Senate Confirmation Hearing Flashcards
What are the primary sources of a federal district court’s jurisdiction?
28 USC 1331 (federal question)
28 USC 1332 (diversity)
28 USC 1367 (supplemental), and
28 USC 1441 (removal).
Ex Parte Young, 209 US 123 (1908)
Holds that sovereign immunity does not extend to suits for prospective injunctive relief against state officers in their official capacities
<p>Apprendi v. New Jersey, 530 U.S. 466 (2000) (Stevens)</p>
<p>Held that the Sixth Amendment right to a jury trial, incorporated against the states through the Fourteenth Amendment, prohibited judges from enhancing criminal sentences beyond statutory maximum based on facts other than those decided by the jury beyond a reasonable doubt.</p>
<p>When does a court have personal jurisdiction over a defendant?</p>
<ul> <li>When the defendant consents or is tagged (Pennoyer v. Neff) or</li> <li>if the coercive exercise of jurisdiction complies with the Due Process Clause.</li> <li><u>General jurisdiction</u>--jurisdiction over a case unconnected to the defendant's case-specific actions in the state--is generally reserved to <u>residents of a State</u>, but also extends to instances where a defendant's <u>contacts with the state are "so continuous and systematic as to render it essentially at home in the forum state</u>."</li> <li><u>Specific jurisdiction</u> may be exercised when the defendant has <u>"minimum contacts"</u> with the forum state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.</li></ul>
<p>What is the political question doctrine?</p>
<p>First recognized by Baker v. Carr (1962) (Brennan), the doctrine holds that a federal court should not decide the issue when:</p>
<ul> <li>there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department; or</li> <li>a lack of judicially discoverable and manageable standards for resolving it," Zivitofsky v. Clinton (2012)(Kennedy).</li></ul>
<p>What are the four abstention doctrines?</p>
<p>Please Call Your Boyfriend</p>
<p>Pullman, Colorado River, Younger, Burford</p>
<p>What is Pullman abstention?</p>
<p>Pullman=POSTURE</p>
<p>Abstention is appropriate where a case "presenting a federal constitutional issue" "might be mooted or presented in a different posture by a state court determination of pertinent state law."</p>
<p>What is Burford abstention?</p>
<p>Burfordallows a federal court to dismiss a case only if:</p>
<ul> <li>The case presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar," or</li> <li>The adjudication of the case in a federal forum "would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."</li></ul>
<p>What is Younger abstention?</p>
<p>Younger CRIMINAL</p>
<p>Abstention is appropriate where, "absent bad faith,harrassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings."</p>
<p>What is Colorado River abstention?</p>
<p>Colorado River= Exceptional CONCURRENT</p>
<p>Abstention is appropriate in "exceptional circumstances" due to the presence of a concurrent state proceeding for reasons of wise judicial administration.</p>
<p>What is the Rule 12(b)(6) standard?</p>
<p>Pursuant to Ashcroft v. Iqbal (2009) (Kennedy), a complaint must be dismissed unless the non-conclusory facts it alleged, if taken as true, present a prima facie claim for relief. The complaint must contain sufficient nonconclusory factual allegations to support a reasonable inference that the conduct occurred.</p>
<p>What are the two primary mechanisms by which an individual can seek relief against government actors for violations of their constitutional rights?</p>
<ol> <li>42 USC 1983 allows claims against state officers</li> <li>Bivens v. Six Unknown Fed. Narcotics Agents (1971)(Brennen) allows a private right of action against a federal officer who violates the claimant's Fourth Amendment rights</li></ol>
<p>Which case held that the line item veto is unconstitutional?</p>
<p>Clinton v. New York (1998) (Stevens)held that the line item veto violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress.</p>
<p></p>
<p>What is a legislative veto? And is it constitutional?</p>
<p>A legislative veto occurs when a legislative chamber purports to invalidate executive action with a resolution. In INS v. Chadha (1983)(CJ Burger), SCOTUS held that Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch (agencies)because such a veto is inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.</p>
