Rule Statements

Question 1

There are two types of relevance…

Answer 1

logical relevance and legal relevance. Evidence is logically relevant if it tends to make a fact of consequence more or less likely than it would be without the evidence. Evidence is legally relevant if its probative value is not substantially outweighed by some kind of danger.

Question 2

Logical relevance: two elements to discuss

Answer 2

1) what is the fact of consequence and 2) what is the evidence being offered for this fact

Question 3

Legal relevance: three steps

Answer 3

1) describe the potential prejudice, 2) describe the probative value, and 3) balance

Question 4

Negligence opening

Answer 4

A claim for negligence requires that the plaintiff to establish four elements: duty, breach, causation, and damages. Courts most often compare the defendant to a reasonable person under the circumstances to determine if they breached their duty of care to the plaintiff.

Question 5

Present Sense Impression rule statement

Answer 5

A statement describing an event or condition made while the declarant perceived it, or immediately after, is admissible.

Question 6

State of Mind rule statement

Answer 6

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition is admissible.

Question 7

Battery rule statements.

Answer 7

Battery is the intentional infliction of a harmful or offensive bodily contact. Intent is acting with either purpose to cause a harmful result, or with the knowledge that a harmful result is substantially certain to be produced. Courts have ruled that items “intimately associated” with a person’s body are included for the bodily contact analysis.

Question 8

Assault rule statements (remember what is not enough)

Answer 8

Assault is the intentional infliction of the reasonable apprehension of an imminent harmful or offensive bodily contact. Mere words are not enough. Menacing words need to be accompanied by some sort of physical action as well.

Question 9

Defamation rule statements.

Answer 9

Defamation is a legal claim involving injury to someone’s reputation on the basis of a false statement. The defamatory statement might be written – which is called “libel”, or spoken – which is called “slander”. The elements of a defamation claim are 1) a false statement of fact; 2) that is about the plaintiff; 3) publication or communication of the statement to a third party; 4) fault amounting to at least negligence; 5)– damages.

Question 10

Defamation- what happens when a statement is framed as an opinion?

Answer 10

If someone makes a statement of opinion that gives a listener or a reader a reasonable impression that there is a factual basis for that opinion, that statement is actionable and may be defamatory. However, a statement of pure opinion is not actionable.

Question 11

Defamation element–communication or publication of the statement to a third party

Answer 11

At least one other person must hear or read the statement about the plaintiff in order for it to be actionable. Now, you don’t need a large audience. The fact that at least one person other than the speaker or the plaintiff has heard or read the statement is enough to satisfy the “publication” element.

Question 12

Level of fault for defamation (element 4)

Answer 12

The level of fault required to succeed on defamation claim depends on whether the plaintiff is a private figure or a public figure. When a private figure sues for defamation, they must show that the speaker acted negligently in making the defamatory statement (i.e. speaker did not make reasonable efforts to determine whether the statement at issue was true prior to communicating that statement to a third party). A higher standard for fault applies in defamation claims brought by “public figures”, who are individuals that have achieved notoriety or fame. When a public figure sues for defamation, they must establish that the speaker acted with “actual malice”. Actual malice is knowledge that the statement is false, or reckless disregard for the truth or falsity of the statement.

Question 13

Harm element- slander per se

Answer 13

Where a statement involves any one of the following categories, injury to the plaintiff’s reputation is presumed and the “damage” element of a defamation claim will be satisfied: 1 – a criminal offense; 2– a loathsome disease; 3 – inappropriate conduct related to the plaintiff’s business, trade, profession, or public office; or 4 – serious sexual misconduct.

Question 14

Private Nuisance rule statements (include standard)

Answer 14

A private nuisance is 1) a substantial and unreasonable interference with 2) a person’s use or enjoyment of their property. Nuisance is based on a reasonable person standard. The nuisance must be annoying, inconvenient, or offensive to a reasonable person.

Question 15

Public Nuisance rule statements

Answer 15

Public Nuisance is 1) an unreasonable interference; with 2) the health, safety, or property rights of 3) a considerable number of people or the entire community or neighborhood where 4) the plaintiffs can show they have suffered actual damages.

Question 16

Remedies for nuisance

Answer 16

A successful plaintiff in a nuisance action could be awarded either money damages or an injunction.

