MA distinctions -- property, contracts, and evidence Flashcards
How much notice must a landlord provide before evicting a tenant?
14 days. Tenant has option to cure within 10 days of receiving notice, as long as she hasn’t gotten another eviction notice within the prior year.
Eviction may be stayed
for up to a year if resident is disabled or over 60.
A landlord who uses self-help to evict a tenant is
liable for treble damages or three months’ rent, as well as attorney’s fees.
A landlord whose tenant abandons the premises before the lease is up must
at least try to re-let the premises (mitigation of damages).
Implied covenant of quiet enjoyment applies to
both commercial and residential leases.
Constructive eviction is a violation of
the implied covenant of quiet enjoyment.
An eviction is presumed retaliatory if it’s
done within 6 months of tenant complaint or valid withholding of rent
Caveat lessee has been
abandoned in MA – L is liable for any unsafe conditions of which he had notice.
To create an easement by necessity in MA, you must prove
strict necessity.
The implied equitable servitude, also known as the general or common scheme doctrine, is
not applicable in MA.
No adverse possession is permitted on these types of land:
- woodland or wild land
2. registered land
Removal of an encroachment on property in MA will not be required if
the encroachment is de minimis, D acted in good faith, and the cost of removal is grossly disproportionate to the benefit conferred by removal.
Tacking in adverse possession is allowed if there is
a nonhostile nexus between person and their predecessor – e.g. not ouster
An oral contract for the sale of land is usually ___________, unless all of these things have happened:
unenforceable because it violates the SOF
payment of all/part of price; buyer taking possession, or buyer making substantial improvements. (MBE: only need 2 of these 3)
In MA, who bears the risk of loss between when the K is signed and when the closing occurs?
The party in possession.
MBE: equitable conversion means that the buyer bears any losses because she holds equitable title at this point.
Defects in a deed are cured
once deed is on record for 10 years, unless there’s been an action commenced because of the defect during that time.
In MA, deeds must contain
full name, residence, and address of the grantee AND a recital of consideration
(in addition to words of grantor’s intent, adequate description of land, ID of parties, and signature of grantor)
MBE and MA: Do you need consideration in a deed?
MBE: NO
MA: YES
Recording a lawful deed in MA is
conclusive evidence of delivery
What’s known as the quitclaim deed on the MBE is what in MA?
Release deed
What’s known as the statutory warranty deed on the MBE is what in MA?
Quitclaim deed
A quitclaim deed in MA promises that
grantor hasn’t conveyed property to anyone other than grantee, and property is free from encumbrances made by grantor.
Inquiry notice
does not exist in MA. You do NOT take with notice of a prior grantee’s existence just because you could have seen evidence of their possession had you looked.
In MA, a mortgagee may still demand possession at any time, even if
debtor can still redeem.
In MA, habit evidence is admissible
only if it’s business routine, or if a decedent’s estate is trying to rebut a plaintiff’s evidence that a decedent made a certain promise (estate can introduce evidence that decedent had a particular method of dealing that conflicts with what P says).
Evidence of personal habit is not admissible – unless the decedent situation exists.
In MA, statements of fact made during settlement negotiations are
inadmissible as proof of fault or to impeach via prior inconsistent statement, EVEN IF they were made in a civil negotiation with a government agency.
A plea of guilty is
admissible in subsequent litigation based on same facts (as a party admission), unless it was withdrawn.
Statements expressing sympathy to accident victim or to victim’s family are
inadmissible in a civil case an an implied admission of liability. (MA only)
Statements by a doctor or medical professional expressing mistake or error
are inadmissible in medical malpractice suits. (MA only)
In MA, permissible character evidence takes the form of
reputation evidence ONLY – no opinion evidence.
Where D asserts self-defense in a criminal case, the court
has discretion to allow evidence of the victim’s prior specific acts of violence, but may NOT allow evidence via reputation or opinion.
If a D brings victim’s character into play in a self-defense case, prosecutor can rebut by
introducing evidence of specific acts of violence by the defendant.
Evidence of a victim’s prior false rape accusation
may be admissible if there’s corroborating evidence that such false accusations were, in fact, made.
Evidence of defendant’s prior specific acts of sexual misconduct are
NOT ADMISSIBLE in MA TO SHOW PROPENSITY. Only admissible if MIMIC rule is satisfied (e.g. prior act sheds light on M.O., motive)
The following documents are self-authenticating in MA:
- official publications
- certified copies of public or private records on file in public office
- newspapers/periodicals
- trade inscriptions and labels
- acknowledged documents (notarized)
- commercial paper
PLUS
- court records under seal
- domestic official records not under seal
- foreign official records
Does MA have a dead man statute?
