Notes 2

Question 1

If a life tenant leases to a tenant and then dies, what is the result?

Answer 1

The lease terminates and the remainder becomes presently possessed automatically

Question 2

Which privilege is lost at divorce?

Answer 2

Spousal Privilege

Question 3

Who is the holder of the marital privilege?

Answer 3

both spouses

Question 4

Characteristics of Marital Privilege

• Protects
• Ending
• Asserted in
• Holder

Answer 4

Protects communications only during marriage

Privilege survives divorces

Both civil and criminal trials

Holder = Both Spouses

Question 5

Characteristics of Spousal Privilege

• Protects
• Ending
• Asserted in
• Holder

Answer 5

Protects communications before and during marriage (impressions/observations)

Privilege lost at divorce

Only asserted in criminal cases

Witness spouse is the holder

Question 6

When does marital privilege not exist?

3

Answer 6

1. A suit between the parties
2. When a intentional tort was committed by one on the other
3. When they are joint participants in a crime

Question 7

Prior Consistent Statements are allowed when?

4

Answer 7

Offered substantively on redirect to rebut a charge of recent fabrication or improper influence.

1. Declarant testifies at trial
\+
2. Be subject to cross examination
\+
3. Arises before fabrication arose

Question 8

The imposition of the death penalty is unconstitutional when?

Answer 8

if the capital offense was committed before the ∆ was 18

Question 9

Negligence Per Se occurs when?

2

Answer 9

Breach of a statutory duty of care which creates a rebuttable presumption of negligence.

1. Plaintiff must be a member of the class of
persons the statute was designed to protect,
\+
2. Plaintiff’s harm must be of the type the statute
was designed to prevent.

Question 10

What is the scope of what a battery can occur to?

Answer 10

Anything connected to the person (a dog on a lesh, a man with a cane, a man on a horse)

Question 11

Trespass v. Nuisance

Answer 11

Trespass = one time entry + interference with landowner’s exclusive possession (damage not required)

Nuisance = repeated entry + interference with landowner’s use of enjoymnet

Question 12

What standard is the appeal of an exclusion of scientific expert testimony?

Answer 12

Abuse of discretion

Question 13

Where can you never commit a burglary?

Answer 13

When it is the place where you live

Question 14

When discriminating anyone based upon race, apply?

Answer 14

Strict Scrutiny

Question 15

Advisory Opinions in Federal Court

Answer 15

Cannot be given, all decisions must have power of law

Question 16

Objections at depositions can be made on?

Instructions to refuse to answer to a client at deposition?

Answer 16

1. Objections can be made at anything objectionable at trial
2. can instruct not to answer only if:
   - answer is privileged; or,
   - there is an order limiting the scope of the deposition

Question 17

Bad Act Impeachment can occur when

Answer 17

credibility always in the scope of cross

Any witness may be questioned during cross-examination about unconnected acts bearing on untruthfulness (stuck with answer)

• perception difficulties
• bias

Question 18

If a πfails to mitigate their damages, what are they entitled to?

Answer 18

Whatever damages they would be entitled to if they properly mitigated their damages

Question 19

When will strict liability apply to lateral support removed from Improved land?

Answer 19

Only when the land would have collapsed in its natural state

if not, then must prove negligence

Question 20

failure to perform a contractual obligation by the time specified in the contract is

Answer 20

a non-material breach if “time of the essence clause is not state”
-does not let the other side out of the agreement

Question 21

What creates a valid boundary agreement?

3

Answer 21

1. Parties uncertain/unaware of the true boundary
2. Express or implied agreement as to the location
3. Possession that conforms to the agreement

Result: possession awarded as to the “agreed” line –> runs with the land

Question 22

Rule for border search requirements

Answer 22

“Routine” searches of persons and effects at the border require neither reasonable suspicion, nor probable cause, nor a warrant.

• we are naked in and we are naked out
• Still a search but no level suspicion is needed

**Includes TSA agents at airport)

Question 23

Hearsay exclusions v. hearsay exceptions; which is better?

Answer 23

Hearsay exclusions

Question 24

When does a taxpayer have standing?

Answer 24

to make an establishment clause challenge to an expenditure under the taxing and spending power

Question 25

A person is domiciled where?

2

Answer 25

has

1. physical presence
   +
2. intent to remain in the state indefinitely (≠ plans to leave)

Question 26

When is a mortgagor’s interest in the mortgaged real estate satisfied?
(2)

Answer 26

Debt is satisfied
or
Foreclosure

Question 27

Can a lay witness testify that someone was intoxicated?

Answer 27

yes, if they are familiar with people being intoxicated

Question 28

Who can invoke ∆’s right to counsel?

Answer 28

Has to be ∆ asking for attorney to be present

≠ lawyer, spouse

Question 29

When you waive your miranda rights how to get back?

Answer 29

Invoke right to counsel but staying silent and saying you want an attorney

≠once gone always gone

Question 30

A witness who refuses oath or affirmation

Answer 30

may not testify

=per se incompetent

Question 31

What is physician’s duty to disclose for informed consent?

Answer 31

Disclose all risks that are material

Look at whether physicians customarily would inform their patients of the kind of risk in question or whether the physician would have made the disclosure under these circumstances

Question 32

Who’s statements are covered by doctor-patient privilege?

Answer 32

What you tell the doctor

≠ what the doctor tells you

Question 33

When a ∆ is on trial for child molestation, what can be brought in?

How?

Answer 33

Specific acts of prior child molestation

-Has to give notice to the other party

Question 34

If a complaint alleges fraud, what does it need to have?

Answer 34

“time, place, and nature of the [alleged] misrepresentations” must be disclosed

If not, then must be dismissed

Question 35

When can a police officer search a car after arresting someone?

Answer 35

1. when there is concern for officer safety; or,
2. opportunity for fruits of the arrest (confined to the offense) to be found in the passenger compartment

-can also pat down person being arrested

Question 36

Can the state require an individual to display a message?

Answer 36

no, cannot compel speech

Question 37

How to not violate the establishment clause?

3

Answer 37

1. primary purpose must be secular (non religious)
2. Primary effect may neither inhibit nor advance religion
3. Be no excessive government entanglement with religion

Religious activities at school violate EC (cannot pray)

Question 38

Procedural law in diversity cases?

Answer 38

Fed Procedural rules

Question 39

Substantive law in diversity cases?

Answer 39

state substantive law when there is no controlling federal statute

Question 40

Admissibility of illegal search in a parole hearing?

Answer 40

Admissible

Question 41

Will a failure to knock and announce make evidence inadmissible?

Answer 41

No, there’s still a good warrant

Question 42

Can an anonymous tip give reasonable suspicion to search?

Answer 42

No, need a credible named source

Question 43

When is statute of frauds satisfied in an oral land sale contract?

Answer 43

2 of the three

1. possession
2. purchase price paid
3. makes improvements