Question 17

Nuisance Defenses

Answer 17

Coming to the nuisance; statutory compliance

Question 18

Assumption of Risk

Answer 18

Assumption of risk is a defense to negligence. It applies if the plaintiff 1) voluntarily assumed 2) a known risk. The assumption can be either (a) express, by agreement; or (b) implied, where an average person would appreciate the risks involved.

Question 19

Elements of Standing rule statements

Answer 19

A plaintiff must meet three requirements to have standing.

1. plaintiff must suffer an injury in fact
2. defendant must have caused the injury
3. court must be able to address the problem.

These requirements are known as injury in fact, causation, and redress-ability.

Injury in fact means that the plaintiff must have suffered an actual harm or the harm is imminent. It must be concrete and particularized and cannot be hypothetical.

Question 20

Second rule statements for standing- causation

Answer 20

The second question a court asks about standing is whether the injury is fairly traceable to the defendant. There should be a clear link between what the defendant allegedly did and the harm to the plaintiff.

Question 21

Third rule statement for standing- redress

Answer 21

The third question is whether the court can redress the injury. Put differently, if the court rules in favor of the plaintiff, will anything change? Sometimes there are cases where the federal courts cannot offer the relief requested.

Question 22

Taxpayer standing

Answer 22

A good rule of thumb is that there is no taxpayer standing to challenge a government program. A plaintiff must show she is uniquely impacted by a statute beyond her taxes going to that program.

Question 23

Third party standing

Answer 23

Plaintiff generally can’t bring a lawsuit on behalf of someone else. If a person is harmed but faces substantial barriers in asserting his own interests, then a third party may sometimes raise the issue.

Question 24

Organizational standing rule statements

Answer 24

An organization can sue on its own behalf if it has been injured. It can also sue on behalf of its members who have been injured. There are three requirements for an organization to sue on behalf of its members.

1. a member must have standing to sue in its own right.
2. the interest the organization is protecting must be germane to its purpose
3. the claim asserted or the relief requested cannot require the individual member to participate.

Question 25

Elements for a case to be moot

Answer 25

First, it must be capable of repetition. This means that the injury must be the type of injury that is likely to occur again to the plaintiff. Second, the injury must have a relatively short duration, such that it ends before a case can get through to trial and appeal.

Question 26

Non-hearsay rule statement: prior statement by a witness (3 PAWs)

Answer 26

A prior statement by a witness is not hearsay if the declarant testifies and is subject to cross-examination and the statement is

1) Sworn Inconsistencies inconsistent with the declarant’s testimony and was given under oath at another proceeding;
2) Rehabbing- consistent with the declarant’s testimony and offered to rebut a charge that the witness is lying;
3) a prior statement of identification.

Question 27

second category of statutory non-hearsay, statements of an opposing party

You can SMAC them with OPPAS

Answer 27

Any statement offered against an opposing party is not hearsay if it:

Spokesperson – The opposing party authorized a spokesperson to address the subject.

Manifest belief – The opposing party manifested belief in the assertion.

Agent – The opposing party’s agent made the assertion in the scope of that agency. Or,

Coconspirator – A coconspirator made the assertion to advance a conspiracy with the opposing party.

Question 28

“Statement,” “Out of Court,” “Offered to Prove the Truth”

Answer 28

A “statement” within the meaning of the hearsay rule can be verbal or written, or even a non-verbal assertion. “Out-of-court” means that the declarant was not testifying at the current trial or in a hearing at the time the statement was made. “Offered for the truth of the matter asserted” means that the party seeking to admit the statement is trying to prove its content.

Question 29

Excited Utterance

Answer 29

A statement in relation to a startling event or condition, made while the declarant was under the stress of excitement that the event or condition caused, is admissible.

Question 30

Dying Declaration

Answer 30

A statement made by 1) an unavailable declarant; 2) under a sense of impending death; 3) about the cause or circumstance that put the declarant in the position of the impending death, is admissible.

Question 31

Rule statement for when a declarant is unavailable

Answer 31

A declarant is deemed unavailable as a witness if they are

(a) Exempt from Testifying due to Privilege; (b) Refuses to testify Despite a Court order; (c) cannot be present due to a Death or Illness;
(d) Testifies that he or she Cannot Remember the subject matter;
(e) is Beyond the Reach of the court’s Subpoena power

…..and his or her attendance cannot be procured by reasonable means.