<p>Can Congress limit the President's ability to remove inferior officers who determine policy and enforce laws?</p>
<p>No. In Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd. (2010)(Roberts), SCOTUS held that such congressional limitations intrude upon the President's obligation to "take Care that the Laws be Faithfully executed."</p>
<p>First Amendment?</p>
<ul> <li>Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof</li> <li>Freedom of speech</li> <li>Freedom of peaceable assembly</li> <li>Freedom to petition the government</li> <li>Freedom of press</li></ul>
<p>"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."</p>
<p>Second Amendment?</p>
<p>A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.</p>
<p>Third Amendment?</p>
<p>No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.</p>
<p>Fourth Amendment?</p>
<p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</p>
<p>Fifth Amendment?</p>
<p>No self-incrimination or double jeopardy;nodeprivationof life, liberty, or propertywithout due process of law; no taking of private property for public usewithout just compensation.</p>
<p><em>No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</em></p>
<p>Sixth Amendment?</p>
<p>Speedy trial by jury; notice of crime of which charged; right to confront witnesses; right to counsel</p>
<p><em>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.</em></p>
<p>Seventh Amendment?</p>
<p>In suits over $20 there is a right to a jury trial and facts found by the jury can't be reexamined except as allowed by common law.</p>
<p><em>In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.</em></p>
<p>Eighth Amendment?</p>
<p>Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.</p>
<p>Ninth Amendment?</p>
<p>The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.</p>
<p>Tenth Amendment?</p>
<p>The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.</p>
<ul> <li>Federal government violates this when it commandeers the states</li></ul>
<p>Eleventh Amendment?</p>
<p>State sovereign immunity - forbids actions involving damages payable from the state treasury. Does not protect local governments and does not cover actions seeking to enjoin state officials from violating federal law.</p>
<p></p>
<p><em>The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.</em></p>
<p>Twelfth Amendment?</p>
<p>Electoral college -one votedesignated for the president, the otherfor the vice president.</p>
<p>Thirteenth Amendment?</p>
<p>Abolished slavery</p>
<p>Fourteenth Amendment?</p>
<ol> <li>Section 1: All persons born in the USare citizens. State's can't make laws abridge the <u>privileges or immunities</u> of citizens; nor shall any State deprive any person of <u>life, liberty, or property, without due process of law</u>; nor deny to any person within its jurisdiction the <u>equal protection</u> of the laws.</li> <li>Section 2: Apportions representation based on number of citizens, blacks included.</li> <li>Section 3: Bars those who aided the South from serving in the federal government.</li> <li>Section 4: deals with debt incurred as result of the war.</li> <li>Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.</li></ol>
<p>Fifteenth Amendment</p>
<p>Extends right to vote to the freed slaves.</p>
<p>Sixteenth Amendment?</p>
<p>Income tax</p>
<p><em>The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.</em></p>
<p>Seventeenth Amendment?</p>
<p>Senators are elected by the people, not state legislatures.</p>
<p></p>
<p>The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, it allows the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.</p>
<p>Eighteenth Amendment?</p>
<p>Prohibition</p>
<p>Passed in 1917 and repealed by 21st Amendment in 1933</p>
<p></p>
<p>19th Amendment?</p>
<p>Women's right to vote.</p>
<p><em>The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.</em></p>
<p><em>Congress shall have power to enforce this article by appropriate legislation.</em></p>
<p>Twenty Sixth Amendment?</p>
<p>Everyone over 18 can vote.</p>
<p>What are Congress' primary enumerated powers?</p>
<p>The Next Best Money Is RAD, No Problem</p>
<p>Tax, Naturalization, Bankruptcy, Money, Interstate commerce, Roads, Armies, Declare war, Necessary and Proper laws,</p>
<ol> <li>The power to tax,</li> <li>to make laws on naturalization and bankruptcy,</li> <li>to coin money,</li> <li>to establish roads and post offices,</li> <li>to declare war,</li> <li>to raise and support armies,</li> <li>to make all laws that are necessary and proper for carrying into execution its powers, and</li> <li>the power to regulate interstate commerce.</li></ol>
