Bar Prep Flashcards

Question

declarant former testimony

Answer 1

admissible if 1) given at trial hearing or deposition in same case or a different proceeding that involved similar parties and issues 2) the party against whom testimony offered had opportunity and similar motive to develop testimony through examination of the declarant, and 3) declarant unavailable

Answer 2

1) asset from the trial or hearing and 2) proponent could not obtain the declarants attendance by subpoena or other reasonable means

Answer 3

valid if conditions 1) are clear and unambiguous 2) are reasonably related to the purpose for which the funds are expended 3) do not require recipients to engage in unconstitutional activity, and 4) are not duly coercive

Answer 4

must be served pursuant to rules for serving individual. also process must be served on US gov but if P fails, given reasonable time to cure

Answer 5

generally determined by order of recording unless mortgage enjoys super priority as a purchase money mortgage

Answer 6

under this, time for seller to deliver marketable title arrives when the buyer makes the final installment payment

Answer 7

requires proof D acted with malice aforethought aka 1) intent to kill, inflict serious bodily harm, or commit inherently dangerous felony, or 2) reckless disregard for high or obvious risk of death or serious bodily harm (i.e depraved heart murder)

Answer 8

allows otherwise inadmissible evidence to be admitted to rebut prejudicial evidence when 1) the evidence was improperly admitted through no fault of the prejudiced party, 2) party objected to and moved to strike evidence, and 3) an instruction to disregard cannot remedy the prejudice

Answer 9

CL ignores "no oral modification" clauses and allows written K to be modified orally unless modified K falls under statute of frauds. under UCC if two merchants with NOM clause then always enforceable. if one merchant then NOM clause in merchants form must be signed by non merchant to be enforceable

Answer 10

bars state courts from discriminating against cases arising under federal law. as a result, state courts can only refuse to hear federal law claims if 1) congress expressly granted federal courts exclusive jurisdiction or 2) neutral state rule prohibits the state court from hearing the case

Answer 11

arises when 1) the D (commercial supplier) misrepresents a material fact about producer 2) consumer justifiably relied on misrepresentation and 3) product caused the plaintiff harm

Answer 12

original jurisdiction over cases that 1) affect ambassador public minister or consul or 2) in which state is a party. Congress cannot alter original jurisdiction

Answer 13

police dont need warrant if search is limited to 1) person arrested and 2) areas within his or her reach

Answer 14

admissible if 1) relevant, helps trier of fact understand evidence or fact and 2) reliable, based on sufficient facts or date and product of reliable principles

Answer 15

Bona fide purchaser interest will have priority if BFP: lacked notice of earlier interest at the time BFD acquired interest AND recorded interest before the earlier interest was recorded

Answer 16

fed court may exercise over a claim outside of the court's original SMJ if it shares a common nucleus of operative facts with an original jurisdiction claim

Answer 17

party served with request must then serve a written response within 30 days that: admits matter specifically denies matter explains why matter cannot be admitted nor denied objects that the matters falls outside the scope of discovery

Answer 18

defendant privileged to disclose when 1) was in a fair and accurate report of public meeting and 2) meting dealt with matters of legit public interest (newsworthy)

Answer 19

someone who merely used a defective product to provide a service is not subject to strict products liability for harm to persons or property caused by the defect

Answer 20

P must send via 1st class mail or other reliable means. must name the court and date the request was sent. must contain copy of complaint, two copies of waiver form, and prepaid means for returning signed waiver.

Answer 21

vested and contingent free transferable during grantee's lifetime, devisable by will, and inheritable through intestate succession. vested- not subject to any condition precedent AND held by living ID person (remainder to by youngest son" contingent- subject to condition precedent OR held by unknown or unborn person ("remainder to my youngest son but only if")

Answer 22

only to determine merits of actual cases or controversies

Answer 23

to permanently deprive another of his/her property

Answer 24

defendant knowingly or recklessly misrepresented a material fact with the intent to induce the plaintiffs reliance and the plaintiff justifiably relied on the misrepresentation and suffering pecuniary (financial loss) as a result. reliance not justifiable if the rep was obviously false or the defendant was stating law opinion

Answer 25

exclusionary rule does not apply during grand jury proceeding since the grand jury is an investigatory body not a judicial one with the power to convict

Answer 26

common law (minority) - no duty to disclose property defects unless otherwise provided modern (majority)- no duty for commercial property. must disclose known material defects that buyer could not reasonably discover for residential property unless "as is" clause without seller fraud defect = material if: 1) substantially effects value of the residence, 2) impacts the health or safety of a resident, or 3) affects the desirability of the residence to the buyer

Answer 27

excepted from rule against hearsay. statements related to a startling event or condition that are made while the declarant is still under the stress of excitement from the event or condition

Answer 28

excepted from rule against hearsay. statements describing or explaining an event or condition that are made while or immediately after the declarant perceived it

Answer 29

unlawful breaking and entering of another's dwelling at night with the specific intent to commit a felony (usually larceny)

Answer 30

only for commercial setting when 1) D provides P with false info negligently and 2) P justifiably relies on info and suffers pecuniary (financial loss)

Answer 31

default test. challenger has burden to prove that the government action is not rationally related to a legitimate government interest

Answer 32

quasi suspect class. government has burden to prove its action is substantially related to an important government interest

Answer 33

fundamental right or suspect class. government has burden to prove that its action is necessary to serve a compelling government interest

Answer 34

such as partnership. is a citizen of every state where its members are domiciled

Answer 35

items attached to real property by tenant for use in trade or business can be removed without landlord consent if 1) removal occurs before, or within reasonable time after, lease ends and 2) removal will not substantially harm the property

Answer 36

items so attached to property that they cannot be removed without causing substantial damage

Answer 37

minority set adds for gov employment/contracts- remedying its own history of racial discrimination race based students assignments in public schools - remedying past intentional racial segregation in public schools race based admissions policies - achieving diverse student body in higher education government interest on the right of the hyphen

Answer 38

federal question jurisdiction- case arises under constitution, a federal law, or treaty diversity jurisdiction- amount in controversy >75l and parties are citizens of different states

Answer 39

generally superseding cause unless the defendant had reason to know that the negligence would increase the risk that such acts would occur

Answer 40

requires states to respect the public acts, records, and judicial proceedings of other states. under this clause, a state court must recognize and enforce judicial decisions rendered by a court in another state when: 1) court has personal and subject matter jurisdiction

Answer 41

requires states to respect the public acts, records, and judicial proceedings of other states. under this clause, a state court must recognize and enforce judicial decisions rendered by a court in another state when: 1) court has personal and subject matter jurisdiction 2) case was decided on its merits 3) a final judgment was entered

Answer 42

direct- P was direct victim of D conduct bystander- P contemporaneously perceived the D's extreme and outrageous conduct

Answer 43

arises when D's failure to use reasonable care in hiring a competent worker causes the plaintiff harm- there must be some causal connection between the D's negligence in hiring the worker, the worker's employment or job duties, and the plaintiff's harm

Answer 44

excluded from rule against hearsay if they are offered against that party. includes statements made by another that an opposing party explicitly (verbal agreement) or implicitly (conduct or silence). Adoption by silence occurs when: the silent party understood and had the ability to deny the statement AND a reasonable person would have denied the statement under similar circumstances if it was untrue

Answer 45

arises when 2 or more Ds were negligent and any one of them could have caused the Ps indivisible har. This allows plaintiff to recover the full amount from any of the negligent Ds even if it is impossible to prove which one actually caused it. However, the P must first prove that each D was negligent. burden shifts to each D to prove negligence didn't cause P harm only after the P proves that each D was negligent to begin with

Answer 46

strict scrutiny applies and law is unconstitutional unless the gov can show that it is necessary and narrowly tailored (i.e least restive means) to achieve a compelling government interest

Answer 47

strict scrutiny applies and law is unconstitutional unless the gov can show that it is necessary and narrowly tailored (i.e least restive means) to achieve a compelling government interest

Answer 48

intermediate scrutiny applies and the law is permissible so long as the government can show that it is narrowly tailored to achieve an important government interest and leaves open alternative channels or communciation

Answer 49

court cannot exercise supplemental jurisdiction over another claim that would contaminate diversity of citizenship

Answer 50

return case to state court. one basis for remand is the home court advantage rule ( forum-defendant rule) which prohibits removal when 1) SMJ arises from diversity jurisdiction and 2) a defendant is a citizen of the state where the case was filed

Answer 51

waived if not asserted in a pre-answer motion or an answer, whichever comes first

Answer 52

D has continuous and systemic contacts with the forum state that are so substantial that D is essentially at home

Answer 53

when P claim arises from D's minimum contacts with the forum state and the exercise of jurisdiction would comply with the notions of fair play and substantial justice

Answer 54

P must provide proof to court but failure to prove service of process does not affect validity of service

Answer 55

proper in any district where: any D resides a substantial part of the events that gave rise to the suit occurred (suit-based venue) or a substantial part of the property at issue is located (property based venue) any D is subject to the court's personal jurisdiction- but only if neither of the above apply (fall back provision)

Answer 56

must serve answer on plaintiff and it must contain: 1) admissions and denials 2) motions that have not been waived 3) affirmative defenses and 4) compulsory counterclaims otherwise these items will be waived

Answer 57

discovery method in which a party conducts a written or oral examination of a party or nonparty under oath and outside of court

Answer 58

a party can move for it at any time before the case is submitted to the jury. District court must: 1) view evidence and draw all reasonable inferences in light more favorable to the nonmovant 2) disregard any evidence favorable to the movant that the jury is not required to believe and 3) not consider the credibility of witnesses or evaluate the weight of evidence

Answer 59

must be unanimous and returned by a jury of at least 6 (but not more than 12) members unless the parties stipulate otherwise

Answer 60

standard of appellate review for trial court's discretionary rulings, such as whether to admit evidence. under this standard, only a clearly arbitrary or unreasonable ruling will be reversed

Answer 61

Collateral estoppel (ie, issue preclusion) Mutual v. Nonmutual Mutual Parties from first action assert collateral estoppel in subsequent action against other parties from first action Nonmutual Nonparties from first action assert collateral estoppel in subsequent action against parties from first action Defensive v. Offensive Defensive Defendant in second action asserts to avoid relitigating issue from first action Offensive Plaintiff in second action asserts to establish issue from first action. Not permitted if: plaintiff could have easily joined first action defendant had little incentive to vigorously defend in first action second action affords procedural opportunities unavailable in first action or inconsistent findings on issue exist Collateral estoppel (i.e., issue preclusion) precludes the relitigation of an issue that was actually litigated, determined, and essential to a valid final judgment on the merits. There are two types of collateral estoppel: Mutual – where parties from the first action assert collateral estoppel in a subsequent action against other parties from the first action Nonmutual – where nonparties from the first action assert collateral estoppel in a subsequent action against parties from the first action Both types are permitted in federal court, and both can be used in a defensive or offensive manner. Defensive estoppel is used by a defendant in the second action to avoid relitigating an issue from the first action. Offensive estoppel is used by a plaintiff in the second action to establish an issue from the first action—with limited exceptions (see table above).

Answer 62

another judge may take over so long a this successor judge: certifies that he/she is familiar with the record and determines that the case may be completed without prejudice to the parties. if not, a new trial will be ordered

Answer 63

negative implication of commerce clause that prohibits states from discriminating against or otherwise unduly burdening interstate commerce. states are not restrained by this clause when they participate in the market, for example, buying or selling goods or services.

