New Flashcards
In the Model Penal Code and Majority Jxs- how many parties are required for conspiracy
1 party
Can states enter agreements with each other without permission of fed government
Yes but if the agreement INCREASES the states’ political power then they need Congress’s consent
Can the feds prosecute you for an offense after a state has prosecuted you for the same offense?
Yes
What level of scrutiny for a state law that discriminates against NON-Citizens
strict scrutiny
If summons is served at your home, who can it be given to
It can be left with resident of suitable age and discretion- a 16 yo is fine
What level of scrutiny for a FEDERAL law that discriminates against non-citizens?
Rational basis
is social host liability for giving alcohol to someone visibly intoxicated recognized by common law?
NO- there is no social host liability in common law
Is a threat to damage or destroy property enough for “FEAR” for robbery
NO
If you have an IQ below 70 at the time of the offense, are you eligible for the death penalty
NO
if you are mentally incompetent at the time of execution, can you be given the death penalty
NO
IN the sentencing phase of a death penalty case, do you need to include ANY relevant , mitigating evidence
YES
Can you give life in prison without parole for a kid for a non-homicide case
YES but it can’t be automatic- need a hearing with mitigating circumstances
If the facts mention bombing, terrorism or poisoning leading to death, think…
1st degree murder- even if the intent was just to scare
what level of homicide requires a cool mind capable of reflection?
1st degree murder
2 key requirements of voluntary manslaughter
1) heat of passion and
2) acting with adequate provoation- provocation that would cause a reasonable person to lose control
felonies for felony murder must be done…
in furtherance of the felony. I.e burglary, arson, kidnapping, robbery
Can the prosecution appeal a jury’s acquittal
no
For a suit against a federal officer or federal employee (acting in their official capacity), where is venue appropriate?
where any D resides, or where P lives if no real property is involved, or where event occurred
Can police test a substance to determine if it is a drug without a warrant
YES
for jury instructions, what type are allowed if the presumption is RATIONAL
Permissive (MAY infer) instructions are allowed if the presumption is rational
iF the acquittal was due to a mistake of fact or law, an the D be retried?
NO
If police have arrested the D and put him in their police car, can they then search the vehicle- under search incident to arrest
NO
Can you strike jurors under Batson for bizarre or nonsensical reasons?
Yes, it just has to be non-discriminatory, it does not need to be plausible or reasonable reasons
Can someone suspected of DUI be made to give a breath sample? What about blood?
Breath yes-
Blood requires warrant
For the Crime of forgery, the document must have ___ significance
LEGAL significance
elements of larceny by false pretenses
1) made false representation of material fact
2) your false representations caused someone to pass title to you
3) you acted with knowledge of falsity
4) you acted with intent to defraud
A defendant acts knowingly if they…(in regard to a fact)
are aware of a high probability of a fact’s existence and deliberately avoid learning the truth
define recklessness
D consciously disregards an unreasonable and high risk of death
Can the Govt place the burden of an affirmative defense on the defendant
Yes
for false imprisonment- a person must be ___ of the confinement or ___ by it
Conscious of the confinement OR harmed by it
Can exacerbation of injury or illness count as PHYSICAL HARM?
Yes
when is a rescuer liable
If the rescuer negligently worsens a victim’s condition
what is the shelter rule
If you take from someone who was a BFV without notice an even if YOU HAVE NOTICE of easement, you are protected under shelter rule
Words indicating fee simple determinable
UNTIL
So long as
during
while
will courts consider expert reports in deciding summary judgement
No bc not signed under oath
for school officials to search a kid on school grounds, what do they need?
reaonable suspicion that the student violated the law.
For school officials to conduct a search AT THE DIRECTION OF POLICE, what do they need
A warrant based on probable cause or exception to warrant requirement
Do jailhouse confessions to fellow inmates implicate Miranda?
No
When has a person been seized
if in light of all circumstances, a reqonsable person would have believed he was not free to leave
Can police detain someone for a brief time and ask them questions
Yes, under Terry stop- with reasonable suspicion that the person was recently involved in criminal activity
two prongs to determine if a confession is voluntary
1) was there coercion
2) did it overcome the will of the suspect
Under Younger Abstention Doctrine, what should the Fed ct abstain from hearing cases about
Pending state court criminal matters
Does habit evidence need to be corroborated
no
Can wait evidence be proved with specific instances of conduct or opinion testimony
Yes
When can you admit evidence of a defendant’s truthfulness
Only if their truthfulness is questioned
Evidence of ACCEPTED PLEAS or statements made during negotiations that resulted in accepted please are _____ against defendant in civil or criminal court
ADMISSIBLE
Can an expert witness state an opinion without first stating the basis for that opinion
Yes
For pure comparative jurisdiction and joint and several liability, what is one defendant on the hook for?
