MBE IMMERSION Flashcards
1
Q
CON LAW MBE APPROACH
A
- Identify what level of govt. is acting
- Determining if question is a “powers” or “rights” question
- Match appropriate power/ right to rule or test provided by the constitution
2
Q
CON LAW QUESTIONS THAT TEST ON THE RELATIVE POWERS OF THE THREE (3) BRANCHES OF GOVERNMENT:
A
- Legislative powers of Congress
- President’s executive powers
- Federal court jurisdiction
3
Q
CON LAW MBE QUESTIONS THAT TEST ON FEDERALISM:
A
- Supremacy Clause
- Dormant Commerce Clause
4
Q
CON LAW MBE RIGHTS QUESTIONS:
A
QUESTIONS THAT TEST ON THE VARIOUS RIGHTS PROTECTED BY CONSTITUTION:
- Speech
- Religion
- Procedural DP
- EP of the laws
- Fundamental rights
THESE LIBERTIES ARE LIMITS ON FEDERAL AND STATE GOVERNMENTS
5
Q
STANDING: Must Show
A
- INJURY IN FACT
- CAUSATION
- REDRESSABILITY
6
Q
CON LAW MBE APPROACH
A
- Identify what level of government is acting
- Determining if question is a “powers” or “rights” question
- Match appropriate power/ right to rule or test provided by Constitution
7
Q
CONGRESS’ COMMERCE POWER
A
(1) Channels of interstate commerce
(2) Instrumentalities of interstate commerce
(3) Any activity which has a substantial economic effect on interstate commerce.
8
Q
INTRASTATE ACTIVITY:
ECONOMIC V. NONECONOMIC
A
- If intrastate activity is ECONOMIC in nature –> upheld if rational basis exists to conclude activity substantially affects interstate commerce
- If intrastate activity is non-economic in nature –> upheld if Congressional finding that activity substantially affects interstate commerce
9
Q
DORMANT COMMERCE CLAUSE
A
STATE REGULATIONS ON INTERSTATE COMMERCE WILL BE UPHELD ONLY IF:
- Regulation is non-discriminatory
- Regulation does not unduly burden interstate commerce.
10
Q
STATE ACTION
A
- Must be governmental conduct
- May apply to private conduct if state is significantly involved in the conduct of private party
11
Q
WHERE NO STATE ACTION:
A
- Grant of a state license
- Grant of monopoly to utility company
- Grant of state land or funds.
12
Q
EQUAL PROTECTION
A
- Applies when similarly situated people are being treated differently
- Determine what level of scrutiny to apply to the discrimination:
(1) Strict scrutiny
(2) Intermediate scrutiny
(3) Rational basis.
13
Q
STRICT SCRUTINY APPLIES WHEN:
A
(1) Discrimination is based on suspect classification [R-A-N] :
- Race
- Alienage and
- National Origin
(2) Fundamental right is implicated:
- Right to vote
- Right to travel
- Right to privacy
14
Q
STRICT SCRUTINY: TEST:
A
GOVERNMENT MUST SHOW:
(1) Law is necessary to achieve (i.e., no less restrictive means);
(2) Compelling government interest (i.e., necessary or crucial for society).
15
Q
RIGHT TO PRIVACY
A
[“CAMPERS”]
- Contraception
- Abortion
- Marriage
- Procreation
- Education, private
- Relations, family
- Sexual relations
16
Q
INTERMEDIATE SCRUTINY APPLIES WHEN:
A
(1) Discrimination is based on gender
(2) Discrimination is based on child being born to unwed parents.
17
Q
INTERMEDIATE SCRUTINY TEST:
A
GOVERNMENT MUST SHOW:
- LAW IS SUBSTANTIALLY RELATED (i.e., close “fit” needed- not necessarily least restrictive means).
- IMPORTANT GOVERNMENT INTEREST
- Something less than compelling; something more than legitimate
- Gender discrimination– requires “exceedingly persuasive justification”
18
Q
INTERMEDIATE SCRUTINY TEST:
A
GOVERNMENT MUST SHOW:
- LAW IS SUBSTANTIALLY RELATED (i.e., close “fit” needed- not necessarily least restrictive means).