Answer 64

any item may be used to refresh witness's memory regardless of admissibility if: 1) witness once knew but is now unable to recall fact or event AND 2) item will hep witness recall that information

Answer 65

record is admissible hearsay if it: 1) contains info witness once knew but cannot recall well enough to testify fully and accurately 2) was made or adopted by witness when matter was fresh in his/her mind AND 3) accurately reflects witness's knowledge at time record was made

Answer 66

P must prove D: 1) in extreme and outrageous manner 2) intended to cause the P severe emotional distress or recklessly disregarded risk of causing such distress AND 3) caused the P severe emotional distress ex. abusing a position of authority going far beyond what is necessary to exercise that authority

Answer 67

entitles party who conferred benefit on another in a quasi contractual relationship to damages for the reasonable value of that benefit

Answer 68

a party in material breach cannot sue to recover contract damages. also, it discharges the other party's duty to perform and entitles that party to terminate the contract if breaching party is unwilling or unable to cure breach

Answer 69

three theories: 1) zone of danger 2) bystander 3) special situations

Answer 70

allows police to conduct warrantless search of a vehicle if they have probable cause to believe it contains evidence of a crime, they can search any area within vehicle where the evidence might be located including locked containers

Answer 71

justified against another if actor 1) actually and reasonably believed the force was necessary to protect against imminent lawful harm, 2) used reasonable force to prevent such harm, and 3) was not initial aggressor

Answer 72

when person unlawfully applies force resulting in bodily harm or offensive contact

Answer 73

actual and reasonable belief of imminent unlawful harm. force reasonably necessary to prevent harm. not initial aggressor. no duty to retreat

Answer 74

actual and reasonable belief of imminent serious harm or death. deadly force necessary to prevent harm. not initial aggressor. majority rule- no duty to retreat minority rule- duty when safe retreat available unless inside one's home

Answer 75

when party does not have required license, enforceability of contract depends on whether the purpose behind the requirement if 1) economic, which renders contract enforceable, or 2) regulatory which means contract is unenforceable if the public policy behind the requirement outweighs the interest in enforcement

Answer 76

grants states broad authority to regulate alcohol within borders but when doing so, states cannot violate the dormant commerce clause by discriminating against interstate commerce unless 1) the state statute furthers a legitimate noneconomic state interest and 2) no reasonable alternative exists to do so

Answer 77

occurs when one party (bailor) temporarily entrusts his/her personal property to another (bailee) without transferring ownership. Bailee duty of care for the property depends: bailor receives sole benefit- bailee has a lesser duty to care for property and is liable for harm to property only if bailee has been grossly negligent bailee receives the sole benefit- must exercise extraordinary care for pretty and liable for harm even if only slightly negligent both benefit- bailee must take reasonable care of property and is liable under ordinary negligence

Answer 78

Defendant may offer evidence of pertinent character trait by: reputation or opinion testimony Prosecution may rebut with:reputation or opinion testimony orSIC (only on cross-examination)

Answer 79

If defendant testifies, prosecution may impeach with: reputation or opinion testimony SIC (only on cross-examination) or extrinsic evidence of conviction for felony or crime of dishonesty Defendant may rebut with: reputation or opinion testimony or SIC (only on cross-examination)

Answer 80

always invalid

Answer 81

judicial sale- judicially supervised public sale or mortgaged property non judicial- privately conducted public sale of mortgaged property (permitted only if mortgage contains power of sale clause) but court cn overturn if auction or sale processes violate due process and purchase price was grossly inadequate (20% market value) strict foreclosure- foreclosure without sale of mortgaged property

Answer 82

that were: made or adopted by party opponent made by a person authorized by party opponent to make statement on subject made by the party opponent's agent or employee about a matter within scope of that agency or employment made by the party opponent's coconspirator during and in furtherance of the conspiracy

Answer 83

extends to confidential communication between a client and attorney if those communications are made in furtherance of legal representation

Answer 84

protects confidential communications during the marriage from disclosure in a civil or criminal case.

Answer 85

protects persons from being required to testify against their spouse in a criminal case about events that occurred before or during the marriage.

Answer 86

non testifying expert- Facts known or opinions held by expert not discoverable unless: relate to court-ordered physical/mental examination or exceptional circumstances make it impracticable to obtain information by other means testifying expert: Facts known & opinions held by expert discoverable through deposition Drafts of expert reports & disclosures not discoverable Communications between attorney & expert not discoverable unless: relate to expert's compensation or identify facts, data, or assumptions provided by attorney that expert considered in forming opinions

Answer 87

places the risk of loss on the party with equitable title to the property. the buyer acquires equitable title once a real estate contract is formed and can be specifically enforced

Answer 88

excepted from rule against hearsay (statements of motive, intent, plan

Answer 89

effectuates a conveyance of unowned property by warranty deed when the grantor later acquires ownership of that property. The grantor's ownership interest automatically transfers to the grantee, who can then accept or reject the transfer.

Answer 90

private entity bound by constitution when the government is so pervasively intertwined in its control or management that the private entity is essentially a government actor

Answer 91

Under the dormant commerce clause, states cannot tax interstate commerce unless the tax is (1) levied on persons or activities that have a substantial nexus with the state, (2) fairly apportioned, (3) nondiscriminatory, and (4) fairly related to state-provided services or benefits. Under the Tenth Amendment, any power that the Constitution does not expressly grant to the federal government—including the power to construct a state tax system—is reserved to the states. this power is not plenary (ie, absolute).

Answer 92

no duty to unknown or unanticipated trespassers. limited duty to known or anticipated trespassers to: warn about hidden artificial dangers that are known but unlikely to be discovered by trespasser use reasonable care while conducting activities on land

Answer 93

prohibits 1) multiple punishments for the same offense and 2) a second prosecution for the same offense following a conviction of an acquittal. prohibition only applies after jeopardy attaches: in a jury trial when the jury is impaneled and sworn OR in a bench trial when the judge begins to hear evidence

Answer 94

excepted when 1) publication is established as reasonably reliable authority by a party's expert or judicial notice and 2) the statements are called to the attention of or relied on by an expert witness during examination. can be read into evidence, it cannot be received as an exhibit

Answer 95

traditional CL- promise to perform, or performance of, preexisting duty does not constitute consideration modern exception- consideration exists if preexisting duty owed to third person (non party to contract)

Answer 96

unlawful killing of another committed with some type of malice aforethought

Answer 97

intent to kill- conscious desire to cause death or substantial certainty that death will result intent to inflict serious bodily harm- conscious desire to cause serious physical injury or substantial certainty that such injury will result depraved heart murder- reckless disregard for high risk of death or serious bodily harm felony murder- killing during an inherently dangerous felony (BARKK burglary arson rape robbery kidnapping)

Answer 98

must be approved by court. only after court holds hearing and issues findings that the settlement is fair reasonable and adequate. in common question class actions, court may give members second opportunity to opt out. in these, common questions of law or fact predominate over individual questions and a class action is the best method to fairly and adequately adjustive dispute

Answer 99

probate matters and domestic relations matters

Answer 100

allows fed courts to acquire PJ over party who is: added to the suit through imp leader (third party practice) or required joinder AND served with a process within 100 mules of the federal court where the suit is pending, even if served in another state

Answer 101

defendant brings in another party that may be liable to the defendant

Answer 102

can be sued in any judicial district

Answer 103

required joinder permissive joinder intervention impleader interpleader class action

Answer 104

requires addition of necessary party to suit

Answer 105

allows addition of nonessential party to suit

Answer 106

allows nonparty whose interests may be affected to join suit

Answer 107

allows D to add nonparty who may be liable to D for all or part of the asserted claim to suit

Answer 108

allows possessor of property to force persons who claim ownership of property to resolve dispute in single suit

Answer 109

allows party to represent interests of entire class of similarly situation individuals

Answer 110

a court must, on party's request, or on own initiative, poll the jurors individually after a verdict is returned but before the jury is discharged. if poll reveals verdict is not unanimous, the court can direct the jury to deliberate further or order a new trial

Answer 111

can be renewed within 28 days after the entry of judgment to seek to overturn an adverse verdict

Answer 112

at least 6 but no more than 12

Answer 113

state law controls substantive issues and federal law controls procedural issues such as jury size

Answer 114

apply both federal substantive AND procedural law. including federal common law

Answer 115

same PJ as the courts of the state it is located in (forum state). forum state's long arm statute specifics when a fed court within the state can exercise PJ over nonresident defendant

Answer 116

when 1) movant likely to succeed on merits 2) movant likely to suffer irreparable harm in absence of relief 3) balance of equities in movant favor 4) injunction in best interests of public if monetary damages can adequately compensate, no irreparable harm

Answer 117

one party serves written questions upon another party- not a nonparty (e.g. witness) must be a party to the case

Answer 118

by 1) serving other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and 2) filing the jury demand with the court within a reasonable time after service of the demand

Answer 119

reasonably apprise D or lawsuit. by most reasonable means.

Answer 120

unless: 1) deposition exceeds the 10- deposition limit 2) deposition is sought before the initial planning conference or 3) the deponent was already deposed in the case

Answer 121

numerosity- >40 members so numerous that joining all is impracticable commonality- class shares common questions of law or fact typicality- named plaintiff's claims are typical of the claim of the class adequacy- named plaintiffs will fairly and adequately protect interests of class

Answer 122

federal appellate court no JX to hear appeal until district court has issued a final judgment- decision that fully resolves the dispute on the merits. interlocutory appeals statute provides some exceptions to this rule, allowing immediate appeal of certain orders

Answer 123

must follow rulings issued by the state's highest court

Answer 124

must be asserted in the D's answer if: 1) arises from same transaction or occurrence AND 2) does not require adding parties over whom the court cannot acquire JX failure to do so generally means counterclaim is waived and barred from being raised in subsequent lawsuits. BUT when action dismissed before D's answer is filed, any counterclaims that would have been compulsory are not waived because the D never had the opportunity to raise them

Answer 125

- 100 members at least - minimal diversity - amount in controversy >5m when claims aggregated

Answer 126

unless court orders otherwise, responding party generally must respond to amended pleading within 1) the time that remains to respond to original pleading or 2) 14 days after service of amended pleading- whichever occurs later

Answer 127

preserved for appeal when a party timely objects to the instruction on the record and states the grounds for objection. objection timely if made promptly after learning jury instruction has been or will be given OR that a request has been refused

Answer 128

before appeal docketed, a district court can correct a mistake in judgment, order, or other part of the record on its own initiative or pursuant to party's motion. after an appeal has been docketed, district court can only correct with the appellate court's leave

Answer 129

within one year of the entry of final judgment based on 1) mistake, inadvertence, surprise, excusable neglect, 2) newly discovered evidence, or 3) an opposing party's fraud, misrepresentation, or misconduct

Answer 130

sua sponta (court on its own) or via party's motion within 28 days after final judgment

Answer 131

does not deem them admitted and conclusively established

Answer 132

witness looks at document notes etc, puts notes aside, and proceeds to testify. document does not become evidence and witness does not read from it

Answer 133

when witness still cannot remember. permits witness to read notes into evidence under hearsay exception. requires: that witness cannot remember, record was made when it was fresh in their memory, and the record accurately reflects memory

Answer 134

scope limited to subject of direct examination but courts have discretion to allow more inquiry. allowed to use leading questions!

Answer 135

compound question, leading questions (with exceptions), facts not in evidence, argumentative questions, questions calling for inappropriate conclusions, repetitive questions

Answer 136

two in one: burden of production- party must produce enough evidence to get it in front of jury burden of persuasion- party must convince jury to decide case in its favor

Answer 137

preponderance of evidence

Answer 138

beyond a reasonable doubt standard (higher than civil)

Answer 139

shifts burden of production but not burden of persuasion

Answer 140

if D presents reputation or opinion testimony about pertinent trait, prosecutors can rebut and can also rebut by cross examining the defendant's character witnesses with question about specific acts from the past

Answer 141

M- motive I- intent M- absence of mistake I- identity C- Common plan or scheme

Answer 142

bias sensory competence character for truthfulness or untruthfulness

Answer 143

Certain prior statements of testifying witnesses 1) prior inconsistent statements 2) prior consistent statements 3) prior statements of identification Admissions of party opponents- statement introduced against a party that is the party's own prior statement 1) adoptive admissions 2) vicarious admissions 3) co-conspirators

Answer 144

- former testimony -dying declarations -statements against interest -statements of personal or family history -declarant unavailable due to party's wrongdoing

Answer 145

-present sense impression -excited utterance -state of mind (mental emotional or physical condition) -statements made for purposes of medical diagnosis or treatment -past recollection recorded -business records -public records -learned treatises -judgment of previous conviction -other numerous exceptions -reputation

Answer 146

preliminary question for the court, not the jury. court not bound by the rules of evidence when determining such questions

Answer 147

when probative value is sunstnaitally outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence

Answer 148

question about specific act by defendant allowed, but asking on hunch is bad faith.

Answer 149

if conviction occurred within the previous 10 years

Answer 150

depends on child IQ, ability to differentiate between truth and falsehood, and understanding of the important of telling the truth. child must have personal knowledge of a matter to testify about it

Answer 151

may testify as to whether a document is in that person's handwriting. However, the lay witness may not have become familiar with the handwriting for the purpose of the current litigation

Answer 152

evidence inadmissible if undertaken AFTER incident. evidence admissible if undertaken BEFORE incident

Answer 153

evidence generated by machine or animal does not implicate this rule

Answer 154

NOT a hearsay exception

Answer 155

allowed so long as: 1) imposed uniformly in every state where the taxed goods are found AND 2) reasonably related to revenue raising on its face

Answer 156

used to strike potential jurors without reason or explanation, unless they are used to exclude based solely on race, ethnicity, or sex

Answer 157

prohibits state and federal Govs from abridging the right to vote- by direct limitation or diluting voting power on the basis of race color, or previous condition of servitude

Answer 158

divests an estate held by another grantee such that it shifts from one grantee to another

Answer 159

divests an estate held by a grantor such that the estate springs from the grantor to the executory interest holder

Answer 160

(libel - written) (slander- spoken) requires proof of the following: 1) D knowingly made a false statement about the P or negligently failed to determine falsity 2) statement was defamatory, the type that would tend the harm the P's reputation 3) D intentionally or negligently communicated it to third party 4) statement caused P to suffer special damages or amounted to slander per se (where special harm not required bc serious bad statement)

Answer 161

statutory crime when a person: -receivers control of stolen personal property -knows that the property was stolen (via larceny embezzlement false pretenses) -specifically intends to permanently deprive owner of the property

Answer 162

may be retracted if nonrepudiation party is notified of the retraction before 1) canceling contract, 2) materially changing position in reliance on the repudiation, or 3) indicating that he/she considers the repudiation to be final

Answer 163

when: 1) the constitution reserves the issue to another branch of government and/or 2) the court lacks judicial discoverable and manageable standards to resolve the issue

Answer 164

sole power to impeach and remove federal judges, President, VP, officers (US AG)

Answer 165

never a defense to attempted crime. because attempted requires specific intent to commit a crime, performed an act in further, but did not complete it. this is true even when unknown condition makes it factually impossible to complete intended crime.