<p>Describe Congress' power to regulate interstate commerce.</p>
<p>CIT(E) with the E beingan aggregate substantially affecting interstate commerce.</p>
<ul> <li>It extends to the channels of interstate commerce, the instrumentalities of interstate commerce, or persons or things in interstate commerce, and to economic activities that in the aggregate substantially affect interstate commerce.</li> <li>It does not extend to intrastate non-economic activity where regulation of such activity is not "an essential part of a larger regulation of economic activity" (Lopez and Morrison), nor to intrastate inactivity (NFIB v. Sebelius).</li></ul>
<p>What is the dormant commerce clause?</p>
<ul> <li>It is not found in the constitution, but has nonetheless been invoked to invalidate state laws that discriminate against interstate commerce or impose excessive burdens on other states,under the rationale that such laws were "one of the chief evils that led to the adoption of the constitution." Comptroller of Treasury of Maryland v. Wynne (2015) (Alito).</li> <li>Inferred from Congress's power to regulate interstate commerce - the power to (1) regulate and (2) limit state/local regulation</li> <li>Pike v. Bruce Church (1970)'s balancing test governs laws that merely burden, and says that the burden must be weighed against the local benefits.</li></ul>
<p>What framework typically governs challenges to the exercise of presidential power?</p>
<p>The tripartite framework established by Justice Jackson's concurring opinion in the Steel Seizure cases (1952):</p>
<ol> <li>(1) when the President acts pursuant to an <u>express or implied authorization</u> by Congress, "the <u>strongest of presumptions and the widest of latitudes of judicial interpretation</u>" attaches to his action;</li> <li>(2) when the President acts in the <u>absence</u> of congressional authorization orprohibition, "there is a <u>zone of twilight</u> in which the President and Congress may have concurrent authority, or in which its distribution is uncertain";</li> <li>(3) when the President acts <u>contrary to the express or implied will of Congress</u>, his power is "at its <u>lowest ebb</u>, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter."</li></ol>
<p>What are the key features of the APA?</p>
<p>Requires agencies wishing to create rules governing private conduct and having the force and effect of law to:</p>
<ul> <li>give the public notice of proposed rules,</li> <li>give them an opportunity to comment on the rule, and</li> <li>only then to finalize the rule through publication in the Federal Register.</li></ul>
<p>What is the case that established the doctrine of inevitable discovery as an exception to the exclusionary rule?</p>
<p>Nix v. Williams, 467 US 431 (1984) (Burger)</p>
<p>When is it okay for Congress to delegate rule making power to administrative agencies?</p>
<p>According to Whitman v. American Trucking Assn. (2001) (Scalia), only where Congress provides an "<u>intelligible principle" to guide the agency</u>.</p>
<p>When can a court set aside agency agency under the APA?</p>
<p>when it's arb/capricious or where agency has acted contrary to law or in a manner that cannot be attributed to agency expertise</p>
<p>Generally, only where the agency has acted "arbitrarily and capriciously," which means that the agency RIFE:</p>
<ul> <li><u>Relied</u> on factors Congress didn't intend it to consider,</li> <li>acted so I<u>mplausibly that its action cannot be ascribed to mere difference in views</u> of the product of agency expertise,</li> <li><u>Failed</u> to consider an important part of the p<u>roblem</u>, or</li> <li>offered an explanation of its decision that runs <u>counter to the Evidence</u> before the agency</li></ul>
<p>What is Chevron deference?</p>
<p>The Chevron 2-step! (1) ambiguity (2) reasonableness</p>
<p>It's the doctrine whereby courts defer to administrative agencies. It comes from Chevron v. NRDC (1984) (Stevens), and more precisely says that when a statute is <u>ambiguous</u>, indicating congressional intent to leave the matter to the agency, a court will <u>uphold agency action so long as it is reasonable</u>.</p>
<p>What is Booker?</p>
<p>United States v. Booker, 543 U.S. 220 (2005)</p>