- IMPORTANT GOVERNMENT INTEREST
- Something less than compelling; something more than legitimate
- Gender discrimination– requires “exceedingly persuasive justification”
19
Q
RATIONAL BASIS APPLIES WHEN:
A
Neither strict scrutiny nor intermediate scrutiny apply
20
Q
RATIONAL BASIS IS APPLIED IF DISCRIMINATION IS BASED ON:
A
- Age
- Poverty / wealth
- Mental incapacity
- Necessities for life
21
Q
RATIONAL BASIS: TEST:
A
PLAINTIFF MUST SHOW:
- Law is not rationally related
- To any legitimate government interest
22
Q
WHICH TEST APPLIES RE: STATE DISCRIMINATION AGAINST ALIENS?
A
- APPLY STRICT SCRUTINY
- EXCEPTION: Discrimination concerning self-government (e.x., police, teachers, serving on a jury).
23
Q
WHICH TEST APPLIES RE: FEDERAL DISCRIMINATION AGAINST LEGAL OR ILLEGAL ALIENS:
A
APPLY RATIONAL BASIS TEST
24
Q
1ST AMENDMENT QUESTION APPROACH:
A
(1. ) Consider facial attack on statute:
- Overbreadth
- Vagueness
- Prior restraints
(2. ) Determine if statute is regulating content of speech/ expression or conduct of speech/ expression
- If content –> apply strict scrutiny
- If conduct –> apply time, place, and manner test.
25
TIME, PLACE & MANNER TEST:
PUBLIC FORUMS/ DESIGNATED PUBLIC FORUMS
REGULATION MUST:
1. Further important governmental interest
2. Be narrowly tailored
3. Leave open alternative channels of communication
26
TIME, PLACE & MANNER TEST:
NONPUBLIC FORUMS/ LIMITED PUBLIC FORMS
REGULATION MUST:
1. Be viewpoint neutral
2. Be reasonably related to legitimate government purpose.
27
CATEGORIES OF UNPROTECTED SPEECH:
1. Speech advocating imminent lawlessness
2. Fighting words
3. Obscenity
4. Child pornography
5. False/ deceptive advertising
6. Defamation
28
2 CIVIL PROCEDURES CATEGORIES:
(1) JURISDICTION
| (2) PROCEDURE
29
CATEGORY 1 CIV PRO QUESTIONS:
JURISDICTION
PERSONAL JX: Can the plaintiff sue the defendant(s) in this state?
SUBJECT MATTER JX: Does the federal court have power to hear this type of case?
- Federal question cases
- Diversity cases
VENUE: Which federal court may hear the case?
30
CATEGORY 2 CIV PRO QUESTIONS:
PROCEDURE
RULES THAT DETERMINE WHEN, WHERE AND HOW CERTAIN LITIGATION TOOLS SHOULD BE USED:
- Service of process
- Motions
- Discovery
- Trial
- Appeals
31
CIVIL PROCEDURE ON THE MBE:
- 25 questions
- 18 questions on 3 areas:
(i) Personal and subject matter Jx
(ii) Pretrial procedures
(iii) Motions
32
SUBJECT MATTER JX
a. Diversity
| b. Federal question
33
DIVERSITY JX
- Complete Diversity: EACH plaintiff must be a citizen of a different state than EVERY defendant.
- Amount in Controversy:
> $75,000
Plaintiff may aggregate all of his claims against a single D.
34
FEDERAL QUESTIONS JX
- Arising under the Constitution, laws or treatises of the United States
- Existence of federal question must appear in complaint as part of plaintiff's well-pleaded cause of action.
35
SUPPLEMENTAL JX: FEDERAL QUESTION CASES
Where plaintiff has both federal question and state law claims-- the court has discretion to exercise "supplemental Jx" over state law claim if:
- The "supplemental" claim arises from a common nucleus of operative fact as the federal question claim
- The claims ordinarily would be tried in one proceeding
36
PERSONAL JX MUST BE:
(A) Statutorily authorized
| (B) Constitutional
37
PERSONAL JX: STATUTORILY AUTHORIZED
- Presence at the time of service
- Domicile
- Consent
- Long arm statute
- Need notice too.
38
PERSONAL JX: CONSTITUTIONAL REQUIREMENTS
- Contacts
- Relatedness
- Fairness
39
PERSONAL JX: CONTACTS
"There must be sufficient minimum contacts between the defendant and the forum state such that Jx is fair and reasonable"
- Purposeful availment
- Forseeability
40
PERSONAL JX:
| RELATEDNESS
Plaintiff's claim must be related to defendant's contacts w/ the forum state.