Answer 166

property used in lawful manner before a zoning law was enacted or amended and the use continues even though it is now prohibited. it may continue until 1) owner enlarges, changes, or abandons that use or 2) if provided in the zoning law, an amortization period has passed or the use has not been registered

Answer 167

three peremptory for any reason except race/ethnicity/ gender unlimited for cause (bias or impartiality = relationship w party or financial stake in party)

Answer 168

sanctions appropriate if party failed to preserve ESI that: 1)should've been preserved in anticipation or conduct of litigation 2) is lost bc the party failed to take reasonable steps to preserve it 3) cannot be replaced or restored w additional discovery if intentionally, court may: - presume lost ESI was unfavorable to party that failed to save it -instruct jury that it may or must presume ESI was unfavorable to party or -dismiss action or enter default judgment against that party

Answer 169

available due to mutual mistake if 1) mistake relates to a basic assumption of K, 2) mistake materially affects the agreed upon exchange of performances, and 3) adversely affected party did not assume the risk of the mistake

Answer 170

1) in writing 2) intent to run w land to successors in interest 3) touches and concerns the land- relates to land 4) horizontal privity- promising parties transferred and conveyed simultaneously 5) vertical privity- successor of both 6) notice title by adverse possession cannot enforce covenant

Answer 171

need proper foundation for admitting. must establish: -originals were voluminous -originals would be admissible -originals or copies made available to all parties to examine and -summary is fair and accurate

Answer 172

not recognized by fed law, but by state so relevant in diversity situations. inapplicable where: -patient physical condition in issue -communication was part of commission of crime or tort -dispute exists between patient doc -patient contractually waived

Answer 173

if allegedly 1) suffered injury in fact 2) caused by D's challenged conduct and 3) redressable by favorable judicial decision

Answer 174

if not delivered during grantor's lifetime then it is void and conveys no interest. grantor right to recover = no delivery bc no present intent to transfer

Answer 175

privileged when D reasonably believes 1) statement affects important interest of third party and 2) communication socially acceptable. privilege lost if D knows statement is false or recklessly disregards possibility (substantial doubts about truth)

Answer 176

occurs when D -has specific intent to commit crime -performs act in furtherance of it but -does not complete it

Answer 177

not applied to grand jury proceedings

Answer 178

guarantees press and public the right to attend every stage of criminal trial. but not absolute and court can order proceedings closed if satisfies strict scrutiny aka show that closure is the least restrictive means to serve compelling government interest

Answer 179

MY LEGS marriage, year (cannot be completed in a year) Land, Executor, Goods, Suretyship. Lease and easements less than a year do not fall under

Answer 180

that is not false or misleading or concerns unlawful activity receives 1A protection. And any government regulation of that must 1) directly advance a substantial government interest and 2) be narrowly tailored to achieve that interest

Answer 181

fed constitution is the floor

Answer 182

single P may aggregate but costs and interest are excluded from calculation

Answer 183

fed court original JX over action in which minimal diversity if meets requirements

Answer 184

requires proof of at least two guilty minds (plurality of agreement) so the D cannot be convicted of conspiring with persons who feigned agreement

Answer 185

never allowed in civil case to attack witness character for truthfulness

Answer 186

testimony by public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist, so long as the public office regularly kept records for a matter of that kind

Answer 187

does not apply to testimony about failed efforts to find public record, because no record is being introduced into evidence

Answer 188

by intrinsic evidence (elicited from witness sought to be discredited) and extrinsic (from any other source than witness testimony)

Answer 189

only client can waive by: -voluntarily disclosing to third party -voluntarily giving it up (contractually) -failing to timely claim privilege -failing to object to another's disclosure of confidential communications not waived by: death termination of attorney client relationship

Answer 190

person's habit or organization routine practice evidence admissible to prove that person/org acted in accordance with habit/practice on a particular occasion. habit = routine reaction to specific set of circumstances that is semiautomatic in nature and is considered highly probative of the person's conduct on a particular occasion

Answer 191

an arrest alone does not qualify as a bad act that is admissible to attack a witness's character for truthfulness

Answer 192

an expert opinion based upon otherwise inadmissible facts or data is admissible if experts in that particular field would reasonably rely on the facts or data in forming an opinion on the subject

Answer 193

once as a matter of course within 21 days: after serving answer, if no responsive pleading OR if responsive pleading required, after being served with responsive pleading or motion, whichever comes first

Answer 194

can be on any claim or defense

Answer 195

A defendant can move for an involuntary dismissal if the plaintiff failed to prosecute the case or comply with a rule or court order. If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.

Answer 196

complaint, answer, third party complaint, reply

Answer 197

Federal Rule of Civil Procedure 7(a) lists the pleadings allowed in federal court. The two most common pleadings are the plaintiff's complaint against the defendant and the defendant's answer in response to that complaint. A plaintiff need only respond to the defendant's answer by filing a reply in the rare instance that the court orders the plaintiff to do so. If the court orders a reply, the plaintiff may be ordered to respond to any allegation in the answer—including an affirmative defense (e.g., novation). Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff. But when a reply is not required (as seen here), then the plaintiff is deemed to deny any allegation in the defendant's answer

Answer 198

When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. However, if this express determination is not made, any court order that disposes of those claims or parties is not immediately appealable.

Answer 199

Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant's dwelling with a resident of suitable age and discretion.

Answer 200

An appellate court has discretion to permit an appeal from an order granting or denying class action certification if the petition for such an appeal is filed with the clerk of the appellate court within 14 days after the order is entered.

Answer 201

The final-judgment rule generally precludes federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. But the interlocutory appeals statute (28 U.S.C. § 1292) provides exceptions to this rule that allow certain equitable orders to be immediately appealed as a matter of right. These include: orders granting, modifying, refusing, or dissolving injunctions orders appointing or refusing to appoint receivers and decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Answer 202

A federal court sitting in diversity must apply state law to substantive issues and federal law to procedural issues. When it is unclear whether an issue before the court is substantive or procedural, the court must determine if there is a conflict between state and federal law with respect to the issue.

Answer 203

Under the permissive joinder rule (FRCP 20), multiple persons may be joined as plaintiffs or defendants in the same suit if: the claims asserted by or against the joined parties arise out of the same transaction, occurrence, or series of transactions or occurrences and the action will involve a common question of law or fact among all joined parties.

Answer 204

Under this analysis, the issue will be considered substantive and state law will therefore apply if it is outcome determinative AND there is no countervailing federal interest. State law is outcome determinative if the failure to apply state law would result in either: forum-shopping – litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court or inequitable administration of the laws – the application of substantially different rules in federal and state court would cause unfair outcomes.

Answer 205

A party may only appeal, absent limited exceptions, after the district court has entered a final judgment. However, when an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines (i.e., certifies) that there is no just reason for delay. A party may then appeal that judgment if the notice of appeal is filed with the district court clerk within 30 days after entry of that judgment.* *The time to file the notice of appeal is extended to 60 days if one of the parties is the United States, a federal agency, or a federal officer or employee sued in an official capacity (see image above).

Answer 206

When a federal court's subject-matter jurisdiction is based on diversity (as seen here), the court must apply state law to substantive issues and federal law to procedural issues. When it is unclear whether an issue is substantive or procedural—e.g., penalizing a party for losing an appeal—the court must determine if there is a conflict between state and federal law. If a conflict exists, then the federal-rule analysis provides that a valid federal rule that directly addresses the issue applies if the rule: is arguably procedural and does not abridge, modify, or enlarge a substantive right.

Answer 207

Issue preclusion (i.e., collateral estoppel) bars the relitigation of issues that were actually litigated, determined, and essential to a valid final judgment—e.g., when the court grants summary judgment (Choice B). There are two types of issue preclusion: Mutual – when issue preclusion in the second action is asserted by parties to the first action against other parties to the first action Nonmutual – when issue preclusion in the second action is asserted by nonparties to the first action against parties to the first action Both types of issue preclusion can be asserted against parties to the first action or their privies, absent limited exceptions (not seen here). However, they cannot be asserted against a nonparty to the first action because it would deprive that party of the opportunity to fully and fairly litigate his/her claims and defenses.

Answer 208

A juror must participate in the verdict unless excused by the court for good cause during trial or after jury deliberations have begun. Good cause exists when the juror has an illness or family emergency or has committed juror misconduct that might cause a mistrial. improper for judge to excuse without good cause

Answer 209

A court can impose sanctions, including an order to pay the opposing party's attorney's fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b)—shown above (Choice D). Sanction proceedings can be initiated in two ways: by a party's motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or on the court's own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violator.

Answer 210

Third-party practice (i.e., impleader) allows a defendant to add a nonparty who may be liable to the defendant for all or part of the plaintiff's claim. However, the court must have original subject-matter jurisdiction or supplemental jurisdiction over the third-party claim.

Answer 211

A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.

Answer 212

An amended complaint will "relate back" to the date of the original complaint if (1) the same occurrence is at issue, (2) the new party received notice of the suit within 90 days after the original complaint was filed, and (3) the new party knew or should have known that it would have been sued but for a mistake about its identity.

Answer 213

If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal only when ordered by the district court or the appellate court.

Answer 214

real or physical evidence not subject to it

Answer 215

Posttrial juror testimony is admissible if it concerns (1) extraneous prejudicial information brought to the jury's attention, (2) an outside influence improperly brought to bear on a juror, or (3) a mistake made in entering the verdict onto the verdict form.

Answer 216

The hearsay exception for recorded recollections allows a record to be read into evidence if it: concerns a matter that a witness once knew but cannot recall at trial was made or adopted by the witness when the matter was fresh in his/her mind and accurately reflects the witness's personal knowledge at the time it was made. However, the record may be received as an exhibit only if it is offered by an adverse party (here, the defense). Therefore, the court should not admit the witness's statement offered by the prosecutor.

Answer 217

A defendant's statements during plea negotiations are generally inadmissible against the defendant. However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.

Answer 218

A witness's character for truthfulness can be attacked with a specific instance of conduct (SIC) involving a criminal conviction for a felony or crime of dishonesty—regardless of whether the SIC is introduced intrinsically or extrinsically. However, a SIC involving a mere bad act can only be introduced intrinsically.

Answer 219

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to (1) have the writing produced for inspection, (2) cross-examine the witness about the writing, and (3) introduce into evidence any portion of the writing that relates to the witness's testimony.

Answer 220

The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. Any hearing on these matters must be conducted outside the jury's presence if (1) the matter involves the admissibility of a confession, (2) a defendant in a criminal case is a witness and so requests, or (3) justice so requires.

Answer 221

Tangible evidence must be authenticated before it can be admitted at trial. This requires a prima facie showing that the object is what the proponent claims it to be. A photograph is authenticated by having a witness with personal knowledge—i.e., knowledge based on firsthand observation or experience—of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Answer 222

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein and is generally inadmissible. But statements of the declarant's then-existing state of mind—e.g., statements of motive, present intent, or plan—are excepted from hearsay. This is true regardless of whether the declarant is available as a witness (Choice A). And since these statements are excepted from hearsay, they can be used as substantive evidence to prove that the declarant later acted in conformity with that state of mind.

Answer 223

All tangible evidence must be authenticated before it can be admitted at trial. This requires a prima facie showing that the object is what the proponent claims it to be. For example, a simple photograph is authenticated by having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing. But when the evidence sought to be admitted is a physical representation of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image (as seen here)—authentication requires proof that: the process for creating the evidence was accurate the machine that produced the evidence was working properly and the operator of the machine was qualified to operate it.

Answer 224

When the relevance of evidence depends on whether a fact exists, proof must be introduced to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that such proof be introduced later (Choice B). And in determining whether sufficient proof has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence.