<ul> <li>In the first opinion, the United States Supreme Court held that the mandatory sentencing guidelines violated defendants’ Sixth Amendment right to a trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury’s finding alone would support.</li> <li>In the second part, a different majority concluded that the constitutional deficiency could be remedied if the guidelines were treated as discretionary or advisory rather than mandatory.</li></ul>
<p>What did Ring v. Arizona hold?</p>
<p>RING in the death by jury</p>
<p>Ring v. Arizona, 536 U.S. 584 (2002) (Ginsburg), held that held that the Sixth Amendment requires a jury to find the aggravating factors necessary for imposing the death penalty. Ring overruled a portion of Walton v. Arizona, 497 U.S. 639 (1990), that had previously rejected this contention.</p>
<p>What is a Batson challenge?</p>
<p>Batson v. Kentucky, 476 U.S. 79 (1986) (Powell) held that a prosecutor's use of peremptory challenge in a criminal case—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race.</p>
<ul> <li>The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. The case gave rise to the term Batson challenge.</li> <li>Subsequent jurisprudence has resulted in the extension of Batson to <u>civil cases </u>(Edmonson v. Leesville Concrete Company) and cases where jurors are excluded on the basis of <u>sex</u> (J.E.B. v. Alabama ex rel. T.B.).</li></ul>
<p>What case held that indigent criminal defendants have a right to counsel?</p>
<p>Gideon v. Wainwright, 372 U.S. 335 (1963) (Black), held that states are required under the Sixth Amendment to the U.S. Constitution to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys.</p>
<ul> <li>The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.</li></ul>
<p>What pleadings are allowed?</p>
<ol> <li>Complaint</li> <li>Answer to complaint</li> <li>Answer to a counterclaim</li> <li>Answer to a crossclaim</li> <li>Third party complaint</li> <li>Answer to third party complaint</li> <li>Reply to an answer</li></ol>
<p>FRCP 7(a)</p>
<p>What federal law creates the federal sentencing system?</p>
<p>The Sentencing Reform Act of 1984 (SRA), 18 USC 3551 et seq.</p>
<p>What seven factors does the SRA say that a judge must consider when sentencing?</p>
<p>No Person Kicks RedPigeons At Rest</p>
<p>18 USC 3553:</p>
<ol> <li>the <u>nature</u> and circumstances of the offense and the history and characteristics of the defendant;</li> <li>the need for the sentence imposed to reflect the four primary <u>purposes</u> of sentencing, i.e., retribution, deterrence, incapacitation, and rehabilitation;</li> <li>the <u>kinds</u> of sentence available;</li> <li>the sentencing <u>range</u> provided by the guidelines;</li> <li>any relevant "<u>policy statements</u>" promulgated by the Sentencing Commission;</li> <li>the need to <u>avoid</u> sentencing disparities; and</li> <li>the need to provide <u>restitution</u> to victims.</li></ol>
<p>What has SCOTUS described as the "starting point and the initial benchmark" in the sentencing process?</p>
<p>The guideline range.</p>
<p>When must a presentence report be provided to the prosecution and defense?</p>
<p>At least 35 days before the sentencing date.</p>
<ul> <li>Objections must be made at least 14 days prior to the sentencing date.</li></ul>
<p>What is the difference between a "departure" from the sentencing guidelines, and a "variance" from the sentencing guidelines?</p>
<ul> <li>A “departure” diverges from the originally calculated sentencing range for reasons contained in the Guidelines themselves,</li> <li>whereas a “variance” diverges from the Guidelines sentencing rangebased on an exercise of the court’s discretion under § 3553(a).</li> <li>Reviewed on appeal for procedural reasonableness (de novo on legal Qs and clear error on facts) and substantive reasonableness (rebuttable presumption of reasonableness for sentences within the guidelines range)</li></ul>
<p>Do normal evidentiary rules apply at a sentencing hearing?</p>
<p>No. Neither the FRE nor constitutional evidentiary rules (e.g., the Confrontation Clause) apply.</p>
<p>What is the Rooker-Feldman doctrine</p>
<p>The doctrine holds that lowerUnited States federal courts—i.e., federal courts other than theSupreme Court—should not sit in direct review of state court decisions unless Congress has specifically authorized such relief.In short, federal courts below the Supreme Court must not become a court of appeals for state court decisions.</p>
