Bar Prep Simple editor

Question 1

The Agreement to enforce a Sale on a Land must be: (02)

Answer 1

In Writing and

signed by the person to be charged (the Defendant)

Question 2

Plaintiff claim for misrepresentation will succeed if : (06)

Answer 2

1. A representations was made
2. The representations were fake
3. When made, the Defendant knew it was false or knowingly it was reckless without truth
4. was with the intention for the plaintiff rely on it
5. the plaintiff did rely
6. Plaintiff suffered a harm because of it

Question 3

Joint Tenancy can be terminated by: (02)

Answer 3

1. Partition / Severance (division of the land)

2. Convey

Question 4

a Joint Tenancy with Right of survivorship could be terminated : (03)

Answer 4

1. Sale or Transfer
2. Partition
3. Mortgage in title theory states

Question 5

<p>Life State (or state for life) is:</p>

Answer 5

<p>a tenancy of a person for the duration of life , could be for the duration of the same tenant of the life duration of another.</p>

Question 6

<p>In order to have an easement by prescription it must be show: (Easement, right to use a track of another's land)</p>

Answer 6

<p>the possession is:
Adverse / hostile
Public / Notorious
Continuous</p>

Question 7

<p>A licensee is a</p>

Answer 7

<p>Person with permission to use someone's else land for his own purpose.
Social guys would be a licensee</p>

Question 8

<p>vested remainder</p>

Answer 8

<p>A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent.</p>

Question 9

<p>vested remainder subject to open</p>

Answer 9

<p>created in a class of persons that is certain to take but 
is subject to diminution by reason of others becoming entitled to take</p>

Question 10

<p>self-defense:</p>

Answer 10

<p>A person is entitled to use such force as he reasonably believes is necessary to protect himself against the use of unlawful force on himself.</p>

Question 11

<p>Rule 26(f) conference</p>

Answer 11

<p>the parties must confer to consider:

1. their claims and defenses,
2. the possibility of settlement,
3. initial disclosures
4. and a discovery plan.</p>

Question 12

<p>Embezzlement</p>

Answer 12

<p>the fraudulent conversion
of the property of another
by a person in lawful possession of it.</p>

Question 13

<p>Larceny</p>

Answer 13

the taking and carrying away
of the property of another
by trespass
with the intent to permanently deprive the person of the property.
(The intent to permanently deprive must be concurrent with the taking and carrying away)

Question 14

larceny by trick

Answer 14

the taking and carrying away
of the property of another
by trespass
with the intent to permanently deprive the person of the property

+ by some misrepresentation or fraud concerning a present or past fact

Question 15

Thirteenth Amendment

Answer 15

<p>prohibits slavery</p>

Question 16

Torts

prima facie case for negligence requires the plaintiff to show:

Answer 16

(i) duty: on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury;
(ii) breach of that duty by the defendant;
(iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and
(iv) damage to the plaintiff’s person or property.

Question 17

<p>Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either:</p>

Answer 17

<p>(i) appreciate the criminality of his conduct; or

| (ii) conform his conduct to the requirements of law.</p>

Question 18

<p>Durham insanity test</p>

Answer 18

<p>his crime was the product of mental disease or defect.</p>

Question 19

<p>M’Naghten rule:
provides for acquittal if a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either: </p>

Answer 19

(i) KNOW the wrongfulness of his actions; or

(ii) UNDERSTAND the nature and quality of his actions.

Question 20

Assault

Answer 20

(i) an attempt to commit a battery, or

(ii) 1. the intentional creation,
2. other than by mere words,
3. of a reasonable apprehension in the mind of the victim of imminent bodily harm

Question 21

<p>battery elements</p>

Answer 21

<p>(i) AN ACT by defendant that brings about a harmful or offensive contact to the plaintiff’s person,

(ii) with the INTENT on defendant’s part to bring about harmful or offensive contact, and
(iii) CAUSATION</p>

Question 22

<p>contingent remainder:</p>

Answer 22

• Taking is subject to a condition precedent, or

- It is created in favor of unborn or unascertained persons.

Question 23

<p>Summary judgment may be granted if:</p>

Answer 23

<p>from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law</p>

Question 24

<p>The court may not decide disputed fact issues on a motion for summary judgment; if</p>

Answer 24

there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue)

Question 25

<p>Depending on the circumstances, strict liability may be imposed on the owners of what type of animals?</p>

Answer 25

<p>strict liability may be imposed on the owners of wild animals, domestic animals, and trespassing animals.</p>

Question 26

<p>an abnormally dangerous activities for strict liability is if?</p>

Answer 26

<p>if it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors</p>

Question 27

<p>The owner of a dog or other family pet with known dangerous propensities will be held s\_\_\_\_\_\_\_ liable for damage caused by the animal.</p>

Answer 27

<p>strictly</p>

Question 28

<p>It is an abnormally dangerous activity because:</p>

Answer 28

<p>(i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(ii) the activity is not a matter of common usage in the community.</p>

Question 29

<p>An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for:</p>

Answer 29

<p>the damage caused by the animal.</p>

Question 30

<p>strict liability do not require that suppliers have an opportunity to \_\_\_\_\_\_\_ .</p>

Answer 30

<p>Inspect</p>

Question 31

<p>for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to:</p>

Answer 31

<p>inspect the manufacturer's product before selling it.</p>

Question 32

<p>There is products liability based on strict tort liability when the case consists of the following (04):</p>

Answer 32

<p>(i) the defendant is a commercial supplier;

(ii) the defendant produced or sold a product that was defective when it left the defendant's control;
(iii) the product was the actual and proximate cause of the plaintiff's injury; and
(iv) the plaintiff suffered damages to person or property.</p>

Question 33

<p>A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in activities</p>

Answer 33

<p>inherently dangerous</p>

Question 34

<p>An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the (03):</p>

Answer 34

<p>hiring, supervision, and retention of the employee</p>

Question 35

<p>A contract for the sale of land contains an implied promise by the seller that she will deliver to the buyer a \_\_\_\_\_\_\_ title at the time of closing.</p>

Answer 35

<p>marketable</p>

Question 36

<p>If the buyer determines, prior to closing, that the seller's title is unmarketable, he must notify the seller and</p>

Answer 36

<p>allow a reasonable time to cure the defect</p>

Question 37

<p>An easement that reduces the value of the property (e.g., an easement of way for the benefit of a neighbor) generally renders title</p>

Answer 37

<p>Unmarketable</p>

Question 38

<p>seller's obligation is to furnish marketable title when</p>

Answer 38

At closing, when Deed delivery is to occur

Question 39

<p>Criminal attempt is an act that, although done with the intention of committing a crime</p>

Answer 39

<p>falls short of completing that crime</p>

Question 40

<p>If the defendant has the intent to perform an act and obtain a result that, if achieved, would constitute a crime, but it was not achieved, this is</p>

Answer 40

<p>Attempt</p>

Question 41

<p>If Arson could not be completed, are you guilty of attempt of arson?</p>

Answer 41

Yes

Question 42

<p>A defendant may serve a third-party complaint as of right within</p>

Answer 42

<p>14 days of serving his original answer. Thereafter, he must make a motion to serve the complaint, and it is within the trial court's discretion whether to grant or deny the motion.</p>

Question 43

To establish a prima facie case for invasion of privacy involving public disclosure of private facts about the plaintiff, the plaintiff must show that

Answer 43

<p>1. the publication was of private information about the plaintiff and
2. the public disclosure of this private information would be highly offensive to a reasonable person.</p>

Question 44

There is no liability for publication of matters occurring in a

Answer 44

<p>Public Space

(but be aware of the False Lights cases) </p>

Question 45

Burglary consists of

Answer 45

• a breaking and entry
• of the dwelling of another
• at nighttime
• with the intent of committing a felony therein.

Question 46

<p>Larceny is</p>

Answer 46

<p>-the taking and carrying away of the personal property of another
-by trespass
-with the intent to permanently deprive the owner of his interest in the property.
(The element of carrying away, or asportation, is satisfied as long as there is some movement of the property as a step in carrying it away.
The movement need only be slight as long as it was part of the carrying away process.)</p>

Question 47

<p>A life tenant is entitled to</p>

Answer 47

all ordinary uses and profits of the land,

but he cannot lawfully do any act that would injure the interests of the remainderman (can’t commit waste)

Question 48

<p>A defendant breaches a duty to avoid infliction of emotional distress when he creates a</p>

Answer 48

<p>foreseeable risk of physical injury to the plaintiff
caused by a threat of physical impact
that leads to emotional distress.</p>

Question 49

<p>Damages as consequence of negligent infliction of emotional distress are recoverable if the Plaintiff can show</p>

Answer 49

<p>some physical injury, rather than purely emotional distress</p>

Question 50

<p>An accomplice person, to be considered an accomplice, must have</p>

Answer 50

<p>given aid,
counsel,
or encouragement
with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense</p>

Question 51

<p>Attempted murder is a specific intent crime and requires the intent to</p>

Answer 51

<p>Kill</p>

Question 52

<p>A defendant may object to personal jurisdiction in two ways:</p>

Answer 52

<p>(i) by raising it in a pre-answer motion to dismiss under Rule 12(b); or
(ii) if he has not moved under Rule 12(b), by raising the defense in his answer.

(if the objection is not brought in the first motion or answer by the Defendant, the right is waived) </p>

Question 53

<p>Adverse possession must be</p>

Answer 53

• Actual and exclusive: (i.e., the possessor is not sharing with the true owner or the public at large).
• Open and notorious: (i.e., such as the usual owner would make of the land and sufficiently apparent to put the true owner on notice that a trespass is occurring).
• Hostile: Must occupy the property and enter without the owner’s permission. The possessor need not believe that she has a right to possession.
• Must be continuous throughout the statutory period

Question 54

<p>Trespass to chattels requires:</p>

Answer 54

<p>(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel,

(ii) intent to perform the act bringing the interference with plaintiff’s right of possession,
(iii) causation, and
(iv) damages.</p>

Question 55

<p>Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of</p>

Answer 55

<p>a material fact</p>

Question 56

<p>The concept of “exceeding one’s authority” is referred to an employer an employee when the employer wants to raise this as a defense in order to avoid</p>

Answer 56

<p>vicarious liability for the tortious conduct of an employee by arguing that the employee acted outside the scope of her employment.</p>

Question 57

<p>identification of the defendant’s voice does not require such specialized knowledge; rather, all that is required</p>

Answer 57

<p>familiarity with the voice</p>

Question 58

<p>Work product is defined as</p>

Answer 58

<p>material prepared in anticipation of litigation.(is not privilege at the discovery)</p>

Question 59

<p>Easement in gross</p>

Answer 59

<p>has a right to use the servient tenement independent of her ownership or possession of another tract of land</p>

Question 60

<p>The Tenth Amendment reserves to the states power that is</p>

Answer 60

<p>not granted to the Federal Government</p>

Question 61

<p>Hearsay is</p>

Answer 61

<p>An out-of-court statement,
offered in evidence
to prove the truth of the matter asserted.</p>

Question 62

<p>Hearsay dying declaration exception:</p>

Answer 62

<p>-statement made by an unavailable declarant
-while believing her death was imminent
-that concerns the cause or circumstances of what she believed to be her impending death is admissible.
(The declarant need not actually die as a result of the circumstances giving rise to her belief of imminent death, but can't be available to testify).</p>

Question 63

<p>Federal courts have judicial power over all “cases and controversies” that:</p>

Answer 63

1. Arising under the Constitution, laws, or treaties of the United States (Fed. Question)
2. Between a state and citizens of another state (if the state waives its supremacy);
3. Between citizens of different states;
4. Of admiralty and maritime jurisdiction;
5. In which the United States is a party;
6. Between two or more states;
7. Between citizens of the same state claiming lands under grants of different states; and
8. Between a state or citizens thereof and foreign states, citizens, or subjects.

