jurisdiction will decide the same way with similar facts – unless courts can be convinced to change the decision
Complaint
Pleadings that begin a lawsuit
Search Warrant
Court’s prior permission for police to search for and seize property
Ordinance
Law enacted by a local government; a subcategory of statutory law
Default Judgement
Judgement entered against a party who fails to complete a required step; such as answering a complaint
Two types of legal writing
Persuasive: brief turned into a judge to persuade a decision (e.g. motion to dismiss because elements required have not been met)
Objective: examines both sides of an issue and remains within firm – full transparency to advise a firm
Evidence facts
Introduced at trial: testimony, expert witness, items, documents, etc.
Admissible or inadmissible
Probable cause: blocked from being used
Federal Rules of Evidence (FRE): applies in federal courts
Common Law Marriage
…has not been solemnized but both parties mutually agree to enter the relationship and accept all the duties and responsibilities that represent marriage
Child Support
Money that the noncustodial parent contributes to assist the custodial parent in paying for the child’s food, shelter, clothing, medical care and education
Negligence
Failure to act reasonably under the circumstances
Types of child custody
Physical: children reside with one parent
Legal: the right to make legal decisions
Previous child custody standards
Tender Years Doctrine: discriminated against men that women were better mothers
Current child custody standards
In the best interest of the child – and children should not go more than 5 days w/o seeing the other parent
Child custody option
One week on, one week off – or in CO. 5-2-2-5
Child Support Payments
- Computed mathematically
- Higher earning parent pays lower earning
- Pay based on first job only
- Amount based on overnight stays
- Payment until child is 18 years old
- Can file motions to reevaluate payments for financially reasons
Alimony
Payment to spouse who make less money
Types of alimony
- Permanent
- Rehabilitative: paid out for opposing to get financial life together
- Lump sum: one-time alimony payment and used less frequently
Standard of admitting evidence
- Must be logically relevant and material to current issue; must prove disprove what you are arguing
- If relevant and material it can be excluded if it presents bias or prejudice (e.g. photo of dead body)
- Factors to exclude evidence: bias prejudice, needless repetition, confuse or mislead jury
Documentary evidence: any written document
- Authenticate: give proof and provide evidence of document (notarized and signed)
- Best Evidence Rule: court wants to see original signed copy or reason for not having these requirements
Physical evidence
Chain of custody or logbook information
Two types of testimonial evidence
- Lay witness: observed something and obtained information from their senses
- Expert witness: give professional judgement (e.g. DNA, etc.)
Competent witness qualifications
- Must be able to take in data from senses
- Must clearly and accurately communicate data
- Must speak truthfully under oath
Impeachment of a witness
- Crimes of dishonesty: forgery, embezzlement, perjury, felony, etc.
- Felony of dishonesty: judge’s discretion
- Ten year rule: ten years have past since release from prison
Format to ask questions (witness)
Leading questions: yes/no questions on cross examination
Open ended questions: direct examination
Improper questioning (witness)
Argumentative: arguing or harassing questioning
Misleading questions
Types of privilege
Relationship that is used to stop a person fro testifying
- Attorney/client
- Physician patient: info part of treatment
- Husband/wife: spousal immunity
- Confidential communication: criminal or civil info that cannot be forced to be revealed (e.g. sex activities)
Hearsay evidence
Second-hand information
When hearsay is allowed
- Dying declaration: someone’s dying moments
- Excited utterance: determined to be truthful
- Statement against interest: a rat
- Catch all: if hearsay does not fit and judge can allow
Civil Rights
Government doing something for its citizens
Civil Liberties
Legal guarantees that government will not interfere with aspects of peoples personal lives
5th Amendment
Govt. cannot take your property
Right against self-incrimination
Double jeopardy: govt. cannot try you twice
Due Process: govt cannot deprive you of life, liberty or property without due process of the law
6th Amendment
Gov. cannot take away right to a speedy trial – 6 months to try you from date of charge
7th Amendment
Right to trial by jury in civil cases and does not apply to states
8th Amendment
Impose cruel and unusual punishment
Govt. may not impose excessive bail
Civil Rights
13th, 14th and 15th Amendments
13th Amendment
Abolish slavery
14th Amendment
Provide birthright citizenship
15th Amdendment
African American men given right to vote
Alimony issues
- Discretion was entirely up to judge
2. Formula used to determine amount paid
Alimony formula
(.40) of higher earning spouse’s salary minutes (.50) of lower earning spouse; paid out of duration of half the time they were married
Applied when incomes are significantly different
Designed so judges cannot be bias or different
Designed for spouse who makes less than 240k
Conflict of interest
Rule prohibiting attorney and paralegals from working for opposite sides in a case
Types of Conflict of interest
- Personal: related to someone on opposing side
- Business: suing someone you have business ties with – bias to throw case
- Client client conflict: two clients opposing each other come to you for representation
Client client conflict types
Concurrent/present: A&B involved in suit with each other
Successive: when lawsuit has been resolved - you win suit for husband and wife comes to you later in a separate case
Legal fees
How attorneys get paid; must be fair, reasonable and in writing.
