RULES

Question 1

Motion for judgment of acquittal

Answer 1

A motion for judgment of acquittal should be granted only if the prosecution has failed to present sufficient evidence for a reasonable jury to find that the defendant committed each element of the charged offense beyond a reasonable doubt

Question 2

expectation of privacy in home AND a bag in the home

Answer 2

Similarly, a person challenging a seizure and search of an object such as a bag must have a reasonable expectation of privacy in the object seized and searched

Question 3

Attempt

Answer 3

Must have specific intent, and acts must go beyond mere preparation

Question 4

False Pretenses

Answer 4

he crime of “larceny by false pretenses” or, as it is sometimes called, “obtaining property by false pretenses” or just “false pretenses,” is a type of theft offense. In most jurisdictions, the actus reus elements of false pretenses are (i) a false representation of material fact (ii) that causes another person to transfer title to property (including money) to the defendant. The mens rea required is knowledge that the representation of fact is false and an intent to defraud.

Most courts find that a defendant acts knowingly and has knowledge of a particular fact when, inter alia, the defendant is aware of a high probability of the fact’s existence and deliberately avoids learning the truth

A few states, however, reject this “willful blindness” standard and require actual knowledge.

Question 5

Abandonment

Answer 5

In most jurisdictions, voluntary withdrawal or abandonment is not a defense to the crime of attempt once the actor’s conduct has gone beyond mere preparation

A minority of jurisdictions take the view that the abandonment of an attempt before the crime is completed is an affirmative defense. However, the abandonment must be utterly voluntary. An abandonment that is the result of any extrinsic factor is not considered voluntary

Question 6

accomplice liability

Answer 6

First, Bob must have assisted Adam in the commission of the crime. DRESSLER, supra, § 30.04[A][1]. Second, Bob must have acted with dual intentions: (1) “the intent to assist the primary party” and (2) “the intent that the primary party commit the offense charged.”

Question 7

Involuntary manslaughter

Answer 7

In most jurisdictions, a defendant is guilty of involuntary manslaughter when the defendant causes the death of another human being by engaging in conduct that creates an unreasonable (or high and unreasonable) risk of death or serious bodily injury

The modern and majority view is that the defendant must have acted “recklessly” to be convicted of involuntary manslaughter

Recklessness is typically defined as conscious disregard of a known risk,

Question 8

Miranda

Answer 8

Miranda has consistently been interpreted to protect only testimonial/communicative evidence

Question 9

reading recorded recollection to jury

Answer 9

However, the officer also testified that she remembered making the notes and that she was careful to write the notes correctly. Thus, the court properly admitted the notes into evidence and permitted the officer to read them to the jury

Question 10

immediately cease interrogation after invoking miranda

Answer 10

After the defendant’s invocation of his right to counsel, the officer was required to cease the interrogation.

Question 11

Miranda terminates after 14 days

Answer 11

The Supreme Court has concluded that if a suspect has been released from interrogative custody, the police obligation to honor an invocation of the Miranda right to counsel terminates after 14 days.

Question 12

M’Naughten

Answer 12

Under the M’Naghten test for NGRI used by State A (and a majority of states), the defense must prove that, at the time of the offense, (1) the defendant suffered from a defect of reason, from disease of the mind; and (2) as a result of this mental disease or defect, the defendant at the time of the act did not know the nature and quality of the act, or that the act was wrong

Question 13

Best interest of child - contract to waive parenting rights and custody.

Answer 13

courts have long held that parents may not enter into enforceable agreements that adversely affect the rights of their children; courts always retain authority to enter support and custody orders that are in the children’s best interests

the agreement at issue in this case would eliminate the relationship between Dad and Child for the convenience of the parents; all courts would find that this conflicts with the child’s interests in having two parents who can provide support and care.

Question 14

UCCJEA, state remains in custody, not home state test until all parties have moved from the state.

Answer 14

Under the UCCJEA, a state that properly issued a custody decree (here, State A) retains continuing, exclusive jurisdiction until all parties and the child have left the state, or until an issuing-state court has determined that there is no longer any significant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state. See UCCJEA § 202.

Question 15

test for when one parent moves.

Answer 15

One parent’s physical relocation that significantly impairs the other parent’s opportunity to exercise custody and visitation rights provided in the divorce decree is almost invariably considered a substantial change in circumstances. See id.

the clear trend has been that of increasing leniency toward the relocating parent with whom the child has been primarily living

Question 16

continuing child support.

Answer 16

There is a strong public policy favoring the establishment and maintenance of legal support obligations, and even poor obligors whose income falls below a value that the state deems essential for self-support are typically required to make token child support payments.

Question 17

Fraud, Duress, over-reaching and Fairness in divorce settlement agreement

Answer 17

In most states, a settlement agreement resulting from fraud, overreaching, or duress may be set aside if it is substantively unfair.

Question 18

Alimony consideration with marital misconduct.

Answer 18

Although most states permit consideration of financial misconduct, only about half permit consideration of marital misconduct, such as adultery, in either property division or alimony determination. Of the group of states that permit consideration of marital misconduct, about half restrict its use to alimony determination. And while a claimant’s marital fault was once, in many states, a bar to an alimony award, in virtually all states that today permit consideration of fault in alimony decision making, it is simply one factor among many

Question 19

Professional degree - marital property or separate property?