Question 64

<p>The Supreme Court can review a decision from the highest court in a state if</p>

Answer 64

the state court decision turns on federal grounds.
(If adequate and independent state grounds support the decision, the Supreme Court will not review that state court decision.)

Question 65

<p>Standing Redressibility is:</p>

Answer 65

<p>provides that a decision in the plaintiff’s favor must be able to remedy the harm.</p>

Question 66

<p>the claim will be considered moot if:</p>

Answer 66

A case which has already been resolved by a court of law.
There is no real, live controversy at all stages of review.
(a case would not be moot if the facts are probably going to raised again, a claim for abortion, even if the child is already born, there is a high chance that the woman can get pregnant again and raise the same controversy)

Question 67

<p>An organization has standing to challenge government actions that cause an injury to its members if the organization can demonstrate the following three facts</p>

Answer 67

<p>(i) An injury in fact to the members of the organization that would give individual members a right to sue on their own behalf;

(ii) The injury to the members is related to the organization’s purpose; and
(iii) The nature of the claim or the relief requested DOES NOT requires participation of the individual members in the lawsuit.</p>

Question 68

<p>A person has standing if she can demonstrate:</p>

Answer 68

Injury, causation and redressability.
(concrete stake in the outcome of the controversy shown by an injury in fact that can be remedied by a ruling in the plaintiff’s favor. No need for economic injury required)

Question 69

<p>Accomplice (modern statute)</p>

Answer 69

Aids / Advises or Encourage the principal in the commission of the crime.
NEEDS the mental state (mens rea) -> intent to assist and the intent the principal commits the crime

Question 70

<p>Inchoate Offenses is defined</p>

Answer 70

<p>incomplete crimes.

| Conspiracy Solicitation Attempt</p>

Question 71

<p>Conspiracy</p>

Answer 71

Agreement
With the intention to agree
Pursuing an unlawful objective

NO MERGER, the person will be charged with conspiracy AND the crime…
(Majority rule, there must be the agreement and some over act [any little act]).

Question 72

<p>Conspiracy Withdraw</p>

Answer 72

<p>There is no withdraw from conspiracy.</p>

Question 73

<p>Solicitation</p>

Answer 73

<p>Asking someone to commit a crime. (Solicitation merges to -> Conspiracy if the crime was committed)</p>

Question 74

<p>Attempt</p>

Answer 74

Specific intent to commit a crime
Over act in furtherance of the crime
(-Abandonment is not a defense once there was a substantial step to commit the crime [only full and complete renunciation of committing the crime]
-Impossibility of committing the crime is not a defense)

Question 75

<p>Murder</p>

Answer 75

<p>unlawful killing of another human being WITH MALICE (mens rea of killing )</p>

Question 76

<p>1st degree murder could be any of:</p>

Answer 76

• Premeditated killing (human + intent or knowledge the conduct would cause a death)
• Felony murder (while committing a felony a person is killed)
• Homicide of a police officer (Defendant must know it was a police + police acting in line of duty)

Question 77

<p>Voluntary Manslaughter is</p>

Answer 77

Killing in the heat of passion / adequate provocation

• the provocation caused an intense passion in the mind of an ordinary person
• Not enough time to cool down
• the Defendant did not cool down, acted and killed.

Question 78

<p>Involuntary Manslaughter</p>

Answer 78

-Killing of Criminal Negligence or
-Killing someone while committing a misdemeanor (the death would have not occurred but for the Defendant’s conduct)
(Defendant is responsible for all results occur as a natural and probable consequence of his conduct)

Question 79

<p>Battery (elements)</p>

Answer 79

Intentional unlawful application of force
resulting the victim suffers: Bodily injury or Offensive touching (not need to be directly to the person.

Example: poison / touching something that the victim was connected [purse / horse if the person was riding)

Question 80

<p>Assault</p>

Answer 80

<p>Attempt to commit battery or
Intentional creation of reasonable apprehension or imminent bodily harm (no touching)
(the victim must have to see the assault coming)</p>

Question 81

<p>4th Amendment</p>

Answer 81

<p>Unreasonable Search and Seizure</p>

Question 82

<p>5th Amendment (criminal):</p>

Answer 82

Privilege against self-incrimination
Prohibition against Double Jeopardy.

(Miranda: Police needs to read the Miranda for a person that is not free to leave and is going to be interrogated.
Miranda, right to invoke the presence of an attorney. Miranda, right to remain silent)

Question 83

6th Amendment (criminal) (04 rights):

Answer 83

1. Right to speedy trial
2. Right trial by jury
3. Right to confront witness
4. Right to assistance of counsel (this comes after the person is charged with the crime. The attorney needs to be present in all stages of the trial)

Question 84

8th Amendment (criminal):

Answer 84

<p>Prohibition against cruel and unusual punishment.
Death penalty.
Prisoner rights</p>

Question 85

Criminal

Terry Stop

Answer 85

Briefly detain a suspect if:

• reasonable suspicion (hunch is not enough) supported by
• articulable facts of criminal activity

Question 86

<p>Terry Frisk "pat down" possible if:</p>

Answer 86

<p>valid stop +
reasonably believes the person is armed
\+Plain feel that something is a weapon or contraband</p>

Question 87

School search is permissible if

Answer 87

<p>-Moderate chance to find evidence of an wrongdoing

- Measures adopted for the search are reasonably related with the objectives of the search
- Is not Excessively intrusive</p>

Question 88

<p>5th Amendment (Miranda) is required when:</p>

Answer 88

<p>A suspect is In custodial for interrogation</p>

Question 89

<p>in order to waive the Miranda, the Defendant have to do it (02):</p>

Answer 89

1. Voluntarily

2. Knowing that is waiving the rights

Question 90

<p>Jeopardy attaches when:
(Jury trial):
(Bench trial):</p>

Answer 90

<p>Jury trial: when the jury is sworn.

| Bench trial: when the first witness is sworn</p>

Question 91

<p>Judgment as a matter of law is when:</p>

Answer 91

<p>the evidence presented is so one-side that the movant is entitled to a judgment as a matter of law. Can be raised after a jury verdict only if it was raised also before the entry of the judgment.</p>

Question 92

<p>a Judgment on default can be set aside for shown:</p>

Answer 92

<p>Good Cause</p>

Question 93

<p>contracts for the sale of land do not require the seller to hold title at the time she enters into the contract. She is only required to have marketable title at the date of</p>

Answer 93

<p>Closing</p>

Question 94

<p>Due process requires in criminal cases that the state prove</p>

Answer 94

<p>Guilty without reasonably doubt</p>

Question 95

<p>Any person can testify to the authenticity of another's signature as long as that witness has seen the person's signature and can express an opinion regarding its authenticity. The only restriction is that a non-expert cannot become familiar with the handwriting merely for the purpose of testifying.
The person testifying had to have seeing the signature how many times before?</p>

Answer 95

<p>only one previous time is enough to be familiarized with the signature</p>

Question 96

<p>Evidence that a defendant had made any reparations after an accident is inadmissible because, for \_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_, evidence of repairs or other precautionary measures made after an injury is inadmissible to prove negligence or culpable conduct</p>

Answer 96

<p>public policy reasons</p>

Question 97

<p>Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of</p>

Answer 97

<p>impeachment.</p>

Question 98

<p>Under modern statutes, parties to a crime are divided into three different categories. Principals are those who:
An accomplice is one who:
A third category is "an accessory after the fact."</p>

Answer 98

1. Principals are those who: with the requisite mental state, actually engage in the act or omission that causes the criminal result.
2. An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense. Under modern statutes, accomplices are generally treated as principals.
3. “an accessory after the fact”: one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.

Question 99

Accomplice

Answer 99

with the intent that the crime be committed,
aids, counsels, or encourages
the principal before or during the commission of the offense.
Under modern statutes, accomplices are generally treated as principals.

Question 100

<p>accessory after the fact (person / criminal)</p>

Answer 100

<p>receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.</p>

Question 101

<p>Claim preclusion (res judicata) requires that</p>

Answer 101

<p>(i) a valid, final judgment on the merits was entered in the first case;

(ii) the cases were brought by the same claimant against the same defendant; and
(iii) the same cause of action is involved in the later lawsuit.</p>

Question 102

<p>A person may use deadly force in self-defense if he:</p>

Answer 102

(i) is without fault;
(ii) is confronted with unlawful force; and
(iii) reasonably believes that he is threatened with imminent death or great bodily harm.

Question 103

<p>if the defendant was using the chattel without permission and it was accidentally damaged, would be considered</p>

Answer 103

<p>Conversion (mayor harm or complete loss of the chattel/property)</p>

Question 104

<p>the intentional interference with the plaintiff's right of possession in the chattel that is serious enough to warrant that the defendant pay the full value of the chattel.</p>

Answer 104

<p>Conversion</p>

Question 105

In a unilateral contract, acceptance of an offer is possible only by p________ a stipulated act, whereas in a bilateral contract, acceptance of an offer is accomplished by p_________ to do the stipulated act.

Answer 105

<p>In a unilateral contract, acceptance of an offer is possible only by performing a stipulated act, whereas in a bilateral contract, acceptance of an offer is accomplished by promising to do the stipulated act.</p>

Question 106

<p>A notice of dismissal (not motion to dismiss!) is only proper if</p>

Answer 106

<p>the defendant has not answered or filed a motion for summary judgment.</p>

Question 107

<p>Contracts:

| parol evidence rule</p>

Answer 107

when the parties express their agreement in a writing
with the intent that it embody the final expression of their bargain,
any other expressions-written or oral-made prior to the writing,
as well as any oral expressions contemporaneous with the writing,
are inadmissible to vary the terms of the writing.

Question 108

<p>States are allowed to give to its citizens \_\_\_\_\_\_ protections (than the protections express in Fed Law) , unless Congress says you can't.</p>

Answer 108

<p>States are allowed to give to its citizens GREATER protections (than the protections express in Fed Law) , unless Congress says you can't</p>

Question 109

<p>Standing (elements 03)</p>

Answer 109

Injury
Causation
Redressability (does the court has the power to solve your problem?)