Answer 225

Although the jury ultimately determines the weight and credibility of evidence, the judge must first determine whether that evidence can be presented to the jury (i.e., admitted) under the Federal Rules of Evidence (FREs) (Choices C & D). Under FRE 801, an out-of-court statement is attributable to a party—and is therefore admissible nonhearsay—if the statement: was made by the party's coconspirator during and in furtherance of the conspiracy. When determining if these preliminary facts are met, the court is not bound by the FREs (except with respect to privileges). Therefore, the court may consider any relevant evidence tending to establish the facts—even evidence that is otherwise inadmissible.

Answer 226

Federal Rule of Evidence 201 allows a court to take judicial notice—on its own initiative or upon a party's request—of any adjudicative fact that is not subject to reasonable dispute because it: is generally known within the territorial jurisdiction of the trial court or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. In a civil case, the court must instruct the jury that it is required to accept the noticed fact as conclusive. But in a criminal case, the court should instruct the jury that it may accept the noticed fact as conclusive. Upon a party's timely request, the judge must give that party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. However, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact.

Answer 227

Public policy encourages the settlement of disputes. As a result, FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to: prove or disprove the validity or amount of a disputed claim or impeach by a prior inconsistent statement or contradiction. This is true even when the party seeking to introduce such evidence was not a party to the agreement.

Answer 228

at time of conduct, as a result of mental disease/defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform to the law

Answer 229

unlawful killing of another w malice aforethought

Answer 230

actual- but for proximate- foreseeable as result of conduct

Answer 231

CL- never a defense fed/majority- only after the agreement but before overt act by 1) communicating notice of intent to not participate to other co conspirators or 2) informing police about agreement MPC/minority- only by acting voluntarily to twart

Answer 232

Felony murder is an unintended killing proximately caused by and that occurs during the commission or attempted commission of an inherently dangerous felony (e.g., robbery). The underlying felony, as the lesser included offense, typically merges into the felony-murder charge.

Answer 233

A defendant is guilty of attempt if he/she (1) had the specific intent to commit a crime and (2) took a substantial step toward the commission of that crime. The crime of attempt is complete once the defendant takes the substantial step, so there can be no abandonment or withdrawal after that step is taken. factual impossibly is never a defense

Answer 234

A defendant has standing to challenge a Fourth Amendment search if he/she had a legitimate expectation of privacy (or an ownership/possessory interest) in the area or item searched at the time of the search. Therefore, a defendant cannot challenge an unlawful search of a home that was conducted after the defendant moved out.

Answer 235

The Sixth Amendment right to counsel attaches to offenses that have been formally charged (e.g., by indictment). In Texas v. Cobb, the U.S. Supreme Court held that this right also encompasses offenses that—even if not formally charged—would be considered the same offense as a charged offense. Under the Blockburger test, offenses are not the same if each offense requires proof of an element that the other does not. The Sixth Amendment right to counsel automatically attaches once formal judicial proceedings have commenced (e.g., at an arraignment). Once the right has attached, it applies to all critical stages of the prosecution.

Answer 236

Criminal assault occurs when a defendant (1) attempts to commit a battery or (2) intentionally places another in reasonable apprehension of imminent harmful or offensive contact.

Answer 237

Since the common law follows the bilateral approach to conspiracy, a conviction requires proof of at least two guilty minds. For this reason, and because of the need for consistency in verdicts returned by a single jury,* a conspirator cannot be convicted if all other coconspirators are acquitted at the same trial.*

Answer 238

An initial aggressor can claim self-defense only if (1) the aggressor's use of nondeadly force was met with deadly force or (2) the aggressor, in good faith, completely withdrew from the altercation and communicated that fact to the victim.

Answer 239

A grand jury determines whether probable cause exists to formally charge a person with a crime and consists of citizens who reside in the judicial district where the grand jury sits. Inherent in the concept of a grand jury is that it is representative of the community. As a result, the Fourteenth Amendment equal protection clause prohibits racial discrimination in the selection of grand jurors. A defendant indicted by a grand jury that excluded members of a racial group may raise an equal protection challenge—even if the defendant is not a member of the excluded group. If the appellate court finds that there was deliberate discrimination in the selection of grand jurors, automatic reversal of the conviction is required

Answer 240

Critical stages" Post-indictment: lineups, in-person identifications, interrogations Arraignments, preliminary hearings, bail hearings, pretrial motions Plea negotiations & hearings Trial & sentencing Noncritical stages: Pre-charge lineups Photo-array identification Fingerprinting, handwriting & voice exemplars, blood samples Initial appearances, hearings to determine probable cause to detain defendant Discretionary appeals Post-conviction proceedings (eg, parole or probation hearing) The Sixth Amendment right to counsel: automatically attaches when formal judicial proceedings have commenced (e.g., indictment, preliminary hearing, arraignment) and guarantees that criminal defendants will have the assistance of counsel during all critical stages of prosecution—i.e., any event where the absence of counsel may prejudice the defendant's right to a fair trial.

Answer 241

(retrial permitted for same offense) No attachment: Jury was not impaneled & sworn or Judge did not begin to hear evidence Mistrial: Requested by defendant or Based on manifest necessity Appeal: Appellate court discovered trial error & remanded case New facts: Facts necessary for greater offense did not exist at first trial Guilty plea to lesser offense: Greater offense was charged at time of plea to lesser offense

Answer 242

The Fifth Amendment double jeopardy clause bars a second prosecution for the same offense once jeopardy has attached—e.g., when the jury is impaneled and sworn in. However, there is no bar to a second prosecution when a mistrial is declared: at the defendant's request or with the defendant's consent or due to manifest necessity—i.e., a situation rendering it impossible to continue the trial or reach a fair outcome. One example of manifest necessity is a hung jury—i.e., a jury that cannot reach a unanimous verdict after deliberation.

Answer 243

Felony murder is a killing that occurs during the commission or attempted commission of an inherently dangerous felony (e.g., burglary). An accomplice to the underlying felony may also be convicted of felony murder. But if the accomplice did not kill, attempt to kill, or intend to kill, then the death penalty cannot be imposed on the accomplice unless the accomplice: significantly participated in the commission of the underlying felony and acted with reckless indifference to human life.

Answer 244

Rights & privileges that may be invoked at grand jury proceedings Constitutional rights Privilege against self-incrimination (Fifth Amendment) Equal protection (Fifth/Fourteenth Amendment) Congressmen's privilege not to be questioned about legislative activities (speech or debate clause) Privileges Attorney-client privilege Spousal privilege Marital communications privilege Psychotherapist-patient privilege An indictment is a written statement by a grand jury that formally charges a person with a crime after a finding of probable cause. In determining whether to issue an indictment, the grand jury may subpoena witnesses to testify—including persons whom the grand jury has reason to believe committed the illegal act(s) being investigated. But since a grand jury only has the investigatory power to indict (not the judicial power to convict), witnesses do not enjoy the full complement of constitutional protections during grand jury proceedings. For example, a grand jury witness may consult with an attorney outside the grand jury room. But there is no constitutional right to have counsel inside the grand jury room—even when the witness is the target of the grand jury investigation (Choice C). There also is no constitutional right to present witnesses at a grand jury proceeding (Choice D). As a result, the court here should not dismiss the indictment because the witness was not denied any constitutional rights.

Answer 245

The Fifth Amendment protects suspects from compelled self-incrimination. To protect this privilege, police must give a suspect Miranda warnings before a custodial interrogation. A custodial interrogation occurs when a person is: in custody – placed under formal arrest or restrained in his/her freedom of movement to such a degree that a reasonable person would not feel free to terminate the encounter and subjected to interrogation – questions, words, or actions directed at a suspect that an officer knows or should know are likely to elicit an incriminating response. If police fail to issue Miranda warnings when they are required, any statements made by the suspect during the custodial interrogation cannot be used against the suspect at trial. However, in Illinois v. Perkins, the U.S. Supreme Court held that Miranda warnings are not required when a suspect does not know that the interrogator is a police officer.

Answer 246

mental disease or defect- did not know nature of quality of the act OR the wrongfulness of the act

Answer 247

Accomplice liability is imposed when a person provides even slight aid or encouragement to the principal with the specific intent that the encouraged crime be completed—even when that assistance is not ultimately necessary to complete the crime.

Answer 248

False pretenses occurs if a person knowingly misrepresented a past or present material fact with the specific intent to defraud and thereby obtained title to another's property. In contrast, forgery is the making of a false writing of apparent legal significance with the specific intent to defraud.

Answer 249

When a statute does not specify the requisite mental state, the minimum required mental state according to the MPC is recklessness—i.e., the conscious disregard of a substantial and unjustified risk that: the material element exists or the material element will result from the defendant's conduct.

Answer 250

whether D understood nature of proceedings and whether the D knows how to assist lawyer. if lacking then incompetent at the time of trial

Answer 251

Due process requires the suppression of unreliable testimony identifying the defendant as the perpetrator of the charged crime since it may inhibit the defendant's right to a fair trial. In-court identification testimony may be unreliable if it stems from unnecessarily suggestive out-of-court identification procedures arranged by police. Therefore, such in-court identification testimony is admissible only if the prosecution demonstrates that it is sufficiently reliable—i.e., poses no substantial likelihood of misidentification.

Answer 252

School officials need only have a reasonable suspicion that a student is violating (or has violated) the law or school rules to search that student. Then, the search methods must be (1) reasonably related to the objective of the search and (2) not excessively intrusive considering the student's age, sex, and the nature of the infraction.

Answer 253

The Fourth Amendment prohibits unreasonable searches and seizures. A search or seizure is unreasonable unless conducted pursuant to a warrant based on probable cause (not seen here) or an exception to the warrant requirement. The automobile exception allows officers to conduct a warrantless search of a vehicle if: there is probable cause to believe that the vehicle contains evidence of a crime and the search is limited to areas where the evidence might be located. During an automobile search, police can search any containers inside the vehicle—including locked containers—that might contain the evidence. But probable cause to believe that a vehicle contains evidence of a crime does not justify a warrantless search of a person who is, or had been, a passenger in the vehicle. Police must have probable cause to believe that evidence is on the passenger before searching the passenger.

Answer 254

The Fifth Amendment double jeopardy clause generally prohibits a second prosecution after a prior conviction for the same offense. Offenses are considered the same for double jeopardy purposes if one is a lesser included offense of the other. That is because every element of the lesser offense is included in the greater offense. Therefore, when a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless: an event necessary to establish the greater offense occurred after the plea was entered or the greater offense was charged before the plea was entered.

Answer 255

Due process requires that the government prove every element of a criminal offense beyond a reasonable doubt. Therefore, when the defendant asserts a defense (e.g., alibi) that negates an element of the crime, the burden of proof must remain on the prosecution to prove that element. In other words, the burden may not be shifted to the defendant to disprove the element (Choices A & C). To be proper, a jury instruction must reflect this constitutional requirement.

Answer 256

Rights & privileges that may be invoked at grand jury proceedings Constitutional rights Privilege against self-incrimination (Fifth Amendment) Equal protection (Fifth/Fourteenth Amendment) Congressmen's privilege not to be questioned about legislative activities (speech or debate clause) Privileges Attorney-client privilege Spousal privilege Marital communications privilege Psychotherapist-patient privilege A grand jury's function is to determine whether probable cause exists to issue an indictment against an individual. Grand jury proceedings are investigatory—not adversarial. As a result, a target of a grand jury investigation has no constitutional right to confront witnesses or present evidence (Choices C & D). Therefore, the court should not dismiss the defendant's indictment on the grounds that he was denied the opportunity to confront the neighbor, present a witness, and testify before the grand jury.

Answer 257

The Sixth Amendment guarantees a criminal defendant the right to be tried by an impartial jury—i.e., a jury pool selected from a fair cross section of the community and an unbiased impaneled jury. Therefore, a potential juror whose views would substantially impair his/her ability to impartially decide the case can be challenged for cause.

Answer 258

Under the exclusionary rule, an unlawful arrest generally requires suppression of evidence obtained as a result of that arrest. However, an incriminating statement made after an unlawful arrest is admissible if the connection between the arrest and the statement is so attenuated that the statement is considered voluntary. To make this determination, the court will examine the totality of the circumstances, including: the length of time between the arrest and the statement the flagrancy of the police misconduct and the existence of intervening events between the arrest and the statement. Miranda warnings are not, by themselves, a sufficient intervening event to break the connection between an illegal arrest and a subsequent statement. And a statement that is too closely connected to an unlawful arrest should be suppressed.

Answer 259

A checkpoint to gather information about a specific crime is reasonable if (1) the primary purpose is to apprehend individuals other than the motorists, (2) the stop significantly advances a public concern, and (3) the checkpoint is tailored to fit important criminal investigatory needs and minimally interfere with Fourth Amendment rights.

Answer 260

The taking of handwriting exemplars does not violate the Fourth Amendment (no reasonable expectation of privacy), the Fifth Amendment (no protection for physical evidence), or the Sixth Amendment (not a critical stage of prosecution).