<p>What must happen after the court orally pronounces sentence?</p>
<p>The court must complete two documents:</p>
<ul> <li>(1) the "Judgment in a Criminal Case," which is filed as part of the public case, and</li> <li>(2) a "Statement of Reasons," which is part of the sealed record and which provides information about whether the sentence was within the guideline range, and if not, the reasons for the departure.</li> <li>The court must also advise the defendant of his right to appeal, and his right to counsel for that appeal.</li></ul>
<p>What two types of sentence are available by statute?</p>
<p>Probation or prison.</p>
<p>What is the maximum allowable term of probation?</p>
<p>5 years</p>
<p></p>
<p>What are the three primary types of financial penalties a court can impose?</p>
<p>Sr. F!</p>
<p>Special assessments, restitution, fines</p>
<p>Is parole available?</p>
<p>No. The SRA abolished parole, and replaced it with "supervised release," which, unlike parole, is served in addition to the term of imprisonment.</p>
<p>What is the three-step sentencing process required by Booker?</p>
<ol> <li>Calculate the sentencing range,</li> <li>consider policy statements or commentary in the guidelines in deciding whether to depart from the range, then</li> <li>consider all of the 3553 factors and decide what sentence to impose, including whether a departure or variance is appropriate.</li></ol>
<p>What is the cornerstone of the federal sentencing system?</p>
<ul> <li>"Relevant conduct," which encompasses a defendant's "real offense conduct" before, during, and after the commission of the offense.</li> <li>Relevant conduct must be found by a <u>preponderance of the evidence</u>.</li></ul>
<p>In a civil matter, when must the judge issue a scheduling order?</p>
<p>According to Rule 16, within 60 days after the appearance of a defendant, or within 90 days after the complaint has been served on a defendant.</p>
<p>What dates must the court set at the Rule 16 conference?</p>
<p>DAMP</p>
<ol> <li>completion of <u>discovery</u>,</li> <li><u>amending</u> the pleadings</li> <li><u>motions</u>,</li> <li>joining other <u>parties</u></li></ol>
<p>The judge may also modify the times for <u>Rule 26 disclosures</u> and set dates for the <u>pretrial conference and trial</u>.</p>
<p>What rule generally governs discovery?</p>
<p>Rule 26</p>
<p>Who conducts voir dire?</p>
<p>Rule 47 allows either the judge or the lawyers to perform void dire. Most judges do it themselves.</p>
<p>What is an Allen charge?</p>
<p>An instruction given to a deadlocked jury to encourage further efforts to reach a verdict.</p>
<ul> <li>An Allen Charge has also been referred to as a “nitroglycerin charge,” “the third degree instruction” and a “shotgun instruction.”</li> <li>On appeal, Allen charges can sometimes be overturned if they are determined to have had an “impermissibly coercive” effect on the jury.</li> <li>For example, judges are generally not supposed to tell juries that they “must” reach a verdict.</li> <li>Also, judges have been advised not to give an Allen charge after inquiring into the numerical division of the jury, because holdout jurors could interpret the charge as directed specifically at them.</li></ul>
<p>When must the Rule 26 meet and confer occur?</p>
<ul> <li>According to Rule 26(f), at least 21 days before the Rule 16 conference or the scheduling order is due (60 days after the appearance of a defendant, or 90 days after the complaint has been served on a defendant).</li> <li>The parties must also prepare a joint discovery plan report and file it with the court within 14 days of the conference.</li></ul>
<p>What may be obtained by discovery?</p>
<p>According to Rule 26(b)(1), "any non-privileged matter that is relevant to any party's claim or defense," so long as it appears "reasonably calculated to lead to the discovery of admissible evidence."</p>
<p>What case holds that a criminal defendant has a right to waive assistance of counsel and proceed pro se?</p>
<ul> <li>Faretta v. California (1975) (Stewart).</li> <li>The defendant, however, must <u>knowingly and willingly waive</u> the right.</li> <li>Nor is the right absolute; a court may revoke it in certain circumstances, such as when it is untimely, and when the pro se litigant is obstructionist or dilatory.</li></ul>
