Review Flashcards
Content Neutral Regulations
Designated Public Forum
Rights to Lateral Support
Rights to Subjacent Support
Prosecutorial Duties
May only bring charges based on probable cause.
Must disclose all exculpatory evidence or all material evidence that has a tendency to make guilt more or less probable
Duty of Fairness
May not hide, conceal, or destroy evidence
May not
Pereira
Van Camp
Reverse Pereira
Reverse Van Camp
Overbreadth and Vagueness
Always mention for 1st amendment analysis
Free Exercise Clause
Protects freedom to believe and freedom to act in accordance to sincerely held religious beliefs
Establishment clause
The Establishment Clause compels government neutrality towards religion. Challenges under this law are evaluated under the “historical practices and understanding test” under which longstanding practices and symbols which are integral to the historical tradition of the nation are deemed constitutional.
But if law directly impacts religion, courts often apply strict scrutiny
Unreasonable search
Unreasonable search occurs when the government invades a place protected by a reasonable expectation of privacy OR physically intrudes upon a constitutionally protected area (papers, persons, houses, or effects)
Warrantless search of automobile incident to arrest
The 4th amendment requires that law enforcement demonstrate EITHER that (1) the arrestee is within reach of passenger compartment at time of search and may pose a threat to officer’s safety or tamper with evidence, OR (2) it is reasonable evidence may be found in vehicle
Terry Stop and Frisk of a car
Terry Stop
A stop is a limited seizure of an individual in which the restraint of freedom does not rise to the level of a full custodial arrest
A frisk is a limited search. An officer may conduct a frisk after a Terry stop if the stop was based on reasonable suspicion with articulable facts, and the officer reasonably believes the frisk is necessary for the safety of the officer or of others. Under the PLAIN FEEL exception, an officer may search inside pockets ONLY if the plain feel of the object makes its contraband nature immediately obvious. In such cases, the officer may seize that evidence.
When a police officer holds a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause
Final judgment rule
The federal court of appeals has jurisdiction over appeals from final judgments. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.
A notice of appeal must generally be filed within 30 days after the judgment or order is entered.
Always talk about 2 exceptions: Interlocutory appeals and Collateral orders
Interlocutory Order
An interlocutory order is a court order or ruling that is made before a final judgment. Interlocutory orders are generally not appealable except in limited circumstances, including for the grant or denial of injunctions, or certifications of a class in class actions.
In these limited circumstances, a party may appeal by right
Collateral Order doctrine
The collateral order doctrine allows for the appeal of an interlocutory order when such order (1) concerns an issue completely separate from the merits of the action, and (2) would be pointless to appeal after a final judgment. Collateral orders include, for example, orders related to the existence of immunity.
Permanent Separation
Always talk about permanent separation in CP essay when applicable
permanent separation is evidenced by intent to end marital relationship + conduct in accordance with that intent
Conspiracy
An agreement between two or more people to accomplish an unlawful purpose with the specific intent to accomplish that purpose + overt act (modern/MPC)
Withdrawal -
common law - could not withdraw after agreement because crime was already completed by that point
majority - can withdraw before overt act by notifying other co-conspirators or police
after overt act, can withdraw but would still be liable for conspiracy. Would not be liable for subsequent acts
Co-conspirator liability
A co-conspirator can be charged for the planned offense as well as other offenses committed by conspirators in furtherance of the conspiracy
Impermissibly suggestive misidentification
(1) D must show that lineup was impermissibly suggestive
(2) D must show that such lineup produced a substantial likelihood of misidentification
Factors
Administrative searches
Police may not use administrative searches to look for criminal activity. But evidence discovered during a valid administrative search may be admissible.
Opposing lawyers related - PR
Under the ABA MR, a lawyer that is related to another lawyer may not represent a client in any matter in which the other lawyer is counsel for the opposing party
Under the CA rules, a lawyer may not represent a client in any manner for which the lawyer KNOWS the opposing counsel (1) is related to the lawyer, (2) lived with the lawyer, (3) is a client of the lawyer, or (4) has an intimate personal relationship with the lawyer unless informed written consent is obtained from the client.
