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MBE Final Review > Notes > Flashcards

Notes Flashcards

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1
Q

Larceny by trick requires

A

a false statement of past or present material fact

-gain possession

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2
Q

False pretenses requires

A

a false statement of past or present material fact

  • gain possession
  • gain title
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3
Q

What is the default Theory of Felony Murder

A

Agency Theory of Felony Murder
-A co-felon is guilty of felony murder only where the
killing is caused by one of the participants/co-felons.

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4
Q

Human shield exception to Agency Theory of Felony Murder

A

co-felon is guilty of the death of a human shield even if not killed by felon

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5
Q

Redline Rule on Felony Murder

A

To be guilty of felony murder,

  1. the killing must have been done in the furtherance of the felony,
  2. and the victim must be an innocent party.

≠the person killed is a co-felon.

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6
Q

What is the firefighter’s rule?

A

Public safety officers are prohibited from tort recovery for

personal injuries suffered while in the line of duty

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7
Q

What happens when a condition against assignment is waived?

A

It cannot be enforced again

≠ “one time waiver”

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8
Q

When are leading questions appropriate?

5

A
  1. On cross examination
  2. Hostile or adverse witnesses
  3. Questioning children
  4. Refreshing a witness
  5. Preliminary background matters
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9
Q

When is character admissible in a civil case?

4

A

When character is “in issue”

  • Defamation- plaintiff
  • Child Custody- parents
  • Negligent Entrustment- entrustee
  • Negligent Hiring- employee

All three forms admissible (R, O, SA)

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10
Q

What forms of character evidence come in a civil case?

A

All three forms admissible (R, O, SA)

Has to be defamation, child custody, negligent entrustment, negligent hiring.

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11
Q

When must Miranda warnings be given?

2

A

∆ in custody
+
∆ interrogated

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12
Q

Circumstances where the police have custody for purpose of Miranda?

A
  1. told to appear at police station
  2. threat of arrest
  3. arrest

≠when allowed to leave from ∆’s standpoint

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13
Q

Liability under a mortgage if

  • assumed?
  • taken subject to?
  • Default?
A

If assumed, then personally liable

If subject to, then not personally liable

Default = subject to

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14
Q

Quitclaim Deed guarantees?

A

the right to what the grantor has

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15
Q

Special Warranty Deed guarantees?

A

title free of defects from grantor

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16
Q

General Warranty Deed guarantees?

A

title free of defects created by grantor and all prior titleholders

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17
Q

What are the covenants of title?

  • At time of sale?
  • Future?
A

• 3 Present (Only at time of sale)

  • Covenant of seisin
  • Covenant of right to convey
  • Covenant against encumbrances

• 3 Future (Past the time of sale)

  • Quiet enjoyment (challenges to title)
  • General warranty
  • Further assurances
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18
Q

When are liquidated damages clauses valid?

2

A
  1. damages are difficult to determine at the time of contract formation
    +
  2. damages are reasonable
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19
Q

How to modify a contract

  1. U.C.C.
  2. Common Law
A

UCC (goods) = no consideration required, just “good faith”

Common Law (service) = consideration is required based upon “pre-existing duty rule”

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20
Q

When to invoke substantive due process

A

Law applies equally to all persons, yet precludes, restricts, regulates a protected fundamental right

  • Right to Vote
  • Right to Travel
  • Rights of Privacy
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21
Q

When to invoke equal protection

A

Law applies differently to similarly situated people, classified.

The law affects the rights of only some people with respect to a specific activity.

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22
Q

How to raise an equal protection claim when a statute is neutral on its face?
(2)

A

πmust show
1. Discriminatory Effect
+
2. Discriminatory Purpose

If so, then gov’t must show compelling interest

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23
Q

When does the state have to prove rationale basis?

A

never, rationale basis burden will always be on π

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24
Q

What is the scope of medical personnel that are covered by the physician-patient privilege?

A

Must be a doctor or under the instruction of a doctor

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25
Q

Amount in controversy for SMJ does not include what type of damages?