EVERYTHING minus what the Plaintiff caused.
when can you impeach with a prior conviction
1) if the crime was a felony punishable by death or MORE than 1 year in prison
2)OR if the crime involved a dishonest act or false statement
When impeaching with a prior felony conviction or crime involving dishonest act or false statement, can you introduce a record of the conviction?
YES
Can you always impeach with a crime involving a dishonest act
YES always
if the conviction is greater than 10 years old, how is it admissible?
only if the probative value substantially outweighs the prejudicial effect
is the court taking judicial notice of a fact mandatory for the court?
YES
is taking judicial notice mandatory for the jury?
NO- the jury may or may not accept the fact as conclusive
In cross examination, can a party use specific instances to challenge truthfulness of a witness or someone’s testimony?
YES but they can NOT use EXTRINSIC EVIDENCE to prove something
Under federal law is there a doctor patient privilege
NO
Under most state laws’ doctor/patient privilege, who can assert the privilege?
The patient
Can you impeach a witness with reputation and opinion evidence about their character for truthfulness
YES
explain the diff between spousal testimonial privilege and marital communication privilege
Spousal testimonial- criminal cases only. 1 spouse can refuse to testify against other
Marital communication privilege- applies in CIVIL AND CRIMINAL CASES. either spouse can invoke to prevent other spouse from testifying about communication that occurred when married. Survives the marriage
are offers to pay medical expenses ever admissible
NO
in what circumstance are offers to compromise, ie paying off a victim, barred from admission
ONLY IF THEY ARE MADE in response to a lawsuit/pending lawsuit. I.e so if guy rapes woman and immediately says, I’ll give you $1000 to forget about it, that is admissible b/c she hasn’t filed suit.
How to start an evidence essay
Evidence is relevant if it makes any fact more or less probable than without it. Relevant evidence is admissible unless another rule makes it inadmissible.
A lay witness can offer an opinion only if
1) it is based on their perception of what happened
2) it helps determine a fact at issue
3) it is not based on scientific, technical or other specialized knowledge
Can the government challenge the sincerity or reasonableness of someone’s religious beliefs?
JUST the SINCERITY
Can the govt be compelled to disclose the identity of a confidential informant
No
can the govt be compelled to disclose the contents of a confidential informant’s communication?
YES
if you make an honest, reasonable mistake (i.e thinking a gun is an unloaded prop on a movie set), would that negate the mens rea for involuntary manslaughter/
yes
if the holder of a remainder interest on a property pays taxes or mortgage interest, are they entitled to reimbursement from the life tenant?
Yes
obligations of the life tenant in regards to a property
= pay property taxes and mortgage, make reasonable repairs, avoid waste
does a counterclaim have to meet the amount in controversy
NO
is a sex crime/felony generally admissible to impeach a witness
No - usually more prejudicial than probative.
When can you impeach with a prior felony that is over 10 yrs old
If the probative value substantially outweighs the danger of unfair prejudice
can you impeach with a misdemeanor involving perjury?
Yes, convictions involving false statements are always admissible
if you want to use evidence of the defendant’s previous sexual assaults, what must you do?
let the defendant know at least 15 days prior to trial that you are using the evidence
For hearsay essay questions, how to start
always start with 1) relevance then 2) hearsay definition and exception
when can a tenant remove trade fixtures
if removal will not harm the property and items are removed before or within reasonable time after lease ends
if you see a hearsay statement and the hearsay is a QUESTION
questions are NOT out of court STATEMENTS FOR HEARSAY
Can a license be created orally?