NO. Interested witnesses are free to testify against a decedent’s estate, and the adversarial balance is maintained by a MA hearsay exception allowing in statements of a decedent.
How do the MA rules for past recollections recorded differ from the federal rules?
In MA, you can show a past recollection recorded to jury – in federal, can only read it to them.
In MA, can a lay witness testify to whether a person seemed sane/insane?
NO. (Can do so in MBE.)
In MA, what facts can an expert base an opinion on?
Only on facts that would be independently admissible. If they would not be admissible, they cannot be used EVEN IF they’re of the sort ordinarily relied upon by experts in the field.
In MA, an attorney must pose a question to an expert as a hypothetical unless
the expert has personal knowledge of the info to which she testifies. IF not, she cannot give an opinion on this particular case.
How can learned treatises be used in MA?
Takeaway: can only use to discredit an expert on cross, but can’t use on direct UNLESS MED MAL (and then, must give notice).
- They are admissible as substantive evidence IN MED MAL ONLY – don’t have to just be read in, but can be fully admitted in evidence.
- They do not have to be introduced by an expert IN MED MAL CASES ONLY.
- IF NOT MED MAL, can only be used to discredit an opponent’s expert.
In child sex abuse cases, an expert
cannot bolster the complainant’s credibility by saying that sex abuse actually occurred here.
Seen as violating the province of the jury.
True/false: Cross-examination in MA is limited to the scope of direct exam.
False. MA has “wide open cross” – can ask about anything relevant to the case.
General MA rule on bolstering credibility of your own witness:
Can’t do it until she’s been impeached, except prior IDs (also fine in federal) OR sexual assault – prosecution may introduce evidence of the victim’s first report of the assault, for the purpose of bolstering the victim’s credibility (NOT as substantive evidence).
The MA rule on impeaching your own witness is:
You can do it, but not by evidence of the witness’s bad character (e.g. reputation for truthfulness, prior convictions). Can do it using other methods.
Where extrinsic evidence is allowed to impeach, do you need to ask a witness about the impeaching fact before impeaching her with extrinsic evidence?
NO, never. (On MBE: only need to ask witness before impeaching her if you’re impeaching her for bias.)
Do you need to give a witness the chance to explain or deny a prior inconsistent statement?
Not usually, but if you’re impeaching your own witness with her prior inconsistent statement, you have to confront her with it while she is on the stand.
Do you have to confront your witness with alleged bias before impeaching her with extrinsic evidence of bias?
No. (Different in FRE.)
How do you impeach a witness for her character for truthfulness?
Reputation evidence only, no opinion.
Can impeach ANY witness this way.
Convictions that may be used to impeach a witness in MA are ____________________ and the various time limits are ___________________.
ANY conviction (felony or misdemeanor), subject to time limits that vary based on severity of punishment, and ALWAYS subject to court’s balancing:
- felonies resulting in prison sentence – can’t be used after 10 years from expiration of minimum term of imprisonment.
- felonies resulting in sentence other than prison (fine, jail, house of correction): can’t be used after 10 years from date of sentencing.
- felonies resulting in probation: can’t be used after 10 years from date of conviction.
- misdemeanors: can’t be used after 5 years from date of sentencing.
Felony convictions may be revived, even if they are too old under normal rules, if
witness subsequently is convicted of another crime within 5 or 10 years (depending on if misdemeanor/felony) of the time the witness testifies.
Are any convictions automatically admissible to impeach a witness in MA?
No. All convictions are subject to balancing by court.
When a criminal D testifies in his own defense, courts should
hesitate to allow impeachment with a conviction similar to the crime currently charged.
Bad acts that reflect poorly on truthfulness in MA:
NOT ALLOWED as impeachment evidence unless there was a conviction.
If an attorney would subject client to criminal liability by handing over physical evidence in her possession,
the attorney doesn’t need to hand it over – combination of self-incrimination privilege and A/C privilege supersede a subpoena.
Materials protected by the work product doctrine are _____ if a party uses them to refresh recollection.
no longer privileged and can be inspected by opposing party.
The MA physician-patient privilege applies
only to psychotherapists (true in federal question cases in federal court, too)
Spousal immunity in MA applies to
all criminal cases, but not to grand jury proceedings or to cases based on child abuse or incest.