- Hourly
- Flat fee: one amount covering all matter
- Contingent: percentage of winnings
Due Process
5th and 14th Amendments: guarantee notice and hearing must be provided before depriving someone of property or liberty
Discovery
Pretrial procedure by which one party gains inf from the adverse party
Appellate courts
Determine whiter lower courts have made errors of law
Jurisdiction
Power of a court to hear a case
Precedent
One or more prior court decisions
Self-defense
Justified use of force to protect oneself or others
Answer
Defendants reply to a complaint: can be denial, admission, lack of knowledge and affirmative defenses
Writ of Habeas Corpus
Court order to produce the person detained; prisoner’s request that court review and legality of their imprisonment
Case reporters
Books that contain appellate court decisions; both official and unofficial reporters
Ratio decedendi
courts reasoning for its decision
Legal ethics
Legal standards professionals are bound and test by (e.g. confidentiality and how to behave with a client)
Can be disbarred for breaking rules
Legal advertising
- No personal solicitation
- Television: allowed
- No ambulance chasing
Antenuptial Agreement
Prenuptial agreement: signed prior to marriage regarding finances and debts if the marriage should end
Confidentiality
Ethical rule prohibiting attorneys and paralegals from disclosing information regarding a client of client’s case
Types of reporters
US Supreme Court: SCOTUS decision only Lexis and West
Federal: any federal or appellate decision and federal trial courts
State: west corporation
World Legal Traditions: Civil Law
- Used in most of the world
- Judges use a legal book to resolve disputes
- Takes away power from judges
- Does not use juries
World Legal Traditions: Common Law
- Used in the US
- Adversarial: opponents battling in court
- Plaintiff, Defendant and Jury
Trials in Civil Law
- Inquisitorial
- No jury
- Lawyers: very small role
- Judge does most questioning
- Judge decides evidence to see
- Length of trial: 1/2 day to 1 at most
- One judge + 2 lay judges
- Can force someone to testify
- Money cannot bias the system
Religious Law
- Operates based on religion
- Law is God given
- Witness takes an oath on a book
- Must be male, Islamic, 2 women count as one vote and you can gather people to win your case. Numbers mean victory
Comparative Judicial Review
Power of a court to strike down action of another political branch: overturn a law, statute, executive decision, Congress
Judicial differences around the world: models
US: Diffuse – any court can use judicial review from bottom up - no court can overturn Supreme Court
World: Centralized – One court that can use judicial review
Judicial Review around the world: timing
US: a court can use judicial after an action or decision has been made
World: can be used before action or decision has been made
Judicial Review around the world: standing
US: can only request judicial review if you have stake in the case
World: no standing required and anyone can request judicial review
Indian System of Judicial Review
Supreme Court of India decision can be overturned with a 2/3 majority vote in both houses of parliament
England/UK System of Judicial Review
Modeled after US, they have Parliamentary Supremacy and it can be overturned by the Supreme Court. Until 5 years ago, no power existed to check this power
Explain the parts of:
Smith v. Jones, 97 US. 113 (1998)
Case italicized Smith: appellate bringing appeal V: versus Jones: appellee defending appeal 97: Volume US: Reporter (numbered 1-999) 113: first page of the case 1998: year case was decided
US Reporter: Supreme Court
Contains only cases from Supreme Court and published by US government
West Corporation: prints separate volume called “Supreme Court Reporter” which incl. research aids
Lexis: Lawyers edition
Federal Reporter
Any federal or appellate decision
Federal Trial Courts
State Reporter
State reporters by the West Corporation
What is a tort?
Harm or injury (wrong) Harmful omission (failure to act) Failure to report a harm (doctor, teacher, etc.)
Tort negligence
Carelessness/recklessness causing harm in some way
4 elements to prove tort
- Duty of care: to act reasonably at all times (safe driving); and under circumstance of higher duty for parent to child, workplace to employees, bar to patrons, etc.
- Breach of duty: someone broke their duty
- Causation: Physical (actual) and Legal Cause (proximate) - physical - must show harm was caused and legal (but for test); legal cause - foreseeability and chain of events
- Harm: actual damage
Defenses to negligence (tort)
- Deny elements: claim elements of tort not met
- Assumption of the risk: skydiving
- Comparative negligence
Intentional tort
Criminal or Civil
- Criminal: battery or murder
- Civil
2 elements proving intentional tort
- Intent: person intended to harm
2. Action: prove they physically harmed a person
4 levels of Mens Rea
- Purposely: highest degree of planning (1st degree)
- Knowingly: less planning (2nd degree murder)
- Recklessly: you knew it and ignored it
- Negligently: should know it but you do not
3 rules of self-defense
- Can use if you believe you are in imminent harm or danger
- return force must be proportional
- Must be person being threatened
Two types of causation (elements of crime)
Direct and Proximate
- Direct: if not, “but for” the actions of this person…
- Proximate: test of foreseeability