Yes
how do licenses terminate
revokable at any time= can be orally. Also terminate automatically at the death of either party or conveyance of servant estate
The mirror image rule that acceptance must exactly mirror the offer is only for what type of contracts
Service
In common law-service contracts-any modifications/changes to the contract require _____
New consideration. Unless it is fair and equitable in light of new developments both partyies didnt forsee
In UCC sale of goods, changes to the contract require__—-‘xx
Good faith. No new consideration required
If one or both parties are NoT merchants and they are adding NEW terms to a sale of goods contract
New or additional terms become part of contract ONLY IF OFFERoR AGREES
If both parties are NOT merchants and there are different terms to the sale of goods contract
The different terms become part of contract ONLY IF OFFEROR AGREES
IF BOTH PARTIES ARE MERCHANTS, and there are new or additional terms to sale of goods contract
New-additional terms AUTOMATICALLY go into contract unless
1) they materially change the contract (i.e forum selection clause, waivers of warranties, limitations of remedies)
2) offeror objects in reasonable time
3) offer expressly limits acceptance
IF BOTH PARTIES ARE MERCHANTS and there are different terms in sale of goods contract
Diff terms get knocked out and replaced by UCC gap fillers
For common law service contact, an option contract requires what?
New consideration
For uCC sale of goods an option contract requires ?
Does NOT require consideration if
1) made by merchant
2) in signed writing
3) held open for no longer than 3months
Does Tort law or products liability compensate for purely economic harm
No- must have harm to your body or property
Two key elements for employer to be held responsible for actions of agent
1) Control of agent
- provided training & tools
2) Scope- agent/ employee acting within scope of employment
What type of contracts does the mirror image rule apply to
only service contracts
Under the UCC (sale of goods) if you have new or different terms and one party is NOT a merchant…
contract will contact the terms ONLY IF the offeror expressly agrees to them
If both parties ARE MERCHANTS and you have NEW/Additional terms
The new/additional terms AUTOMATICALLY become part of the contract UNLESS AN EXCEPTION APPLIES:
- offer expressly limits acceptance to offer’s terms
- additional terms materially change the offer
- offeror objects w/I reasonable time
If both parties ARE MERCHANTS and you have DIFFERENT terms
different terms are dropped/knocked out and filled in with evidence of trade usage or UCC gap fillers
What is the UCC gap filler for price
reasonable price at the time of delivery of goods
what is the learned treatise hearsay exception
treatise is admissible if
1) it is relied on by expert during examination. AND
2) treatise is established as reliable authority by a party’s expert or judicial notice
a police or arson record can or can not be admitted under the business record except to hearsay?>?
if offered by the prosecution against a criminal defendant, it can NOT be admitted under business record exception
Can plaintiffs remove a case from state to federal court
NO - ONLY defendants
if someone published a statement that they thought was true, can there be actual malice for defamation
NO
What is the only way a Defendant can waive his right to counsel
Only if judge informs D about the nature of charges, range of punishment, disadvantages of self-representation AND D is not being forced to chose between incompetent counsel and self-representation
Can arson be from failure to act
YEs- if someone created the risk of harm and reasonably could have stopped the fire but didn’t
What is unique about service of process for a minor or incompetent
service must follow the rules of the state where service IS MADE
does fee simple absolute grant any ownership interest in grantee’s heirs
NO- so if it says “to my nephew and his heirs”- it is just FSA to nephew
for fear of harm assault, can you be asleep or unconscious
NO
level of scrutiny for campaign CONTRIBUTIONS
intermediate- substantially related to important govt interest
not allowing write in candidates on ballot- level of scrutiny
rational basis
Lack of adequate assurance when specifically asked is ____ of the contract immediately
Repudiation
does implied warranty of fitness for a particular purpose require the seller to be a merchant
NO
Do you have a right to counsel at a bail or bond hearing
NO
UNDER THE UNIFORM PROBATE CODE, if property devised to person in will is no longer available what happens
person gets proceeds of property
When do you have standing to sue for PUBLIC nuisance
If the public nuisance interfere’s with someone’s livelihood/business
when does a person have actual possession
if they have 1) physical control over a thing and 2) aware of the control over thing long enough to terminate possession
before you file a motion to compel x documents what must you do
you need a certificate that you attempted to confer with OP
For negligent representation, what kind of harm must you have
monetary loss or physical harm
can you orally rescind a contract
yes
when is the only time that a merger will NOT terminate an easement
if there are ANY future interests in EITHER estate
For a service contract, what is material breach
Material breach is the absence of substantial performance. Breach is substantial if it 1) thwarts the purpose of the contract or 2) deprives the non breaching party of the essential benefit of the bargain
how to start contract essays
Determine if UCC or common law and explain why.