Answer 261

the erroneous denial of a defendant's choice of counsel (as seen here) constitutes structural error—i.e., an error that affects the entire framework of a criminal trial, rendering it fundamentally unfair. Structural errors are not subject to review for harmlessness and require automatic reversal of the defendant's conviction

Answer 262

Ex post facto clauses (applies to federal (art. 1, § 9) & state (art. 1, § 10) governments) Prohibit enactment of retroactive criminal laws that: criminalize previously legal conduct impose greater punishment than previously prescribed eliminate previously available defenses decrease prosecution's previous burden of proof The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws). As a result, this clause generally does not apply to civil laws because their purpose is nonpunitive. However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose. Courts weigh several factors to determine whether the punitive effect of a retroactive civil law clearly overrides its nonpunitive purpose. These include whether the law: imposes an affirmative disability or restraint (e.g., imprisonment) (not seen here) has historically been regarded as punishment (e.g., public shaming) promotes the traditional aims of punishment (e.g., retribution) is rationally related to its nonpunitive purpose* most important factor

Answer 263

Discriminatory laws can be challenged under the equal protection clause and are generally subject to rational basis review, which requires that a law be rationally related to a legitimate government objective. But heightened scrutiny is used when a law substantially impacts a fundamental right or intentionally discriminates against a suspect or quasi-suspect class. A law can intentionally discriminate: on its face – the language of the law distinguishes between different classes (intent presumed) in its application – a facially neutral law is purposefully applied differently to different classes or in its motive – an otherwise neutral law was enacted to disproportionately impact a protected class.

Answer 264

Under Article I of the Constitution, Congress has plenary (i.e., exclusive) authority over immigration and naturalization, so federal laws based on U.S. citizenship are presumptively constitutional. To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.

Answer 265

Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless the court clearly lacked subject-matter jurisdiction at the time the action was taken. This ensures that judges are free to issue decisions during judicial proceedings without fear that they will later be personally liable for them.

Answer 266

The First Amendment freedom of the press generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance. A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny. This requires the government to prove that its action was the least restrictive means (i.e., narrowly tailored) to achieve a compelling government interest. Here, the trial court issued a gag order that prohibited the press from reporting about court proceedings, which abridged the freedom of the press. The court likely had a compelling interest in preventing the release of sensitive information that might impair ongoing undercover investigations, but it had less restrictive means available to achieve this interest—e.g., postponing the trial. Therefore, the appellate court should overturn the gag order because it cannot survive strict scrutiny and is likely unconstitutional (Choices B & D). Additionally, the First Amendment generally guarantees the press and the public the right to attend every stage of a criminal trial. However, this right is not absolute, and a court can order that trial proceedings be closed if the court's findings on the record demonstrate that the closure withstands strict scrutiny. Here, the court prohibited the public from attending the trial to protect the identities of witnesses, who feared violent repercussions if they testified. Although this promoted the compelling interest of protecting witness safety, less restrictive means were available to serve this interest—e.g., allowing witnesses to testify outside the presence of the public. Therefore, the appellate court should overturn the order for a closed trial because it cannot survive strict scrutiny and is likely unconstitutional

Answer 267

Government actions that treat similarly situated persons differently (i.e., discriminate) can be challenged under the Fourteenth Amendment equal protection clause. These challenges are typically subject to rational basis review. This standard of review presumes that the government's actions were constitutional. As a result, the challenger must show that the law has no rational relation to any legitimate government interest—i.e., that the law is arbitrary or invidiously discriminatory.

Answer 268

Congressional legislation must stem from Congress's enumerated powers. Under the militia clauses, Congress has the power to authorize the President to call state National Guard units into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions. This power extends to the use of state National Guard units in domestic situations and non-emergency circumstances.

Answer 269

The First Amendment protects against government interference with a person's right to associate with any group or organization. But since this right is not absolute, the government can punish (i.e., deny public employment to or criminally prosecute) persons who: are active members of a subversive organization know of the organization's illegal objectives and specifically intend to further those objectives.

Answer 270

The First Amendment free exercise clause prohibits government interference with a religious organization's right to shape its faith and mission. As a result, the ministerial exception protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.

Answer 271

first amendment freedoms, voting, interstate travel, Privacy (marriage/family, parental rights, sexual acts, contraceptives) Under the Fourteenth Amendment equal protection clause, a discriminatory law that substantially impacts the fundamental right to vote is only justified if it survives strict scrutiny. This occurs in the rare instance that the state proves that the law is necessary to achieve a compelling state interest. However, the U.S. Supreme Court has held that, under Section 2 of the Fourteenth Amendment, states may prohibit felons—even those unconditionally released from prison—from voting in elections. Therefore, the court will likely uphold the statute as constitutional.

Answer 272

Immunity: Suit brought by private party or foreign government Suit against state official violating state law Exceptions: State consents to suit Immunity removed by 13th, 14th, or 15th Amendment State official sued for injunctive or declaratory relief for alleged constitutional violation Damages to be paid by state officer personally (not state treasury) State official sued for prospective (not retroactive) damages to be paid by state treasury No immunity: Suit brought by United States or other state Suit against local government (eg, counties, municipalities) Bankruptcy proceedings

Answer 273

The Younger abstention doctrine requires that a federal court abstain from issuing a declaratory judgment or injunction if doing so would interfere with a pending state criminal, or particular civil, proceeding that (1) involves an important state interest and (2) provides an adequate opportunity to litigate federal issues.

Answer 274

Taxing & spending Interstate & foreign commerce War, armed forces, militia Coin & borrow money Immigration & naturalization Mail Copyright & patent laws Federal courts District of Columbia Bankruptcy Rules concerning captures

Answer 275

State laws that discriminate against individuals based on wealth (e.g., ability v. inability to pay a court fee) can be challenged under the Fourteenth Amendment equal protection clause. Since an individual's wealth is not a suspect class or quasi-suspect class, such laws are generally subject to rational basis scrutiny and upheld. However, courts will depart from this test and apply strict scrutiny when a state law prohibits the exercise of a fundamental right (e.g., the right to appeal) based on an individual's wealth.

Answer 276

The Fourteenth Amendment due process clause requires that the government provide an opportunity to be heard before a neutral decision-maker. A judge must therefore recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists.

Answer 277

The Supreme Court of the United States (SCOTUS) may use its discretionary appellate jurisdiction and grant a writ of certiorari to review final state-court judgments. But since SCOTUS may only review such judgments if they are based on federal law, it cannot review a judgment based on adequate and independent state grounds. This occurs when: state law fully resolves the matter, so the outcome of the case is not affected by federal law (adequate) and the state court did not rely on federal law to reach its decision (independent).

Answer 278

Article I of the Constitution grants states the power to draw state and federal legislative districts. However, when exercising this power, states must comply with other constitutional provisions. This includes the Fourteenth Amendment equal protection clause, which requires that race not be the predominant factor used to draw boundary lines for state or federal legislative districts. If it is, then the boundary lines will be subject to strict scrutiny review and likely deemed unconstitutional.

Answer 279

The export clause prohibits federal taxation of: exported goods, which are goods leaving the U.S. and shipped to foreign countries and services and activities closely related to the export process.

Answer 280

power over DC

Answer 281

In civil forfeiture actions, the government deprives an individual of his/her property interest by seizing property allegedly used in criminal activity. As a result, procedural due process generally requires that the government provide reasonable notice of the seizure and a meaningful opportunity to be heard before a neutral decision-maker. However, personal property may be seized prior to providing notice and a hearing when: the seizure serves a significant government interest that interest would be frustrated by advance notice of the seizure and the seizure is performed by the government.

Answer 282

A Fifth Amendment taking occurs when the government destroys private property or property rights—including possessory and nonpossessory interests in land (e.g., easements, liens). And under the Fifth Amendment, a taking must be for a public use (e.g., fighting forest fires), and the government must justly compensate the owner for the property's fair market value.

Answer 283

First Amendment freedoms Expression-Right to communicate information & ideas through speech or conduct Association-Right to form or participate in any group or organization Press-Right to publish truthful information Religion: -Free exercise – right to practice religion or no religion without government interference Establishment – prohibits government from favoring particular religion or religion generally The First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts (e.g., crime victim's identity) and other truthful information involving matters of public concern (i.e., newsworthy events). This amendment also shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if: the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did.

Answer 284

Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle to guide the agency—i.e., a clear statement defining (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency's authority.

Answer 285

(Article I, section 8 spending clause) Conditions must meet all the following criteria: clearly stated & unambiguous reasonably related to federal interest in funded program do not require states to engage in unconstitutional activity do not unduly coerce states into accepting The spending clause gives Congress broad power to spend for the general welfare (i.e., for any public purpose) (Choice B). Congress may use its spending power to incentivize state or local governments to act in certain ways by placing conditions on their receipt of federal funds. But those conditions are binding only if they are clearly stated and unambiguous so that potential recipients may make an informed decision.

Answer 286

Under the supremacy clause, the federal government is immune (i.e., exempt) from any direct taxation by the states—including taxes on its commercial activities. As a result, states may not impose taxes on the federal government, or any of its agencies or instrumentalities, without the express consent of Congress.

Answer 287

The Twenty-first Amendment grants states broad authority to regulate alcohol within their borders. This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

Answer 288

Substantive due process principles are based upon the idea that laws should be reasonable and not arbitrary.* As a result, states cannot deprive individuals of life, liberty, or property without adequate justification. The required level of justification depends on whether the law deprives the individual of: an ordinary right – under the rational basis test, the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest or a fundamental right – under the strict scrutiny test, the law is presumed invalid until the government shows that the law is necessary to achieve a compelling government interest.

Answer 289

The Article I, section 4 elections clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites). But the clause also grants Congress the power to override those state laws by supplanting them with federal law.

Answer 290

State-election restrictions Restriction Examples Test Ordinary (nondiscriminatory) Voter registration Photo-ID requirement Disallowing write-in voting Rational basis: challenger must show restriction lacks rational relationship to legitimate state interest Severe (discriminatory) Poll tax Disallowing third-party candidacies Property-ownership requirement Strict scrutiny: state must show restriction is necessary to achieve compelling state interest States may regulate their own elections by requiring voters and candidates to abide by certain requirements. But these regulations must comply with the First Amendment and the Fourteenth Amendment equal protection clause, which together secure an individual's right to vote and freely associate—e.g., the right to access the ballot. If an electoral regulation is challenged under either constitutional provision, the standard for evaluating that regulation depends on the severity of the burden imposed. A court will apply either: rational basis review – applies to reasonable, nondiscriminatory burdens and requires the challenger to prove that the regulation is not rationally related to a legitimate state interest or strict scrutiny – applies to severe or discriminatory burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest.

Answer 291

(Art. II, § 2 appointments clause) Type Examples Appointment Principal Ambassador Supreme Court justice Cabinet official Appointed by President (with Senate approval) Inferior Independent counsel Judicial clerk Administrative law judge Appointed by President (with Senate approval) unless Congress delegates appointment to: President alone federal courts or heads of executive departments The Article II appointments clause grants the President the power to appoint principal federal officers with the Senate's advice and consent (i.e., approval). But Senate approval is not required for the President's appointment of inferior federal officers—i.e., federal officers who are supervised by principal federal officers. That is because Congress may delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.

Answer 292

The Fourteenth Amendment due process clause generally prohibits states from enacting laws that substantially impair parents' right to control their children's upbringing and education. However, this right is not absolute, so states may impose reasonable educational standards on schools without violating the due process clause.

Answer 293

The commerce clause grants Congress broad power to regulate interstate commerce—including activities (even in-state activities) that substantially affect interstate commerce. When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether: the activities are economic in nature (if so, a substantial effect is presumed) the regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate commerce there are express congressional findings concerning the activities' effect on interstate commerce and there is a strong link between the regulated activities and that effect.

Answer 294

Once Congress delegates power to an executive agency, it cannot interfere with the agency's functions without satisfying the legislative-action process—i.e., bicameralism and presentment. Any attempt to bypass this process is an unconstitutional legislative veto.

Answer 295

The Article I commerce clause empowers Congress to regulate interstate commerce. It also carries a negative implication (i.e., the dormant commerce clause), which prohibits states from (1) discriminating against out-of-state commerce or (2) otherwise unduly burdening interstate commerce. A discriminatory state law—i.e., one that favors in-state over out-of-state interests—will be deemed unconstitutional unless the state proves that: the law furthers an important or legitimate noneconomic state interest (e.g., health, safety) and there is no reasonable, nondiscriminatory alternative to achieve that interest. The dormant commerce clause generally prohibits states from discriminating against or unduly burdening interstate commerce. But states can do so when Congress has explicitly authorized that conduct.

