MBE Flashcards
What is the test for reasonable time, place, and manner restrictions?
1) content neutral
2) narrowly tailored to important gov’t interest
3) leaves open ample alternative channels
When can you admit a statement against interest?
1) unavailable
2) against their pecuniary, penal, or proprietary interest when made
When can you admit a statement of a party-opponent’s co-conspirator?
1) made in furtherance of the conspiracy
2) by a participant in it
Explain joint and several liability, contribution, and indemnification. What happens if one of the defendants also suffered damages in a comparative contribution state?
1) plaintiff can collect the full amount of damages from any defendant she chooses
2) that defendant can then seek contribution (partial payment) or indemnification (entire repayment) from his co-defendants
3) the co-defendants are liable in proportion to their fault
4) if the paying defendant also suffered damages, he can recover for that from the other defendants (minus the amount he was at fault for)
When is a school search for evidence of a crime OK?
1) only need reasonable grounds for the search
2) moderate chance of finding evidence
3) not excessively intrusive
4) means are reasonably related to the objectives of the search
What are the elements of false imprisonment?
1) intentional
2) confinement
3) in a bounded area w/ no reasonable means of escape
4) where the plaintiff KNEW they were being confined or were harmed by it
What are the covenants in a general warranty deed and what do they do? What is the difference between a present covenant and a future covenant?
Present Covenants: breached at delivery + create COA that is only enforceable by the buyer
1) seisin (title and possession)
2) against encumbrances
3) right to convey (grantor can transfer)
Future Covenants: compel seller to assist the buyer (breached if buyer disturbed in possession)
1) further assurances (protect title)
2) warranty (defend)
3) quiet enjoyment (no disturbance)
What are the elements of burglary?
1) breaking and entering
2) of the dwelling of another
3) at nighttime
4) with the intent to commit a felony therein
What are the elements of larceny?
1) the taking and carrying away
2) of the personal property of another
3) from their person or presence
4) by trespass
5) with the intent to permanently deprive (intent must exist @ the time of taking)
What are the elements of larceny by trick?
1) misrepresentation of past or present fact
2) fraudulently convincing another person to give possession of personal property
3) with intent to permanently deprive
What are the elements of false pretenses?
1) misrepresentation of past or present fact
2) fraudulently obtaining title to another’s property
3) with intent to permanently deprive
What are the elements of robbery?
Larceny + force or immediate threat of force
What is a novation, and how does it affect parties’ rights under the contract?
Agreement among all parties to substitute a new 3rd party for one of the parties in a K.
This releases the original party who has been substituted, so he is no longer liable for the new 3rd party’s performance.
What is the “in-state defendant” rule for removal of cases to federal court, and when does it apply?
This applies only when removal is based solely on diversity of citizenship jurisdiction.
A case cannot be removed to federal court on the basis of diversity jurisdiction if a defendant is a citizen of the state where the action was filed.
What happens to the promises in a land sale contract when the deed is executed and delivered?
The K merges into the deed, and the terms of the K become meaningless. The deed controls, and it does not incorporate the title terms of a K.
For example, if a land sale K promised to convey marketable title (but the land was in fact NOT marketable because it had been acquired by adverse possession), once the deed was delivered at closing the contract merged into it. If the deed contained no covenants of title, the terms of the K are meaningless and the deed controls the seller’s liability.
What is the trial judge’s responsibility regarding a defendant’s competency?
The judge MUST raise the issue of competency if it appears that the defendant might be incompetent. This is a constitutional obligation to conduct further inquiry.
Can proper venue be waived?
Yes.
Objections must be asserted in the first response to the complaint (answer or R12(b) motion).
What happens when a suspect invokes her 5th Amendment right to remain silent?
Can you be questioned about an unrelated offense?
The police cannot badger the accused.
Yes - courts have ruled that if the police scrupulously honor this request, they can re-warn the accused and later resume questioning, at least about a different crime.
What happens when a suspect invokes her 5th Amendment right to counsel?
Can you be questioned about an unrelated offense?
All questioning must cease, about this crime and any unrelated crime, until the accused is provided with an attorney or initiates further questioning himself.
No.
When does the 6th Amendment right to counsel attach?
Can you be questioned about an unrelated offense?
After formal proceedings have been initiated (charging).
Yes, because this right is offense-specific.
What is the “question first, warn later” rule for confessions and evidence obtained as a result of a Miranda violation?
Confessions
1) If the police get a confession w/o first giving Miranda warnings, THEN give warnings and get a second confession, the second confession will be inadmissible if this “question first, warn later” scheme was intentional.
2) But the second confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
Non-Testimonial Evidence
1) If the police fail to give Miranda warnings and the suspect gives them info that leads to non-testimonial evidence, the evidence will be suppressed if the failure was purposeful.
2) But if the failure was not purposeful, the evidence probably will not be suppressed.
When is something a private nuisance?
Substantial interference with the use/enjoyment of one’s land.
The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with specialized use of the land (e.g., dog whistle factory / dog breeder).
When is something a public nuisance?
Unreasonable interference with the health, safety, or property rights of the community.
When are other bad acts admissible for purposes other than to show the defendant’s propensity to commit the crime charged?
MIMIC
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
Where is venue proper in federal civil actions?