SPECIFIC JX: Current cause of action only ---> long arm statute
GENERAL JX: All causes of action --> domicile or "essentially at home"
41
PERSONAL JX: FAIRNESS
Must not offend "traditional notions of fair play and substantial justice"
42
FRCP
- Drafted by SCOTUS
- Authorized by Rules Enabling Act: allows federal civil procedure rules to supersede state law in federal court on procedural matters.
43
ERIE DOCTRINE
In a diversity action:
- Federal procedural law applies
- State substantive law applies
44
ERIE DOCTRINE CONFLICT APPROACH;
Is there a federal rule or directive on point which is "arguably procedural"?
- If so, apply federal law.
- If not, apply federal law for procedural matters & state law for substantive matters.
45
ERIE DOCTRINE: CONFLICT RESOLUTION
3 SCOTUS TESTS:
1. Outcome determinative: Does it substantially affect outcome?
2. Balance of interest test: Does state have greater interest?
3. Forum shopping deterrence: Increase litigation in federal court?
46
AREAS THAT ARE DEEMED SUBSTANTIVE [RE: ERIE DOCTRINE[
- SOL
- Rules for tolling SOL
- Choice of law rules
- Elements of claim or defense.
47
TEST FOR IMPLEADER
Defendant may implead TPD only if TPD is or may be liable for all or part of D's liability to P.
48
TEST STRATEGY FOR JOINDER ISSUES:
FOCUS ON:
1. Do the Federal Rules permit joinder?
2. Is there SMJ over the claims and/or added claims?
49
ENTRY OF DEFAULT
Notation in that case file by clerk that answer was not timely filed:
- Entry of default cuts off defendant's right to contest liability unless defendant has default set aside.
- After default, plaintiff must still obtain a judgment. Defendant can still contest damages at default hearing.
50
CLERK MAY ENTER DEFAULT JUDGMENT WHEN:
1) The amount in dispute is for a sum certain
2) The defendant has NOT appeared
An appearance means any formal appearance or any action by the defendant indicating that he intends to contest the merits.
If defendant appears, notice must be given.
51
3 PRIMARY TORTS CAUSES OF ACTION:
(1) INTENTIONAL TORTS: Defendant intends to do act that causes P injury.
(2) NEGLIGENCE: Defendant accidentally causes plaintiff injury by acting unreasonably.
(3) STRICT LIABILITY: Defendant causes plaintiff injury without any fault on defendant's part.
52
3 STEP APPROACH FOR IDENTIFYING CAUSE OF ACTION:
1) Do the facts support an intentional tort cause of action?
2) Do the facts support strict liability cause of action?
3) Did the plaintiff accidentally cause an injury, making a negligence cause of action appropriate?
53
NEGLIGENCE LADDER OF ELEMENTS
DAMAGES
CAUSATION
BREACH
DUTY
54
DUTY OF CARE
Every person owes a duty of ordinary reasonable care to all foreseeable plaintiffs.
55
VICARIOUS LIABILITY (e.g., respondeat superior)
PLAINTIFF suing DEFENDANT (ER) for acts of TORTFEASOR (EE)
56
ZONE OF DANGER
P2 can recover ONLY IF she can establish that a reasonable person would have foreseen a risk of injury to her the circumstances
57
RES IPSA LOQUITUR (RIL)
"THE THING SPEAKS FOR ITSELF"
- The accident causing the injury is of a type that would not normally occur unless someone was negligent;
- The negligence must be attributable to the defendant; and
- The plaintiff must be free from fault- the plaintiff must show that the injury was not attributable to her.
58
MOTION FOR DIRECTED VERDICT
Request that judge direct a verdict for the moving party rather than give the case to the jury.
- P moves for DV almost always denied
- D moves for DV: could be granted if P has not shown breach of duty
- Most cases on exam: MDV should be denied
BOTTOM LINE: Deny a motion for directed verdict if there is ANY triable issue of fact for the jury.
59
NEGLIGENCE PER SE
Established by violation of a statute if plaintiff shows:
1. She is in the class intended to be protected by the statute; and
2. The statute was designed to prevent the type of harm suffered by plaintiff
Establishes duty and breach.
60
NEGLIGENCE PER SE & RES IPSA LOQUITUR
Both establish duty and breach- either is sufficient to overcome directed verdict.