Question 110

<p>Unfair Prejudice:Relevant evidence is admissible unless it prejudicial impact substantially outweighs its probative value.This meaning,</p>

Answer 110

<p>would cause jurors to decide the suit on emotional basis.</p>

Question 111

<p>Under rule 403a trial judge has broad discretion to exclude relevant evidence if:</p>

Answer 111

<p>1. its probative value is substantially outweighed by the danger of unfair prejudice (jurors an emotional basis)

2. confusion of the issues
3. misleading the jury</p>

Question 112

<p>Taking "judicial notice" (Judicial fact) of a fact as evidence in civil cases and criminal cases:</p>

Answer 112

a Judicial Notice allows a party to “prove” a fact by the court’s recognizing that the fact is a matter of common knowledge within the jurisdiction or is able to be quickly determined by resorting to sources whose accuracy cannot be reasonably questioned.

• Civil Cases: Judicial notice is conclusively established and this binds the jury
• Criminal cases: Judicial notice is not binding, the jury is permitted to finds facts judicially noticed but not required to do so.

Question 113

<p>Character Evidence:
Is evidence that a person has a propensity to act in certain way because of his character trait. This is generally inadmissible. Exception:
Criminal:
Civil:</p>

Answer 113

Criminal: A criminal defendant is permitted to introduce character evidence to prove that the crime is inconsistent with his character trait. (Violence crime, can show character evidence proving that is not a violent person)

Civil: -The character is directly in issue as principal matter (can be proved by reputation, opinion and specific acts)
Cases of: child support / Defamation / Negligent hiring or entrustment

Question 114

<p>Evidence of past crimes of misconduct may not be admitted to show the Defendant's criminal character of his disposition to commit the present crime.Exception:</p>

Answer 114

<p>MIMIC
Motive, 
Intention, 
Mistake (lack of), 
Identification, 
Common Scheme</p>

Question 115

<p>Impeach a Witness: Extrinsic proof of a prior inconsistent statement is admissible to impeach a witness's testimony if:</p>

Answer 115

<p>(The witness is at court)
The witness is given an opportunity to explain or deny the statement.
- If the witness is subject to cross-examination and
the prior inconsistent statement was made at a prior trial or in a deposition it is admissible non-hearsay. </p>

Question 116

<p>Civil Pro.Claim Preclusion.</p>

Answer 116

<p>To apply, there must have been:

1. Valid / final judgment on the merits
2. Both parties are the same
3. The new action must involve the same cause of action (all claims arise from the same transaction or occurrence)</p>

Question 117

<p>Civil Pro.
Issue Preclusion (collateral estoppel):</p>

Answer 117

<p>To apply:

1. the ISSUES in both actions must be the same.
2. There must be a previous final judgment as to the Issue.
3. The party against whom collateral estoppel is asserted (new Defendant) must have had a fair opportunity to be heard on the previous matter.
4. The posture on the case must be such that it would not be unfair (to the Plaintiff) to apply collateral estoppel.</p>

Question 118

<p>Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. A trial judge, however, has broad discretion to exclude relevant evidence if (05):</p>

Answer 118

its probative value is substantially outweighed by the danger of:

1. unfair prejudice,
2. confusion of the issues
3. misleading the jury
4. undue delay / waste of time, or
5. needless presentation of cumulative evidence.

Question 119

Insurance Evidence:
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

But the court may admit this evidence for another purpose, such as (3)

Answer 119

1. proving a witness’s bias
2. prejudice
3. proving agency, ownership, or control

Question 120

<p>It is unconstitutional to give a jury instruction that imposes a mandatory presumption as to an element of a charged crime in a criminal case because</p>

Answer 120

<p>it effectively shifts the burden of proof to a defendant or otherwise absolves the prosecution of having to prove that element beyond a reasonable doubt.</p>

Question 121

Evidence / Criminal.
when a person is charged with a crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to

Answer 121

<p>establish a criminal disposition.
Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime charged.</p>

Question 122

<p>Hearsay Exception :Statements made for purposes of medical diagnosis or treatment:</p>

Answer 122

<p>Statements made for purposes of medical diagnosis or treatment, and statements describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, are an exception to the hearsay rule and are admissible.</p>

Question 123

Character Evidence / Criminal

An accused may introduce evidence of his good character to show his innocence of the alleged crime by

Answer 123

testimony about the person’s reputation or by testimony in the form of an opinion.

In other words, a defendant puts his character in issue by calling a qualified witness to testify to the defendant’s good reputation (or that he has heard nothing bad) for the trait involved in the case. ONLY the trait of his character will be admitted, needs to be directly relevant to the issue of guilt or innocence for the crime charged

Question 124

Evidence.Criminal.
A confession made by a person under arrest and subjected to interrogation can be admitted into evidence at trial only if Miranda warnings were properly given beforehand.
If the defendant contends that no Miranda warnings were given, she is entitled to a hearing on the issue. The hearing must be conducted

Answer 124

<p>Without the presence of the jury</p>

Question 125

<p>Evidence. Expert's opinion. expert witness may state an opinion or conclusion when:</p>

Answer 125

(i) the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue;
(ii) the opinion is based on sufficient facts or data;
(iii) the opinion is the product of reliable principles and methods; and
(iv) the expert has reliably applied the principles and methods to the facts of the case.
The expert must possess reasonable certainty or probability regarding his opinion.

Question 126

<p>Main Difference between:

| Intentional Infliction of emotional distress & Negligent infliction of emotional distress</p>

Answer 126

Intentional Infliction of emotional distress: no physical harm needed.
Negligent infliction of emotional distress: Physical harm in addition of the distress

Question 127

<p>Intentional Infliction of emotional distress: The act of the Defendant:</p>

Answer 127

(i) the conduct was extreme and outrageous;
(ii) intentional, or at least reckless; and
(iii) resulted in severe emotional distress.

If the threat is deemed to be extreme and outrageous NO need for physical harm.

Question 128

where the defendant’s actions have placed another person in peril or caused another’s injury, the defendant has a duty to

Answer 128

<p>make reasonable efforts to rescue the imperiled person or render aid to his victim.</p>

Question 129

<p>generally there is no obligation for a landowner to warn trespassers, whether they are children or adults, of dangerous</p>

Answer 129

<p>natural conditions</p>

Question 130

<p>Torts. A licensee is:

| the duty to a licensee from the owner or possessor are: </p>

Answer 130

one who enters on the land with permission for his own purpose or business, includes social guests.

The owner or occupier owes a licensee a duty to:
-warn of or
-make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.
The owner or occupier does NOT have a duty to inspect for defects or to repair known defects.

Question 131

<p>A duty to avoid negligent infliction of emotional distress may be breached when:</p>

Answer 131

<p>the defendant creates a foreseeable risk of physical injury to the plaintiff.

For a bystander who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery if:

(i) the plaintiff and the person injured by the defendant are closely related;
(ii) the plaintiff was present at the scene of the injury; and
(iii) the plaintiff personally observed or perceived the event.</p>

Question 132

Negligent infliction of emotional distress of a bystander.

Defendant will be liable for a third-person claim if:

Answer 132

(i) the plaintiff and the person injured by the defendant are closely related;
(ii) the plaintiff was present at the scene of the injury (in the zone of danger!);
(iii) the plaintiff personally observed or perceived the event.
(iv) as consequence, plaintiff suffers emotional distress AND physical injuries from the emotional distress

Question 133

<p>Res ipsa loquitur doctrine</p>

Answer 133

enables a plaintiff to establish breach of duty just from the fact that an injury occurred that would not ordinarily occur unless someone was negligent.
The plaintiff must establish evidence connecting a particular defendant with the negligence to support a finding of liability against that defendant. When more than one person was in control of the instrumentality that caused the injury, res ipsa loquitur generally may not be used. (example, several people cooked a dish and then the dish is put all in one big casserole, Plaintiff can’t know which person was the probable negligent on this cause, don’t know who breach the duty of care)

Question 134

<p>To establish proximate cause in indirect cause cases:</p>

Answer 134

An intervening force combines with the defendant’s conduct to cause the plaintiff’s injury.

The plaintiff must show that the defendant’s negligence -> caused a foreseeable harm or reaction from a foreseeable intervening force.

(Intervening forces that produce a harm outside of the scope of what would normally be anticipated from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability.)

Question 135

<p>A public figure suing for damages in a defamation action must prove</p>

Answer 135

(additional to the regular defamation elements:)

• actual malice
• was false or
• with indifference whether it was false or true information

plaintiff must show “that the utterance was false and that it was made with knowledge of its falsity or with reckless disregard of whether it was false or true.”

Question 136

<p>Torts.Private Nuisance is</p>

Answer 136

<p>a substantial, unreasonable interference with another's use or enjoyment of his own property</p>

Question 137

<p>Civil Pro.Removal process:</p>

Answer 137

<p>Notice of removal should be filed in the federal district court that geographically encompasses the state court where the action was filed.
A copy must be served on the plaintiff, and another copy should be filed in the state court from which the action is being removed</p>

Question 138

<p>Adverse possession elements:</p>

Answer 138

(i) actual;
(ii) open and notorious (i.e., such as the usual owner would make of the land and sufficient to put the true owner or the community on notice of the fact of possession);
(iii) hostile (i.e., without the true owner’s permission); and
(iv) continuous

Question 139

<p>Lay opinion testimony is admissible when:</p>

Answer 139

(i) it is rationally based on the perception of the witness;
(ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and
(iii) it is not based on scientific, technical, or other specialized knowledge.
(One matter about which a lay witness may testify is the general appearance or condition of a person)

Question 140

<p>Torts.Doctrine of respondeat superior.</p>

Answer 140

<p>imposes liability on an employer for the tortious conduct of its employee occurring within the scope of the employment relationship</p>

Question 141

<p>Torst.Invasion of Privacy. False light elements:</p>

Answer 141

elements that Plaintiff must prove:

(i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and
(ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances

Question 142

<p>Contracts.The parol evidence rule states that</p>

Answer 142

<p>where the parties to a contract express their agreement in a writing with the INTENT that it embody the final expression of their bargain, any other expressions—written or oral—made prior to the writing, as well as any oral expressions contemporaneous with the writing, are inadmissible to vary the terms of the writing.
Parol evidence CAN be offered to show subsequent modifications of a written contract</p>

Question 143

<p>Real Property.Equitable provision in a deed, can be enforceable when (elements):</p>

Answer 143

<p>1. intent that the restriction will be enforceable by subsequent grantees.