<p>Can a criminal defendant waive his right to a jury trial?</p>
<p>Yes. According to FRCrP 23(a), the waiver must be <u>in writing with the approval of the court and consent of the government</u>. The waiver must also be <u>knowing and intelligent and voluntary</u>.</p>
<p>Can a criminal case be tried with less than twelve jurors?</p>
<p>Yes. According to FRCrP 23(b), the parties can stipulate in writing, with the approval of the court, to any number less that twelve. The waiver must be <u>knowing and voluntary</u>.</p>
<p>What is a peremptory challenge?</p>
<p>A striking of a juror without cause.</p>
<ul> <li>FRCRrP 24(b) bases the number of peremptory strikes available to each party on the seriousness of the offense.</li></ul>
<p>Can a peremptory challenge be used by prosecutors to exclude a juror based on race?</p>
<p>No. Batson v. Kentucky (1986) (Powell).</p>
<p>Can a peremptory challenge be used by prosecutors to exclude a juror based on gender?</p>
<p>No. J.E.B. v. Alabama (1994) (Blackmun).</p>
<p>Can a defendant use peremptory challenges to exclude jurors based on race or gender?</p>
<p>No. Georgia v. McCollum (1992) (Blackmun).</p>
<p>Are parties entitled to all discovery that is relevant to the claims and defenses?</p>
<p>No. The judge has a duty to ensure that discovery is proportional to the needs of the case. Under Rule 26(b)(2)(C), the court must limit:</p>
<ul> <li>unreasonably cumulative or duplicative discovery, and</li> <li>discovery the burdens of which outweigh its likely benefit.</li></ul>
<p>What is a "non-waiver order"?</p>
<p>Under FRE 502(d), an order--which does not require party agreement, that <u>precludes the assertion of a waiver claim based on production in discovery</u>. It reduces the need for pre-production review.</p>
<p>Is it permissible for a party to use summaries of exhibits at trial?</p>
<p>Yes. FRE 1006 provides that a "proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place."</p>
<p>How many jurors must there be in a civil trial?</p>
<p>FRCP 48. No less than 6, and no more than 12.</p>
<ul> <li>The verdict must be unanimous unless the parties stipulate otherwise.</li> <li>After a verdict is returned, if a party wants the jury polled, the court must, but can also do it on its own initiative.</li></ul>
<p>Must voluntary dismissal be granted?</p>
<p>FRCP 41(a)(2): no. Only by court order, on terms that the court considers proper.</p>
<p>Can jurors be excluded based upon their race in a civil trial?</p>
<p>No. Edmonson v. Leesville Concrete Co. (1991) (Kennedy).</p>
<p>What rule governs the procedure for the submission and consideration of request for specific jury instructions?</p>
<p>FRCP 51(b)</p>
<p>What judicial canon governs the avoiding the appearance of impartiality?</p>
<p>Canon 2</p>
<p>Can judges engage in political activities?</p>
<p>No. Canon 5 of the Code of Conduct for United States Judges says that a judge should refrain from political activity.</p>
<p>What is Canon 1 of the Code of Conduct for United States Judges?</p>
<p>"An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."</p>
<p>What is the case that articulates the "adequate and independent state law grounds" doctrine of appellate jurisdiction?</p>
<p>Michigan v. Long (1983) (O'Connor)</p>
<p>Are DUI checkpoints constitutional?</p>
<p>Yes. Michigan Dept. of State Police v. Sitz (1990) (Rehnquist).</p>
<ul> <li>SCOTUS held that Michigan had a "substantial government interest" to advance in stopping drunk driving, and that this technique was rationally related to achieving that goal (though there was some evidence to the contrary).</li> <li>The Court also held that the impact on drivers, such as in delaying them from reaching their destination, was negligible, and that the brief questioning to gain "reasonable suspicion" similarly had a negligible impact on the drivers' Fourth Amendment right from unreasonable search (implying that any more detailed or invasive searches would be treated differently).</li> <li>Applying a balancing test, then, the Court found that the Constitutionality of the search tilted in favor of the government.</li></ul>
<p>What is Griswold v. Connecticut?</p>
<p>1965 case invalidating the Connecticut law banning contraceptives on the grounds that it violated the "right to marital privacy", establishing the basis for the right to privacy with respect to intimate practices.</p>