Question 32

Procedural Due Process rule statements and steps for answering the question

Answer 32

Under the Fourteenth Amendment, no person shall be deprived of life, liberty, or property by the government without due process of law.

2. Identify the protected interest. Is it life? A liberty interest? A property interest? Depending on the type of interest, this may be a straightforward discussion, or you can have some ambiguity to play with.
3. Engage in the balancing test from Mathews v. Eldridge. How important is the interest at stake? How well does the current process protect against erroneous deprivation, and what would be the value of adding more process? Finally, what is the state’s interest in the deprivation, and what is the burden on the state if more process were added? And remember, when we’re talking about process, we’re talking about the bare minimum of notice and hearing.

Question 33

Rule statements for substantive due process

Answer 33

Substantive due process refers to the government’s power to regulate certain rights by applying the appropriate standard of scrutiny. These rights are read into the liberty interest of the Fourteenth Amendment and include voting, the right to travel freely, First Amendment Rights, and privacy interests such as parenting, marriage, contraception, abortion, education, and medical decisions.

Question 34

Levels of Scrutiny- Due process

Answer 34

Strict scrutiny requires the law at issue to be necessary to achieve a compelling governmental interest. The government has the burden of proof. For intermediate scrutiny, the law is upheld if it’s substantially related to an important governmental interest. The burden of proof is on the government here as well. Note that abortion has its own standard that is considered to be within the intermediate range, which requires that the law not impose an undue burden on access to abortion. Finally, rational basis review requires only that the law be rationally related to a legitimate governmental interest. And here, the burden is on the plaintiff to show that there is no rational basis, and it tends to be a fairly easy standard for the government to overcome.

Question 35

Rule statements for piercing the corporate veil

Answer 35

A court will pierce the corporate veil and hold the shareholders personally liable in the following situations: 1) the corporation is acting as the ALTER EGO of the shareholders; 2) where the shareholders IGNORED corporate formalities; 3) the corporation was INADEQUATELY FUNDED at its inception to cover debts and prospective liabilities; or 4) to prevent INJUSTICE.

Question 36

Rule statement for corporate formalities

Answer 36

Corporate formalities - generally speaking, corporations are required to

create bylaws
hold regular shareholder and board of director meetings
maintain accurate records
maintain separate bank accounts.

Question 37

To whom do the factors of piercing the corporate veil apply?

Answer 37

The same factors are applied to hold a parent company liable for the acts of its subsidiary. That’s because a parent corporation owns its subsidiary and has the same ability to control it as an individual owner would. In contrast, passive investors who do not participate in the business will not be held liable, even if the court pierces the corporate veil. While passive investors are still owners, they do not exert control over the corporation.

Question 38

Character Evidence essay approach; step 1

Answer 38

1. Note whether you are looking at a civil or criminal case, because this has the potential to change how the rules apply. This is significantly true with character evidence, which operates very differently in civil and criminal courts.

Question 39

Character Evidence in civil cases

Answer 39

In civil matters, character evidence is inadmissible, unless character is at issue in the case. Examples of cases where character is at issue would be defamation or child custody cases. The exception to this is civil cases concerning sexual violence, in which case evidence of prior acts of sexual violence are permitted.

Question 40

Character Evidence in criminal cases

Answer 40

For criminal cases, character evidence is inadmissible to show that the defendant had propensity to commit the crime at issue. That includes evidence that the defendant had committed a similar act or crime in the past. However, this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. You always want to make note of not just what is being offered, but what it is being offered to show.

Question 41

character evidence of the defendant in a criminal case (general rule and exceptions)

Answer 41

The prosecutor may not be the first to offer character evidence against a defendant. The defendant must first open the door by offering character evidence about themselves. Here are the exceptions to the order of operations: 1) The prosecutor may be the first to offer character evidence as to prior acts of sexual assault or child molestation when that is the charge the defendant is facing.
2) When the defendant has offered evidence as to the victim’s character, the prosecutor may be the first to offer character evidence against the defendant, but it must be for the same trait that the defendant was using against the victim.