2. That the subsequent grantee have notice of the servitude
3. the restriction concerns and touches the land</p>

Question 144

<p>Evidence of other prior crimes are generally not admissible, unless to show:</p>

Answer 144

[MIMIC]
Motive
Intent
Mistake
Identification
Common Scheme

Question 145

<p>Torts. Res ipsa loquitur Elements:</p>

Answer 145

<p>(i) the defendant had exclusive control of the instrumentality during the relevant time; and
(ii) the plaintiff shows that she was not responsible for the injury.</p>

Question 146

<p>Torts. Negligence Per se Requires:</p>

Answer 146

(i) there was a criminal or other regulatory statute / law that imposed a penalty for its breach;
(ii) the defendant violated that law;
(iii) the harm caused by the violation was the type of harm that the law was intended to protect against;
(iv) the plaintiff was in the class of individuals the law was intended to protect; and
(v) the violation of the law proximately caused the harm to the plaintiff

Question 147

Negligence: Duty Breach Causation Damages.

Elements for causation (Actual cause / Proximate cause):

Answer 147

(i) actual cause, also referred to as “cause in fact;” The test for whether something was an actual cause is most commonly the “but- for” test: it asks “but for” the defendant’s negligent actions, would the harm have occurred?

(ii) proximate cause, which is also known as the “legal cause.”
Proximate cause analysis asks whether the harm suffered was foreseeable and within the zone of risk created by the defendant’s conduct.

Question 148

<p>Assault</p>

Answer 148

(i) an act by the defendant which created a reasonable apprehension in the plaintiff of immediate harmful or offensive contact / Intent to commit battery
(ii) that there was intent of the defendant to bring about an apprehension of immediate or harmful or offensive contact with the plaintiff’s person; and
(iii) causation

Question 149

<p>Trespass. Necessity:</p>

Answer 149

<p>Necessity allows a person to interfere with the real or personal property of another where the inference is reasonable and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Could be public of private.
-Public necessity: an absolute defense and can be invoked when an act is for the public good.
-Private necessity: applies when an actor benefits a limited number of people and is a qualified defense, requiring the actor to pay for any injury caused.</p>

Question 150

<p>Products Liability.Strict liability:</p>

Answer 150

(i) a commercial supplier of a product;
(ii) producing or selling a defective product;
(iii) actual and proximate cause; and
(iv) damages.

The plaintiff must prove that the defect existed when the product left the defendant’s control.

Question 151

<p>Torts. Private nuisance (03 elements):</p>

Answer 151

<p>the plaintiff has the burden to show three elements:

(i) the plaintiff has a possessory interest in the land;
(ii) the defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property; and
(iii) that the defendant’s interference with the plaintiff’s use or enjoyment of land was substantial and unreasonable.</p>

Question 152

<p>Real Property. Equitable servitude: In a deed is only enforceable where a party can establish (03):</p>

Answer 152

<p>(i) intent for the restriction to be enforceable by subsequent grantees;

(ii) that the subsequent grantee had notice of the servitude; and
(iii) the restriction touches and concerns the land.</p>

Question 153

<p>The warranty of marketable title is implied in all land sale contracts. This warranty requires the seller to provide a marketable title to the buyer on (but not before) the \_\_\_\_\_\_ \_\_\_\_\_\_\_. To be considered marketable, the title must be free of encumbrances, such as mortgages, restrictions, covenants, easements or other limiting provisions that are not explicitly identified in the contract.</p>

Answer 153

<p>The warranty of marketable title is implied in all land sale contracts. This warranty requires the seller to provide a marketable title to the buyer on (but not before) the closing date. To be considered marketable, the title must be free of encumbrances, such as mortgages, restrictions, covenants, easements or other limiting provisions that are not explicitly identified in the contract.</p>

Question 154

<p>Congress has the power to create special courts under Article I, and the judges for those courts do not have the protections of Article III, such as</p>

Answer 154

life tenure and

guarantee of no reduction in salary

Question 155

<p>It is permissible to allow a witness to view almost any item, even if the item contains hearsay, if the item</p>

Answer 155

<p>would aid the witness in remembering something that he has admitted to forgetting on the stand.</p>

Question 156

<p>Preliminary questions concerning the admissibility of evidence shall be determined by the</p>

Answer 156

<p>Court</p>

Question 157

<p>Prior jury service in a case involving a party does not render the witness</p>

Answer 157

<p>incompetent.</p>

Question 158

<p>Evidence of other crimes, while generally not admissible, can be admitted to prove things other than the defendant's criminal disposition. "MIMIC" identifies relevant purposes for admitting such evidence:</p>

Answer 158

<p>Motive, Intent, Mistake, Identity,Common scheme or plan.</p>

Question 159

A mutual mistake is when a contract is based upon a mistake made by both parties.
03 requirements must be satisfied before the adversely-affected party may avoid the contract based on mutual mistake:

Answer 159

(i) the mistake must CONCERN a basic assumption on which the contract was made;
(ii) the mistake must have a material EFFECT on the agreed exchange of performances; and
(iii) the adversely-affected party must not bear the risk of the mistake.

Question 160

<p>Under the (UCC), a contract for the sale of goods for $500 or more must be evidenced by a writing that is signed by the person against whom enforcement is sought. As an exception to the rule, a signed writing will not be required when the contract is</p>

Answer 160

<p>1. between merchants

2. where a written confirmation of a contract of sale has been sent by one of the merchants, and
3. the recipient fails to object to the confirmation within 10 days of its receipt.</p>

Question 161

<p>A court has personal jurisdiction over a defendant if she is present in the forum state when</p>

Answer 161

<p>personally served with process.The length of time present within the state does not matter.</p>

Question 162

Personal Jurisdiction: Constitutional analysis:

Answer 162

Contact - Relatedness - Fairness
-Contact: there must be a relevant contact between the Defendant and the forum state. Needs at least minimum contact (purposeful availment / foreseeability)

• Relatedness: General (D’t at home, domicile) Specific (the claim arise from Defendant contact with the forum)
• Fairness: in specific personal jurisdiction, is fair to determine personal jurisdiction over Defendant?

Question 163

<p>Long-arm statutes</p>

Answer 163

<p>Many states have statutes granting the courts jurisdiction over persons committing tortious acts within the state</p>

Question 164

<p>An amendment pleading to change a Defendant, relates back to the date the original pleading was filed for purposes of the statute of limitations if:</p>

Answer 164

<p>(1) the claim arises out of the conduct, T/O (transaction, or occurrence) set out in the original pleading; and
(2) the new Defendant received notice of the plaintiff's original lawsuit and knew, or should have known, that the action would have been brought against it, but for a mistake concerning the proper party's identity.</p>

Question 165

<p>Civil Pro. A party who wishes for a jury trial on a particular issue must file a demand within</p>

Answer 165

<p>14 days after the service of the last pleading directed to that issue</p>

Question 166

<p>Civil Pro.</p>

<p>If legal and equitable claims arising out of the same common facts are joined (in one same trial), the \_\_\_\_\_ claim should be tried first by the jury (if requested a jury) and then the \_\_\_\_\_\_\_ claim to the court.</p>

Answer 166

<p>If legal and equitable claims arising out of the same common facts are joined (in one same trial),</p>

<p>the legal claim should be tried first by the jury and then</p>

<p>the equitable claim by the court.</p>

Question 167

<p>Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to:</p>

Answer 167

<p>determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death. For a devise (bequest) of a specific item of property (a specific gift), such property is considered adeemed, and the gift fails. (For example, if a will bequeathed the testator's car to a specific beneficiary, but the testator owned no car at the time of his or her death, the gift would be adeemed and the aforementioned beneficiary would receive no gift at all.)</p>

Question 168

<p>Torts.</p>

<p>The traditional standard of care in a negligence action is to act as a</p>

Answer 168

<p>reasonable prudent person.</p>

Question 169

<p>Civil Pro.Once a trial court issues an order regarding the trial plan after a final pretrial conference, that order may be modified only to prevent</p>

Answer 169

<p>manifest injustice.</p>

Question 170

<p>If an attorney does not seek to modify the final pretrial order at the trial-court level, the issue will</p>

Answer 170

<p>not be preserved for appeal</p>

Question 171

<p>Subsequent remedial measures taken after an event are not admissible to prove</p>

Answer 171

<p>negligence or culpable conduct.</p>

Question 172

<p>Criminal. Mistake of law is almost never a defense to a crime. Lacking knowledge that an act constitutes a crime, even is the lack of knowledge is reasonable, is not a defense to that crime.Mistake of fact is available as a defense only if it</p>

Answer 172

<p>negates a requisite intent element (i.e., mens rea) for the crime.</p>

Question 173

<p>General intent crimes require that the defendant be aware of his actions and any attendant circumstances. For a general intent crime, only a reasonable mistake of fact is a defense. Examples of general intent crimes include:</p>

Answer 173

<p>assault as a threat.</p>

Question 174

<p>CriminalStrict liability crimes require only that the underlying crime be committed, and do not require a mental element at the time the crime was committed. For a strict liability crime (one where no intent, or mens rea, is required), mistake of fact is:</p>

Answer 174

<p>never a defense. Example: Illegal sale of alcoholic beverages, is a strict liability crime.</p>

Question 175

<p>The crime of assault exists where either:</p>

Answer 175

<p>(i) the defendant attempts to commit a battery and fails; or
(ii) the defendant intentionally places another in fear of imminent injury</p>

Question 176

<p>An unlawful arrest is not an adequate reason to:</p>

Answer 176

<p>dismiss an indictment or subsequent criminal prosecution. Therefore, if the police improperly arrest a person, the improper arrest / that violation is not a defense against the charged offense. The right remedy is no to dismiss the action against the unlawful arrested people.</p>

Question 177

<p>Battery is the unlawful application of force to the person of another, resulting in either an offensive touching or bodily injury. Battery is also a general intent crime. "General intent" is an awareness of all the factors constituting the crime. \_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_ is not a valid defense to a general intent crime.</p>

Answer 177

<p>Voluntary intoxication</p>

Question 178

<p>Constitutional.
A restriction on commercial speech is subject to a form of \_\_\_\_\_\_\_\_\_\_ scrutiny, requiring the government to show that
the restriction directly advances an important government interest and
that the restriction is not substantially more extensive than necessary to protect that interest.</p>

Answer 178

<p>intermediate judicial scrutiny</p>

Question 179

<p>To be granted post-conviction relief on the grounds of ineffective assistance of counsel, the defendant must show:</p>

Answer 179

(i) deficient performance by counsel that fell below an objective standard of reasonableness; and
(ii) prejudice,
defined as a Reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. “but for” the attorney’s ineffective assistance, the defendant would have prevailed.
Reasonable probability the outcome would have been different NOT clear and convincing evidence

Question 180

<p>Real Property.Equitable conversion: once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property. The seller's interest, which consists of the right to the proceeds of the sale, is considered to be personal property. This doctrine also affects the passage of title when a party to a contract dies before the contract has been completed. In general, it holds that:</p>

Answer 180

<p>-a deceased Seller's interest passes as personal property.If the seller dies, the bare legal title passes to the takers of his real property, but they must give up the title to the buyer when the contract closes. and
-a deceased Buyer's interest as real property. </p>

Question 181

<p>Constitutional:

| To be valid, government regulations of speech and assembly in public forums (and designated public forums) must: </p>

Answer 181

(i) be content-neutral (subject matter-neutral and viewpoint-neutral);
(ii) be narrowly tailored to serve an important government interest (i.e., the regulation may not burden substantially more speech than necessary to further the significant government interest) (i.e., traffic safety, orderly crowd movement, personal privacy, noise control, litter control, aesthetics, etc.); and
(iii) leave open alternative channels of communication.

