Random Flashcards
No conveyance or mortgage of RP shall be good against subsequent purchasers and without notice unless the same be recorded according to law.
Notice
No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.
Race - Notice
No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded to law.
Race
Doctrine of Promissory Estoppel
A party that reasonable and detrimentally relies on another party’s promise may recover the costs of relying on that promise - but NOT the value of the promise itself.
What is the two-part test for establishing
ineffective assistance of counsel?
(i) the representation must fall below an objective standard of reasonableness, and
(ii) the attorney’s deficient performance prejudiced the defendant.
when a lawyer’s deficient performance costs a D an appeal that the D would have otherwise pursued, prejudice to the D is presumed with no further showing from the D of the merits of his underlying claims.
What does the overbreadth doctrine
state about 1st AM rights?
It says that a law is unenforceable against anyone - including those engaged in unprotected speech - if it restricts a substantial amount of constitutionally protected speech.
True or False
Service providers are subject to strict products liability.
FALSE
SPL claims can only be brought against commercial suppliers or sellers (those in the business of selling or distribution products of the type that harmed the P.)
Name 5 Affirmative Defenses
D.I.N.E.D
Duress
Insanity
Necessity
Entrapment
Defense of Person/Property
When on Probation - when is the right to counsel required under Due Process? Under the 6th Amendment?
Due Process: requires it if D claims he (1) did not commit violation, or (2) was justified in committing violation for some complicated reason
6th Am: requires it if D sentence for underlying offense had NOT been imposed (deferred) AND it will be imposed if probation is revoked.
Warrantless search of a business operating in a highly regulated industry?
Warrantless search is OK if it is due to an urgent public need
Can an accomplice to felony murder who did not actually kill be sentenced to DEATH?
NO, unless he:
1. Significantly participated in the commission of the underlying felony
AND
2. Acted with reckless indifference to human life.
He can still be charged with felony murder, just no death penalty
Does a proponent entering a self-authenticating doc into evidence required to give advance notice to OP?
NO
Except for business records - OP must have notice and opportunity to review.
Can a party testify to the terms of a contract?
NO - not if an original of the contract is available (from either party).
(Best Evidence Rule)
Is a statement of a declarant’s then existing state of mind, or emotion, sensory or physical condition hearsay?
It is hearsay, but it falls under the state of mind exception to HS and it can be admitted to show a present intention, motive or plan.
Technically it’s not HS because it isn’t being offered to prove the matter asserted.
EX: Email from D to W saying he was going to visit his sister when crime committed.
Can you impeach a DEAD declarant?
YES
Are answers to interogatories hearsay?
What if the answer to an Q incorporates a document?
They are non-hearsay party admissions
If the admission encorporates a doc, then the the contents of the doc are considered adopted by the answering party and are non-hearsay if offered against that party.
What is the “bursting bubble” approach to presumptions?
What is its effect on jury instructions?
Applies in CIVIL cases only.
A presumption will “burst” after the introduction of sufficient evidence by the OP to sustain a contrary finding (rebuts the presumption).
If NO contrary evidence is presented, the judge must instruct the jury to accept the presumption.
If contrary evidence IS presented, the burden of persuasion remains on the party who had it originally and the judge may instruct the jury that it may, but is not required to draw the conclusion from the basic facts.
When can an intended beneficiary sue to enforce a contract?
Only an intended beneficiary whose rights under a contract have vested can sue to enforce a contract.
The rights of an intended beneficiary vest when the beneficiary:
1. materially relies on the rights created,
2. manifests assent to the contract at one party’s request, or
3. files a lawsuit to enforce the contract.
Until the bene’s rights vest, the parties to the contract can freely modify or rescind the contract.
What does it mean for evidence to be relevant?
Memorize this!!
Evidence is relevant if it has any tendancy to make a fact more or less probable then it would be without the evidence (i.e., probative) and is of consequence in determing the action (i.e., material).
Evidence must be relevant to be admissible.
What are the 3 present covenants on a general/specialty warranty deed? How long do they run?
- Covenant of Seisin: grantor owns the land as is described in deed.
- Covenant of Right to Convey” grantor has right to transfer title
- Covenant Against Encumbrances: no undisclosed encumberances
These 3 do NOT run with the land and cannot be enforced w/ subsequent grantees. Once deed is executed these are gone.
What are the 3 future covenants on a general/specialty warranty deed? How long do they run?
- Covenant of Quiet Enjoyment: possession will not be interfered with by a 3rd party’s lawful claim for title.
- Covenant of Warranty: grantor will defend against a 3rd party’s lawful claim for title
- Covenant of Furher Assurances: grantor will do whatever is necessary to perfect title should it turn out to be defective (not available in all states)
These 3 DO run with the land and can be enforced by subsequent grantees after deed is executed.
In order to impose the death penalty, the aggravating circumstance involved cannot be …what…?
unconstitutionally vague
Heinous or brutal has been held unconst. vague!
If a civil action involves both legal and equitable claims, in which order would the jury hear those claims?
- Legal claims first
- equitable claims second
- The court is bound by the jury’s findings on the legal claims in determining the equitable claims.
Under 7th AM, party to a civil action has right to jury trial.
HS exceptions when declarant is unavailable
Declarant Is Carrying Family Forward
(so he’s unavailable!)
MEMORIZE!!!
Dying declaration
Interest, Statement against
Caused to be unavailable by opposing party
Former Testimony
Family or person history
