MBE Review Flashcards
The negative implications of the Dormant Commerce Clause do not apply when the state acts as a market participant and applies when
A state operates as if they are a private entity and allows a state to favor its own residents in the course of its own dealings when acting as a market participant rather than in a regulatory capacity.
What is the full faith and credit clause of the Constitution?
It obligates the courts of each state to recognize the final judgments of the courts of every other state.
SCOTUS precedent establishes that a state law requiring children to attend public schools infringes on the rights of parents to control the upbringing of their children. Is this a fundamental right?
This is a fundamental right protected by the due process clause of the 14th Amendment.
A state law that infringes on the right to education must undergo strict scrutiny. What does strict scrutiny require?
The STATE must prove that the law is necessary to further a compelling state interest.
Durational residency requirements violate the right to travel protected through the
Privileges and Immunities clause of the 14th Amendment
The privileges and immunities clause only
Reaches actions by a state that discriminate against citizens of other states.
An ordinance with a content-neutral restriction of expression must satisfy _______ scrutiny, which requires ____
intermediate —– the city to prove that the ordinance is narrowly tailored to an important government interest and that it leaves open alternative channels of communication.
The First Amendment does not protect commercial speech that is _____
false or misleading
Expressive conduct which is content-neutral faces ______ scrutiny
intermediate scrutiny
SCOTUS has consistently rejected claims that the freedom of the press protected by the First Amendment exempts the press from activities __________
from laws of general application such as contract law.
SCOTUS has held that the freedom of association protected by the First Amendment prohibits a state from inquiring about an individual’s associations in order to _________
withhold a right or benefit because of the individual’s beliefs.
The concept of federalism embedded in the 10th Amendment disables Congress from requiring states _________
from enacting laws or administering federal law.
Does Congress play a role in the removal of executive officers?
No
A state tax is valid if it is nondiscriminatory and _______
DOES NOT APPLY directly to the federal government.
Are admissions of a party opponent admissible under FRE?
Yes if plaintiff had personal knowledge of what the defendant said and can testify about it.
Admission of a party opponent is admissible to ________
IMPEACH the defendant’s testimony as a prior inconsistent statement and as SUBSTANTIVE EVIDENCE.
A doctor’s letter is not a business record if _________
it is not prepared in the ordinary course of regularly conducted activity.
A hospital record is hearsay but qualifies as a record of regularly recorded conduct.
Absence of an entry in such a record is admissible to prove the non occurrence of a matter that would normally have been recorded if it had occurred.
Learned treatises exception
Provides that if a court finds a publication to be a reliable authority, then ‘statements’ may be read into evidence, but the publication MAY NOT be received as an exhibit.
Is the jury allowed to bring learned treatises into the jury room?
NO - cannot be received as an exhibit.
Are computerized records a testimonial statement?
No
Is the declarant subject to cross-exam within the meaning of the hearsay exception for prior identifications?
Yes, even if the witness lacks all memory of the prior identification
Are statements made during settlement negotiations in a private civil action - (negotiations not involving a public office) admissible?
No - they are inadmissible in a subsequent criminal case arising out of the same incident.
Is evidence of subsequent remedial measures admissible?
Only to prove the feasibility of precautionary measures.
Three basic criteria are required to permit the testimony of an expert witness:
(1) the expert is qualified to give an opinion on the subject matter;
(2) the state of the art of scientific knowledge permits a reasonable opinion to be given by the expert;
(3) the subject matter goes beyond the understanding of the average layman
An expert may testify as to the way drug dealers operate and to the meaning of code words that dealers use, as long as the testimony is based on _______
their expert opinion and not on the defendant’s specific mental processes.
A plaintiff often needs experts to prove causation, and the trial judge is responsible for making sure the expert testimony is relevant/grounded on scientific research - before an otherwise qualified expert may testify as to causation, and the proponent of the evidence must ________
usually establish not only that the evidence is relevant and helpful to the jury, but also that the methodology employed by the expert is reliable.
Prior bad acts can be admitted to prove the defendant’s conduct is offered for some purpose other than to show that the defendant is a bad person, such as _____
Intent, knowledge, lack of accident, and modus operandi - can be offered as proof that the defendant committed the crime.
Convictions are admissible both to prove that the defendant committed the crime and to impeach the defendant.
The defendant’s character for peacefulness is a pertinent trait of character. Can the defendant offer evidence of his reputation for peacefulness?
Yes
The production of evidence “sufficient to support a finding” that the evidence is what the proponent claims it to be is the proper standard for ______________
authentication.
If a defendant denies a plaintiff’s injuries are severe, the plaintiff is entitled to show the severity of injuries by introducing a _______
photograph. The evidence relates directly to the appropriate amount of damages.
A prior inconsistent statement by a party may be received into evidence to impeach and may be used as substantive evidence if
the prior inconsistent statement was given under oath, AND as part of a formal trial, hearing, proceeding, deposition (includes statements made in a grand jury proceeding).
After a witness’s character for truthfulness has been attacked, the opposing party may then rehabilitate the witness by regarding the witness’s good character for truthfulness through __________
reputation opinion or opinion testimony.
Extrinsic evidence may be admitted to impeach a witness’s ability to perceive the events _______
as they transpired.
If the witness has testified that she knows about the defendant’s reputation, the prosecutor has a right to test the basis and adequacy of that knowledge, as well as the nature of the community itself.
If the witness answers that she had not heard about the arrest, the admission could indicate that she is not very knowledgeable about the defendant’s reputation in the community, because such an arrest would likely have a negative effect on that reputation.
Evidence that is relevant to some issue or issues at trial other than the defendant’s character is admissible if
the evidence’s probative value is not substantially outweighed by the risk of unfair prejudice.
It is permissible to impeach a witness for bias by showing any fact that would give the witness a reason to testify favorably or negatively about a party’s case.
A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury because it suggests the testimony is false, slanted, or mistaken in one party’s favor.
