All Flashcards
The Confrontation Clause
The Confrontation Clause excludes out of ct statements offered by the prosecution against a D in a criminal case if the D didn’t have an opportunity to x-examine the declaration either when the statement was made or at trial. A conviction will be reversed if the D’s constitutional right under the Confrontation Clause to confront witnesses against her is violated.
Felony murder
If the D is not guilty of the underlying felony, the D cannot be found guilty of felony murder.
Double jeopardy
Under the 5th amendment there is a right to be free of double jeopardy for the same offense. Once jeopardy attaches, the D may not be retried for the same offense within the same sovereign.
The hearsay exemptions (ie not hearsay under the FRE)
- Admission of a party opponent; 2. Vicarious party admissions; and 3. Prior statements by a witness.
The hearsay exceptions (ie hearsay but admissible)
- Excited utterance 2. Present Sense Impressions 3. Present state of mind 4. Statements of past or present mental or physical condition made for medical diagnosis or treatment 5. Business records exception 6. Public records exception 7. Judgments of previous convictions.
Prosecution identifying in court
The police and prosecution may use different methods wherein witnesses can Id a suspect as the perpetrator of the crime, including photo id, lineups and in court identifications. The id process must be fair to the suspect, not involve pj and therefore not violate the D’s due process rights.
What is a Contract assignment? Roles? Dispute between the assignee and the obligor?
An assignment is the transfer of rights or benefits under a pre-existing contract to a 3P. The assignor is the party who makes the assignment. The assignee is the party who was not a party to the original K but is the recipient of the assignment. The obligor is the other party to the original K who owed performance to the assignor. As per disputes b/w the assignee and the obligor, the assignee may recover from the obligor directly but the obligor may assert any defense against the assignee that the obligor could have asserted against the assignor.
What is joint and several liability? If the harm is divisible… Indemnity?
If more than one person is a proximate cause of the P’s injury and the harm is indivisible, then each D is liable for the entire harm. If the harm is divisible, then each D is only liable for the identified portion. If multiple D’s are jointly and severally liable but one D pays more than her pro rata share, that D may obtain reimbursement from the other D’s. Indemnity is the shifting of liability from one D to the other D as opposed to sharing as in contribution.
Contract law: Acceptance under the UCC where a party has added terms in the acceptance.
Under the UCC, acceptance may be made on different terms, but whether such terms become part of the K depends on whether one or both of the parties to the K are merchants. If only one party to the K is a merchant, the additional term does not become part of the K but is rather a proposal to be separately accepted or rejected. If both parties to the K are merchants, the additional terms become part of the K unless (1) the additional term is a material alteration to the K, or (2) the offerors objects to the change.
What is the Learned treatise exception to the hearsay rule?
A learned treatise is admissible to prove anything stated in it as long as that book is an accepted authority in the field.
Contract: third party beneficiaries
3P bens exist when two parties make a K with the shared intent to benefit a 3P.
For a 3P ben to have K rights (i.e. right to enforce the K), the 3P ben must have known of and relied upon the K.
Ks cannot be cancelled or modified without the consent of the 3P if the 3P had knowledge of and relied upon the K. A 3P bene may sue the promisor on the K.
What are the grounds for granting a motion for a new trial?
(1) prejudicial error
(2) misconduct by judge, adverse party or juror,
(3) newly discovered evidence,
(4) erroneous jury instructions,
(5) verdict goes against the weight of the evidence, and
(6) excessive or inadequate damages.
What is required to have a valid liquidated damages clause?
the damages
(1) must be difficult to ascertain at the time of contract formation,
(2) must be a reasonable forecast, and
(3) cannot operate as a penalty (i.e. no punitive damages for breach of contract).
If specific instances of the D’s prior bad conduct are being offered to prove anything else that is relevant other than character, then the character ev rules do not apply and the ev becomes admissible to prove a “mimic” fact.
Mimic facts are (1) motive, intent, absence of mistake or accident, identity, and common plan or scheme.
To prove identity, evidence of prior misconduct that connects D to the crime in question is admissible if it is similar and unique.
When does impossibility in contract occur?
Perf. can be excused by later unforeseen events (i.e. something unexpected takes place after K formation but before perf.).
Impossibility occurs when
(1) circumstances affecting the K have changed,
(2) the change is not due to any act by the D and
(3) the change in circumstances causes performance to be impossible for the D.
Objective impossibility excuses performance (no one could perform the duties of the K).
While the general rule is that death or physical incapacity of a party to a K after K formation but before performance does not excuse performance, the death or physical incapacity of a person necessary to effectuate the K will excuse performance.