Question 42

Once the defendant does bring in character evidence to prove or disprove something about their own conduct,

Answer 42

the prosecutor may rebut with evidence as to a pertinent character trait.

Question 43

what about character evidence brought against the victim?

Answer 43

Same rule – the defendant must open the door by bringing in character evidence about the victim. The prosecutor may not initiate this. The exception is that if a defendant in a homicide case is alleging self-defense, the prosecutor may bring in evidence of the victim’s character for peacefulness ahead of time. Otherwise, the prosecutor may only use character evidence as a rebuttal to the defendant’s use of character evidence, and the character evidence the prosecutor brings in for rebuttal must be of the same character trait that the defendant used against the victim. For example, if the defendant is putting the victim’s dishonest character at issue, the prosecutor may rebut with evidence as to the defendant’s dishonest character.

Question 44

Rule statements for character evidence on direct and cross

Answer 44

On direct examination, character evidence may only be presented as opinion evidence or reputation evidence. On cross examination, character evidence may come in as opinion, reputation, or through specific acts, but no extrinsic evidence is permitted. That means that it only comes in through the testimony of the witness, not through evidence of the act at issue.

Question 45

Rape Shield law

Answer 45

In criminal court, reputation and opinion evidence of the victim’s sexual history are not permitted. However, specific instances that show prior consensual history between the victim and the defendant, or that raise the possibility of another responsible party, or that would violate the defendant’s constitutional rights if excluded, such as exculpatory evidence, are permitted. In civil cases, reputation, opinion, and specific instances are admissible if their probative value substantially outweighs unfair prejudice. Reputation is only permitted if the victim put reputation at issue.

Question 46

Corporations- duty of loyalty rule statements

Answer 46

A Director (or Officer) owes the corporation a fiduciary duty of loyalty, which means that the director, in his dealings with the corporation, must act in the best interests of the corporation and without personal conflict. The duty of loyalty forbids directors from: (a) entering into conflicting interest transactions; (b) usurping a corporate opportunity; (c) competing with the corporation; or (d) trading on inside information.

Question 47

Rule statement for a conflicting interest transaction (corporations)

Answer 47

A conflict of interest occurs when the director or officer, or a family member either: (a) is a party to the transaction; (b) has a beneficial interest in the transaction or is so closely linked to it that the director’s judgment may reasonably be affected; or (c) is involved with either entity (director, employee, or owner) that is conducting business with the corporation, and that transaction would normally be brought before the board of directors because of its importance to the corporation.

Question 48

Exceptions to conflicting interest transaction.

Answer 48

A conflicting interest transaction with the corporation is a breach of the duty of loyalty unless the director shows that: (a) it was approved by a majority of disinterested directors after full disclosure of all relevant material facts; (b) it was approved by a majority of disinterested shareholders after full disclosure of all relevant material facts; or (c) the transaction as a whole was fair to the corporation at the time it was entered into (fair price, beneficial to corporation, and fair dealing).

Question 49

Usurping a corporate opportunity

Answer 49

A corporate opportunity is any opportunity that: (a) the corporation has an interest or expectancy in; or (b) is in the corporation’s line of business. Modern authorities constitute a business opportunity broadly to include those outside the corporation’s traditional line of business. A director or officer may only pursue a corporate opportunity if he: (1) first presents it to the corporation’s board of directors; and (2) the board decides not to pursue the opportunity. Not a defense to show that the corporation would not have been able to take the opportunity.

Question 50

Intentional Infliction of Emotional Distress

Answer 50

Intentional infliction of emotional distress is when the defendant intentionally or recklessly inflicts, by outrageous conduct, severe emotional distress. Physical impact or physical manifestation of psychological trauma may not be required to state a claim, depending on the jx.

Question 51

Trespass to Land

Answer 51

Trespass to land is a physical invasion of the plaintiff’s land.

The plaintiff must be in actual possession or have the right to immediate possession of the land.

Mistake is no defense for an intentional entry.

Question 52

Trespass to Chattels (remember measure of damages too)

Answer 52

Trespass to chattels is an interference with the plaintiff’s chattel, causing harm. Chattel is tangible personal property or intangible property that has a physical representation; e.g. a promissory note or documents.

