FINAL REVIEW 101-121 Flashcards
Grand Juries
Federal government has to indite, states do not.
No right to:
- Confront Witnesses
- Introduce Evidence
- Be Present
- Miranda
- Have Counsel present
FRE does not apply
Exclusionary rule does not apply
Fifth Amendment privilege may be asserted
Transferred Intent
The intent to commit an act on another party will transfer to a third party if the harm occurs to them instead.
Risk of Loss
New Construction - Where a newly constructed building is destroyed without fault by either party the builder bears risk of loss
EQUATION - Amount paid to builder + additional costs to complete
Renovations - Destruction of a building during renovation or remodeling without fault of either party will excuse the builder’s duty to perform
SMJ: Removal
Could a case in state court have been filed in federal court originally? In that case removal is possible.
HOME RULE - If the case could have been filed in FED due to diversity jurisdiction but the defendant is a citizen of the state where the filing occurs removal is not permitted
All defendants must consent to removal
Removal must occur within 30 days of when the grounds for removal become clear. When removal is based on diversity, the case must be removed within one year from the date the suit was filed (even if new grounds become apparent).
Does the Equal Protection clause apply to the Federal Gov?
No, only the due process clause.
Opening the Door - FRE 404
Defendant may open the door with reputation or opinion evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut.
TIP - Impeachment with specific acts requires a question on cross examination (no information /specific acts from outside courtroom)
Mailbox rule
Acceptance is effective upon dispatch to mail.
Otherwise the communication is effective upon reciept.
Hierarchy of Laws
- Constitution
- Acts of Congress/Treaty (LAST IN TIME PREVAILS)
- Executive Agreement - Foreign Policy
Executive Order - Domestic Policy - State law
Former Testimony - FRE 804
Requires:
- Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition
- Unavailable declarant
- Opportunity and similar motive to develop the testimony
TIP - Can apply where different plaintiffs are suing same defendant.
Affirmative Defenses
All affirmative defenses must be plead in a defendant’s answer or reply to a counterclaim
An affirmative defense relies on factual issues not presented in complaint.
- Assumption of risk
- Contributory negligence
- Duress
- Failure of consideration
- Fraud
- Illegality
- Statute of frauds
- Statute of limitations
Must be plead in answer or reply or waived
Risk of Loss under UCC
Where there is an open delivery term, seller’s place of business is deemed the place for delivery
- Risk of loss is on buyer during transit (shipment contract)
TIP - UCC can read in (substitute) all necessary elements except quantity)
Bona Fide Purchaser
- Pays Value (purchaser, mrtgagee, judgement creditor)
- Takes in Good Faith
- Take without notice of competing claims
Recording Statutes
- Race - 1st to record wins (NOT GENERALLY TESTED)
- Notice - Last BFP wins
- Race/Notice - First BFP to record wins
Shelter Rule
A grantee who has received an interest in property from a bona fide purchaser will also be protected as a bona fide purchaser, even if the grantee would not legally qualify for this status. The grantee is “shelteredL from other claims by the grantor’s status as an actual bona fide purchaser
Purposes of this rule:
- Allow a bona fide purchaser to have congruent entitlement to sell property
- Prevent the use of the property from being held up in litigation
Surface Waters
Applies to water from rain, springs, melting snow and ice
Common law rule - Every landowner has the right to obstruct and shut out common enemy and may impound all surface water he can capture
