Bar Exam: Big Points Flashcards

Question

Criminal Law/Procedure: In Michigan, is an otherwise valid confession admissible in evidence without more?

Answer 1

No. Only admissible if there is direct or circumstantial evidence independent of the confession establishing: (1) the occurrence of the specific injury, and (2) some criminal agency as the source of the injury. Rationale: guards against convictions for crimes that were never committed. Note: the prosecution need not prove all the elements of the crime charged before a confession comes in, and the independent evidence only need meet the preponderance of the evidence standard.

Answer 2

In Michigan, a ∆ always has the right to such a hearing, which is known as, “an arraignment.” The hearing is designed to determine whether the there is PC for detention. It must occur w/o unnecessary delay. MBE: Such a hearing is not required if a grand jury has issued an indictment or an arrest warrant was issued.

Answer 3

Advise him of his rights, set bail, appoint counsel if necessary. Michigan calls this a “preliminary examination.” \*Note: bail decisions are immediately appealable.

Answer 4

(1) Federally, the prosecutor must disclose to the ∆ all material, exculpatory evidence. (2) Michigan adds: parties must provide upon request: (a) any statements pertaining to the case by a lay witness whom the party may call at trial, (b) Π must disclose any statements by a ∆, co-∆, or accomplice even if they aren’t a prospective witness at trial. \*Note: Π need not disclose his work product.

Answer 5

The right to a jury trial exists in every criminal prosecution where jail time is possible. 12-person juries are mandatory unless (1) prosecution is for a misdemeanor punishable by imprisonment for not more than 1 year, or (2) by parties stipulation. Michigan requires a unanimous jury.

Answer 6

In Michigan, prejudice is presumed if the delay is 18 months or more.

Answer 7

In open court and on the record, the Judge must establish that the plea is both knowing and voluntary by engaging in a “plea-taking colloquy,” wherein the Judge addresses the (1) nature of the charges and (2) consequences of the plea. Furthermore, Michigan requires that a judge establish a factual basis for the ∆’s plea.

Answer 8

Battery is the unlawful application of force to another resulting in harmful or offensive contract. Mental State-MBE: general intent / Michigan: willfulness

Answer 9

Yes! Doesn’t matter when death occurs. This is the majority rule too.

Answer 10

To be guilty of felony murder in Michigan, the Π must show (1) malice and (2) the commission of any of the felonies: Kidnapping, CSC (1,2,3), Larceny, Vulnerable Adult Abuse (1,2), Child Abuse (1), Home Invasion (1,2), Torture, Arson, Substance Offenses (major controlled), Robbery, Aggravated Stocking, Car Jacking, Extortion, Breaking and Entering a Dwelling The 14 Felonies. Mnemonic: “Kevin Caters Lavish Victory Celebrations Honoring Totally Awesome Soldiers Returning After Capturing Enemy Bases.”

Answer 11

Intent to kill, Intent to do great bodily harm, and intentional creation of a high risk of death or great bodily harm. \*Note: You need not show that the co-felon was the proximate cause. Just need malice.

Answer 12

There are four categories: 1st Degree, 2nd Degree, Vol. Manslaughter, and Invol. Manslaughter. 1st Degree murder involve that which is perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. Murder of a peace officer is a killing of a peace/corrections officer engaged in the performance of his duties. Need: malice + knowledge victim was officer. ~Need: specific intent to kill. Felony murder is always 1st degree. Under 2nd Degree, we have all forms of murder that don’t fit into 1st Degree classifications. Under Vol. Man., we have an intentional killing committed in the heat of passion upon adequate provocation. Under Invol. Man., a killing is committed with gross negligence, or as the result of unlawful acts committed w/(i) intent to injure or (ii) in a grossly negligent manner.

Answer 13

Insulting words are usually insufficient provocation but they may be enough if they describe an event that, if witnessed first hand, would constitute objectively adequate provocation.

Answer 14

A person knowingly and w/o consent, confines or restricts the movement of a victim with the intent to collect ransom, use the victim as a hostage, commit CSC against that hostage, take the victim out of Michigan, or hold them in invol. servitude.

Answer 15

Michigan calls it “criminal sexual conduct,” and it exists in four degrees. It’s a felony. Degree is based on egregiousness of conduct & age.

Answer 16

They include: a dangerous weapon (loaded gun or knife), an objective not ordinarily considered a dangerous weapon, but was used as such, or an object that reasonable appeared to be a dangerous weapon (toy gun)

Answer 17

While most states have expanded arson to include all buildings, Michigan has followed the minority rule and has not expanded arson. Note: Michigan has followed the majority and expanded the crime of arson to include the burning of one’s own dwelling too. The CL definition did not include this. Michigan has a separate crime for the burning of other personal or real property.