Question 182

<p>Torts.

| For a private individual to prevail on a defamation claim, they must show that:</p>

Answer 182

(i) was a defamatory communication of fact;
(ii) about the plaintiff;
(iii) that was published to a third person who understood it was defamatory; and
(iv) which, as a result, caused harm to the plaintiff.
(Unlike public figures, private individuals do not need to prove that the communication was false as an element of the claim)

Question 183

<p>Torts.prima facie case for Defamation, the following elements must be proved:(4)</p>

Answer 183

(i) defamatory language on the part of the defendant;
(ii) the defamatory language was of or concerning the plaintiff;
(iii) publication of the defamatory language by the defendant to a third person; and
(iv) damage to the reputation of the plaintiff.

Where defamation refers to a public concern or involves a matter of public concern, the plaintiff also needs to prove (v) falsity and (vi) fault by the defendant.
(Truthfulness is always an absolute defense to defamation)

Question 184

<p>Hearsay</p>

Answer 184

• > A statement,
• > other than one made by the declarant while testifying at the current trial or hearing (out-of-court),
• > to prove the truth of the matter asserted.

Not admissible unless it falls in one of the exceptions.

Question 185

<p>Hearsay Exception: statement by an opposing party (traditionally known as an "admission by a party-opponent")</p>

Answer 185

<p>statement by an opposing party (traditionally known as an "admission by a party-opponent").
Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.</p>

Question 186

<p>Hearsay Exception: An excited utterance, or spontaneous declaration, is another exception to the hearsay rule.</p>

Answer 186

<p>Specifically, a declaration made during or soon after a startling event is admissible. The declaration, however, must be made under the stress of excitement produced by the startling event and concern the immediate facts of the startling occurrence.</p>

Question 187

<p>A statement of a third party may be adopted by a party and may be admissible against them as substantive evidence. In special circumstances, silence may be considered an adoption, sometimes called an implied admission or adoption by silence. The elements of an adoption (of an statement) by silence are:</p>

Answer 187

<p>(i) the defendant heard the incriminating statement;

(ii) the defendant had an opportunity to reply and remained silent; and
(iii) the incriminating statement was such that the natural reaction of an innocent person would be to deny it.</p>

Question 188

<p>Procedural due process requires that the state act with adequate or fair procedures when it deprives a person of</p>

Answer 188

<p>life, liberty or property.</p>

Question 189

Due Process:

Proper process typically involves two requirements:

Answer 189

(i) notice; and
(ii) an opportunity to respond BEFORE the termination of that interest (pre-termination hearing)
Unless, pre-termination hearing is no highly impracticable

Question 190

<p>Real Property.

| Profit is a:</p>

Answer 190

non-possessory interest in land.

A profit gives the holder a right to enter onto another’s land for the purpose of removing some sort of natural resource

Question 191

<p>Real Property.

| License:</p>

Answer 191

Licenses privilege their holder to go upon the land of another.
It is merely a privilege and is revocable at the will of the licensor. A license is personal to the licensee and not alienable. (example, to buy a ticket for a concert gives the holder of the ticket the privilege to enter into the property to go to the concert)

Question 192

<p>Dormant Commerce Clause:</p>

Answer 192

<p>Prohibits discrimination against out-of-state interests in order to protect local economic interests.</p>

Question 193

<p>three elements to avoid violating the Dormant Commerce Clause by a State:</p>

Answer 193

<p>(i) the regulation must pursue a legitimate state end;

(ii) the regulation must be rationally related to that legitimate state end; and
(iii) the regulatory burden imposed by the state on interstate commerce must be outweighed by the state’s interest in enforcing its regulation.

A discriminatory state or local law may still be valid, however, if it: (i) furthers an important, non-economic state interest (e.g., health or safety); and (ii) there are no reasonable alternatives available.</p>

Question 194

Dormant Commerce Clause:

A discriminatory state or local law may still be valid, if: (2)

Answer 194

(i) furthers an important, non-economic state interest (e.g., health or safety); and
(ii) there are no reasonable alternatives available.

Question 195

<p>The Establishment Clause compels the government to pursue a course of neutrality toward religion.
A government action must pass the Lemon test to be upheld under the Establishment Clause.
Elements of the Lemon Test:</p>

Answer 195

<p>(i) have a secular purpose;

(ii) have a primary effect that neither advances nor inhibits religion; and
(iii) not produce excessive government entanglement with religion.</p>

Question 196

<p>In a criminal case, the prosecution cannot be the first to offer character evidence regarding the defendant. However,</p>

Answer 196

<p>if the defendant introduces evidence of his good character, the prosecution may rebut that character evidence through cross-examination and the testimony of other witnesses to the contrary.</p>

Question 197

Counterclaims are claims the defendant may have against the plaintiff.
A compulsory counterclaim is when:

Answer 197

arises out of the same transaction or occurrence as the plaintiff’s claim and must be pleaded in the answer or the defendant will be barred from bringing it at a later time.

Question 198

Congress may establish the manner in which the ________ jurisdiction of the United States Supreme Court is exercised.

Answer 198

appellate

Question 199

Liability for misrepresentation occurs when a representation by the seller about a product induces reliance by the buyer. Liability for misrepresentation is usually based on strict liability in products cases. The plaintiff must show:

Answer 199

(i) the defendant is a seller engaged in the business of selling such products;
(ii) misrepresentation must be of a material fact;
(iii) intent to induce reliance of the buyer;
(iv) justifiable reliance,
(v) actual reliance; and
(vi) proximate cause and damages.

Question 200

Torts.

A products liability claim may be brought by a plaintiff under multiple different theories:

Answer 200

(i) intent;
(ii) negligence;
(iii) strict liability;
(iv) implied warranties; and
(v) express warranties.

Question 201

Misrepresentation by manufacturers or suppliers is a type of products liability claim based on strict liability. In order for a plaintiff to recover damages, the misrepresentation must have been

Answer 201

1. a misrepresentation of a material fact concerning the quality or character of the product, and
2. the plaintiff must have been injured after relying on this misrepresentation.

Question 202

A non-attorney may execute standard mortgage loan documents. As long as the bank employee does not exercise legal discretion or give legal advice, execution of standard mortgage loan documents is not considered

Answer 202

the practice of law.

Question 203

The promisor’s duty to perform serves as a condition precedent to the other party’s duty to perform. In other words, if these duties are excused by impossibility, impracticability, or frustration, the other party’s contractual duties will also

Answer 203

be discharged.

Question 204

Modern courts will discharge contractual duties where performance has become impracticable. The test for determining impracticability is that the party who is supposed to perform has encountered:

Answer 204

(i) extreme and unreasonable difficulty and/or expense; and
(ii) its non-occurrence was a basic assumption of the parties when they entered into the contract. In effect, courts will allow the party to avoid performance where subjective impossibility is found.

However, a mere change in the degree or difficulty or expense due to certain causes will not be considered impracticable, including increased wages, prices of raw materials, costs of construction (unless well beyond normal).

Question 205

Contracts.

For a revocation by indirect communication to terminate the offer, the offeree must indirectly receive:

Answer 205

(i) correct information; ->
(ii) from a reliable source; ->
(iii) of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer.

Question 206

One type of offer termination is revocation, which is the retraction of an offer by the offeror. A revocation terminates the offeree’s power of acceptance if it is communicated to her ______ she accepts.
Revocation directly communicated to the offeree by the offeror terminates the offer.
A revocation is generally effective when received by the offeree.

Answer 206

BEFORE

Question 207

An offer creates a power of acceptance in the offeree. An acceptance is the offeree’s manifestation of assent to the terms of the offer, made in a matter invited or required by the offer.
The offeror is the master of his offer, which means he may prescribe the method by which it may be ________

Answer 207

accepted.

Question 208

Real Property. Mortgages.
The debt is to be satisfied out of the building/property and the principal will be personally liable for the breach.
If a buyer takes the property, SUBJECT to the mortgage debt, the buyer is not personally liable for the debt, the property is subject to the mortgage along with the seller.
This will be different if the Buyer:

Answer 208

expressly assumes the mortgage debt.
In that case, the buyer would be primarily liable for any deficiency and the seller, absent a release by the mortgagee, would be secondarily liable.

Subject to the mortgage not the same as expressly assume the mortgage

Sell when the property is SUBJECT to the mortgage: property liable / seller liable.
Sell when Buyer EXPRESSLY assumes the mortgage debt: Buyer liable, Seller secondly liable.

Question 209

After a pretrial conference, the judge must enter a pretrial order under Federal Rule of Civil Procedure (FRCP) 16(c).
This pretrial order is binding during the rest of litigation unless the court modifies it.
A court will only modify a pretrial order to

Answer 209

“prevent manifest injustice.”

If there is no objection to this pre-trial order before the commencement of the trial, this order is binding for the rest of the trial

Question 210

Ordinarily, someone who hires an independent contractor would not be vicariously liable for the contractor’s negligence.
However, a landowner who holds his land open to the public has a non-delegable duty to

Answer 210

keep the premises safe for business visitors.
Such a landowner is liable for any negligence that causes a guest to be injured by unsafe conditions on the premises, even the negligence of an independent contractor.
(example, an injury created by the independent contractor because of not safe measures inside a hotel)

Question 211

Criminal. Car stop

If the person consent the police to make a search, the police can search

Answer 211

the whole car, even the trunk, if valid consent.
(a person that does not owe the vehicle but is driving it would have sufficient standing and apparent authority to authorize the search)

Question 212

Criminal.

Forced entry into a home, with a valid search warrant, is permissible when

Answer 212

the person is believed to be inside and no response occurs.

Question 213

a juror’s possible misunderstanding as to the standard of proof / jury instructions is inadmissible evidence and would not lead to

Answer 213

a new trial.

Question 214

Real property / Contracts.
A seller is entitled to keep a buyer’s deposit as liquidated damages following the buyer’s breach of the contract, as long as that amount appears to be

Answer 214

reasonable in light of the seller’s anticipated and actual damages.
Liquidated damages typically do not exceed 3% - 10% of the purchase price.

Question 215

While taxpayers generally lack standing to challenge general spending statutes, a taxpayer will have standing where the spending

Answer 215

possible violates a specific limitation on congressional spending and the taxpayer will have standing.
(for example if the taxpayer raise that the congress is violating a constitutional statute / limitation)

Question 216

The Constitution provides for equal protection of the law, which means that it protects individuals from actions by the state (the ______ Amendment) or the federal government (the ______ Amendment).