RES IPSA: inference of negligence
NEGLIGENCE PER SE: presumption of negligence.
61
DIFFERENT NEGLIGENCE THEORIES:
1. Negligent supervision
2. Negligent hiring
3. Negligent entrustment
4. Negligent infliction of emotional distress.
62
TEST FOR ACTUAL CAUSE (CAUSE IN FACT)
- "BUT FOR" TEST: Several acts each insufficient to cause injury alone combine to cause injury.
- SUBSTANTIAL FACTOR TEST: several causes and any one alone would have been sufficient.
- ALTERNATIVE CAUSES APPROACH: several acts, but only one causes plaintiff's injury.
63
PROXIMATE CAUSATION
- Typically there is more than one actual cause for P's injury
- Proximate cause/ legal cause limits the scope of liability
- A defendant is only liable for the harmful results that are the normal and foreseeable consequences of his acts.
64
GENERAL TEST FOR PROXIMATE CAUSE:
- Was the harm within the risk created by Defendant's conduct?
- If an intervening force is foreseeable, it will NOT cut off the defendant's liability for his negligent conduct.
65
FIREFIGHTER'S RULE
A public safety officer (generally a police officer or firefighter) cannot recover for injuries suffered while in the line of duty.
66
INTERVENING FORCE:
- An outside force that comes into motion after the defendant's negligent act and combines with it to cause the plaintiff's injury.
- Neither the plaintiff's conduct nor the defendant's conduct can be characterized as an intervening force.
67
DAMAGES:
- Assume pure comparative negligence unless facts tell you otherwise.
- Pure comparative jurisdiction: Plaintiff's recovery is reduced by percentage of fault attributed to her. P may recover not matter how great her fault.
68
MODIFIED COMPARATIVE NEGLIGENCE JX
P can recover only if she is less than 50% at fault.
69
3 EVIDENCE CATEGORIES
1. Character evidence
2. Impeachment
3. Hearsay
70
CHARACTER EVIDENCE
- Documentary evidence or testimony offered to prove that a person acted in conformity with a particular character trait.
- Inadmissible if trying to prove propensity (subject to exceptions in criminal cases).
71
IMPEACHMENT
Evidence that proves the witness is not credible for some reason or another.
72
HEARSAY
Any statement made outside the court proceeding that is being offered to prove the content of the statement.
73
27 EVIDENCE QUESTIONS ON THE MBE
- 9 or 10 questions on hearsay
- 4 or 5 questions on character evidence
- 4 or 5 questions on impeachment
74
GENERAL APPROACH FOR EVIDENCE MBE QUESTIONS
1. Underline the cause of action - is it a civil case or a criminal case?
2. Sitaute the proceeding and identify the parties and witnesses
3. Determine the purpose for which the evidence is being offered.
75
HEARSAY IS:
- An out-of-court statement,
- Other than one made by the declarant while testifying at the current trial or hearing,
- Offered to prove the truth of the matter asserted.
76
COMMON OBJECTIONS (EVIDENCE)
OPRAH
- Original Writing Rule
- Privilege
- Relevancy
- Authentication
- Hearsay
77
HEARSAY "STATEMENT"
1) Oral or written assertion
| 2) Conduct intended as an assertion
78
ASSERTIVE V. NONASSERTIVE CONDUCT
ASSERTIVE CONDUCT is conduct intended as a substitute for words. When it is offered for its truth, such a statement can be hearsay.
NONASSERTIVE CONDUCT is not hearsay. It is conduct not intended as a statement or assertion.
79
HEARSAY APPROACH
(1) What is the "statement"?
(2) Who is the declarant?
(3) What is the purpose of the evidence?
[3A] Offered for its truth and NOT a hearsay exemption.
[3B] Not offered for its truth OR a hearsay exemption = non-hearsay.
- Impeachment
- Verbal acts
- State of mind (notice, knowledge or motive)
- Exemptions (admissions, prior statements of witnesses).
(4) Look for a hearsay exception
80
ADOPTIVE ADMISSION BY SILENCE
- A party hears and understands an accusation against him.
- The party is capable of denying it.
- A reasonable person would have denied it if it was untrue.
81
ADMISSION BY PARTY-OPPONENT
- Statement is by or attributable to a party.
- Personal knowledge of facts NOT required.
- Statement need NOT have been against interest when made.
- Declarant need NOT be unavailable.