Answer 18

In Michigan, accomplices don’t need to intent to aid the principal. It’s sufficient that they acted w/knowledge of the principal’s intent. MBE: An accomplice is a person who aids or encourages the principal w/the intent that the crime be committed.

Answer 19

In Michigan, accomplices don’t need to act w/either intent or knowledge. It’s sufficient that ∆ perform acts that aid in the creation of a situation under which it is reasonably foreseeable that harm will occur. MBE: An accomplice is a person who aids or encourages the principal w/the intent that the crime be committed.

Answer 20

MBE: A conspiracy is an agreement between two or more persons to commit a crime, plus an overt act in furtherance of the crime. (mental state: specific intent (1) to enter into agreement and (2) accomplish objective of conspiracy). In Michigan, there is no overt act requirement.

Answer 21

An overt act is some direct movement towards the commission of the crime that would lead immediately to its completion. This is different from the common law “proximity test” (conduct that gets dangerous close to the commission of the crime) and MPC/Majority “substantial step test” (conduct that constitutes a substantial step towards the commission of the crime, provided the conduct strongly corroborates w/actor’s criminal purpose.

Answer 22

Yes. “Renunciation” is a ∆ to solicitation, and “abandonment” is a ∆ to attempt. Both must be (1) complete and (2) voluntary, i.e., change of heart wasn’t motivated by fear of detection or unexpected difficulty.

Answer 23

Michigan utilizes the MPC version. The analysis turns on whether the ∆ (1) suffered a mental disease/defect and (2) lacked the substantial capacity to either (a) appreciate the criminality of his conduct or (b) conform his conduct to the requirements of the law.

Answer 24

Both the majority and Michigan puts the burden of proof on the ∆. A preponderance standard applies.

Answer 25

Michigan provides for a “special verdict” of guilty but mentally ill. ∆ is determined to be mentally ill at the time of the offense, but not sufficiently impaired so as to meet the requirements of the insanity-∆. Result: ∆ sentenced guilty like normal ∆’s, but is taken to either a psychiatric hospital or prison wing until ∆ regains mental health. Then, ∆ goes back to normal prison.

Answer 26

On both MBE and in Michigan, vol intox is a defense to specific intent crimes only (~malice, general intent, or strict liability offenses). While the MBE requires a showing of “such severe prostration of the faculties that ∆ couldn’t form the requisite specific intent” (a high burden), Michigan has it’s own test. In Michigan, there is a ∆ only if (1) ∆ consumed a legally obtained and properly used medication or other substance (~alcohol!), and (2) ∆ didn’t know or reasonably shouldn’t havek known that ∆ would become intoxicated. HIGH HIGH Burden.

Answer 27

Under Common Law, the Rule of 7’s held that a child less than 7 couldn’t be prosecuted, for a child less than 14 there was a rebuttable presumption against prosecution, and for 14 or older prosecution was allowed. Michigan has abolished this approach in favor of separate juvenile or family courts to enforce juvenile delinquency laws.

Answer 28

Michigan follows the minority approach, which requires retreat before using deadly force. Exceptions: Don’t have to retreat if (1) ∆ cannot retreat in complete safety, (2) he’s in his home, (3) he honestly and reasonably believes that deadly force is necessary to protect from an imminent death, bodily harm, or sexual assault.

Answer 29

Imperfect Self-Defense: MBE → An unreasonable belief in the need to use deadly force in self-defense will mitigate murder to (voluntary) manslaughter MICHIGAN-Specific Rule—imperfect self-defense mitigates murder to vol. manslaughter where the ∆ was the initial aggressor in a fight that resulted in homicide. The defense is NOT available if: (1) ∆ initiated incident with intent to kill or do serious bodily injury, (2) ∆ was NOT reasonable in her belief that her life was in danger, or (3) ∆ reacted excessively w/unreasonable force.

Answer 30

Defined—it’s a defense to a crime if ∆ can show the criminal design originated w/the govt. and the ∆ wasn’t predisposed to commit the crime (subjective / hard test). In Michigan, the ∆ is satisfied either: (1) showing police conduct would induce an otherwise law abiding citizen to engage in the criminal activity in question or (2) police conduct was so reprehensible that it cannot be tolerated in a civilized society, without regard to whether it induced the criminal activity in a question. (objective & slightly easier than common law def.)

Answer 31

The exception holds that statements of fact made during civil litigation settlement negotiations with a govt. regulatory agency are admissible in evidence if proffered in a criminal prosecution for crimes based on the same facts. Michigan has not adopted this exception. E.g., the Enron scandal.