Equal protection only restricts private action in extremely specific circumstances.

Answer 216

Fourteenth

Fifth

Question 217

The basic ways of creating an easement are by

Answer 217

express grant, implication, and prescription.

• An easement by express grant is one that is recorded and signed by the grantor and must comply with all the formalities of a deed.
• An easement by implication is created by operation of law rather than a written instrument.
• An easement by prescription is similar to adverse possession, where the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period.

Question 218

If the suspect claims that his civil rights were violated by a police officer, is this Fed claim or State claim?

Answer 218

Civil Rights = Fed Claim

And the court has federal question jurisdiction over that claim

Question 219

Civil Pro.
Depositions.
Can you name a company for deposition? Yes.
When giving notice of deposition to an organization, a party may name the organization and state with reasonable particularity the matters to be covered. The organization and the requesting party must then confer about the topics to be covered in the deposition, and

Answer 219

the organization will designate individuals to testify about those topics on its behalf

Question 220

To terminate an easement by prescription, the owner of the servient tenement must

Answer 220

openly and nonpermissively interfere with the use of the easement for the same statutory period as is necessary to acquire an easement by prescription.
(Although statutes vary, it would never be less than one year, and most statutes set the period at 10 or 20 years).

Question 221

A hearsay statement will not be admitted-even if it falls within a hearsay exception-when:

Answer 221

(i) is offered against the accused in a criminal case;
(ii) the declarant is unavailable;
(iii) the statement was testimonial in nature; and
(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

Question 222

Constitutional.
Age discrimination.
Who has the burden of proof?

Answer 222

The challenger (not the state) must show that the law has no rational basis, and the statute will be presumed constitutional unless a clear showing of arbitrariness and irrationality is made. 
Must prove ARBITRARY and IRRATIONAL

Question 223

Defamation.

Elements:

Answer 223

(i) defamatory language on the part of the defendant;
(ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer);
(iii) publication of the defamatory language by the defendant to a third person; and
(iv) damage to the reputation of the plaintiff.

(If Defendant cannot foresee that another person could listen, is not publication.
the communication to the third person must be made either intentionally or negligently)

Question 224

The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure (4th Amendment) only if it violates her own reasonable expectations of privacy.
The Court has held that a person has a reasonable expectation of privacy any time that:

Answer 224

(i) she owned or had a right to possession of the place searched
(ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or
(iii) she was an overnight guest of the owner of the place searched.

Question 225

Real Property.

Nuisance

Answer 225

A landowner who causes a substantial, unreasonable interference with a neighbor’s use or enjoyment of his property without a valid defense is liable for private nuisance

Question 226

Congress has the power to make ______ for the District of Columbia under the Constitution.

Answer 226

all the laws

Question 227

Real Property.

Variance of a zone requirement:

Answer 227

A variance permits a waiver from a zoning requirement. A variance will be granted when an owner convinces a zoning appeals board that without the variance the owner would suffer a hardship regarding the use of the land.

Question 228

Congress has plenary power to _____ for the general welfare, and that power includes the power to mandate how appropriations will be ______.
The President lacks any constitutional power to override Congress’s appropriations decisions.

Answer 228

Congress has plenary power to spend for the general welfare, and that power includes the power to mandate how appropriations will be spent.
The President lacks any constitutional power to override Congress’s appropriations decisions.

Question 229

Assault, at common law, is not a felony and cannot be used as the basis for a felony murder charge.
Unless,

Answer 229

Unless is convicted with felony-level assault

Question 230

Evidence:
The best evidence rule is more accurately called the “original document rule.”
The rule is as follows: In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing

Answer 230

must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent.

Question 231

Motion to Dismiss, Rule 12(b) defenses:

Answer 231

1. Lack of jurisdiction over the subject matter
2. Lack of jurisdiction over the person Improper venue
3. Insufficiency of the process
4. Insufficiency of service of process
5. Failure to state a claim upon which relief may be granted
6. Failure to join a necessary party
   (2 to 5 is waive if not raised in the first pre-trial motion or first answer)

Question 232

Civil Pro.

Implead a 3rd party is:

Answer 232

Impleading is proper only to join a party who is derivatively liable to the defendant, not to bring in a substitute defendant.
Trying to use impleader to “switch” defendants is not proper civil procedure.

Question 233

Civil Pro.

Rule 26 is / requires:

Answer 233

Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request.

Rule 26 requires parties to disclose all information “then reasonably available” that is not privileged or protected as work product.
Three types of disclosures are required: initial disclosures, disclosures of expert testimony, and pretrial disclosures.

Question 234

Torts. Negligence.
Duty.
There is no affirmative duty to act to control the behavior of third parties. There are several exceptions to this rule, and one of them is in the relationship between a business and its customers.

Answer 234

Businesses owe their customers a limited duty to protect them from harm, including harm caused by other customers.

Question 235

Civil Pro.

Remove a claim to federal court:

Answer 235

1. the federal court must have subject-matter jurisdiction over the claim such as diversity or federal question jurisdiction.
2. The defendant seeking to remove to federal court must file, within 30 days of receipt of the initial pleading/summons, a notice of removal in the district court where the state action is pending.
3. Removal is a right exercised by the defendant —plaintiffs may NOT remove to federal court.

Question 236

A mortgage is:

Answer 236

a security interest in real property held by a lender as a security for a debt, usually a loan of money.
A mortgage in itself is not a debt.

In other words, the mortgage is a security for the loan that the lender makes to the borrower

Question 237

common law, Contributory negligence.

this is NOT the common rule to apply unless the bar examiners ask you to use this rule

Answer 237

Where a plaintiff is negligent in addition to the defendant being negligent, the plaintiff may not recover because the plaintiff’s contributory negligence is a bar to recovery.
Even if a plaintiff is even 1% negligent, he is completely barred from recovery.
However, under the doctrine of last clear chance, a plaintiff can recover despite their own contributory negligence. Under this doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

Question 238

Constitutional.
The limitation on all abortions after the first trimester except when the life or health of the mother is threatened is an undue burden on women’s fundamental right to reproductive choice prior to fetal viability. The state may not impose an undue burden on the ability of women to get abortions at

Answer 238

any point in the pregnancy, although, after fetal viability, most limitations will not be an undue burden as long as there is an exception for the life and the health of the mother.

Question 239

Relevant evidence may be excluded if:

Answer 239

1. its probative value is substantially outweighed by the danger of unfair prejudice,
2. confusion of the issues,
3. misleading the jury, or
4. undue delay, waste of time, or needless presentation of cumulative evidence.

Question 240

a federal court is authorized to order a new trial on its own for

Answer 240

any reason that would justify granting one on a party’s motion.
(example, the jurors’ misunderstanding of the jury instructions is a ground for requesting a new trial. Even by request of the judge)

Question 241

Does a judge have standing to appeal?

Answer 241

No

Question 242

Actual possession of property held in concurrent ownership by one concurrent owner for the statutory period of adverse possession will not be sufficient to give that possessor title to the whole estate to the exclusion of his co-tenant unless there has been an ouster.
Ouster means:

Answer 242

Ouster refers to when the occupying tenant refuses to permit the other tenant equal occupancy, if the co-tenant is ousted then the other co-tenant must account the ousted co-tenant for his or her share of the fair rental value of the premises.

Question 243

Can a co-tenant obtain rights by adverse possession?

Answer 243

Yes. A co-tenant can obtain rights by adverse possession.
For example, if a cotenant lives in a surrounding state and the other cotenant meets the elements of adverse possession then the cotenant could obtain sole title to the property through adverse possession.

Question 244

A state or local government may regulate local aspects of interstate commerce if the regulation:

Answer 244

(i) does not discriminate against out-of-state competition to benefit local economic interests; and
(ii) is not unduly burdensome (i.e. , the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation).

Question 245

Evidence.

A witness may be compelled to answer questions if

Answer 245

granted adequate immunity from prosecution.
Use and derivative use immunity, guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness.

The other type of immunity that may be given is “transactional” immunity, which guarantees immunity from prosecution for any crimes related to the testimony of the witness.

Question 246

Witness “transactional” immunity

Answer 246

guarantees immunity from prosecution for any crimes related to the testimony of the witness.

Question 247

Federal Diversity action.

In a federal diversity action a court must look to the choice-of-law rules of the:

Answer 247

state in which it sits to determine which of two competing states’ laws should be applied to the action before it.

Question 248

Dead Man’s Statute

Answer 248

attempts to equalize opportunities of showing proof in litigation that involves a decedent and a survivor where the suit’s subject matter is about a transaction or event that occurred while they were both alive.
There is no federal Dead Man’s Statute, meaning the Federal Rules of Evidence (FRE) do not directly limit a survivor’s ability to testify against a decedent.

Question 249

Preliminary questions concerning the admissibility of evidence shall be determined by

Answer 249

the court.
Both sides are permitted to present evidence and argument about the admissibility of the evidence, and the hearing should be conducted outside of the presence of the jury.

Question 250

Torts.

a plaintiff who knowingly, voluntarily, and unreasonably subjects himself to the ultra-hazardous danger will

Answer 250

Not recover

Question 251

Unless ________ by statute or the governing documents, a community may not impose restrictions on the structures or landscaping.

Answer 251

authorized

Question 252

If speech is not misleading, illegal, or fraudulent, the regulation of it will be valid only if it:

Answer 252

(i) serves a substantial government interest;
(ii) directly advances the substantial interest; and
(iii) is narrowly tailored to serve that interest.

Question 253

is False advertising is protected by the First Amendment?

Answer 253

No.

Question 254

Waiver is an excuse for the nonoccurrence or delay of a condition to fulfill a duty. Under the Uniform Commercial Code (UCC), consideration is ____ required for a valid waiver.

Answer 254

not required for a valid waiver.

Question 255

The U.S. Supreme Court has held that it is a violation of the Eighth Amendment to impose mandatory life in prison without the possibility of parole on a person who was a _____ when the crime was committed.

Answer 255

minor

Question 256

Under the eggshell-plaintiff rule, a defendant is liable for the damages the victim suffered due to an unusual or rare mental condition, physical condition, or other vulnerability of the plaintiff, even if the extent of damages was ____________.

Answer 256

unforeseeable.

Question 257

Contracts

Confirmatory Memo Rule.

Answer 257

-contracts between merchants,
-if one party, within a reasonable time
-after an oral understanding has been reached,
-sends a written confirmation to the other party that binds the sender, it will satisfy the Statute of Frauds requirements against the recipient as well, if the recipient knew of the memo’s contents and failed to object to the memo’s contents in writing within 10 days of when the confirmatory memo was received.
Does NOT need to express the price.
Extended to the quantity of the memo.