Mistake is not a defense. Interference with the plaintiff’s chattel is actionable if it constitutes dispossession or intermeddling.

LIABILITY is LIMITED to the loss of value for the interference. The defendant is not required to pay for the entire value of the chattel, in contrast to when the defendant commits conversion.

Question 53

Conversion

Answer 53

Conversion causes the destruction or or a serious and substantial interference with the plaintiff’s chattel.

Mistake is not a defense. It can also be the exercise by the defendant of dominion and control over the chattel. The longer the period of interference and the greater use distinguishes conversion from trespass to chattel.

Question 54

Affirmative Defenses to Intentional Torts

Answer 54

Consent, privileges, immunities (self-defense, defense of others, defense of property, necessity, shopkeeper’s privilege)

Question 55

Self Defense

Answer 55

A defendant may use reasonable force to prevent the plaintiff from engaging in an imminent and unprivileged attack.

A defendant may only use the degree of force reasonably necessary to avoid the harm threatened by the plaintiff. (reasonable person standard)

Question 56

Self Defense:

Retreat may be required if

Answer 56

it could be done with complete personal safety, depending on the jx.

There is NO DUTY TO RETREAT if the actor is in his own dwelling, is a police officer, or assisting a police officer.

Question 57

Defense of Others

Answer 57

A defendant is entitled to defend another person from an attack by the plaintiff to the same extent that the third person would be lawfully entitled to defend himself from the plaintiff.

Question 58

Defense of Property

Answer 58

A defendant can use reasonable force to prevent plaintiff from committing a tort against his property. The amount of force must be no greater than necessary to prevent the harm.

Question 59

Shopkeeper’s privilege

Answer 59

A defendant shopkeeper is not liable for false imprisonment or a related tort if he has a reasonable suspicion that the plaintiff has stolen goods and uses reasonable force to detain the person, within a reasonable period and in a reasonable manner on the premises or the immediate vicinity.

Question 60

Prima Facie Tort

Answer 60

A prima facie tort is actionable. It is the intentional infliction of a pecuniary harm without justification. The elements are:

the defendant acted voluntarily
had intent to do harm (not simply intent to act)
conduct must have caused an out of pocket loss to the P

Question 61

Alternative Liability

Answer 61

Alternative liability allows a plaintiff to shift the burden of proving causation of her injuries to multiple defendants, even though only one of them could have been responsible. It requires that the plaintiff bring all possible defendants into court and that the plaintiff show the defendants all breached a duty of reasonable care. The burden then shifts to the defendants to provide evidence of who caused the injury. (basically, a plaintiff should not be barred from seeking recovery simply because he does not know who caused the injury).

Question 62

Indemnity

Answer 62

Where one defendant is only vicariously liable for the tort of another and is directly liable to the defendant, the first defendant may recover the entire amount of any damages paid to the plaintiff from the second defendant, who was actually responsible for the plaintiff’s injury.

Question 63

Strict Liability Rule statements

Answer 63

1. A prima facie case for strict liability includes the following elements:
   a. the defendant owes an absolute duty to the plaintiff to make the activity or condition safe
   b. the defendant breaches that duty
   c. the breach was the actual and proximate cause of the injury to the plaintiff and
   d. the plaintiff suffers damages
2. The duty is owed only to foreseeable plaintiffs.
3. Comparative negligence is a defense.

Question 64

TRO rule statement

Answer 64

In extraordinary cases where irreparable harm may occur before notice and opportunity to be heard can be afforded to the opposing party, the court may issue a temporary restraining order. The requirements are:

1. Risk of irreparable harm
2. Plaintiff’s harm outweighs the harm to D
3. Likelihood of success on the merits
4. Public Interest

The TRO will expire within 10 days unless good cause is shown for an extension.

Question 65

A principal can be vicariously liable, or directly liable, for the torts committed by his agent. The agent is always liable for his own torts. How can you remember Vicarious Liability of employer (respondent superior) elements?

Answer 65

SMI

• scope of employment, or
• minor deviation (not a frolic), or
• intentional tort

(only an intentional tort if BAN)

• benefit (of the principal)
• authorized (by the principal)
• or naturally due to nature of employment.

Question 66

Rule Statements for privilege against self incrimination

Answer 66

The 5th Amendment, which is applicable to the states through the 14th Amendment, provides that no person shall be compelled to be a witness against himself in a criminal case.