define impossibility for contracts
If it can’t be performed by anyone not just contracting party
things that make performance impossible
1)death/incapacity of person necessary for performance
2) destruction of subject matter
3) prevention of performance by law
define impracticability
if it will cause extreme and UNREASOnable difficulty, expense, injury or loss to one of the parties even if objectively possible
anticipatory repudiation gives non repudiating party an immediate claim for what
BREACH OF CONTRACT
if repudiating party retracts their repudiation, what must the other party do
proceed as if repudiation had not occurred. Can retract by beginning performance or express statement
if a company admitted or stipulated they were negligent, can you have issue preclusion
NO
Does 11th am immunity extend to actions against local governments, cities, towns, counties
NO
if surface and mineral estates are owned by diff parties, what does an Adverse possessor get
Just surface rights
what is assignment
Giving entire execution of contract to another person.
if you delegate duties of a contract, are you still liable
Yes, to discharge your liabilities so you can’t get sued, there would need to be a novation
Any contractual duty can be delegated unless
1) contract states specific person must perform
2) contract requires personal skill
3) identity of person is key to performance
DELEGATION does not relieve delegator of duties
The double jeopardy clause applies only to what type of cases
prosecutions
Can witnesses be both a lay and expert witness
Yes
two things you need to have for testamentary capacity
1) at least 18 yo
2) of sound mind:
- understand what your property is
-Who property is going to
-the significance of the will
-how the will gives away your property
What is dependent relative revocation (DRR)
allows the court to undo revocation of a will based on a mistaken assumption of law or fact.
Courts usually apply DRR only if there is an alternative plan of disposition and the mistake leading to revocation is cited in the will itself
ways to become an agent
- writing
-operation of law
-oral agreement
-conduct/mutual assent
Can a minor be a principal
NO
Can a minor be an agent
YES
are there any formalities needed to form a partnership
NO
Can a limited partner participate in business/management decisions
NO
if a partner acts OUTSIDE the ordinary course of business of their partnership, does it require consent from all or most of the partners
ALL
if a partner acts in the ordinary course of business, does it require consent from all or most of partners
a majority of partners
How does a partner dissociate
- Can give oral or written notice.
-Can dissociate at any time
-if the dissociation violates the partnership agreement, it is WRONGFUL and then the partner is on the hook for damages.
In what instance would a dissociated partner still be on the hook for liabilities after he left
They are on the hook for 2 yrs after dissociated if a creditor reasonably believed the partner was still there and didn’t have notice of the dissociation
How can a dissociating partner be released from partnership liability
thru
1) agreement with creditors or
2) filing a state of dissociation
Can a partnership continue after one partner dissociates
-if it is a partnership at will, then the partnership can continue by consent of ALL remaining partners
-if it is partnership for defined term, it will DISSOLVE if partner wrongfully dissociates and within 90 days , 1/2 of remaining partners agree to wind up or term expires or purpose is complete.
If you wrongfully dissociate, do you get a say in the winding up process
NO
Can a business record come into evidence even if the person testifying was not employed at the time and he doesn’t have first hand knowledge of the record?
YES
Can you combine a motion for discovery with a motion for sanctions
Yes
If a corporations articles of incorporation were not filed, is the board personally liable for corporate debts?
Yes but ONLY IF they knew there was no incorporation at the time and participated in making contracts
Can police set up a road block to check cars for DRUGS?
NO. only highway safety.
