General Bar Flashcards
A promise (even w/o consideration) is enforceable if necessary to prevent injustice if:
a) the promissor should reasonably expect to induce action or forbearance, and
b) such action or forbearance is in fact induced
This is the concept of promissory estoppel or detrimental reliance
When may clerk of the court enter a default judgement?
- The D has made no response at all;
- The claim is for a sum certain of money;
- The P gives an affidavit of the sum owed; and
- The D is not a minor or incompetent
Is a record of arrest admissible impeachment evidence?
- No. A record is not a conviction.
If you want to inquire about an arrest, you must ask about it on cross
How long are felony convictions admissible for impeachment?
10 years, at judge’s discretion
What standard of review applies to speech restrictions in limited public forums?
Intermediate scrutiny
Is a library a traditional public forum?
No
What standard of review applies to classifications based on economic status?
Rational basis
What is a condition precedent?
An act or event that must occur first before a party is under a duty to perform
What level of scrutiny applies to commercial speech restrictions?
Important/substantial gov. interest
When is 6th amendment right to counsel triggered?
After a defendant has been formally charged (indictment)
Is attempted murder enough to admit a dying declaration in a criminal trial?
NO - it must be a trial for murder
What is an admission?
An out of court statement, made by a party, offered against them, by a party opponent
Are admissions hearsay?
No. Nonhearsay by definition
What must exist before a settlement negotiation can occur?
There must be an actual dispute between the parties
Is mistake of law ever a valid defense?
No
When there is a mistake/inconsistency in the description of the land in the deed, what description prevails?
The physical description over the quantity description
What are the two types of necessity defenses to trepass?
Private necessity
- Qualified defense
- D is liable for damages to property
Public necessity
- Absolute privilege
Does equal protection clause apply to federal laws?
No. Only state laws
Who holds the spousal testimonial privilege?
When does it apply?
- The witness-spouse holds the privilege
- Applies in criminal trials that take place while the spouses are married
Who holds the confidential marital communication privilege? What comms does it apply to?
- Either party may assert the privilege
- Applies to confidential communications made while the parties were married
President’s pardon power is limited to…
- Federal offenses
No pardon for:
- Impeachment
- Civil contempt
What is required to support a claim for negligent infliction of emotional distress?
- P must be in the zone of danger
- Physical injury/symptoms
Zone of danger = sufficiently close to D to be subject to high risk of physical impact
What must a party do in order to appeal a jury instruction?
Object to the jury instruction at trial
Where is venue proper?
- In the district where D resides if all D’s reside in the same state
Otherwise, (or?)
- Venue will be proper in the district where the cause(s) of action arose
Is intent required for trespass to land?
Yes. If D knows to a substantial certainty that an action is likely to cause a trespass to land, that will amount to trespass
Does the rule against perpetuities apply to rights of first refusal?
Yes, rights of first refusal must be held by ascertainable people… not heirs & assigns
For search incident to a lawful arrest, the police can search what area of the car?
Only the passenger compartment of the car and only if the police reasonably believe the car contains:
- Instrumentalities associated w/ the arrest
- There is a threat to officer safety or threat that evidence will be destroyed
Automobile exception to warrant requirement
- If probable cause justifies the stop of a vehicle, it justifies the search of the entire vehicle, including closed containers kept therein
- Probable cause must exist that the vehicle contains the fruits, instrumentalities, or evidence of a crime
Must a merchant’s firm offer be in a signed writing?
Yes. Anything that looks authenticated will suffice
When does remittitur arise?
What happens?
- When jury’s compensatory damages are so excessive as to shock the conscience
- Judge can offer P the option of accepting a lesser amount or submit to a new trial
When is a fee simple subject to a condition subsequent created?
- When the grantor uses words like “upon condition that”, “but if”, or “if it happens that”.
Here if the stated event happens, the grantee’s estate continues until the grantor exercises her right to terminate.
What underlying felonies constitute felony murder?
- Burglary
- Arson
- Rape
- Kidnapping
- Robbery
- Attempt of any of the above
BAR Killer Ran Away
At common law, if only one party intends to commit the crimes, can the other be guilty of conspiracy?
No. Common law uses the bilateral approach
MPC uses the unilateral approach
Peremptory challenges are allowed as long as they aren’t based on…
Race, national origin, religion, or gender
Unilateral mistake will not prevent contract formation unless…
The non-mistaken party knows or has reason to know of the other party’s mistake
When is evidence of subsequent remedial measures admissible?
Admissible to show:
- Ownership or control
- When the defense is that there was no way to make things safer, when in fact there was
Can the non-breaching party cancel the contract because of a minor breach?
No. They can only sue for damages.
If you are testifying on the stand about what you said out of court, is it still hearsay?
Yes. Unless an exception applies.
Do exclusionary rules of evidence apply to grand jury proceedings?
No. Never.
What is the duty owed to an anticipated trespasser?
A duty to warn of known, dangerous, artificial and natural conditions on the property.
What is the duty owed to an invitee?
- Duty to inspect
&
- Duty to make safe
When a buyer purchases property subject to a mortgage, are they personally liable for the mortgage debt?
No. But the bank can foreclose
- Buyer is personally liable when she assumes the mortgage
Prior inconsistent statements are hearsay admissible for…
- Usually, only impeachment
- If made under oath and the declarant is available to testify, it is nonhearsay and admissible as substantive evidence
When may SCOTUS review a decision from a state court?
- Final judgement
- From highest state court
- That raises a substantial Fed question
- Decision did not rest on adequate and independent state grounds (meaning the state court ruled on the federal q.)
If the reversal of the ruling on the Federal question would change the outcome, then SCOTUS can hear
What intent is required for arson?
General intent (malice)
Majority rule for Arson?
- Malicious burning of any structure or dwelling
This is the only crime where MBE does not default to the common law rule
Do assignments need to be in writing to be enforceable?
No
When are prior identifications admissible?
Prior identifications are admissible only when the person who made the prior ID is available to testify and subject to cross examination.
What is the professional standard of care?
A professional is required to exercise superior judgement/skill/knowledge
Is an order granting certification of a class immediately appealable?
Yes
To change the D, an amendment will relate back if:
- The claims in the amendment arise for the same T/O
- If the amendment was done within the time allotted for serving the original complaint (90 days from filing)
- The D had knowledge of the case such that she will be able to avoid prejudice
- The D knew or should have known that, but for the mistake, she would have been named originally
Is a manufacture strictly liable for product defects in products they did not place into the stream of commerce?
No
A defendant commits the crime of false pretenses when he…
- Obtains title
- To the property of somebody else
- By a false statement made intentionally/knowingly
- With the intent to defraud
Can D’s specific acts be used to show D’s good character?
No. D can only open the door to his good character by reputation or opinion evidence
Can Congress tell the President where to send the troops?
No. Infringes on President’s authority as Commander in Chief.
A D’s motion for directed verdict will only be granted if…
P failed to establish prima facie case.