<ul> <li>This and other cases view the right to privacy as a right to "protect[ion] from governmental intrusion." Authored by William O. Douglas.</li></ul>
<p>Eisenstadt v. Baird (1972)?</p>
<p>Is a United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples (Brennan)</p>
<p>What duties may a magistrate judge perform?</p>
<p>All phases of a civil case, with the written consent of the parties. 28 USC 636; FRCP 73.</p>
<ul> <li>Pretrial matters, such as the Rule 16 conference and non dispositive pretrial matters.</li> <li>A magistrate may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as summary judgment motions.</li> <li>A magistrate can conduct voirdire, if the parties consent, and any other duties not inconsistent with the constitution or statute.</li></ul>
<p>What are the differences between civil and criminal contempt?</p>
<ul> <li>The purpose of criminal contempt is to punish a person for a past act of contempt--it has the characteristics of a crime and thus is cloaked with the safeguards that accompany criminal prosecutions. 18 USC 401; FRCP 42.</li> <li>Civil contempt, on the other hand, is intended to compel someone to do or not to do a certain act. Other than 28 USC 1826, which applies only to recalcitrant witnesses, there is no statute or FRCP that applies to civil contempt. Thus, a judge should follow the portions of 18 USC 401 and FRCP 42 that translate to civil contempts proceedings.</li></ul>
<p>What FRE governs contempt proceedings?</p>
<p>FRE 1101.</p>
<p>What FRCP governs injunctions and restraining orders?</p>
<p>FRCP 65.</p>
<p>What rule governs grand juries?</p>
<p>FRCrP 6. A grand jury must contain between 16 and 23 people. Typically, 4 to 6 alternates are also chosen. The names of all jurors are kept confidential.</p>
<p>What is the oath required of a judge?</p>
<p>28 USC 453: "I, \_\_\_, do solemnly swear (or affirm) that I will</p>
<ul> <li>administer justice without respect to persons, and</li> <li>do equal right to the poor and to the rich, and</li> <li>that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States.</li></ul>
<p>What is the oath required of most executive branch officials?</p>
<p>5 USC 3331: "I, \_\_\_, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."</p>
<p>Canon 2C?</p>
<p>Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired. Canon 2C refers to the current practices of the organization.</p>
<p>What FRE governs the form of objections?</p>
<p>None. There is no federal rule specifically covering forms of questions. A court, however, has discretion to sustain an objection to form pursuant to Rule 611.</p>
<p>What FRE governs the authentication of evidence?</p>
<p>FRE 901. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce <u>evidence sufficient to support a finding that the item is what the proponent claims it is</u>."</p>
<p>What is FRE 404?</p>
<p>"Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait."</p>
<p>When is character evidence admissible?</p>
<p>FRE 405:</p>
<ul> <li>When evidence of a person’s <u>character or character trait is</u> <u>admissible,</u> it may be proved by t<u>estimony about the person’s reputation or by testimony in the form of an opinion</u>.</li> <li>On cross-examination of the character witness, the court may allow an inquiry into relevant <u>specific instances of the person’s conduct</u>.</li> <li>When a person’s character or character trait is an <u>essential element of a charge, claim, or defense,</u> the character or trait may also be proved by relevant <u>specific instances of the person’s conduct</u>.</li></ul>
<p>Can a defendant accused of felony sexual assault introduce evidence of prior sexual activity with the alleged victim?</p>
<p>Yes. The so-called "rape shield" rule found in FRE 412 allows such evidence. However, FRE 412 does not allow evidence of a general propensity for promiscuousness or prior sexual conduct with others.</p>
<p>Can character evidence of past crimes be admitted in criminal sexual assault or child molestation cases?</p>
<p>Yes. FREs 413, 414, and 415 specifically authorizesuch evidence.</p>
<p>What is FRE 408?</p>
<p>Settlement offers are not admissible: Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:</p>
<ol> <li>furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and</li> <li>conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.</li></ol>
<p>Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.</p>