If partial payment is made on contract, can it be excepted from.statute of frauds
Yes
If buyer ASSUMES mortgage is buyer liable
Yes. If buyer assumes mortgage then buyer agrees to pay debt. Buyer becomes primarily liable with debtor secondarily liable
If buyer ASSUMES mortgage is buyer liable
Yes. If buyer assumes mortgage then buyer agrees to pay debt. Buyer becomes primarily liable with debtor secondarily liable
If buyer takes property SUBJECT to mortgage, is buyer liable
No. Buyer does not agree to pay mortgage
What is trade libel
Statements made (written or oral) abt products in someone’s business. Must proved defamatory statement abt P’s business or prodcts w actual malice
What is trade libel
Statements made (written or oral) abt products in someone’s business. Must proved defamatory statement abt P’s business or prodcts w actual malice
Before u are fired from state job, what must happen
PRE-dismissal opportunity to respond and post-dismissal hearing
If state files post-trial motion, does this extend time to appeal
Yes, 30 days after court disposes of any post trial motion
What is the loss of chance doctrine
Allows P to recover for malpractice if malpractice caused any loss of chance of survival
What is the loss of chance doctrine
Allows P to recover for malpractice if malpractice caused any loss of chance of survival
Can a revocable trust be amended
Yes
Is selling property to another buyer sufficient to revoke offer if the offeree has no knowledge of your action
No. Must have knowledge to be revocation
If there is increase in value of separate propwrty during marriage due to market forces, is it marital property
No. Not divisible
If there is increase in value of separate propwrty during marriage due to market forces, is it marital property
No. Not divisible
Can you get retroactive child support
No. Only back to date of filing
Can you get retroactive child support
No. Only back to date of filing
What does the uniform family support act allow u to do
Register child support order in 2nd state and get enforcement
What does the uniform family support act allow u to do
Register child support order in 2nd state and get enforcement
The issuing state retains exclusive continuing jurisduction for child supoort order so only they can modify it UNLESS
No litigant or child resides in issuing state
What is a special verdict
The jury answers questions on factual issues but the judge makes final decision for one party or the other
What is a special verdict
The jury answers questions on factual issues but the judge makes final decision for one party or the other
Can trespass be for smells or light or sound or obseving someone’s house
No
Can a state tax international corporations
Yes as long as non discriminatory and doesnt create risk of multiple taxation
Can a state tax international corporations
Yes as long as non discriminatory and doesnt create risk of multiple taxation
What power does board share with shareholders
Amending bylaws
A suit for payment of dividend would be what type of suit
Direct suit
Does a reasonable mistake excuse liability for trespass to chattel? (I.e taking wrong car by accident)
NO
three instances where contracting parties lose the ability to change or discharge duties owed to 3rd party intended beneficiary
1) Beneficiary materially changes position in reliance on promise
2) beneficiary brings suit on promise
3) Beneficiary manifests ASSENT to promise at REQUEST of promisor or promisee
Does a possessor of land have a duty or warn a licensee of open/obvious conditions
NO
What are the barrk felonies for felony murder
Burglary arson, rape robbery kidnapping
When a description of a property conveyed in a deed is inconsistent, what do courts rely on
1) natural objects or landmarks
2) artificial monuments
3) adjacent boundaries
In a P’s complaint, what is unique about special damages
they must be spelled out specifically in the complaint, with monetary fixed value
A state law that does NOT explicitly discriminate against out of state companies is VALID IF
it is rationally related to a legitimate objective
AND
burdens on interstate commerce are NOT CLEARLY EXCESSive when compared to Local benefits
if a trust says “to all my surviving children” what kids does it include
kids born after trust was made but before Settler died
if kid dies before settler but is named in the trust, can they take from settler?
under CL no, under UPC, their offspring can take by representation
Can you perfect a security interest before attachment
NO but if you perfect first then attach, the priority date is day of perfection
if in your will, you give your house at 123 sugar berry lane to bob and before you die, you sell your house and buy a different house, what does bob get
Under CL, bob gets NOTHING. the gift deems. the new house would go to residuary legatee.
Under UPC, bob gets new house- replacement house consistent with intent
If x shares of stock are named to go to bob in the will and the stock split, what does bob get
Under Cl- bob only gets x shares, rest go to residuary. Under UPC/modern, bob gets stock split
If gift to named beneficiary fails b/c it is too vague (to all my friends), who gets the gift
residuary taker
what is the insane delusion rule
If the testator was under an insane delusion, the will can be set aside ONLY IF the will is a product of that insane delusion
who has standing to contest a will
ONLY people with financial interest in successful will contest
what is the surviving spouse’s elective share
allows surviving spouse to take an elective share INSTEAD of any gift in will or if omitted from will
Can the government challenge the REASONABLENESS of religious beliefs
NO
Does the jury have to represent a fair cross section of the community
No. The pool the jury is selected from has to represent a fair cross section
Does the jury have to represent a fair cross section of the community
No. The pool the jury is selected from has to represent a fair cross section
What can the 100 mile bulge rule do
Create personal jx over a party that otherwise wouldnt have pj…but now do bc they reside within the 100 mile radius of courthouse
What is the diff between a physical taking and regulatory taking
Physical taking -use of land. Regulayory taking- deprivation of all economic value of land or all productive value of land
Is dismissal for 12b6- failure to state a claim for relief- a dismissal with or without prejudice?
= dismissal WITH prejudice bc adjudication on the merits
does death of offeror terminate an option contract
NO
Can an exculpation clause in contract cover intention or reckless tort harm
NO- invalid on public policy grounds
Irrevocable firm offers only apply to what
Sale of goods
What is the dual sovereignity doctrine
Allows two jurisdictions to charge person for same crime