1) the district where any defendant lives (if all Ds are residents of the state where the district is located)
2) the district where a substantial part of the events giving rise to the claim occurred
Imagine a construction contract where the builder already began performance by purchasing materials and the owner breaches. What is the builder entitled to in a breach of contract action?
Expectation damages = expected profits
+
Reliance damages = the cost incurred prior to the breach
What are the elements of battery?
1) unconsented-to touching
2) harmful or offensive
3) intent to bring about such harmful or offensive contact
4) causation
What is the intent requirement for intentional torts?
Knowing with substantial certainty that something will happen + acting with the desire to produce the legally forbidden consequence
(Defendant does not need to intend the specific injury that results)
What are the elements of the attractive nuisance doctrine?
Landowner has duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children (even if trespassing) caused by artificial conditions on his property.
Plaintiff must show:
1) dangerous condition on the land that owner is/should be aware of
2) owner knows/should know that children might trespass
3) condition is likely to cause injury
4) the expense of remedying the situation is slight compared with the magnitude of the risk
What should the defendant understand to enter a valid guilty plea and waive their right to a jury trial?
1) nature of the charge
2) maximum possible penalty
3) right not to plead guilty
4) by pleading guilty, defendant waives right to trial
Explain the difference between an accomplice and an accessory after the fact.
Accomplice, with intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.
Accessory after the fact is one who receives, relieves, comforts, or assists another, knowing he has committed a felony, in order to help the felon escape arrest, trial, or conviction.
What is a pretrial order, and can it be modified?
A pretrial order controls the subsequent course of an action. The order can be modified “only to prevent manifest injustice,” and this can be done even after the jury has been selected and the trial has begun.
What are the buyer’s remedies for anticipatory breach by a seller?
Buyer can treat the anticipatory repudiation as a total breach. Remedy is the difference between the K price and market price (at time of breach) or the cover price. Cover must be commercially reasonable.
Can a legislator be liable for defamation for statements made on the floor of the legislature?
No.
This is an absolute privilege - remarks made by federal and state legislators in their official capacity during legislative proceedings are absolutely privileged.
When is a state tax valid under the Commerce Clause?
1) does not discriminate against interstate commerce
2) substantial nexus between the activity taxed and the taxing state
3) the tax is fairly apportioned
4) fairly relates to services or benefits provided by the state
What does the Privileges & Immunities Clause of the IV Amendment protect against?
Is there a limitation?
Discrimination by a state against nonresidents when this discrimination involves fundamental rights.
States CAN discriminate against OOS citizens if:
1) necessary to achieve an important purpose and
2) no less restrictive alternatives
What does the Privileges & Immunities Clause of the XIV Amendment protect against?
Denial of rights of national citizenship such as interstate travel, access to sea ports, and right to demand federal protection on the high seas.
Discuss the 4th Amendment reasonable expectation of privacy with respect to another person’s body/home.
The exclusionary rule only applies to exclude evidence obtained in violation of ONE’S OWN reasonable expectation of privacy. Ownership of the property seized doesn’t automatically give rise to a reasonable expectation of privacy (TOTC).
What’s required for a photo to be admitted as demonstrative evidence?
Authentication - testimony that the photo is a faithful reproduction of the object/scene depicted.
What is the test for obscenity?
1) appeals to the prurient interest (local community standard)
2) patently offensive (local community standard)
3) no artistic, scientific, literary, political value (national reasonable person standard)
When is character evidence admissible in a civil case?
If character is directly at issue in a civil case:
1) defamation
2) child custody
3) fraud
4) negligent entrustment
When is a co-defendant’s confession implicating the other defendant admissible?
Any of the following:
1) can eliminate all references to the other defendant
2) used to rebut the other defendant’s claim that there was coercion (requires limiting jury instruction)
3) co-defendant can take the stand + be subject to cross-examination
What’s the rule for providing evidence of insurance coverage during discovery?
A party MUST provide evidence of insurance if it might cover all or part of any judgment that might be entered (even though this will probably not be admissible at trial). The party must do this without waiting for a discovery request from the other party.
Defendant is tried for murder, but convicted of manslaughter. On appeal, the conviction is reversed on procedural grounds. What is the most serious crime the prosecution can attempt to re-try the defendant for?
Manslaughter.
At the second trial, the defendant cannot be tried for a crime that’s more serious than that for which she was convicted at the first trial.
When must notice of removal be filed?
30 days.
(Within 30 days of service of process, or if the case isn’t initially removable, within 30 days of it becoming removable. If removal will be based on diversity jurisdiction, it cannot be had if more than 1 year has passed since the suit was filed)
What are the burdens of proof for the insanity defense?
Can a court, via jury instruction, place a lighter burden on the defendant than that specified in a state statute?
Federal courts - require D to prove by clear and convincing evidence
States - can require D to prove by clear and convincing evidence OR by preponderance of the evidence
Other states + MPC - prosecution must prove D’s sanity beyond reasonable doubt
When do a third party beneficiary’s rights vest?
1) learn of K and agree
2) learn of K and detrimentally rely
3) learn of K and sue to enforce their rights
Explain promissory estoppel.
Detrimental reliance
Foreseeable detrimental reliance in the form of some sort of performance can make a promise enforceable even if lacks consideration.
ONLY USE RELIANCE IF THERE IS NO CONSIDERATION.