Question 258

The Statute of Frauds requires a contract for the sale of land to:

Answer 258

1. identify the parties,
2. contain a description of the land,
3. evidence an intent to buy and sell,
4. recite (usually) a price term, and
5. be signed by the party against whom enforcement is sought.

Question 259

future interests in personal or real property:

Answer 259

(i) Contingent remainders - To A for life, then to the heirs of B.
(ii) Executory interests - To A, but if A marries, to B; To A for life, then to B if B delivers…
(iii) Class gifts (EVEN if vested remainders) - To A for life, then to A’s children.
(iv) Options and rights of first refusal - To A for life, then B has the right to purchase.
(v) Powers of appointment - To A to be distributed as he sees fit.

Question 260

Contracts.

It is established that “permanent employment” means:

Answer 260

“employment-at-will.”

In an employment-at-will relationship, either party can terminate the agreement at any time, without the termination being considered a breach (unless the termination were to violate an important public policy)

Question 261

Kidnapping is

Answer 261

the movement of a human being against that person’s will

Question 262

The mishandling of a relative’s corpse will lead to negligent infliction of emotional distress,
Therefore, she/he will likely be able

Answer 262

to recover for negligent infliction of emotional distress.

The person does not need to be in the zone of danger of have seen the mishandling.

Question 263

To become a class action, a case (4):

Answer 263

(i) must be so large that joinder of all members is impracticable,
(ii) must contain common questions of law or fact shared by the class,
(iii) have claims or defenses from the named representatives that are typical of those in the class, and
(iv) have representatives that fairly and adequately protect the interests of the class.

Question 264

A party may file a motion for summary judgment at any time until

Answer 264

30 days after the close of discovery.

Question 265

damages based on negligent infliction of emotional distress needs to show:
Emotional distress AND

Answer 265

Physical injury

Question 266

Under Article III, the U.S. Supreme Court shall have original jurisdiction in cases involving (3)

Answer 266

1. ambassadors,
2. ministers and consuls, and
3. cases in which a state is a party.

Article III itself suggests that Congress may place certain limits on both, the Supreme Court’s appellate jurisdiction and on the jurisdiction of the lower federal courts

Question 267

Difference between:
statement against interest:
statement by a party-opponent:

Answer 267

-statement against interest: the declarant MUST be UNAVAILABLE.
A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made.

-statement by a party-opponent: when the opposing party’s statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.

Question 268

Civil Pro.
Removal.
Any action brought in state court of which the federal courts would have had original jurisdiction may be removed by the defendant to the federal district court.
For a diversity case, the action will be removable only if no defendant is a citizen of the state in which the action was brought
Notice of removal is valid within

Answer 268

30 days of service of the complaint on the defendant.

If multiple defendants are served at different times and a later served defendant initiates removal, the earlier served defendants may join in the removal, even if their original 30-day window has closed.

Question 269

The Fifth Amendment prohibits governmental taking of private property “for public use without…”

Answer 269

… just compensation.”

As such, both state and federal governments have the right to take private property for public use as long as “just compensation” is paid.
This power is known as the right of “eminent domain.”

Question 270

There are a few special situations in which courts have allowed plaintiffs to recover for “Bystander Negligent Infliction of Emotional Distress” (NIED) when there would otherwise be no damages awarded (no physical injury needed)
There are two main categories, including:

Answer 270

(i) the Mishandling of bodies: such as when a hospital or funeral home negligently mishandles a corpse, thereby causing emotional distress to a close relative of the deceased; and
(ii) the Negligent Telegram: company who incorrectly announces that a person is dead or seriously injured, which is delivered to an intimate family member.

Question 271

Torts.

Tortious interference claim involves interference in a contractual relationship between the plaintiff and

Answer 271

a third party.

It cannot be brought by a plaintiff against a defendant with whom the plaintiff has contracted.
If Plaintiff sues the person who contracted, then is not a tortious interference, it will be an action based on the contract rather than by Tort

Question 272

If a motion for summary judgment is premature, the court may

Answer 272

When the party opposing the motion shows by an affidavit or declaration that he cannot yet present the facts, he may state the reasons for their unavailability.

And the court may:
1. deny the motion for summary judgment,
2. order a continuance to permit affidavits to be
obtained or depositions to be taken (defer ruling on it), or
3. make such other orders as is just.

Question 273

Real Property

An equitable servitude in a deed is only enforceable where a party can establish:

Answer 273

(i) intent for the restriction to be enforceable by subsequent grantees;
(ii) that the subsequent grantees had notice of the servitude; and
(iii) that the restriction touches and concerns the land.

Question 274

Real Property.

the lender’s policy of title insurance ends when:

Answer 274

the loan is repaid.

An owner’s policy of title insurance continues to protect the owner if the owner (here, the buyer) is ever successfully sued on a title covenant in a future conveyance. It does not matter that the buyer already conveyed the land when the suit is brought.

Question 275

A buyer of a Title Insurance policy will be protected even if already conveyed the land at the time of the suit if:

Answer 275

is ever successfully sued on a title covenant in a future conveyance.

Question 276

Hearsay exception:

statement made for purposes of diagnosis or treatment.

Answer 276

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for:
medical diagnosis or treatment.
The cause or source of the injury must be reasonably pertinent to diagnosis or treatment to be admissible, and statements assigning fault or identifying a perpetrator are generally not considered pertinent. Statements by family members and bystanders may be admitted under this exception as long as the statements were clearly made to obtain a diagnosis or treatment for the patient.

Question 277

Hearsay exception:

Excited utterance:

Answer 277

A declaration made by a declarant during or soon after a startling event is admissible as an exception to the hearsay rule.
The declaration must be made under the stress of excitement produced by the startling event and must concern the immediate facts of the startling occurrence. Fed. R. Evid. 803(2).

Question 278

A party may make a motion for a new trial no later than ___ days after the judgment if the party believes there was an error during the trial.

Answer 278

28 days

Question 279

Motions for a new trial may be made for errors concerning: (5)

Answer 279

1. the admissibility of evidence,
2. jury instructions,
3. juror misconduct,
4. excessive or inadequate verdicts, or
5. if the verdict is against the manifest weight of the evidence.

Question 280

Evidence.
A statement by an opposing party (traditionally known as an “admission by a party-opponent”) is not/yes hearsay?

(An out-of-court statement, made by the defendant in an individual capacity, now being offered against the defendant)

Answer 280

NOT hearsay.
Under this Rule, when the opposing party’s statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.

Question 281

Generally, there is no affirmative duty of a defendant to help or protect others.
But there are several exceptions to that rule.
One of them is situations where the defendant has a heightened level of control over the safety of individuals in its care. Classic examples of such situations are:

Answer 281

parents protecting children,
innkeepers protecting guests,
prison wardens protecting inmates
hospitals protecting severely mentally disabled patients.

Question 282

A contract for the sale of goods over $500 must be evidenced by a signed writing.
The absence of a price term will not/yes? make a contract unenforceable as long as the parties otherwise intended to enter into a contract.

Answer 282

will NOT make a contract unenforceable as long as the parties otherwise intended to enter into a contract.

There are some narrow exceptions to this general rule. -Goods that have been specially manufactured do not need a signed writing because the sale of the specially designed goods to another customer is not suitable.
-A writing is also not required with respect to goods that have already been paid for or received (received without rejection, not merely deliver)

Question 283

Can Mortgage agreements may dictate prohibitions on prepayment and prepayment fees?

Answer 283

YES

Question 284

A criminal defendant may be compelled to produce documents that have testimonial significance if

Answer 284

immunity is granted to the defendant.

Question 285

A criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant.
Types of immunities (02):

Answer 285

• “Transactional immunity.” Transactional immunity completely protects the witness from future prosecution for crimes related to his or her testimony.
• “Use and derivative use” immunity is narrower: it prevents the prosecution only from using the witness’s own testimony or any evidence derived from the testimony against the witness.

Question 286

At common law, a conspiracy requires at least __ “guilty minds.

The modern trend follows the MPC’s “____” approach to conspiracy, which requires that only ____ party have genuine criminal intent.

Answer 286

At common law, a conspiracy requires at least two “guilty minds.

The modern trend follows the MPC’s “Unilateral” approach to conspiracy, which requires that only 01 party have genuine criminal intent.

Question 287

Unless the contract specifies otherwise, under UCC, the place of delivery is the: ________,
and
If a contract does not specify a time of payment, payment will be due at: _________

Answer 287

Unless the contract specifies otherwise, under UCC, the place of delivery is the: seller’s place of business

If a contract does not specify a time of payment, payment will be due at the time the buyer receives the goods

Question 288

If a defendant is entitled to use force in his self-defense, and he does so, but he injures an innocent bystander, the use of force as to the third party will:

Answer 288

also be privileged as a defense

(assuming the self-defense person did not acted negligently)

Question 289

Police officers may conduct a warrantless search and seizure of evidence under “exigent circumstances” this meaning:

Answer 289

evidence that is likely to disappear before a warrant can be obtained

Question 290

A “contingent remainder” is

Answer 290

a type of future interest in property that passes to a person or entity only upon the existence of a certain set of circumstances at the time the title-holder dies.
It is a future property ownership right that depends upon the fulfillment of specific conditions.
If the specified conditions are not met, the remainder never takes effect.

Question 291

.

Answer 291

.

Question 292

Article I, Section 8, Clause 3 empowers Congress to:

Answer 292

regulate commerce with foreign nations and among the several states, and with the Indian tribes

Question 293

Under Article I, Section 8, Congress does have the right to

Answer 293

lay and collect taxes . . . to pay the debts and provide for the . . . general welfare of the United States …”
Therefore, Congress may:
spend for the general welfare,
it may tax for the general welfare,
but it may not regulate for the general welfare.

Question 294

Traditionally, there are 2 requirements for a negligent infliction of emotional distress (NIED) claim:

1. the plaintiff must suffer physical injury from the emotional distress.
2. the plaintiff must be within the zone of danger.

However, courts will waive the zone of danger requirement so long as 3 factors are present:

Answer 294

(i) the plaintiff and the person injured are closely related;
(ii) the plaintiff was present at the scene of the injury;
(iii) the plaintiff personally perceived the event.

Question 295

Real Property.

Estoppel by deed (sometimes referred to as after-acquired title)

Answer 295

ensures that if a grantor purports to convey title that he does not actually hold, and he subsequently acquires title to the property, it will automatically effectuate the prior benefit conveyed to the grantee.

Question 296

A search incident to a lawful arrest is a valid exception to the warrant requirement of the Fourth Amendment. Authorities may conduct a warrantless search incident to a lawful arrest as long as

Answer 296

the scope of the search is constrained to the defendant’s wingspan and performed contemporaneously with the arrest.

Question 297

In cases involving access to the ballot by political candidates, the U.S. Supreme Court typically determines whether the restriction at issue violates either the First Amendment freedom of association or the Fourteenth Amendment Equal Protection Clause. If the restriction infringes upon a fundamental right, such as the freedom of association, _____ scrutiny will apply.