Rule: A person may refuse to answer a question whenever his or her response might furnish a link in the chain of evidence needed to prosecute the person.

Question 67

Rule statement for 3 ways the privilege against self incrimination can be eliminated

Answer 67

The PSI can be eliminated in three ways:

1. if the government grants the suspect transactional or use and derivatives immunity
2. if there is no possibility of incrimination
3. if the suspect waives it.

Question 68

Transactional and use immunity rule statements

Answer 68

Transactional immunity means that the witness is protected from any prosecution relating to his or her testimony. Use and derivative immunity is narrower, preventing the prosecutor from using the immunized testimony or anything derived from it against the witness. If use and derivative immunity is enough to protect the accused person’s PSI, the prosecution does not need to grant the broader transactional immunity.

Question 69

Who does the PSI not apply to?

Answer 69

Corporations

Question 70

Public Safety Exception

Answer 70

This allows the police to conduct limited interrogation without Miranda warnings when the questions are reasonably prompted by a concern for the public safety or the safety of the officer.

Question 71

How a suspect must invoke Miranda

Answer 71

a suspect invoking Miranda rights must do so clearly and unambiguously.

Question 72

Describe the waiver of Miranda Rights

Answer 72

the waiver must be knowing, intelligent, and voluntary (shrugs for example don’t count)

Question 73

Basic rule to write down for Miranda

Answer 73

Any statement obtained as a result of a 1) custodial 2) interrogation may not be used against the accused unless the police first informed him of his Miranda rights, and the suspect waived those rights knowingly, voluntarily, and intelligently.

Question 74

Basic way to start partnership essay

Answer 74

A partnership is the association of two or more persons to carry on as co-owners a business for profit, whether or not they intended to form the partnership.

Question 75

Duties of Partners

Answer 75

loyalty, care, and the duty to account (they must account for any profits)

Question 76

Dissolution of a partnership–“winding up” must first be complete. What are the 3 steps to end a partnership?

Answer 76

1. Dissolution
2. Winding up (assets are liquidated and creditors are paid)
3. Termination- the true end of the partnership

Question 77

If a creditor has a claim against a partner…

Answer 77

the creditor can obtain an interest in partnership profits BUT NOT management or voting rights.

Question 78

If a creditor has a claim against the partnership,

Answer 78

the creditor can try to collect from the individual partners.

Question 79

If the issue is specific personal jurisdiction, what should your intro rule statement be?

Answer 79

State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long arm statute and the Due Process clause of the Fourteenth Amendment.

Question 80

Second sentence for personal jurisdiction rule statement:

Answer 80

MINIMUM CONTACTS AND PERSONAL AVAILMENT. You can say it like this: The DP clause of the 14th permits states to assert PJ over nonresident defendants who have established minimum contacts with the state such that the exercise of PJ would not offend traditional notions of fair play and substantial justice.” This can be indicated by personal availment of the benefits and protections of the state.

Question 81

Removal

Answer 81

Defendants (not plaintiffs) may remove an action from state court to the federal court that geographically embraces it if the plaintiff could have initially brought the case in federal court. Generally, if the plaintiff could not have brought the case in federal court, then the defendant cannot remove it either. REMEMBER: A D may NOTTTT remove a case if he is a resident of the state and the only basis for jurisdiction is diversity.

Question 82

When can Congress condition the use of federal funds?

Answer 82

Congress may condition the receipt or use of federal funds on state compliance with federal directives only when

1) spending for the general welfare;
2) the condition imposed by Congress is imposed unambiguously;
3) condition imposed = related to the federal interest;
4) the condition imposed must not induce the states to engage in activities that would themselves be unconstitutional;
5) the condition must not be so coercive as to pass the point at which pressure turns into compulsion.

Question 83

Hearsay Rule statements

Answer 83

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception applies. Whether evidence meets this general definition of hearsay is laid out in FRE 801.

Question 84

Statement

Answer 84

A statement is a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.

Question 85

Assertion

Answer 85

Assertions- declarations of fact capable of being true or false.

Conduct can only qualify as an assertion if the meaning of the conduct was
reasonably clear
and if the declarant intended it as an assertion.