Answer 19

The states, by an overwhelming margin, have rejected the claim that a professional degree or license is property subject to division at divorce; the notable exception is New York.

Question 20

Alimony consideration

Answer 20

But permanent or long-term alimony is seldom awarded except in the case of a long marriage and a significant, long-term gap between the husband’s and wife’s economic prospects

Question 21

Agency - make further inquiry if third party.

Answer 21

When facts suggest it may be unreasonable for a third party to believe that a purported agent has authority, the third party has the duty to make further inquiry. See RESTATEMENT (THIRD) OF AGENCY § 2.03

Question 22

Definition of partnership

Answer 22

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

Question 23

transferrable rights in a partnership

Answer 23

a partner has a transferable interest in the profits and losses of the partnership and in her right to receive distributions. UPA (1997) § 502; UPA (1914) § 26. The transfer of that interest is permissible and creates in the transferee aright to receive distributions to which the transferor would otherwise be entitled.

a transfer of the partnership interest does not make the transferee a partner unless the other partner or partners consent to making the transferee a partner.

Question 24

Partnership property is not partner’s individual property so can’t be used without approval.

Answer 24

Property is partnership property if it is acquired in the name of the partnership. UPA (1997) § 204(a)(1); UPA (1914) § 8(1). Partnership property is property of the partnership and not of the partners individually

Question 25

close corporation - opression

Answer 25

courts in the close corporation context have found oppression when actions by controlling shareholders violate the reasonable expectations of non-controlling shareholders.

Question 26

non liablity for members of LLC

Answer 26

Under the rule of limited liability, if the LLC becomes indebted, obligated, or otherwise liable to an outside party, no member or manager becomes liable on that debt, obligation, or liability solely by reason of acting as a member or manager.

Question 27

Removal Process

Answer 27

Procedurally, the first step for removing an action from state to federal court is for the defendant to file a notice of removal in the federal district court for the district and division within which the state action is pending. 28 U.S.C. § 1446(a). The notice must be filed within 30 days of the defendant’s “receipt . . . , through service or otherwise, of a copy of the initial pleading . . . , or within 30 days after the service of summons . . . if such initial pleading has then been filed and is not required to be served . . . , whichever period is shorter.” Id. § 1446(b). The notice of removal must be signed and must include a statement of the basis for federal jurisdiction. Id. § 1446(a). A copy of the materials from the state court proceeding must also be filed.

After filing the notice of removal, the defendant must serve notice of the filing on all adverse parties and file a copy of the notice of removal with the state court. Id. § 1446(d). Removal is “automatic.” Once the state court has a copy of the notice of removal, the case is removed and the state court can take no further action in the case

Question 28

Permissive Joinder

Answer 28

Federal Rule of Civil Procedure 20(a)(1) provides that two or more plaintiffs may join their claims in a single lawsuit if the plaintiffs “assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence or series of transactions or occurrences; and . . . any question of law or fact common to all plaintiffs [being joined] will arise in the action.” (emphasis added)

in determining whether claims against the three defendants arise out of the same transaction or occurrence, courts often employ the logical-relationship test, under which “all logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence

Question 29

making case for not being traditional notion of fairness and substantial justice.

Answer 29

The defendant must make a compelling case for fairness considerations to outweigh the existence of minimum contacts

Question 30

Changing domicile

Answer 30

To change domicile, an individual must both take up residence in a new state and intend to remain there.

Question 31

Amt in Controversy rule.

Answer 31

To determine whether the amount in controversy exceeds $75,000, courts rely on a plaintiff’s good-faith allegations unless it appears “to a legal certainty” that the plaintiff cannot recover the amount alleged.

Question 32

Raising improper service

Answer 32

When a motion pursuant to Rule 12(b) is initially made, a party may join with that motion all other motions permitted by Rule 12 that are then available to the party. If a party makes a Rule 12(b) motion and fails to join certain other available defenses or objections, the party may not later raise those objections and defenses. In particular, a party that makes a Rule 12(b) motion but omits from that motion a defense of insufficiency of service of process is deemed to have waived that defense. FED. R. CIV. P. 12(h)(1).

Question 33

Cross-Claim - Sufficiency of process

Answer 33

Rule 13(g) of the Federal Rules of Civil Procedure provides that a defendant’s answer may state as a cross-claim against a co-defendant any claim that “aris[es] out of the transaction or occurrence that is the subject matter of the original action” between the plaintiff and the defendants. The policy underlying Rule 13(g) is efficiency; multiple lawsuits are avoided if defendants bring related cross-claims in the context of the plaintiff’s suit.

To determine whether two different claims arise out of the same “transaction or occurrence” for purposes of Rule 13, federal courts look at a number of factors: (1) whether the issues of fact and law in the plaintiff’s claim and the defendant’s cross-claim are essentially the same, (2) whether the same evidence would support or refute the plaintiff’s claim and the defendant’s cross-claim, (3) whether there is a logical relationship between the plaintiff’s claim and the defendant’s cross-claim, and (4) whether res judicata would bar a subsequent suit on the cross-claim.