A

Punitive Damages

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26
Q

Right to Counsel in:

  1. Photo Arrays
  2. Lineups/Showup
A

No right to counsel in photo arrays

No right in a pre charge lineup

Right to counsel in a post charge lineup

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27
Q

To attack an unduly suggestive lineup, there must be

2

A
  1. identification must be unnecessarily suggestive
    +
  2. identification creates a substantial likelihood of misidentification

-exclude identification unless independent source exists

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28
Q

When are employers responsible for intentional torts of employees?

A

Not normally; however, employer will be liable when intentional torts is foreseeable in the scope of their work

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29
Q

Which amendment provides the right to a civil jury trial?

A

7th Amendment

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30
Q

When must a jury trial be requested?

A

No later than 14 days after the last pleading directed to the issue is served.

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31
Q

Best Evidence Rule Applies when?

2

A

1) Where the testimony is reliant on the writing, not on
personal knowledge, or
2) Where the writing has independent significance

32
Q

When can congress make a state enact or enforce a regulatory program?

A

Never can force; however, can use purse strings to induce performance

33
Q

Who has standing to file a private nuisance claim?

A

The person who occupies the property

If rented, then renter has standing and not the owner

34
Q

How is the doctrine of continuing trespass applied?

A

When a person takes something without intent to permanently deprive, then

Later establishes intent to permanently deprive

-Their original taking becomes a larceny

35
Q

When a buyer accepts non-conforming goods delivered by a seller, what is the rate they must pay?

A

The contract rate for the conforming goods even if the non-conforming goods are more expensive

36
Q

What occur before monetary sanctions under Rule 11?

A

The court must first issue a show-cause order before voluntary dismissal or settlement of the claims

37
Q

A regulatory taking occurs when?

A

A regulation denies the owner all reasonable economically viable use of his land

38
Q

Taking v. inverse condemnation?

A
  1. In a taking, the government is the π

2. in an inverse condemnation - gov’t is ∆

39
Q

Public Use Taking requirement

A

Benefit the public generally

-does not have to be held out for use by the general public

40
Q

Difference between

Equitable Right of Redemption v. Statutory Right of Redemption

A

Equitable Right of Redemption = before foreclosure

Statutory Right of Redemption = after foreclosure

41
Q

What is clogging the right of redemption?

A

When you put a clause in the contract waiving right of redemption

-you cannot waive the equitable right to redeem

42
Q

Reformation requires what?

3

A
  1. antecedent valid agreement that;
  2. has been incorrectly reflect in writing
  3. established by clear and convincing evidence

Parol Evidence rule inapplicable to reformation

43
Q

Seller’s (UCC) right to cure when time for performance has passed?
(3)

A
  1. if seller has reasonable grounds to believe that tender would be acceptable
  2. if notifies the buyer;
  3. May have reasonable time to substitute a conforming tender
44
Q

Perfect tender requires that

A

there is a perfect tender on the day that it is due

45
Q

Trespass liability attaches if

4

A
  1. intentional entry
  2. negligent entry + damages
  3. Reckless entry + damages
  4. Strict liability + damages
46
Q

PJ based upon minimum contacts

2

A
  1. systematic and continuous contact with forum state (any cause can be brought)
  2. isolate contacts purposefully directed at the forum (specific to those contacts)
    - Must have purposefully availed himself to the privilege of conducting activities within the forum State
47
Q

Contracts Clause prevents

A

the STATES from retroactively impairing the obligation of an existing public or private contract

-cannot lobby the state to invalidate your contract in your favor

48
Q

Ex post facto only applies to

A

criminal law

49
Q

Can you solicit an attempt?

A

no, they either do it or they do not do it

≠ solicitation if solicitor knows crime is impossible

50
Q

Burden of persuasion for insanity in federal court?