Confidential communications between spouses in MA are
absolutely protected; spouses are BARRED from testifying to private oral communication that occurred during the marriage. Doesn’t last after death – spouse may testify to anything decedent spouse said.
Exceptions: abuse/incest, actions between spouses (contracts, paternity/support, desertion, neglect, etc.).
Children are ________ testifying against parents.
forbidden from (in criminal cases only, minor children only, and must live with the parent for the protection to apply).
Exception: if victim lives in same household and is member of parent’s family.
Privilege against self-incrimination and DUI cases in MA:
Privilege applies to evidence that a D refused to take a chemical/field sobriety test.
Prior inconsistent statements are/are not hearsay in MA.
They are hearsay and cannot be introduced for TOMA (even if under oath during formal proceeding – MA doesn’t recognize federal exclusion here; admissible only as impeachment)
Prior consistent statements to rebut charge of recent fabrication, contention of inconsistency, or charge of sensory incapacity are/are not hearsay in MA
They are hearsay and cannot be introduced for TOMA (only as rehabilitation – doesn’t recognize federal exclusion)
Co-conspirators’ admissions in MA are admissible against another party to a conspiracy
only if there’s sufficient foundation that the declarant and the defendant were in a criminal enterprise.
In MA, three additional hearsay exceptions are:
- statement of a decedent in a civil action
- sworn medical report of medical examination of an injured person
- statement by child victim of sexual act.
In MA, a witness is unavailable only if she
invokes privilege, is absent from jx, or is sick/has died. (NOT if she doesn’t remember or refuses to testify, which are grounds for unavailability under federal rules)
In MA, the dying declarations hearsay exception can be used only in
criminal homicide cases (no civil cases).
Statements of a decedent are admissible in MA
in any civil proceeding, for TOMA, if made in good faith and based on decedent’s personal knowledge
The one FRE hearsay exception that MA wholeheartedly does NOT recognize is:
present sense impression
The hearsay exception allowing statements for the purpose of obtaining medical treatment or diagnosis in MA varies from the federal rule in that it:
forbids evidence that points to the identity of an abuser in a domestic violence or child abuse case. (Federal rule generally forbids evidence of the ID of a wrongdoer, but makes exception for identity of abuser.)
In MA, a business record must ________ to be admissible under the hearsay exception.
have been made before litigation started
The sworn medical reports exception allows
a doctor’s or hospital’s sworn written report describing a medical exam to be admitted to prove diagnosis, prognosis, or opinion as to proximate cause of injury or disability.
Must the doctor who signs a sworn medical report have personally treated the patient?
No, as long as the report states the basis for his knowledge (e.g. that he looked at medical records).
The public records hearsay exception in MA allows introduction of records setting out
activities of public office/agency, or matters observed pursuant to duty imposed by law (except police reports can’t be admitted against D in a criminal case).
(Federal rules also allow findings of fact or opinion from investigations authorized by law, but MA doesn’t allow this.)
MA policy with respect to child victims of sexual acts:
In a criminal case, a statement of a child under 10 describing a sexual act performed upon or with the child, or identifying perpetrator, is admissible if
a) child is unavailable
b) statement has adequate reliability and is corroborated, AND
c) someone who heard the child make the statement can testify at trial.
**Note: must consider possible confrontation issues here.
Defamation: what must always be proven in MA?
Fault (at least negligence) and falsity “in some material respect,” in addition to the usual.
Whether a publication is defamatory is judged by the standard of
whether it tends to discredit the plaintiff in the eyes of “any considerable and respectable class” in the community.
Three categories of slander per se in MA are:
- slander re: business reputation
- slander re: loathsome disease
- slander re: commission of crime.
In MA, punitive damages in defamation are
not allowed.
Commercial disparagement is
the business equivalent of defamation in MA (publishing a false statement about plaintiff’s product or services, with malice, harm is foreseeable and actually occurs).
Right to privacy:
By statute, MA provides a person with a right against unreasonable, substantial, and serious interference with his privacy. Most cases are about public disclosure of private fact.
False light invasion of privacy
does not exist as a tort in MA.
The firefighter’s rule is
not recognized in MA. Statutes permit firefighters and police officers to recover if there’s negligence.
Prenatal injuries recognized in MA:
wrongful birth and wrongful pregnancy, but damages are offset by the value of emotional benefits of having the child. “Wrongful life” doesn’t exist as a tort.