82
DECLARATION AGAINST INTEREST
- Declarant need NOT be a party.
- Personal knowledge of facts required.
- Statement must have been against interest when made.
- Declarant must be unavailable.
83
FRE 803 HEARSAY EXCEPTIONS
1. Present sense impression
2. Excited utterance
3. Present mental, emotional, or physical state
4. Statements for medical diagnosis or treatment
5. Past recollections recorded
6. Business records
7. Absence of a business record
8. Public records
9. Vital statistics
10. Absence of a public record
84
PRESENT SENSE IMPRESSION
A statement that describes or explains an event or condition, made while the declarant is perceiving the event or condition or immediately thereafter.
85
FORMS OF CHARACTER EVIDENCE
(1) Reputation Testimony
(2) Opinion Testimony
(3) Specific Acts
86
INADMISSIBLE CHARACTER EVIDENCE IN CIVIL CASES
To prove that the person acted in conformity with the trait.
87
ADMISSIBLE CHARACTER EVIDENCE IN CIVIL CASES
When character is "in issue"
- Defamation
- Child custody
- Negligent entrustment
- Negligent hiring
88
MAIN IMPEACHMENT METHODS
1. Bias
2. Sensory defects
3. Prior inconsistent statements (PINS)
4. Character.
89
BIAS
- Bias is always material
- The COLLATERAL MATERIAL RULE - which says that extrinsic evidence on collateral matters is inadmissible to impeach - never applies to bias.
90
PRIOR INCONSISTENT STATEMENTS [PINS]
- Usually admissible only to impeach; extrinsic evidence may be introduced if a foundation is laid.
- If the PINS is sworn or falls within another hearsay exemption or exception, it is also admissible as substantive evidence.
91
CHARACTER
1. Reputation or opinion testimony
2. Bad acts (involving dishonesty) may not be proven by extrinsic evidence.
3. Prior Conviction Felony NOT involving dishonesty/ false statement: 10 year time limit; Court has discretion to exclude.
4. Prior Conviction - any crime involving dishonesty/ false statement. Automatically admissible, subject to 10 year time limit.
92
OWNERSHIP INTERESTS
1. Present possessory estates
2. Future interests
3. Co-tenancies
4. Special problems.
93
LANDLORD-TENANT RELATIONSHIP
1. Duties & rights of landlords
| 2. Lease transfers
94
NONPOSSESSORY RIGHTS IN LAND
1. Real covenants
2. Easements
3. Profits
4. Fixtures
5. Zoning rules.
95
REAL ESTATE CONTRACT
1. Statute of Frauds
2. Marketable title
3. Equitable conversion
4. Merger
96
MORTGAGES
1. Types of security interests
2. How interests are transferred
3. Priority
4. Foreclosure
97
APPROACH FOR PROPERTY QUESTIONS ON THE MBE
1. What real property category is this?
2. Is the interest valid?
3. What issue is this question testing?
98
RULE AGAINST PERPETUITIES- ASK:
Will the future interest vest or fail within 21 years after everyone then alive dies?
99
RULE AGAINST PERPETUITIES- PURPOSE
To prevent remote vesting.
100
ASSIGNMENT
Transfer of entire leasehold balance.
[Landlord --> Tenant
Tenant Assignee]
Landlord --> Assignee Tenant 3. Tenant 3 and LL then have PRIVITY OF ESTATE.
101
SUBLEASE
Transfer of less than the entire leasehold balance
102
EASEMENT
Right to use or do something on someone else's land
103
EASEMENT APPURTENANT
1) Dominant parcel is benefited by the easement
2) Servient parcel is burdened by the easement.
[easement runs w/ the land]
104
WHEN PROPERTY A AND B COME UNDER COMMON OWNERSHIP, AN EXISTING EASEMENT .....
IS TERMINATED
105
EQUITABLE CONVERSION
After execution of real estate contract, buyer is equitable owner of land and seller is equitable owner of cash.
106
BONA FIDE PURCHASER
- Pays value
- Good faith
- Without notice
TO PREVENT BFP'S, RECORD YOUR INTEREST!!
107
RECORDING STATUTES
- Notice: Last BFP always wins!
| - Race-Notice: First BFP to record wins!
108
5 CATEGORIES OF CONTRACTS
1. Rules relating to whether a promise is legally enforceable
2. Rules for determining what the promise means.
3. Rules for determining whether promise has been fulfilled.
4. Rules for determining what to do when a promise has been broken.
5. Additional Contracts Issues
109
IS IT LEGALLY ENFORCEABLE?