If an act does not intend to communicate anything, it is not an assertion for hearsay purposes.

Question 86

Offered to prove the truth

Answer 86

Whether a statement is being offered to prove the truth of the matter asserted refers to a statement offered to prove that the content of the statement itself is true. This element rests on whether the question for the jury is that the statement was made and is factually true or simply that the statement was made.

Question 87

5th Amendment Rule Statements

Answer 87

The 5th Amendment of the Constitution includes a privilege against compelled self incrimination. When a person is in police custody, law enforcement officers must clearly inform the person of his or her Miranda rights before commencing interrogation. An individual is in custody if a reasonable person in the individual’s position would not feel free to leave. An individual is subject to interrogation not only when they are asked direct questioning but when the police know, or should know, that their words and conduct are likely to elicit an incriminating response.

The 5th Amendment privilege against self incrimination only protects against statements or conduct that are testimonial. In order to be testimonial, communication must explicitly or implicitly relate to a factual assertion or disclose information.

Question 88

Once a suspect invokes his right to counsel,

Answer 88

Once a suspect invokes the right to counsel, all questioning must stop until the suspect has spoken with an attorney. However, a custodial interrogation may be reinitiated if 1) the suspect is re-advised of his Miranda rights 2) making a knowing or voluntary waiver and 3) either counsel is present, the suspect initiates the communication or at least 14 days have passed since the suspect was released from custody.

Question 89

Homicide

Answer 89

Homicide is the killing of another person. It can be divided into two broad categories: murder and manslaughter.

Question 90

Murder

Answer 90

Murder. Under the common law, murder is defined as the unlawful killing of a human being with malice aforethought. Malice aforethought includes 1) the intent to kill, 2) the intent to inflict great bodily harm, 3) reckless disregard of an unjustifiably high risk of human life (depraved heart) or 4) intent to commit an inherently dangerous felony.

Question 91

First Degree Murder

Answer 91

First Degree Murder requires premeditation and deliberation. Premeditation means thinking about the killing before doing it. Deliberation means doing the killing on purpose, often with a cool and dispassionate state of mind.

Question 92

Second Degree: voluntary manslaughter

Answer 92

Voluntary Manslaughter- The two main mitigating factors are 1) adequate provocation/heat of passion and 2) imperfect self-defense.

Question 93

adequate provocation

Answer 93

Adequate provocation includes four elements: 1) the defendant was provoked, 2) an ordinary reasonable person would also have flown into a blind range in this situation, 3) the defendant did not have time to cool off, 4) and whether a reasonable person would have had time to cool off.

Question 94

imperfect self defense

Answer 94

(Self defense is a complete bar to conviction).

Imperfect self-defense includes an honest but unreasonable belief that deadly force was required.

Question 95

involuntary manslaughter

Answer 95

Involuntary manslaughter is an unintentional killing. It can occur 1) recklessly, 2) during a misdemeanor or less dangerou crime, 3) during a non-felony, or 4) with criminal negligence.

Question 96

Negligence per se

Answer 96

Negligence per se establishes a statutory standard of care which a reasonable person would have a duty to follow. The standard of care is created by the type of harm and the class of persons meant to be protected by the statute.

Question 97

One pizza, seven toppings

Answer 97

PD pickled duck, pretrial disclosures
RED roasted exotic duck, rebuttal expert disclosures
A Almonds- appeal notices
SM - stuffed mushrooms, summary judgement motions
Dusted Raisins - discovery responses
Wild Raisins- waiver responses
Rosemary- removal related

Question 98

2 pizzas, with 2 wild toppings

Answer 98

wild asian raisins - waiver abroad responses

wild crispy anchovies - waiver complaint answers

Question 99

3 pizzas, 3 topics

Answer 99

wild asian crispy anchovies - waiver abroad complaint answers
exotic duck- expert disclosures
spicy sausage- summons service

Question 100

2 PRINT JAMs

Answer 100

Post 12(b)(6) motions
Required initial disclosures
Imp-leader
Notice of hearing
TRO expiration
Jury demands
Amended pleading response
More definite statement

Question 101

3 CASAS

Answer 101

CA complaint answer
Strike
Amend pleading as a right (like the right to housing)
Sanction for filing delay