July 2017 Bar Exam Flashcards
Miranda Warning
When informing you of your Miranda rights an officer or investigator must include: You have the right to remain silent. What you do say can be used against you in court. You have the right to speak to an attorney and have a lawyer present during any questioning.
It involves the fifth Amendment
When does a Miranda Warning need to be given in regard to an interrogation.
Before a citizen may be interrogated while in custody, the court area required to give Miranda Warnings.
is it okay to have interrogated a suspect without Miranda Warning, then do a second interrogation with Miranda Warning.
No, This attempt to avoid Miranda’s requirements is still a violation of Miranda requirements.
A two step interrogation must meet Miranda Requirements.
What is needed for an conviction for Embezzlement.
The criminal charge of Embezzlement is contained in §18.2-111 of the Virginia Code.
Embezzlement is the wrongful taking, concealment or fraudulent use of money, personal property or goods of another.
It is a non-violent crime. The items must be taken by one in a position of trust or fiduciary duty.
Typical examples include money taken by an employee of a corporation, or funds stolen by a bank teller. As with any criminal charge, the government bears the burden to prove the defendant guilty beyond a reasonable doubt. The government must demonstrate that the defendant had the requisite intent, or mens rea, to deprive the owner of the property.
Elements of embezzlement in VA
the Wrongful taking and carrying away of the personal property of another by someone in lawful custody of the position for an employer or by the virtue of his office with the intent to defraud the owner
the fraudulent conversion of the property of another by someone in lawful possession of the property with the intent to defraud the owner
- Need to prove that he was in lawful custody aka was he a employee
- was the taking wrongful
- with the intent to defraud the ownwer
Elements and Requirements of Conspiracy in VA.
Proof beyond a reasonable doubt
of an agreement between two or more persons to commit a felony
and the intent by the defendant to commit that felony.
A conspiracy conviction can be had even if the defendant is convicted of the underlying crime.
NO REQUIREMENT THAT THERE BE AN OVERT ACT PERFORMED IN FURTHERANCE OF THE CONSPIRACY.
Federal Civil Procedure
Federal Rule of Civil Procedure 35
Physical and Mental Examinations
(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
https://www.law.cornell.edu/rules/frcp/rule_35#:~:text=(a)%20Order%20for%20an%20Examination,suitably%20licensed%20or%20certified%20examiner.
Federal Rule of Civil Procedure 35
physical and mental examination.
This allows the federal court to order a party to submit to a physical or mental examination by a suitably licensed examiner when the person’s mental or physical condition is in controversey.
there must be a basis for the controversy
Rule 32. Using Depositions in Court Proceedings
In regard to a Notice of Deposition
Rule 32. Using Depositions in Court Proceedings
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(a) Using Depositions.
(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
Using Depositions in regard to unavaliable witnesses
(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition;
(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used.
When can a party use a deposition against a party is is unavaliable?
- if the witness at the time of the trial is dead
- if the witness is beyond the 100 mile radius from the place of the trial or outside of the US
- is unable to attend the trial because of age, illness, infirmity or imprisonment
- and the party offering the deposition couldn’t procure the witness testimony by subpoena or other extraordinary reasons.
Thus, if a witness is avaliable, that is grounds for a party to object to the introduction of deposition of that party.
Is lateness another ground to object to a deposition of a witness who is unavailable?
yes, if it is only a few days before the discovery cut off date.
It would undermine the schedule.
According to FRCP 32 b
(b) Objections to Admissibility. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.
thus, the deposition testimony is subject to the rules of evidence.
It can be argued that the testimony would be hearsay and it would deprive the other party of the ablity to cross examine the deposed witnesse.
Federal Rule of Evidence 401
All evidence must be relevant
as in, it must make a fact of consequence more or less probable than it would be without evidence.
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Federal Rule of Evidence 403
Precludes evidence if its probative value it outweighed by its prejudical effect.
Federal Rule of Evidence 403
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
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The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Real Estate
When can a written memorandum get a oral agreement out of the statute of frauds?
A written memorandum can take an oral agreement outside of the statute of frauds and allow it to be enforceable when
it identifies the subject of the contract,
is sufficient to indicate a contract has been made and
includes the essential terms of the contract
as well as be signed by the party to be charged.