Answer 32

Both the FRE and in Michigan hold that a nolo contendere or a guilty plea withdrawn before judgment are both inadmissible in that trial or any subsequent civil or criminal litigation. Exception: Michigan holds that if a party who plead nolo contendere subsequently becomes a Π in a civil action, that prior plea is admissible in evidence. Hypo: Torch pleads nolo to charge of arson, and later sues his Insurer to collect for loss caused by fire.

Answer 33

Evidence is allowed only in criminal homicide cases, not assault.

Answer 34

Michigan has not adopted this rule. General CE rules (plus MIMIC purposes) apply. 2 Exceptions: (1) In a criminal case for CSC against a minor, evidence is admissible of ∆’s prior sexual acts (~opinion/reputation) against minors to show ∆ has the propensity for such crime. \*Note: probative value vs. unfair prejudice analysis applies. (2) In a criminal case for domestic violence, evidence is admissible of ∆’s prior bad acts of domestic violence to show ∆’s propensity. Victim must be a spouse, co-habitant, child-in-common, intimate dating relationship—past or present.

Answer 35

Defined—statement relating to a startling event made while under the stress of excitement from that event made before declarant had time to reflect upon it. Michigan adds fact of startling event must be supported by corroborating evidence. Statement alone is insufficient.

Answer 36

Defined—description of an event while the event is occurring or immediately thereafter. Michigan adds fact of startling event must be supported by corroborating evidence. Statement alone is insufficient.

Answer 37

Admissible: records for activities of the agency, recordings made pursuant to law, and factual findings from an authorized govt. investigation. Michigan’s does not recognize the govt. investigation part.

Answer 38

Admissible: testimony of a now-unavailable witness-declarant given at another legal proceeding if: (1) declarant is now unavailable, and (2) the party against whom it’s offered had the opp. and motive to develop the prior testimony. Michigan doesn’t require the unavailability of the declarant if it was by a nonparty expert witness at a deposition in the same case.

Answer 39

A statement made to anyone for the purposes of obtaining medical treatment or diagnosis (including diagnosis for expert testimony) is admissible if it concerns present or past symptoms, or the general cause. Michigan restricts this exception: past physical or general cause are inadmissible if made to physician in prep for expert testimony. It’s a question of reliability.

Answer 40

(1) Statement by Domestic Violence Victim: in a criminal case for domestic violence, a statement by the victim-declarant to a police officer describing ∆’s act is admissible if the statement is trustworthy and was made within 5 years of current case. Issue of confrontation clause! Who is a potential victim? Spouse, co-habitant, child-in-common, intimate dating relationship—past or present. (2) Corroborative Statement by Child Victim of Sexual Act: In a criminal case involving a sexual act against a child, a spontaneous statement by the child-declarant describing the sexual act made immediately after the incident is admissible if the child was under 10 and the child testifies later. No confrontation issue.

Answer 41

Michigan has special rules for felony convictions. (1) Only felony convictions for theft crimes may be used, and the theft felony must have significant probative value on the issue of credibility. Two factors only: age of conviction and extent to which the theft felony bears on truth-telling. (2) If the witness is the criminal ∆, court must balance the probative value on the issue of credibility against only two factors that bear on unfair prejudice: similarity between the crime then and now, and whether admission will deter ∆ from testifying. 10 year limitation.

Answer 42

**Spousal Immunity from Testifying** * **MBE** * **Criminal:** Yes (witness-spouse consents) * **Civil:** No * **Michigan** * **Criminal:** Yes (witness-spouse consents) * **Civil:** Yes (party against whom witness-spouse will testify consents) **Confidential Communications between Spouses** * **MBE** * **Criminal:** Yes (both spouses consent) * **Civil:** Yes (both spouses consent) * **Michigan** * **Criminal:** Yes (witness-spouse consents) * **Civil:** Yes (witness-spouse consents)

Answer 43

**(1) Time Periods** * **Spousal Immunity:** Before _&_ During * **Confidential Communication:** _Only_ During **(2) Rationale** * **Spousal Immunity:** Protect harmony of existing marriage during trial * **Confidential Communication:** Encourage free and open communication between the spouses during the marriage **(3) Does it survive Divorce?** * **Spousal Immunity:** _No_, b/c rationale doesn't apply after divorce * **Confidential Communication:** _Yes_, b/c in line with the rationale, a spouse wouldn't communicate if he thought what he said could be entered in evidence after a divorce

Answer 44

* Communications or acts in _furtherance_ of a future crime or fraud. * Communications or acts _destructive of the family unit_, e.g., spousal or child abuse * Litigation _between_ the spouses themselves

Answer 45

A Michigan court must question a child under 10 to determine competency (e.g., child’s abilities, appreciation of oath) They are impliedly presumed incompetent.