A

∆ must prove insanity by clear and convincing evidence

51
Q

Specific Intent Crimes Require

A

Intent to perform the act and bring about the outcome

52
Q

Specific Intent Crimes Examples

10

A

SCAR BAFFLE

  • Solicitation
  • Conspiracy
  • Attempt
  • Robbery
  • Burglary
  • Assault
  • False Imprisonment
  • First Degree Murder
  • Larceny
  • Embezzlement
53
Q

Crimes not requiring Specific Intent Examples

A
  • Rape
  • Arson
  • Battery
  • Involuntary Manslaughter
  • Depraved Heart Murder
54
Q

Specific Intent Crime Defenses

3

A
  1. voluntary intoxication
  2. Reasonable mistake of fact
  3. unreasonable mistake of fact (honest)
55
Q

General Intent Crime Defenses

A

Only reasonable mistake of fact

56
Q

When can suppressed evidence be used at trial?

A

To impeach the ∆

57
Q

Confrontation Clause occurs when?

A
  1. Criminal Case
  2. Declarant is Unavailable
  3. Testimonial Evidence

-Only admissible if ∆given an opportunity to cross-examine the declarant

58
Q

Testimonial v. non testimonial evidence

A
  1. non-testimonial: where primary purpose is to obtain police assistance to meet an ongoing emergency
  2. Testimonial: where the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution
59
Q

A person who is a professional or has special skill is

held to what standard?

A

to possess and exercise the knowledge and
skill of a member of the profession or occupation in
good standing in similar communities.

-Standard is their professional standard

60
Q

A civil action may be brought in what venue?

3

A
  1. if all ∆’s in same state, any district ∆ resides in
  2. a district in which a substantial part of the events occurred or where property is located
  3. any judicial district where the parties consent to venue
61
Q

What is the standard for defense of others?

A

The actor need only have a reasonable belief that
the person aided would have the right of self defense.

minority = only if person actually had to right

62
Q

A Deed Absolute is considered?

A

a mortgage, not an outright conveyance, it does not cut off the mortgagor’s right of redemption

-cannot waive foreclosure

63
Q

A principal is liable for torts of independent contractor when?
(2)

A
  1. abnormally dangerous activity (blasting)

2. non-delegable duties (performance of medical services)

64
Q

What can a seller of property take from the property (i.e. what is the test for fixtures)

A

(1) the items are not permanently attached to the property; (2) the items are not prohibitively heavy; and
(3) the items are not custom-designed specifically for the property.

65
Q

A renter of a room has an expectation of privacy when?

A

Until they check out of the hotel room

66
Q

What does the 11th Amendment provide

A

A state may not be sued in federal court by its own citizens or citizens of another state without consent

67
Q

What does the 11th Amendment not bar

3

A
  1. state officials may be sued personally
  2. state may be sued by another state or by the United States (SCOTUS)
  3. Congress can waive to enforce equal protection
68
Q

In order for there to be a third-party beneficiary, what is a condition precedent?

A

A valid underlying contract

69
Q

Proper measure of damages in a construction contract

A

Profits expected
+
Cost expended (up until time of the breach)

70
Q

Third-party defendant’s compulsory v. permissive counter claims?

A

A pleading must state as a counterclaim any claim that the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim;

71
Q

When must a victim die for a ∆ to be tried for homicide

A

anytime after the ∆’s acts that foreseeably cause the death

72
Q

Double Jeopardy prevents?

A

5th Amendment

A criminal ∆from being tried twice for

  1. the same crime
  2. in the same jurisdiction
73
Q

6th Amendment prevents?

A

deliberate elicitation of incriminating statements
once formal charges have been filed (critical stages) –> for the specific offense charged

-actual waiver required

74
Q

Fundamental Rights to Privacy include

6

A

CAMPER

Contraception
Abortion
Marriage
Procreation
private Education
family Relations
75
Q

What is the criminal liability of co-conspirators?

A

guilty of all crimes committed “in furtherance of” the conspiracy (i.e. Pinkerton crimes)

76
Q

What must happens to withdraw from pinkerton crimes in a conspiracy?

A
  • 1) notifies all other members of the conspiracy, and
  • 2) such notice is timely such that other members
    have the opportunity to abort their plans
77
Q

When can a request for adequate assurance result in repudiation?

A

When obligor expresses doubt of their ability to perform, the obligee may demand adequate assurances

  • if assurances are not forthcoming within a reasonable time
  • Then, may be treated as a repudiation (must wait for assurances)

MBE Final Review (4 decks)

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