Formation issues: requirements to make a promise enforceable
- Offer
- Acceptance
- Consideration
110
CONTRACT INTERPRETATION ISSUES
Determining what was promised.
111
APPLICABLE LAW [CONTRACTS]
UCC or CL
112
CONTRACTS DEFENSES
What types of things make otherwise enforceable promises unenforceable?
113
CONTRACTS: THIRD PARTY RIGHTS
Are there additional parties who owe a duty or are owed a duty under the deal?
114
UNILATERAL CONTRACT
- Can only be accepted via performance
| - Offer becomes irrevocable once performance begins
115
BILATERAL CONTRACT
- Can be accepted via promise to promise
116
REVOCATION
- Offers are revocable prior to acceptance.
117
4 TYPES OF IRREVOCABLE OFFERS:
1) Performance begun following offer for unilateral contract
2) Option contract
3) Merchant's firm offer
4) Promissory estoppel
118
MERCHANT'S CONFIRMATORY MEMORANDUM
- 2 merchanTs
- Written confirmation of oral agreement
- Must object within 10 days
- If no objection, statute of frauds is satisfied.
119
CONTRACT TIMELINE
OFFER:
- Revocation, Firm Offer, Option, Rejection.
ACCEPTANCE:
- Mirror Image, Battle of the Forums, Mailbox Rule.
CONSIDERATION:
- Bargained-for Exchange, Detriment.
120
ONCE CONTRACT IS FORMED, THEN CONSIDER:
1. Defenses
2. Third parties
3. Parol Evidence
4. Conditions
5. Discharge
6. Remedies
- Damages
- Specific performance
- Rescission
- Quasi-contract
- UCC remedies.
121
IS THE CONTRACT ENFORCEABLE AGAINST THE BUYER?
- Is contract governed by UCC or common law?
- Why would contract not be enforceable?
- Do we have valid offer? Acceptance?
- Attempt to revoke offer or rescind contract?
122
MAIL BOX RULE
In a bilateral contract, acceptance is effective upon dispatch.
EXCEPTIONS:
- Acceptance under an option contract
- Unilateral offers
- Offer stipulates acceptance upon valid receipt.
123
ACCEPTANCE SENT, THEN REJECTION SENT: DOES THE MAILBOX RULE APPLY?
MAIL BOX RULE APPLIES.
124
REJECTION SENT, THEN ACCEPTANCE SENT: DOES THE MAILBOX RULE APPLY?
MAILBOX RULE DOES *NOT* APPLY; WHICHEVER COMMUNICATION IS RECEIVED FIRST.
125
UPON RECEIPT OF THE SHIPMENT AND THE EMAIL, WHAT ARE THE SHOP OWNER'S OPTIONS?
1. What kinD of goods?
2. Conforming or non-conforming?
3. Has there been an acceptance?
4. Has there been a breach?
126
ACCEPTANCE UNDER UCC:
1) Promising to ship goods
2) Promptly shipping goods
- Acceptance and breach if nonconforming goods sent
- Counter-offer if nonconforming goods sent + an accommodation.
127
FRUSTRATION OF PURPOSE [CONTRACT]
Purpose of the contract has become valueless by virtue of intervening event.
128
COMMERCIAL IMPRACTICABILITY
- Unforeseen circumstances that make performance extremely difficult or expensive.