Answer 296

Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

Answer 297

A federal officer is someone who (1) holds a continuing public office and (2) has significant discretionary authority to administer or enforce laws (i.e., executive powers). All federal officers must be appointed by the President or in a manner otherwise consistent with the Article II appointments clause. Under this clause, Congress cannot appoint federal officers because Congress's participation in this executive function would violate the separation of powers doctrine.

Answer 298

The Second Amendment—applicable to states and municipalities through the Fourteenth Amendment due process clause*—generally prohibits government interference with an individual's right to possess and use firearms for a traditionally lawful purpose (e.g., self-defense in one's home). However, this right is not absolute (Choice A). SCOTUS has stated that certain government restrictions on firearms are permissible, including: banning unusually dangerous firearms (e.g., grenades) imposing conditions and qualifications on commercial sales of firearms forbidding the possession of firearms by felons and mentally ill individuals and prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.

Answer 299

The Article IV, section 3 property clause gives Congress complete power to dispose of and regulate federally owned land and territories. This clause includes the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands—e.g., by prohibiting the erection of structures that completely enclose federally owned land. Therefore, the court is likely to rule for the federal government.

Answer 300

proponent of notarized need not give advance notice to adverse party of intent to introduce doc

Answer 301

Overview of best evidence rule General rule Must produce original or reliable duplicate* to prove contents of document relied on by witness or whose contents are at issue Exceptions Original unavailable Other evidence can be used to prove content if: originals lost or destroyed (not by proponent's bad faith) originals not attainable by judicial process opponent had original, knew it was required & failed to produce or content not closely related to controlling issue Admission by party Contents can be proven by opposing party's testimony, deposition, or written statement Public record Contents of public record can be proven by: certified copy copy of records & comparison testimony or other evidence if above proof is not reasonably obtainable *Duplicates are admissible unless original's authenticity is questioned or it would be unfair to admit them.

Answer 302

NO SPECIFIC hearsay exception for civil judgments

Answer 303

A prior inconsistent statement is a past statement that is contrary to a witness's present testimony. Such statements may generally be used to impeach a witness by: examining the witness about the statement or introducing the statement through extrinsic evidence if (1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement or (2) justice so requires. However, a party generally may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter—i.e., a matter that is irrelevant to the outcome of the case. Instead, the party must accept the witness's testimony.

Answer 304

Evidence of a victim's other sexual behavior or sexual predisposition is generally inadmissible in a civil proceeding involving sexual misconduct. But such evidence may be admitted if the court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Answer 305

The authenticity of a handwritten document may be disputed by allowing (1) a lay witness with personal knowledge of the authentic handwriting (acquired outside of the current litigation) to give opinion testimony on the disputed handwriting or (2) an expert witness or the trier of fact to compare the authenticated and disputed handwriting.

Answer 306

Under the doctrine of curative admission, when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Answer 307

exceptions to hearsay: An excited utterance is a statement (1) relating to a startling event or condition and (2) made while the declarant was under the stress of excitement caused by that event or condition. A present sense impression is a statement (1) describing an event or condition and (2) made while or immediately after the declarant perceived it.

Answer 308

Under the rule against hearsay, an out-of-court statement is inadmissible when offered to prove the truth of the matter asserted therein unless a hearsay exclusion or exception applies. One exception applies to statements in a learned treatise, periodical, or pamphlet when: the statements are called to the attention of or relied on by an expert witness during examination and the publication is established as a reasonably reliable authority by a party's expert or judicial notice (Choice B). Such statements can be used as substantive evidence to help establish a material fact. However, a party may only have the particular statements read into evidence—the treatise itself cannot be received as an exhibit.

Answer 309

Under the rule against hearsay, an out-of-court statement offered to prove the truth of the matter asserted therein is inadmissible absent an exception or exclusion. One exception applies to existing public records, while another applies to the absence of public records. Under the latter exception, testimony by a public official that a diligent search failed to disclose a public record or statement is admissible to prove that: the record or statement does not exist or a matter did not occur, if a public office regularly kept a record for a matter of that kind. In a criminal case, the prosecution must provide the defense with written notice of its intent to offer such evidence at least 14 days before trial. The defendant then has seven days from receipt of notice to object in writing.

Answer 310

The best evidence rule requires that an original or reliable duplicate of a recording, writing, or photograph (referred to as "document") be produced to prove its content. However, a party may use other, secondary evidence (e.g., testimony) to prove a document's content if certain factual conditions are established (e.g., all originals are lost or destroyed). Whether a party has fulfilled the factual conditions for admitting secondary evidence is a determination for the court. But in a jury trial, the jury determines any issue about whether: an asserted document ever existed another document produced at a hearing or trial is the original or other evidence of content accurately reflects the content.

Answer 311

Under Federal Rule of Evidence 104, preliminary questions relating to the admissibility of evidence must be decided by the court. This includes questions regarding the admissibility of a confession in a criminal case. To decide these questions, the court may hold a hearing and receive testimony (as seen here). When a criminal defendant testifies at such a hearing, the defendant is subject to cross-examination about the specific issue addressed at the hearing—here, the voluntariness of the defendant's confession—and issues related to the defendant's credibility. This allows the court to fully assess the issues and properly rule on the admissibility of the evidence. However, the criminal defendant is not subject to cross-examination on other issues in the case. This allows the defendant to participate in the determination of preliminary questions—which often involve the defendant's constitutional rights—without being subjected to cross-examination generally.

Answer 312

Under FRE 404, a criminal defendant may offer evidence of his/her good character when that trait is pertinent to the charged crime. For example, evidence of a defendant's peacefulness is admissible when the defendant is charged with a violent crime. But truthfulness is not pertinent to violent crimes like murder, so evidence of this trait should not be admitted on this basis (Choice C). However, evidence of a criminal defendant's truthfulness also may be admissible if the defendant testifies at trial—even when that trait is not pertinent to the charged crime. FRE 608 allows the admission of reputation or opinion testimony to prove the witness's truthful character after it has been attacked. But here, there is no indication that the defendant's character for truthfulness had been attacked, so testimony regarding that character remains inadmissible.

Answer 313

The federal inadvertent-waiver rule applies to (1) communications covered by the attorney-client privilege and (2) materials protected under the attorney work-product doctrine. Under this rule, disclosure of a communication protected by the attorney-client privilege or material that qualifies as attorney work product does not operate as a waiver in a federal or state proceeding if: the disclosure was made in a federal proceeding or to a federal agency the disclosure was inadvertent the privilege holder had taken reasonable steps to prevent disclosure and the privilege holder promptly took reasonable steps to rectify the error. Materials qualify as attorney work product if they were prepared by or for an attorney in anticipation of litigation—as seen with the investigator's report.

Answer 314

Under Federal Rule of Evidence 411, evidence of liability insurance (or the lack thereof) is inadmissible to prove negligence or wrongdoing. This public-policy rule helps ensure that the jury will not infer fault based on the existence or lack of coverage and will not base its verdict on the defendant's or insurer's ability to pay. However, such evidence is admissible for other purposes, such as: impeaching a witness with evidence of self-interest, bias, or prejudice or proving agency, ownership, or control of the insured item.

Answer 315

Statements in a learned treatise, periodical, or pamphlet are excepted from the rule against hearsay when (1) the publication is established as a reliable authority by a party's expert or judicial notice and (2) the statements are called to the attention of or relied on by an expert witness during examination.

Answer 316

An out-of-court statement is not hearsay if offered for a purpose other than to prove the truth of the matter asserted—e.g., to show that a party had notice of a relevant fact or condition.

Answer 317

A document can be authenticated by establishing that it qualifies as a reply letter. To do so, the proponent must show that (1) the document was written in response to an earlier communication and (2) the contents make it unlikely that it was written by someone other than the recipient of the earlier communication.

Answer 318

The First Amendment right to free speech, applied to the states through the Fourteenth Amendment, does not extend to public employees speaking pursuant to their official duties. A public employee speaks pursuant to his/her official duties when that speech is made within the scope of the public employee's ordinary job duties (e.g., drafting an internal memorandum). But when a public employee's speech is made outside the scope of his/her ordinary job duties, the public employee is speaking as a private citizen—even if that speech concerns those job duties. When a public employee is speaking as a private citizen on a matter of public concern, the government can limit that speech only if its interest in efficient government function outweighs the employee's right to free speech. When a public employee is speaking pursuant to official duties, the government has great latitude to regulate that speech. But when the employee is speaking as a private citizen, the government can restrict that speech only if its interest in efficient government function outweighs the employee's right to free speech.

Answer 319

A defendant must receive notice of a lawsuit through service of process—i.e., delivery of the summons and complaint. Under FRCP 4, a plaintiff can properly serve any defendant (individual or organization) when someone who is at least 18 years old and not a party to the suit serves the defendant with a summons and complaint. When the defendant is an organization (e.g., a corporation), FRCP 4(h) permits service in the United States by either: following the service-of-process rules of the state where the court is located (i.e., forum state) or where service is made or delivering process to an officer, managing or general agent, or agent authorized by appointment or law to receive service AND, if required by statute, mailing process to the defendant.

Answer 320

within 90 days of plaintiff filing complaint

Answer 321

Due process requires counsel at a probation-revocation proceeding if the person (1) denies committing the alleged violation or (2) asserts that complex reasons justified or mitigated it. The Sixth Amendment guarantees this right if a sentence for the underlying offense (1) has not been imposed and (2) will be imposed if the probation is revoked.

Answer 322

Examples of collateral orders District court orders: denying state 11th Amendment immunity denying government official/employee immunity vacating attachment of vessel refusing to require security bond pursuant to state law remanding action to state court based on abstention The collateral-order doctrine allows an immediate appeal from an interlocutory order that (1) conclusively resolves an important issue that (2) is separate from the merits of the claim and (3) cannot be effectively reviewed on appeal from a final judgment—e.g., an order denying a claim of governmental immunity.

Answer 323

The Article IV property clause grants Congress complete power to dispose of and regulate federally owned property. As part of this property power, Congress may enact statutes regulating the use of buildings owned by the federal government—e.g., by converting uninhabited, federally owned buildings into post offices

Answer 324

Answers to interrogatories are nonhearsay party admissions. And when such an answer incorporates a document—e.g., by referring the interrogating party to the document—the contents of the document are considered adopted by the answering party. This means that the contents are nonhearsay if offered against the answering party. However, admission of the document itself must comply with other evidentiary rules.

Answer 325

A conspiracy conviction requires proof that the defendant had the specific intent to accomplish an unlawful purpose—even if the intended crime does not require specific intent (e.g., when the intended crime is a strict liability offense).

Answer 326

Diverse citizenship does not exist when a suit involves stateless persons—i.e., (1) noncitizens present in the U.S. but not citizens of a foreign country or (2) U.S. citizens domiciled in a foreign country.

Answer 327

Original jurisdiction is a court's power to hear and decide a case first—i.e., before any appellate review. Article III provides that the U.S. Supreme Court (SCOTUS) has original jurisdiction over (1) cases involving foreign ambassadors, public ministers, or consuls and (2) cases in which a state is a party. Congress may not expand or restrict SCOTUS's original jurisdiction, but Congress may determine the cases within SCOTUS's original jurisdiction that are exclusive to it. As a result, Congress has granted SCOTUS exclusive jurisdiction over controversies between two or more states, which occur when states seek redress for injuries directly caused by other states. However, Congress has denied SCOTUS exclusive jurisdiction over all other cases within its original jurisdiction by granting lower federal courts concurrent jurisdiction over: cases involving foreign ambassadors, public ministers, or consuls cases between the United States and a state and cases between a state and citizens of another state or noncitizens.

Answer 328

Inconsistent verdicts are those that are logically incompatible. For example, a jury that finds a defendant not guilty of one offense but guilty of another that was predicated upon commission of the first offense has rendered an inconsistent verdict. In such circumstances, the guilty verdict cannot be challenged based upon the inconsistency (Choice C). The rationale behind this rule is that the jury may have reached its decision to acquit through mistake, compromise, or leniency and that its decision should not be disturbed.* *While a challenge based solely on verdict inconsistency is not permitted, a criminal defendant may still challenge the conviction on the ground that the evidence was legally insufficient to convict.

Answer 329

Under the Redline doctrine (followed in most jurisdictions), a defendant is not guilty of felony murder when a cofelon dies at the hands of a victim or the police. However, this doctrine does not bar conviction for depraved-heart murder.

Answer 330

The First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts (e.g., crime victim's identity) and other truthful information involving matters of public concern (i.e., newsworthy events). This amendment also shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if: the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did.

Answer 331

Absent the parties' stipulation, a party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order by unilaterally filing a notice of dismissal (1) before a responsive pleading is served or (2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.