Waiver of 6th amendment right to counsel
Waiver of 6th amendment right to counsel is only effective if such waiver was knowingly, intelligently, and voluntarily. When a D waives his or her right to counsel, the court must ensure that the D is aware of the charges, the potential range of punishment, and the risks and consequences of self-representation. Further, the court must ensure that the D is not being forced to choose between self-representation and ineffective counsel
Refreshing recollection
Any item may be used to refresh a witness’s memory regardless of admissibility if (1) witness once knew but is now unable to recall fact or event, and (2) item will help witness recall that information
Recorded recollection
Record is admissible hearsay if it:
(1) contains information re: which witness once had personal knowledge
(2) witness created or adopted record shortly after event occurred, while event was still fresh in mind
(3) witness cannot remember events even after looking at record
(4) accurately reflects witness’s knowledge at time record was made
Intervening-Superseding cause
Strict liability - Elements
Absolute duty
Breach
Causation
Damages
Defenses
Corporations - Shareholder Derivative Action
Describe derivative action (brought on behalf of corporation for any harms suffered by the corporation as a whole)
Standing - SH must have been a SH (owned shares) at the time of harm and at the time of filing, SH must continue to own shares through the entirety of litigation, and SH must be able to fairly and adequately represent corporation
Demand -
Must make demand on board at least 90 days prior to commencement of suit (unless futile)
Corporations - duty of care + BJR
Officers/Directors (O/Ds) owe a duty of care to the corporation. Per this duty of care, failure to act as a reasonably prudent person under the same or similar circumstances constitutes a breach. However, the BJR is a rebuttable presumption that a business decision made by an O/D was made in good-faith. When the BJR applies, the O/D may be shielded from liability for a given business decision so long as such decision was not fraudulent, illegal, or one made for the purposes of self-dealing. The presumption of BJR may be overcome by showing that the decision was made in bad faith, breach of due care, negligence, etc.
Corporation - duty of loyalty
Must act in best interests of corporation, must avoid conflicts of interests, and must not engage in self-dealing.
Check to see if any decisions were self-dealing
Then apply safe-harbor provision. The safe-harbor rule provides that a self-dealing transaction may still be permissible so long as the transaction was disclosed to and ratified by a majority of disinterested board members or shareholders, or alternatively, that the transaction was fair
When applying safe harbor rule - make sure there was a disclosure of all material facts
Corporations - sale of assets
The sale of all or substantially all assets constitutes a fundamental corporate change. For such a sale of assets, approval must be obtained from the BOD and shareholders. Shareholders who object to the sale may force the corporation to buy his or her stock at fair value based on an appraisal
Corporation - duty of loyalty/usurping corporate opportunity
Must first present opportunity to corporation and give it opportunity to accept or decline before personally availing of opportunity. 2 tests
interest or expectancy - if corporation is actively seeking such opportunities, must disclose
Line of business test
- must disclose opportunities in corporation’s line of business
PR - business with client
A lawyer must not into a business transaction with a client unless: (1) the terms are fully disclosed in writing, (2) the terms are fair and reasonable, (3) the client understands them (4) the client has an opportunity to seek independent counsel, and (5) informed consent in writing
Indispensable Party
Factors
1. extent to which judgment would prejudice parties
2. extent to which harm can be reduced or avoided by protective provisions
3. Whether a judgment rendered would be adequate
4. Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder
Initial disclosures
Must disclose names and addresses of people who may likely have discoverable information (except people used solely for impeachment)
Copy or description of all documents disclosing party has in its possession, custody, or control, that is relevant
Computation of each category of damages claimed by disclosing party
Summary -
Names and, if available, contact information of witnesses who likely have discoverable information (except witnesses used solely for impeachment)
Copy or description of documents to be discovered
Withholding discovery requested documents on basis of privilege
must expressly state claim of privilege and materials/communications not produced so other party can reasonably assess the appropriateness of that privilege