129
3 CATEGORIES OF CRIMINAL LAW & PROCEDURE
1. Homicide and other crimes against the person
2. Crimes against property and the habitation
3. Preparatory crimes.
130
HOMICIDE AND OTHER CRIMES AGAINST THE PERSON
- Homicide
- Battery
- Assault
- Rape
- Robbery
131
CRIMES AGAINST PROPERTY & THE HABITATION
- Larceny
- Embezzlement
- Larceny by trick
- False pretenses
- Forgery
- Burglary
- Arson
132
PREPARATORY CRIME
- Solicitation
- Attempt
- Conspiracy
133
ESSENTIAL ELEMENTS OF A CRIME
1. ACTUS REUS: Voluntary Act
2. MENS REA: Mental State
3. CAUSATION: Actual and Proximate Cause
4. CONCURRENCE: Coexistence of Mens Rea and Actus Reus
134
MURDER ELEMENTS
1. ACTUS REUS: Voluntary Killing
2. MENS REA: Malice Aforethought
3. CAUSATION: Actual and Proximate Cause
4. CONCURRENCE: Coexistence of Killing and Malice Aforethought .
135
MALICE AFORETHOUGHT
1. Intent to Kill
2. Intent to cause great bodily injury
3. Reckless indifference to an unjustifiably high risk to human life
4. Intent t ocommit a felony
136
VOLUNTARY MANSLAUGHTER
1. Adequate provocation
| 2. Imperfect self-defense
137
INCOHATE CRIMES
1. Solicitation
2. Attempt
- Specific intent to commit crime
- Over act beyond mere preparation
3. Conspiracy
138
NOT IN POSSESSION: LARCENY
ACTUS REUS: Trespassory taking & carrying away of personal property
MENS REA: Intent to permanently deprive
CAUSATION: Actual & Proximate Cause
CONCURRENCE: Coexistence of taking & intent to permanently deprive.
139
LAWFUL POSSESSION: EMBEZZLEMENT
ACTUS REUS: Fraudulent conversion of personal property.
MENS REA: Intent to defraud
CAUSATION: Actual and proximate cause.
CONCURRENCE: Coexistence of conversion and intent to defraud.
140
THIEF OBTAINS TITLE: FALSE PRETENSES
ACTUS REUS: Obtaining title to property by a knowing false representation of past or present material fact.
MENS REA: Intent to defraud.
CAUSATION: Actual & proximate cause.
CONCURRENCE: Coexistence of obtaining title & intent to defraud.
141
THIEF OBTAINS POSSESSION: LARCENY BY TRICK.
ACTUS REUS: Obtaining custody to property by a knowing false representation of past or present material fact. a
MENS REA: Intent to defraud.
CAUSATION: Actual & proximate cause.
CONCURRENCE: Coexistence of obtaining custody and intent to defraud.
142
4TH AM SEARCH & SEIZURE APPROACH
1) Is there a valid warrant?
| 2) If not --> does a warrant exception apply?
143
EXCEPTIONS TO THE WARRANT REQUIREMENT:
1. Stop & frisk
2. Search incident to lawful arrest
3. Plain view
4. Automobile exception
5. Consent
6. Hot pursuit
7. Exigent circumstances
144
STOP & FRISK EXCEPTION TO WARRANT REQUIREMENT
If reasonable & articulate suspicion, police may:
(i) briefly stop & question suspect AND
(ii) frisk (pat down) suspect's outer clothing for weapons only.
- Police may reach into suspect's clothing and seize an item if she reasonably believes the object is contraband based on its plain feel.
145
ADMISSIBILITY OF A STATEMENT/ CONFESSION
(1) 14th am DP Clause
(2) 5th am Miranda doctrine
(3) 6th am Right to Counsel
(4) Fruit of the Poisonous Tree Doctrine.
146
5TH AM RIGHT:
1. CUSTODY?
- Would a reasonable person feel free to terminate?
- How similar the situation is to traditional arrest.
2. INTERROGATION?
- Behavior the police should know is reasonably likely to elicit an incriminating response.
NOT OFFENSE SPECIFIC!
147
6TH AM RIGHT:
1) FORMAL CHARGES?
- Government may not elicit incriminating statements from defendant without aid of counsel.
OFFENSE SPECIFIC.
148
ABORTION RESTRICTIONS SUMMARY: NOT UNDUE BURDEN
- Required disclosures to obtain informed consent
- 24 hr waiting period
- Parental notification (if judicial bypass in place)
- Requiring abortions to be conducted only by licensed physicians
- "Partial birth" abortion ban if other methods are available.
149
ABORTION RESTRICTIONS SUMMARY: UNDUE BURDEN
Spousal consent requirement.
150
COMMERCIAL SPEECH: NOT PROTECTED IF:
1. Commercial speech concerns unlawful activity
2. Commercial speech is fraudulent in nature
3. Commercial speech is misleading.
151
COMMERCIAL SPEECH IS PROTECTED IF:
1. Commercial speech concerns lawful activity
2. Commercial speech is not fraudulent
3. Commercial speech is not misleading.
152
3 PART TEST: re: whether commercial speech is protected...
REGULATION MUST:
(1) DIRECTLY ADVANCE
(2) A SUBSTANTIAL GOVT. INTEREST.