Answer 332

The Fourteenth Amendment due process and equal protection clauses protect the fundamental right to vote—including voting in local elections (e.g., city council elections) (Choice D). State or local laws that substantially impact the right to vote can be challenged under either clause and are usually subject to the strict scrutiny test. This difficult test requires the state to show that its law is the least restrictive means (i.e., necessary) to achieve a compelling state interest (Choice B). However, courts will depart from this test and apply rational basis scrutiny when a state or local law limits the right to vote in a governmental unit's election to its residents—i.e., those who reside within the governmental unit's borders. Since this test presumes that the law is constitutional, the challenger must prove that the law has no rational relation to any legitimate state interest.

Answer 333

A defendant is guilty of false pretenses if he/she: obtained title to (i.e., ownership of) another's property (e.g., cash) by knowingly misrepresenting a past or present material fact upon which the victim relied and did so with the specific intent to defraud. To prove reliance, the prosecution must establish that the defendant's misrepresentation was a significant factor in—or the cause of—the victim's decision to pass title to the property to the defendant.

Answer 334

A search warrant is presumptively valid if it (1) is issued by a neutral and detached magistrate based on probable cause, (2) is supported by a sworn oath or affidavit, and (3) particularly describes the place to be searched and items to be seized. However, a defendant may invalidate the warrant if the defendant can prove by a preponderance of the evidence that: the application contained a false statement necessary to the finding of probable cause and the officer submitting the application knew the statement was false or recklessly disregarded its falsity.

Answer 335

The necessary and proper clause allows Congress to take actions that are reasonably necessary to carry out its enumerated Article I powers. Article I, Section 8 enumerates the extremely broad war and defense powers that permit Congress to declare war and to provide for the national defense during wartime and peacetime—e.g.: by excluding civilians from sensitive or military areas by implementing a military draft and by imposing wage, price, and rent controls on the private civilian economy (as seen here). Therefore, the federal rent-control statute enacted during wartime is likely constitutional pursuant to the congressional war and defense powers.

Answer 336

A person subpoenaed to testify before a grand jury who has invoked the Fifth Amendment privilege against self-incrimination can be compelled to testify if he/she is granted use and derivative use immunity. This prevents the person's testimony, and any evidence derived from it, from being used against him/her in any way that could lead to a criminal prosecution. But the government may still prosecute the person using evidence obtained from independent sources (as seen here). However, in New Jersey v. Portash, the U.S. Supreme Court held that testimony given under a grant of immunity is coerced and therefore involuntary. And any criminal-trial use of such testimony outside the context of a perjury prosecution constitutes a denial of due process. As a result, it is not constitutionally proper for the prosecutor to impeach the mayor's testimony with a statement that he made before the grand jury.

Answer 337

A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the conviction's probative value outweighs its prejudicial effect.

Answer 338

Long-arm statutes specify when a court within the forum state can exercise specific personal jurisdiction over a nonresident defendant (e.g., manufacturer, holding company). Here, State A's long-arm statute authorizes jurisdiction over out-of-state defendants to the fullest extent that is constitutionally permissible (Choice A). However, due process only permits application of a long-arm statute when: the plaintiff's claim arises from or is closely related to the defendant's minimum contacts with the forum state and the exercise of jurisdiction complies with notions of fair play and substantial justice. Minimum contacts exist when the defendant purposefully avails itself of the state's protections and benefits so that it should reasonably foresee being sued there—e.g., by advertising and selling goods in the state. The minimum contacts of a subsidiary may be imputed to its parent corporation when the subsidiary is acting as the parent corporation's agent or alter ego. But in the absence of such evidence, each corporation is a separate legal entity.

Answer 339

A criminal offense that requires two parties cannot be the object of a conspiracy that consists of two parties.

Answer 340

general intent crime that includes not only intentional conduct but also criminal negligence

Answer 341

Eighth Amendment Excessive Bail Clause requires that, when bail is set, it cannot be excessive, i.e., set higher than an amount reasonably calculated to ensure the defendant’s presence at trial. Since the amount of the bail in this instance is reasonably calculated to ensure the defendant’s presence at trial, it does not violate this clause

Answer 342

A state (or the federal government) may place the burden of proving an affirmative defense, such as self-defense, on the defendant without violating the Due Process Clause. The preponderance of the evidence standard for judging whether the defendant has met this burden is also constitutional. The jury instructions, however, improperly prevent the jury from considering the defendant’s self-defense evidence, not as an affirmative defense, but as a defense to the elements of the crime that the prosecution must prove. Used in such a manner, this evidence need not satisfy the preponderance standard before being considered by the jury.

Answer 343

The primary remedy for Fourth Amendment violations is the “exclusionary rule,” which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. The remedy provided by the exclusionary rule generally applies only to criminal trials; it is not applicable to civil proceedings such as wrongful death actions.

Answer 344

A party may move for a new trial on the basis that the fact finder awarded an inadequate amount of damages. If a federal court rules that the amount was inadequate, it may order a new trial but may not impose an increase in the amount of damages (i.e., additur).

Answer 345

A court clerk must enter a default judgment when (1) the plaintiff's claim is for a sum certain or a sum that can be made certain by calculation, (2) the plaintiff's request for default judgment includes an affidavit establishing the amount due, (3) the defendant failed to appear, and (4) the defendant is not legally incompetent or a minor.

Answer 346

The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does not apply when a party asserts an equitable claim (i.e., a claim seeking a nonmonetary remedy).

Answer 347

Under the two-dismissal rule, a voluntary dismissal is with prejudice when the plaintiff (1) voluntarily dismissed an action in federal or state court without a court order and (2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.

Answer 348

Federal Rule of Civil Procedure (FRCP) 18 allows a party to join (i.e., add) as many claims as it has against an opposing party in a single lawsuit. But like all disputes in federal court, a suit involving multiple joined claims must satisfy subject-matter jurisdiction. This can be established through either: federal-question jurisdiction – when a claim arises under the U.S. Constitution, a federal treaty, or a federal law (not seen here) or diversity jurisdiction – when the opposing parties are citizens of different states and the amount in controversy exceeds $75,000. If subject-matter jurisdiction is based on diversity jurisdiction, then a party may aggregate (i.e., combine) all claims to be joined against a single opposing party to satisfy the amount-in-controversy requirement—even if those claims are unrelated

Answer 349

Official capacity (recovery from government) Special venue rules permit suit in district where: any Δ resides substantial portion of events occurred or property located π resides if no real property involved Individual capacity (recovery from officer/employee) General venue statute permits suit in district where: any Δ resides, if all Δs reside in same state substantial portion of events occurred or property located any Δ subject to personal jurisdiction if neither of above applies The general venue statute applies when a federal officer or employee is sued in his/her individual capacity. But special venue rules apply when a federal officer or employee is sued for acting in an official capacity or under color of legal authority.

Answer 350

When a federal court's subject-matter jurisdiction is based on diversity jurisdiction (as seen here), the court must apply federal law to procedural issues and state law to substantive issues. Certain issues are clearly substantive, including the statute of limitations, the applicable burden of proof, as well as the existence and elements of a claim or defense. Therefore, the district court must recognize the affirmative defense in the State B statute—not the federal act

Answer 351

A court should grant a motion for summary judgment when: there is no genuine dispute of material fact and the evidence is legally insufficient for a reasonable jury to find in the nonmovant's favor, so the movant is entitled to judgment as a matter of law. In ruling on this motion, the court must (1) construe all evidence in the light most favorable to the nonmovant and (2) resolve all doubts in favor of the nonmovant.

Answer 352

A violation of one of the provisions of Federal Rule of Civil Procedure (FRCP) 11(b) (shown above) can subject a law firm, attorney, or party to sanctions. Sanction proceedings can be initiated by the court sua sponte or by a party's motion. When sanction proceedings are initiated by a party's motion, the safe-harbor rule requires the party serving the motion to refrain from filing it for 21 days after serving it to allow any violation to be corrected (e.g., by dismissing a claim).

Answer 353

In a general verdict with special interrogatories, the jury decides which party should prevail and provides answers to questions on each factual issue. If the verdict and answers are inconsistent, the judge must (1) order a new trial, (2) direct the jury to further consider its answers and verdict, or (3) enter a judgment consistent with the answers.

Answer 354

Impleader allows a defendant to add a nonparty (i.e., third-party defendant) to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim. When this occurs, the plaintiff may assert his/her own claim against the third-party defendant only if that claim: arises out of the same transaction or occurrence that is the subject matter of the plaintiff's claim against the defendant in the original complaint and satisfies original subject-matter jurisdiction on its own (see image above). Here, the defendant properly impleaded the third party for indemnity (Choice C). The spouse then sought leave to amend her complaint to add a claim against the third party for negligence. Although the spouse's claim against the third party arises out of the decedent's death, the spouse and the third party are citizens of the same state (Choice D). Therefore, the court lacks diversity (and subject-matter) jurisdiction over the claim. However, when a claim falls outside a court's original jurisdiction, the court may exercise supplemental jurisdiction if the supplemental claim and the original claim share a common nucleus of operative facts (as seen here). But when the original claim is based on diversity jurisdiction, supplemental jurisdiction is barred if the supplemental claim: is made by (1) existing plaintiffs against parties added through joinder, intervention, or impleader or (2) persons seeking to join as plaintiffs through compulsory joinder or intervention and would violate the requirements of diversity jurisdiction (e.g., contaminate diversity of citizenship).

Answer 355

Forum non conveniens is a common-law doctrine that allows a court to dismiss an action—even if personal jurisdiction and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses, and that another more convenient venue is available. The appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is to seek dismissal through the doctrine of forum non conveniens. Therefore, this is the most likely remedy available to the court in this case.

Answer 356

In a case that is removed from state court, venue is proper in the federal district court in the district where the state action was pending. Since this action was removed from a state court in the Northern District of State A, venue is proper in the federal district court for the Northern District of State A.

Answer 357

In order for a defendant to be subject to the jurisdiction of a court, the defendant must have sufficient minimum contacts with the forum state. While a single contact can be sufficient if the cause of action is based on that contact, an out-of-state corporation is not subject to personal jurisdiction solely because of contacts in the state by an independent contractor. Contacts by a nonresident employer’s agents or employees, on the other hand, are generally imputed to the employer when the agent or employee is acting within the scope of the agency or employment. In this case, the truck driver was acting within the scope of his employment by transporting the equipment through State A when the accident occurred. However, if the corporation can establish that the truck driver was an independent contractor rather than an employee, then the court will not have general jurisdiction over the corporation due to the corporation’s lack of business dealings in State A and would not have specific jurisdiction over the corporation with respect to the accident.

Answer 358

Under Rule 37, if a party fails to make the automatic disclosures required by Rule 26(a) or fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. Generally, making a motion to compel is a prerequisite to obtaining any sanctions under Rule 37. In this case, the bicycle manufacturer failed to disclose the emails that it planned to use to support its defense. This information was subject to automatic disclosure under Rule 26(a). However, the bicyclist did not first serve a motion to compel on the bicycle manufacturer prior to seeking sanctions—a prerequisite to obtaining sanctions under Rule 37. Therefore, the court should not grant the bicyclist’s request. Initial disclosures under Rule 26(a)(1), such as the emails here, must be made at or within 14 days after the parties’ discovery conference, unless a different time is set by stipulation or court order. In this case, the facts indicate that the bicycle manufacturer still had not disclosed the emails 21 days after the discovery conference.

Answer 359

One of the requirements for the use of issue preclusion is that the party against whom it is to be asserted in the current lawsuit was a party (or one in privity with a party) to the prior lawsuit. In this case, because the passenger was not a party or in privity with a party to the prior lawsuit between the driver-owner and the truck driver, the truck driver may not successfully assert that the determination of his fault with regard to the accident in that lawsuit precludes the litigation of that issue in the current lawsuit.

Answer 360

Under Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.

Answer 361

In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence.

Answer 362

A remand order is generally not reviewable on appeal or otherwise (except for an order remanding a civil rights case removed pursuant to § 1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order). Thus, appeal of the remand order would be improper.

Answer 363

A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo. While an appellate court relies on the record created in trial court and does not entertain the admission of additional evidence, the appellate court reviews the evidence and law without deference to the trial court’s legal rulings.The abuse of discretion standard for appellate court review of a trial judge’s ruling is appropriate when the ruling is a matter over which the trial judge has discretion, such as whether evidence is admissible or sanctions should be imposed. A trial court’s findings of fact, including a master’s findings that have been adopted by the court, are subject to review under the “clearly erroneous” standard. A trial judge’s grant of a summary judgment motion constitutes a legal ruling, so the “clearly erroneous” standard does not apply. is incorrect. When a trial judge gives an erroneous jury instruction to which the adversely affected party failed to make a timely objection, the appellate court may nevertheless consider the matter if the mistake constitutes a plain error that affects the party’s substantial rights; however, this standard does not apply to a trial judge’s grant of a summary judgment motion.