Answer 46

In med mal, expert must be specialist in same field as ∆, and during year prior to incident in issue, expert must have spent majority of time in clinical practice or as instructor at medical school.

Answer 47

Expert opinion must be based exclusively on expert’s personal knowledge of facts and data that have been introduced into evidence. No hearsay (i.e., facts outside the record if a type reasonably relied upon by the field). FRE allows the last part.

Answer 48

It is not a recognized exception, it can come in only impeach.

Answer 49

Any relevant topic. It’s not constrained to witness’s direct testimony.

Answer 50

Defined—grantor retains this right when she grants a fee simple on a condition subsequent, i.e., the fee simple could end at the grantor’s discretion if the stated condition is triggered. Key language: “provided, however + right to reenter and retake” / “but if” / “upon condition that.” It isn’t subject to RAP, not transferable inter vivos, transferable by will or intestacy. Michigan: Transfer inter vivos too b/c all future interest are freely transferable.

Answer 51

Follows a statutory scheme of “wait & see.” If the interest does actually vest within 90 years, RAP isn’t violated.

Answer 52

Lien theory.

Answer 53

When you transfer a property to two or more persons as JT and expressly specify a right of survivorship, that right is indestructible. There is no partition or severance possible.

Answer 54

They can exist only between a H & W. When property is deeded to them as H & W in Michigan, they take as tenants by the entirety. There is a right of survivorship, but not right to partition. Can’t be ended or encumbered by either party alone.

Answer 55

MBE: tenancy continues until either party terminates, termination can occur at any time, and no notice is required. Michigan requires 1 months notice though.

Answer 56

MBE: Must give 6 months notice. / Michigan: Must give 1 years notice.

Answer 57

Landlord covenants that the premises will be fit for the use for which they are intended, to keep it in reasonable repair, and comply with applicable health and safety laws. A tenant can withhold rent until repair.

Answer 58

Generally, 15 years. Exceptions: If claimant is there under color of title by tax deed, 10 years; if claimant is there under other color of title then by tax deed, 5 years.

Answer 59

MBE: buyer bears the risk of loss under the Doctrine of Equitable Conversion Michigan: Adopted the Uniform Vendor Purchase Risk Act, which holds the ROL is in person in possession and control. This is the minority approach. Buyer can cancel contract and get earnest money back from seller.

Answer 60

Michigan is a race-notice jurisdiction.

Answer 61

Riparian rights.

Answer 62

Generally, an unpaid seller has no special rights in the goods it has delivered despite not being paid. Exception: Seller could obtain special rights via a UCC-9 security interest, or UCC-2 Right to Reclaim: (1) credit sale + (b) insolvent buyer: can make a demand for return within 10 days of receipt or within a reasonable time if buyer made false representation of solvency.

Answer 63

There are 5 elements. 1. Place where the condition exists is one where the possessor knows or has reason to know that children were likely to trespass. 2. Condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children. 3. Children, b/c of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it. 4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved. 5. Possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

Answer 64

Before a ∆ can represent herself in a criminal trial, the court must engage in a colloquy with the ∆ to establish: (1) Request is unequivocal; (2) request is knowing, intelligent, and voluntary; & (3) ∆ won’t disrupt, unduly inconvenience, and burden the court. (4) Further, the court must inform of: * Charges, * Potential penalties, * Risks inherent in self-representation, (d) the right to discuss choice with counsel.

Answer 65

A trial court must instruct on the primary charge plus any lesser included offenses that are supported by a rational view of the evidence.

Answer 66

A fair, honest doubt growing out of the evidence or lack thereof; a doubt based on reason and common sense

Answer 67

In every residential lease, there is an implied warranty of habitability (i.e., the premises will be fit for the use intended by the parties & landlord will keep the premises in reasonable repair). If ~fit or needs repair, Tenant can withhold rent until repair, or can terminate lease, surrender possession, and walk away w/no rent owing.

Answer 68

It’s a tenant’s ∆ to eviction. Can be raised when Landlord seeks eviction as: penalty for complaining to govt. authorities or for other things. Exists if eviction occurs within 90 days of tenant’s act trigger. Creates rebuttable presumption against Landlord’s eviction.

Answer 69

Trustworthy facts and circumstances sufficient for a reasonable person to believe that the offense has been committed

Answer 70

Limitation on the EE’s wage earning capacity, which are wages the EE earns or is capable of earning at a job reasonable available to that EE, whether wages are earned or not.

Answer 71

1. objectively manifested impairment 2. of an important body function 3. that affects the person's general ability to lead her normal life (i.e., some capacity)

Bar Exam: Big Points Flashcards

(97 cards)