Interference with business relations must be ____ to recover in MA
improper in motive or means
At-will employees may have action for wrongful discharge if
- -they have an express contract based on promises in employment manual, or
- -employer violated clearly established public policy, or
- -employer violated the covenant of good faith and fair dealing – narrow COA, employee must show termination designed to deprive her of previously earned salary/commission.
Whistleblowers in MA may recover
10-25% of damages from wrongdoer.
In MA, negligence in medical malpractice actions is judged by
the standard of care of the average member of the medical profession practicing his specialty – national standard of care.
Damages in medical malpractice are
capped at $500k in MA.
Premises liability for lawful entrants:
reasonable prudence under the circumstances (for both invitees and licensees). This includes firefighters, police.
Premises liability for unlawful entrants:
No duty of care owed, but must refrain from willful or wanton conduct, and duty to aid trespasser known to be in peril.
MA Good Samaritan statute provides
that medical caregivers, police, and firefighters who help someone who’s ill (e.g. heart attack on street) are immunized from negligence liability. Also applies to, e.g., person giving CPR.
MA comparative negligence doctrine provides for
partial comparative negligence. If P is over 50% at fault, she can’t recover.
The sophisticated user doctrine provides that
there’s no liability for failing to warn of a latent danger in a product when the end user knows or reasonably should know of the product’s dangers.
In MA, you can be liable for negligent entrustment if someone borrows your car and you
lend to them knowing they are unfit to drive.
Parents are liable for the torts of their children
only if the torts are intentional, and only up to $5,000.
Contributions among tortfeasors in MA are apportioned
based on equal shares, regardless of relative fault.
Loss of consortium in MA:
extends to a child’s claim for loss of parent’s consortium.
Charitable liability in MA is
capped at $20k. ($100k for charitable hospitals)
**This doesn’t apply for fundraising/other commercial activities or for violations of 93A.
Governmental liability in MA is
capped at $100k per plaintiff.
Tort claims for personal injuries against employers in MA are
barred – worker’s comp is the exclusive remedy. But, dignitary harm suits against employers are permitted.
In MA, a landowner allowing public recreational use of land is
liable only for gross negligence.
Violation of a statute in MA is
not negligence per se – only evidence of negligence.
With respect to criminal acts, landlords in MA have
a duty of care to guard against foreseeable criminal acts of third parties.
Assumption of the risk applies in MA
only to strict liability actions.
Does MA recognize strict liability in tort?
No, but it has reached essentially the same result by applying UCC warranties – no privity requirements.
Tavernkeeper liability in MA attaches only to
wanton/willful misconduct, with respect to serving intoxicated adults
negligent misconduct, with respect to serving minors.
Social host liability in MA attaches to
negligent misconduct.
A wrongful death action in MA can be brought only by
executor or administrator of the decedent’s estate.
Assault in MA differs from common law assault in that
it requires only that the D intended to place the victim in apprehension or fear, not that the D actually DID
For purposes of murder in MA, a human being includes
a viable fetus.
In MA, you can be liable for felony murder even if the person killed was a
co-felon.
In MA, the person who does the killing must be _______ for felony murder liability to apply.
a co-felon.
First-degree murder in MA is:
- malicious killing committed with premeditation and deliberation
- killing committed with extreme atrocity or cruelty
- felony murder, when the underlying felony is punishable by life.
Provocation for manslaughter purposes in MA includes
inflammatory information, such as learning of a spouse’s infidelity – but ONLY if the provocation comes from the victim and not from a third party.
Killings during commission of a crime can be punished as:
- 1st degree murder (if crime was punishable by life)
- 2nd degree murder (if crime wasn’t punishable by life, but was “inherently dangerous”)
- involuntary manslaughter (if crime was not inherently dangerous)
Involuntary manslaughter in MA is
causing death unintentionally by wanton/reckless conduct, or by the commission of a battery that D should have known created a high risk of substantial harm.
In MA, larceny includes
larceny, embezzlement, false pretenses, and larceny by trick.
Grand larceny vs. petit larceny
grand = property is worth more than $250, or it’s an auto or firearm.
Statutory burglary in MA includes
burglary of buildings other than dwellings, in daytime as well as at night, with intent to commit misdemeanor as well as felony.
If conduct occurs at night, you don’t have to prove breaking –mere entering is enough.
Statutory arson in MA includes
the burning of all buildings, and to defendant’s own property (not just the burning of “a dwelling of another”).
Carjacking is
assaulting, confining, maiming, or putting a person in fear for the purpose of stealing a motor vehicle.