Answer 364

Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a). Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation, (ii) depose a witness a second time, or (iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).

Answer 365

When state law creates a cause of action, a federal court can nonetheless exercise general federal-question jurisdiction if the complaint raises a real and substantial issue of federal law, and the outcome necessarily depends on resolving this federal issue. Here the plaintiff’s complaint raises a genuine and substantial federal law issue (the constitutionality of the federal commercial paper), which must be resolved to decide her request for an injunction.

Answer 366

A court, upon motion or upon its own initiative, may order a pleading containing an insufficient defense to be stricken. Here, since the cause of action arose three years ago when the goods were delivered, the seller’s affirmative statute of limitations defense is insufficient as a matter of law.

Answer 367

Under Rule 14(a)(1), a defendant alleging that a third person is liable to him for all or part of the plaintiff’s claim against him may implead such a person as a third-party defendant. Such joinder is permissive, not required.

Answer 368

If a motion for summary judgment is properly made and supported, then an opposing party may not rely merely on allegations or denials in her own pleading, but she must either set out specific facts showing a genuine dispute for trial or show by affidavit or declaration that, for specified reasons, she cannot present facts essential to oppose the motion. If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party. In this case, the shopper properly made a motion for summary judgment and supported it with three affidavits, fully supporting the shopper's version of the event. As such, the shopper has met the burden of persuasion. The grocery store, however, did not submit any affidavits or other evidence demonstrating a genuine issue of fact for trial. The grocery store also failed to assert that, due to an insufficient opportunity to obtain discovery, she could not present evidence that would demonstrate a genuine issue of fact. Rather, the store relied merely on the general denial in the answer. Because the shopper met the burden of persuasion and the grocery store has not presented any evidence to the contrary, the court should grant the shopper's motion for summary judgment.

Answer 369

while most class actions require that at least one member of the class have damages in excess of $75,000, there is no requirement under the CAFA that any member of the class have such damages. In order to take advantage of the relaxed subject matter jurisdictional rules of the Class Action Fairness Act (CAFA), the amount-in-controversy must exceed $5 million

Answer 370

Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "nondelegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Certain powers are nondelegable (e.g., power of impeachment, power to declare war). Furthermore, an executive agency may not make "decisions of vast economic and political significance" unless Congress clearly gives it decision-making authority in that area (i.e., the major questions doctrine). Here, the congressional act provided an intelligible standard with which to determine the percentage of vehicular emissions to be enforced by executive order. And though the executive order may have vast economic significance, Congress clearly gave the executive branch decision-making authority in this area. Therefore, the provision at issue it is likely constitutional.

Answer 371

Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate. The investigatory power may extend to any matter within a “legitimate legislative sphere.” In this case, the Senate committee’s investigation concerned the failure to prosecute under a federal statute covering unlawful restraint of trade. The enforcement, or lack thereof, of a federal statute covering trade and commerce certainly constitutes a matter within a legitimate legislative sphere of Congress. Therefore, the Senate committee had the power to investigate this issue incident to its power to legislate

Answer 372

When an individual’s protected interest is threatened by governmental action, a court considers three factors in determining the amount of process that is due: (i) the private interest affected by the governmental action; (ii) the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and (iii) the burden involved in providing the additional process. A state has the burden to demonstrate a compelling interest justifying its actions when a fundamental right is at issue.

Answer 373

A state may impair the obligations of a contract, including a contract entered into by the state with a private citizen, so long as the impairment is not substantial, or, if the impairment is substantial, so long as it is not unreasonable. In the case of a contract to which the state is a party, the state must show that its important interest cannot be served by a less restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. Here, the impairment is arguably not substantial because the contractor is receiving the full contract amount plus interest to compensate him for the delay in receiving the money. Assuming that the impairment is substantial, the state’s actions are reasonable in light of the unforeseen budget crisis and arguably there is not a less restrictive alternative

Answer 374

dismiss if state decision rests on adequate and independent state grounds

Answer 375

The Court has interpreted the Eleventh Amendment as barring unconsented private suits against a state for retroactive money damages. Congress may abrogate state immunity from liability if it is clearly acting to enforce rights created by the remedial provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments (i.e., the Civil War Amendments), and does so expressly. Here, Congress is not remedying conduct that violates the Fourteenth Amendment's Equal Protection Clause, as age is not a suspect or quasi-suspect class and thus a state's age-based discrimination merely needs a rational basis.

Answer 376

here is a legitimate property interest in continued public employment only if there is an employment contract or a clear understanding that the employee may be fired only for cause. An “at will” governmental employee has no right to continued employment. With regard to the remaining week in his one-year term, the employee was paid in full and therefore did not suffer an economic harm as a consequence of his early termination. With regard to future employment, the employee had no assurances from his employer that he would be given permanent employment. Therefore, denying the employee an opportunity to be heard with regard to his termination does not violate his due process rights

Answer 377

Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification. Courts will generally apply the strict scrutiny test and strike down state laws that discriminate against noncitizens, such as laws prohibiting noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs. A growing exception exists, however, for state laws that restrict or prohibit a noncitizen’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest, and are generally upheld as preventing noncitizens from having a direct effect on the functioning of the government. Because working as a law enforcement officer is a position involving participation in the governmental function of enforcing law, rational basis is likely the proper standard to apply

Answer 378

he Import-Export Clause of Article I, Section 10 prohibits the states from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods. The Commerce Clause limits states from taxing commerce with other countries because it vests in Congress the exclusive power to regulate foreign commerce. Therefore, the statute would conflict with Congress’ exclusive right to regulate foreign commerce.

Answer 379

The Speech or Debate Clause of Article I, Section 6 protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts. Here, the member solicited and accepted a bribe regarding the lowering of a federal excise tax on tobacco products. This crime does not require proof of a legislative act or the motive behind the member’s report, so he is subject to criminal liability

Answer 380

Compelled removal of the billboards' message constitutes a content-based regulation of speech. The state may only regulate the content of speech if the regulation is necessary to achieve a compelling government interest and is narrowly tailored to meet that interest. Accordingly, there would have to be a compelling governmental interest in taking down the message; this is a test that is incredibly difficult to meet. Content-based regulation is generally only found constitutional when the speech to be regulated falls into one of the following categories: obscenity, subversive speech, fighting words, defamation, or commercial speech. Here, the message does not fall into any of these categories. Answer choice A is incorrect because to be regulated as "fighting words," the speech must be words that by their very nature are likely to incite an immediate breach of the peace. Taking "any and all measures" is insufficient to support a finding of fighting words. Answer choice B is incorrect because the content of the billboards is not subversive just because it is advocating for the repeal of a law. Subversive speech is speech that is directed to incite or produce imminent lawless action and that is likely to produce such action. Here, the billboards are directing citizens on how to repeal a law through the procedures set forth by the state. The billboards are not seeking to incite lawless action; they are informing those who see the billboards on how to take action under the state's laws. Answer choice C is incorrect because the media has no greater First Amendment protection than other citizens.

Answer 381

State action may exist if there are sufficient mutual contacts between the conduct of a private party and the government to find that the private party is subject to constitutional restrictions. The symbiotic relationship here between the Board and the association (e.g., overlapping membership, Board oversight, and inclusion of association employees in the state’s health and retirement programs) indicates the association’s actions are pervasively entwined with the Board’s authority and actions. Consequently, this constitutes a strong argument in favor of treating the association as a state actor while an entity that performs a traditional and exclusive governmental function is a state actor for the purposes of free speech rights, providing athletic programs is not a traditional and exclusive governmental function. Merely providing a product or service that the government could offer is not sufficient to make the provider a state actor.

Answer 382

Restrictions on commercial speech, such as advertising, are subject to intermediate scrutiny and are reviewed under a four-part test: (i) it must concern lawful activity and be neither false nor misleading; (ii) the asserted government interest must be substantial; (iii) the regulation must directly advance the asserted interest; and (iv) the regulation must be narrowly tailored to serve that interest. Although the state’s concern for the health of minors constitutes a compelling interest, the law is not narrowly tailored to serve that interest. Commercial speech (i.e., advertising and similarly economically oriented expression) is entitled to an intermediate level of First Amendment protection. Restrictions on commercial speech are reviewed under a four-part test. First, the commercial speech must concern lawful activity and be neither false nor misleading. Second, the asserted governmental interest must be substantial. Third, the regulation must directly advance the asserted interest. Fourth and finally, the regulation must be narrowly tailored to serve that interest; this means there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends. Here, if an advertisement that a dentist is a specialist in a non-ADA recognized area of practice is inherently misleading, the speech is unprotected commercial speech

Answer 383

With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. Because the fact pattern provides that there is such a basis here for regulation of individual landowners who cut trees found on their own property to burn for their own personal energy needs, the proposed legislation is likely to be found constitutional as a valid exercise of the congressional power to regulate interstate commerce

Answer 384

When a federal statute conflicts with an executive agreement, the federal statute takes precedence over the executive agreement. Here, the federal statute and the executive agreement directly conflict with one another, so the federal statute governs whether the territory can buy bananas from the island nation. even though the President does have the power to enter into executive agreements with foreign nations, the executive agreement is subject to federal statutes. because a federal statute and a federal treaty are roughly equivalent. When the two conflict, whichever was enacted more recently would govern. However, here, the two do not conflict. The federal treaty does not govern whether the territory can buy bananas from the island nation; it only requires that a mark of origin be included on those bananas. federal actions, whether statutes, treaties, or executive agreements, take precedence over state laws.

Answer 385

The Presentment Clause requires any bill that has been passed by Congress to be presented to the President. If the President signs the bill, it becomes law. If the President does not, it may either become law or not depending on whether the President vetoes it (either directly or via a “pocket veto”), and if by a direct veto, whether Congress overrides the President’s veto. The federal law that effectively gives the President a so-called “line-item veto” thwarts the procedure set out in the Presentment Clause.

Answer 386

Because Congress has plenary power over noncitizens under Article I, a federal classification based on citizenship status is likely valid unless it is arbitrary and unreasonable. Since the reason for the law (i.e., to reduce the deficit) is rational, it is constitutional.

Answer 387

Evidence of a juvenile adjudication is not admissible to impeach a defendant. When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if: i) It is offered in a criminal case; ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and iii) Admitting the evidence is necessary to fairly determine guilt or innocence. Under the Sixth Amendment Confrontation Clause, evidence of a witness’s juvenile adjudication can also be used by a criminal defendant to impeach a witness’s credibility by showing bias, such as when the witness’s juvenile adjudication could provide a motive for the witness to lie.

Answer 388

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Answer 389

The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether a privilege exists, and whether a person is qualified to be a witness. Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it. In this case, the defendant sought a hearing outside of the presence of the jury regarding the admissibility of his confession. Accordingly, the court must grant the defendant’s request and the judge will decide whether the confession is admissible. Answer choice A is incorrect. Hearings on preliminary matters must be conducted outside the presence of the jury only when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it.

Answer 390

Character evidence is admissible as substantive evidence when character is an essential element of a claim or defense, rather than a means of proving a person’s conduct. Here, the truth of the student’s allegations is an affirmative defense to the claim of libel, and the student may offer specific instances of the professor’s conduct to support that affirmative defense

Answer 391

must relate to present intent, motive, or plan

Answer 392

Evidence is relevant if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and (ii) the fact is of consequence in determining the action (i.e., material) under FRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Answer 393

state courts cannot challenge the legality of a person being held in federal courts through the issuance of a writ of habeas corpus

Answer 394

prohibits removal solely on the basis of diversity jurisdiction. does not prohinit removal if federal question JX

Answer 395

A defendant may go beyond the face of a warrant and challenge its validity due to the inclusion of false information in the affidavit. However, the defendant must establish by a preponderance of the evidence that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included by the affiant in the affidavit and that the information was necessary to a finding of probable cause by the magistrate

Answer 396

Evidence may be direct or circumstantial. Direct evidence is identical to the factual proposition that it is offered to prove, while circumstantial evidence is evidence that tends to indirectly prove a factual proposition through inference and collateral facts. There is no rule requiring the presentation of direct evidence to convict a criminal defendant. Here, the prosecution has offered only indirect evidence of the defendant's guilt but this is not a valid basis for a motion to dismiss the charges because a criminal defendant can be convicted solely based on circumstantial evidence. More significantly, whether the testimony is characterized as direct or circumstantial, a defendant may be convicted even though the prosecution only presents circumstantial evidence.

Answer 397

The parol evidence rule operates to exclude evidence that, if introduced, would change the terms of a written agreement. However, only evidence of prior or contemporaneous negotiations is subject to the parol evidence rule; evidence of negotiations conducted after the execution of the written contract is not prohibited by the parol evidence rule and may be offered to prove subsequent modifications. Because the buyer sent the email after the contract was executed, it would not be prohibited by the parol evidence rule.

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