Section 11-2 - [Effective Until 7/1/2024] When written evidence required to maintain action
Statute of Frauds
Unless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent, no action shall be brought in any of the following cases:
- To charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, to the intent or purpose that such other may obtain thereby, credit, money, or goods;
- To charge any person upon a promise made after attaining the age of majority, to pay a debt contracted during infancy, or upon a ratification after attaining the age of majority, of a promise or simple contract made during infancy;
- To charge a personal representative upon a promise to answer any debt or damages out of his own estate;
- To charge any person upon a promise to answer for the debt, default, or misdoings of another;
- Upon any agreement made upon consideration of marriage;
- Upon any contract for the sale of real estate, or for the lease thereof for more than a year;
- Upon any agreement or contract for services to be performed in the sale of real estate by a party defined in § 54.1-2100 or § 54.1-2101;
- Upon any agreement that is not to be performed within a year; or
- Upon any agreement or promise to lend money or extend credit in an aggregate amount of $25,000 or more.
The consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) by other evidence.
when does a written memorandum takes a oral agreement out of the statute of frauds.
When that agreement indicates the subject matter of the contract, that the contract was made and state the essential terms of the contract and is signed by the party to be charged.
Are purchase price an essential term?
No, as long as it has the price that the buyer agreed to.
What is specific performance
an equitable remedy employed to enforce a contract for land.
pecuinary damages
The dfiferent from the pruchase price and the market price of the property.
Specific Performance
The plaintiff must prove several elements to obtain specific performance. First, the plaintiff must show that there is a valid and enforceable contract between the parties. Second, the plaintiff must demonstrate that they are ready, willing, and able to perform their obligations under that contract. Third, the plaintiff must prove that the breaching party can perform under the contract but has failed to do so. Finally, the plaintiff must show that there is no other adequate remedy at law.
Specific performance is typically awarded when money cannot adequately compensate the injured party and when the contractual obligation is unique or difficult to value. For example, if a breach of contract involves a piece of real estate or stock of a closely held corporation, specific performance may be warranted as these items are considered unique and difficult to value.
UCC Sales and VA Civ PRO
When are implied warranties excluded? Under VA LAW
When the language of the exclusion is conspicious and mentions merchantability or for particular purpose
Conspicious means that it is written and displayed in a way that a reasonable person would notice it.
Contrasting front, bigger in size then the rest of the font. or different color.
What is Conspicious Writing under VA LAW
(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against whom it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
§ 8.2-316. Exclusion or modification of warranties.
§ 8.2-316. Exclusion or modification of warranties.
(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this title on parol or extrinsic evidence (§ 8.2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
**(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”
**
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like** “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and**
(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
(4) Remedies for breach of warranty can be limited in accordance with the provisions of this title on liquidation or limitation of damages and on contractual modification of remedy (§§ 8.2-718 and 8.2-719).
Implied Warranty of Merchantabilty
A merchant is a person who holds himself out as a dealer of the goods of the kind sold and a person who has particular knowledge and skills in regards to those goods. and the business.
For a successful action based on implied warranty of merchantabilty,
the seller must be a merchant of the particular goods of the kind sold and the goods must not have been fit for the ordinary purpose of those goods.
Implied Warranty of Fitness for Particular Purpose
the seller must have been aware of the defendant’s particular purpose of the goods and that the buyer relied on the seller particular knowledge and skills to make the selection.
§ 8.2-719. Contractual modification or limitation of remedy.
§ 8.2-719. Contractual modification or limitation of remedy.
(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section [§ 8.2-718] on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this title and may limit or alter the measure of damages recoverable under this title, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.
(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.
§ 8.2-711. Buyer’s remedies in general; buyer’s security interest in rejected goods.
(1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (§ 8.2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(a) “cover” and have damages under the next section [§ 8.2-712] as to all the goods affected whether or not they have been identified to the contract; or
(b) recover damages for nondelivery as provided in this title (§ 8.2-713).
(2) Where the seller fails to deliver or repudiates the buyer may also
(a) if the goods have been identified recover them as provided in this title (§ 8.2-502); or
(b) in a proper case obtain specific performance or replevy the goods as provided in this title (§ 8.2-716).
(3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (§ 8.2-706).