(felony)
MA joint venture rule provides that
an accomplice is liable only if he (1) actively participated in the crime and (2) with the mental state required for the offense.
A joint venturer can withdraw by
communicating withdrawal early enough to give other parties a reasonable opportunity to withdraw as well.
To be an accessory after the fact, you must
help principal, with knowledge crime has been committed, and with intent to help principal avoid arrest or conviction.
In MA, you can’t be an accessory after the fact if you are
a family member.
In MA, conspiracy requires
only an agreement – no overt act.
In MA and at common law, you need _____ for a conspiracy
2 guilty minds, both of whom ACTUALLY AGREE to accomplish the conspiracy’s objectives.
In MA, the rule for vicarious liability for co-conspirators’ crimes is
there ISN’T any, unless you were an accessory or a joint venturer. This means the ONLY way to be criminally liable for a crime you did not participate in is to be an accessory after the fact.
The “proximity” test for attempt provides that
the defendant must have come “dangerously close” to commission of the underlying crime to be convicted.
Can you withdraw from an attempt, solicitation, or conspiracy?
NO. You may not be liable for substantive crimes as a joint venturer if you successfully withdraw from the joint venture, but you will ALWAYS be liable for conspiracy/attempt/solicitation once you’ve done it.
MA uses the ______ test for insanity.
MPC (D lacked substantial capacity to understand nature of his conduct OR conform conduct to the law).
Mental illness that doesn’t amount to insanity may still
reduce first-degree murder to second-degree (if no premeditation), or reduce it to voluntary manslaughter (if no malice). This is known as “diminished capacity.”
In MA, retreat is
required before using deadly force in self-defense, unless you’re at home or can’t retreat in complete safety.
MA does/does not recognize imperfect self-defense.
Does not.
In MA, there is automatic standing to challenge a search or seizure when
possession of seized evidence is an essential element of the crime, and evidence was taken from a home or automobile.
Informants’ tips in MA can only be basis for PC if the prosecution establishes the informant’s
basis of knowledge and reliability
Evidence obtained under a defective search warrant is excluded from prosecution’s case if
the violation was “substantial and prejudicial.”
A defect in probable cause in a warrant is
always substantial and prejudicial.
A defect in particularity in a warrant is
not always substantial and prejudicial.
Officers executing a warrant must have a copy
in hand.
If written regulations governing inventory searches do not specifically mention closed containers,
they cannot be searched.
Police pursuit, in MA, is
a seizure.
To order occupants out of a vehicle in MA, officer must have
concerns about officer safety or suspicion of criminal activity. (Federal standard: can order out of vehicle at officer’s discretion.)
In a routine traffic stop, policy inquiry must end when
the driver produces a valid license or registration.
No random urinalysis drug tests in MA without
consent or reasonable suspicion, unless state can prove a substantial government interest.
In MA, it’s unlawful to willfully engage in electronic surveillance
of a private home with consent of only one party.
In MA, the voluntariness of a confession is determined by
the judge, and if the judge finds it voluntary, the jury has another shot at finding it involuntary.
In MA, police must inform a suspect who’s in custody of
his attorney’s offer of assistance.
In MA, an invocation of the right to remain silent
need not be made unambiguously.
Failure to give a suspect Miranda warnings DOES/DOES NOT require suppression of physical fruits of incriminating statements, in MA.
DOES. (Different from federal rule.)
When a Miranda violation occurs, subsequent incriminating statements obtained after warnings are given are
presumptively tainted. (Different from federal rule.) Can be overcome only if prosecution shows either a break in the stream of events that insulated the later confession, or that the illegally obtained statement didn’t incriminate the D.
A pretrial ID procedure that is unnecessarily suggestive is
excluded from trial automatically, and subsequent IDs also cannot be used unless prosecutor can show they were untainted by the bad first ID.
Grand jury indictments are
required for felony prosecutions.
In MA, police may question an arrestee at what time?
Within 6 hours of arrest – otherwise, unlawful unless the arrestee has been arraigned or waived right to be arraigned without unreasonable delay.
In a warrantless arrest in MA, a judicial PC determination must be made within
24 hours of arrest, absent extraordinary circumstances.
In criminal cases in MA, jury verdicts
must be unanimous.
In MA, ineffective assistance of counsel requires proving that counsel
performed “measurably below” an ordinary attorney and that he either deprived D of a substantial ground of defense or otherwise materially affected outcome of trial.
What kind of immunity does MA use?
transactional – cannot be prosecuted for an transaction you testified about in your immunized testimony.