Answer 297

strict .

So, the burden is on the state.
Must demonstrate that the statute is the least restrictive means of achieving a compelling state interest.

Question 298

In the Erie decision, the Supreme Court held;

• Federal courts, sitting in diversity, must apply (which law):
• For all procedural issues, federal courts sitting in diversity must apply:

Answer 298

State substantive law on the substantive issues of the case, including state common law.

Procedural issues: federal procedural rules, namely the Federal Rules of Civil Procedure

Question 299

Supreme Court has required federal trial courts, in diversity cases, to apply ___ law standard when considering a motion for a new trial based on excessiveness of the verdict.

Answer 299

state law

Question 300

Consequential damages can be recovered on a contract if the damages were

Answer 300

the natural and probable consequences of the breach.

In order for consequential damages to be recoverable, they must have been “in the contemplation of the parties at the time the contract was made” or otherwise foreseeable.

Question 301

A state tax levied directly against the property or operation of the federal government without the consent of Congress is

Answer 301

invalid.

Question 302

a state may (yes/no) impose a tax directly on the federal government or any of its agencies or instrumentalities.

Answer 302

NOT

Question 303

The mailbox rule renders a properly-mailed acceptance effective upon

Answer 303

dispatch, not the receipt.
This means that when a letter is deposited in the mail, the acceptance is effective, and the offer can no longer be revoked.

Question 304

The Eleventh Amendment bars any federal suit “against any one of the _____ by citizens of another state, or by citizens or subjects of any foreign state.”

Answer 304

states.

In other words, the 11th Amendment is a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or foreign government’s claims against a state government.
But actions by the United States government or other state governments are not barred.

Question 305

if a witness on the stand is given a diary to refresh her memory, the witness after reading the diary did not refresh her memory.
is the information of the diary admissible at trial?

Answer 305

Yes, and the plaintiff should be allowed to read the diary into evidence.
A qualifying recorded recollection may be read into evidence, but may not be offered as an exhibit unless by the opposing party.

Question 306

an out-of-court statement may be admissible as a recorded recollection exception to the hearsay rule when the witness:

Answer 306

(i) made a record;
(ii) based on firsthand knowledge;
(iii) when the matter was fresh in the witness’s memory which accurately reflected the witness’s knowledge; and
(iv) the witness has insufficient recollection at trial.

Question 307

Evidence - Criminal

If the defendant puts her character in issue, the prosecution may rebut the defendant’s character evidence by

Answer 307

calling qualified witnesses to testify to the defendant’s bad reputation for the particular trait involved.
The witness may also testify as to his own personal opinion regarding the trait at issue of the defendant. However, introducing evidence about specific acts by the defendant is not allowed

Question 308

Evidence - Criminal
If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant’s reputation, the prosecution may:

Answer 308

-test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness “knows of” or “has heard about” specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Question 309

Evidence - Criminal
The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the character witness

Answer 309

“knows of”, as well as whether he “has heard of”, specific instances of misconduct by the defendant.

Question 310

Evidence - Criminal
The accused in a criminal case can introduce evidence of his ____ ______ to show his innocence of the alleged crime.
Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case.

Answer 310

The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime.
Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case.

Question 311

Evidence - Criminal
The prosecution may only introduce character evidence in the form of ______ or ______ testimony after the defendant has first introduced evidence of his good character. The prosecution may also cross-examine the defense witness with questions about specific acts of misconduct by the defendant, but the prosecution may not prove those acts with extrinsic evidence.

Answer 311

The prosecution may only introduce character evidence in the form of reputation or opinion testimony after the defendant has first introduced evidence of his good character. The prosecution may also cross-examine the defense witness with questions about specific acts of misconduct by the defendant, but the prosecution may not prove those acts with extrinsic evidence.

Question 312

Evidence - Civil

Character evidence is admissible in a civil case if __________.

Answer 312

character is directly in issue.
Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used.

A defendant in a criminal case may “open the door” by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases.

Question 313

Evidence

In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:

Answer 313

Reputation, opinion, or specific acts.

Question 314

Evidence
Character evidence is NOT admissible in a civil case if: _____________.
Character evidence IS admissible in a civil case when: ____________________.

Answer 314

Character evidence is not admissible in a civil case if: offered to show that a party probably acted in conformity with that character.
Character evidence IS admissible in a civil case when: the character of a person is an issue in the case.

Question 315

whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to

Answer 315

have the writing produced at trial,
to inspect it,
to cross-examine the witness thereon, and
to introduce it into evidence

Question 316

Evidence
A memorandum used by a party at trial to refresh a witness’s present recollection: (need or not need to be) Authenticated?

Answer 316

Need not be authenticated.
When a memorandum is used at trial to refresh a witness’s recollection, it may be used solely to refresh her recollection and need not be authenticated. The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness’s recollection (although it may be introduced by the adverse party). Because a memorandum used solely to refresh a witness’s recollection is not introduced into evidence, it is not hearsay and need not fall within a hearsay exception.

Question 317

Evidence
Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by

Answer 317

reading it aloud to the jury.

Question 318

An expert’s opinion may be based on one or more of the following sources of information: (3)

Answer 318

(i) facts that he knows from his own observation,
(ii) facts presented in evidence at the trial and submitted to the expert, or
(iii) facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.

Question 319

Civ Pro

venue is proper in any federal district court where:

Answer 319

(i) any defendant resides, as long as all defendants reside in the same state; OR
(ii) where a substantial portion of the events giving rise to the claim occurred.
A third scenario for venue exists, which applies only if the first two avenues are not available:
(iii) “if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction” (emphasis added).

Question 320

Personal jurisdiction over a defendant is proper if he

Answer 320

is physically present in the forum and served with process, as long as the long-arm statute grants jurisdiction.

Question 321

When a case is originally filed in an improper venue, the court may either (2)

Answer 321

transfer the claim to a proper venue where the case could have originally been filed
or
dismiss the claim.

Question 322

Evidence
In a criminal case, the prosecution cannot be the first to offer character evidence regarding the defendant. However, if the defendant introduces evidence of his good character, the prosecution may rebut that character evidence through

Answer 322

-cross-examination and
-the testimony of other witnesses to the contrary.
This includes questions about whether the witness has heard of, or knows of, specific instances of misconduct by the defendant.

Question 323

A motion for summary judgment will be granted where there is no

Answer 323

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Question 324

Under Article III, the U.S. Supreme Court shall have original jurisdiction in cases involving (3)

Answer 324

ambassadors,
ministers and consuls, and
cases in which a state is a party.

Question 325

Evidence

Admission by a party opponent includes: Adoptive admissions:

Answer 325

When a party expressly or impliedly adopts someone else’s statement, this could be for example Silence.
When a party says something and the other remains in silence this could be an admission by a opponent party if 3 elements are met:
For silence to be an admission:
i. the party must have heard and understood the statement
ii. the party must been mentally and physically competent to deny the admission
iii. a reasonably person would have deny the accusation in the same circumstances.

Question 326

Leading questions are generally (yes/not) permitted if they are asked on direct examination of a disinterested witness

Answer 326

not permitted

Question 327

Evidence

Re-direct examination of a witness must be permitted only if

Answer 327

there were significant new matters raised on cross-examination
(Only to reply to significant new matters raised in cross-examination)

Question 328

Prior jury service in a case involving a party does not render the witness ________

Answer 328

incompetent.

Question 329

In order for a witness to invoke the right of self-incrimination ,

Answer 329

There must be a reasonable belief / possibility that the testimony would be incriminatory.
Does not need to be clear and convincing evidence, but rather a reasonable possibility

Question 330

Constitutional
Under the Article II, section 3, The decision to prosecute is reserved solely to the ________ branch.
Therefore, is the Attorney General’s decision to prosecute or not (even is the House of Representatives directs him to do so)

Answer 330

Under the Article II, section 3, The decision to prosecute is reserved solely to the executive branch.
Therefore, is the Attorney General’s decision to prosecute or not (even is the House of Representatives directs him to do so)

Question 331

Evidence
Leading Questions.
Characteristics (when can or when can’t):

Answer 331

1. are permitted on cross-examination, regardless of whether the witness is an expert or not.
2. are much more likely to be permitted by the court if the witness is a child.
3. are permitted to be asked on preliminary matters that do not require testimony about the facts at issue.
4. are generally NOT permitted / LEAST likely permitted over objection if they are asked on direct examination of a disinterested eyewitness.

Question 332

Evidence

Re-direct examination of a witness permitted ONLY IF

Answer 332

there were significant new matters raised on cross- examination.

A court may limit re-direct examination at its discretion, but must allow it to reply to new and significant matters raised on cross-examination.
Re-direct examination is allowed to address new issues raised during cross-examination.

Question 333

Constitutional
how to best prove an intent by the government to discriminate. This can be done in one of 3 ways (how a law could be proven discriminative) :

(and strict scrutiny review will be triggered)

Answer 333

(i) facial discrimination;
(ii) discriminatory application; or
(iii) discriminatory motive.
(iii) .1. A discriminatory motive can be shown by demonstrating 2 elements:
(i) a statute will have a disproportionate impact on a protected class; and
(ii) the statute is a product of a discriminatory purpose.

Question 334

Constitutional.

Sovereign immunity is

Answer 334

the principle that the state or federal government CANNOT be sued for damages.

Question 335

Constitutional.

The Supreme Court may NOT review a decision by a state supreme court when

Answer 335

that decision rests upon an independent and adequate state ground.

Question 336

Constitutional
While taxpayers generally lack standing to challenge general spending statutes, a taxpayer will (have/not have) standing where the spending violates the Establishment Clause.

Answer 336

While taxpayers generally lack standing to challenge general spending statutes, a taxpayer WILL HAVE standing where the spending violates the Establishment Clause.
In the case of Establishment Clause challenges, the taxpayer does not need to show a special nexus in order to have standing.

Question 337

Contracts
Parol Evidence Rule excludes evidence of earlier written or oral agreements that contradict or add to the terms of a written agreement.
With partial integration, however, additional terms or agreements that supplement the written agreement are admissible.
Regardless of whether a written agreement is completely or partially integrated, the parol evidence rule does not bar extrinsic evidence offered for the following purposes:

Answer 337

1. to aid in the interpretation of existing terms,
2. to show that a writing is or is not an integration,
3. to establish that an integration is complete or partial,
4. to establish subsequent agreements or modifications, and
5. to show that the terms were the product of illegality, fraud, duress, or mistake.

Question 338

Evidence
a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party (4):

Answer 338

1. Authorized spokesperson: The statement of a person authorized by a party to speak on its behalf
2. partner: After a partnership is shown to exist, a statement of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners
3. co-conspirator:
4. principal-agent: Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal

Question 339

Civil Procedure
Venue
refers to the place within a sovereign jurisdiction in which a given action is to be brought.
Venue could be based on (3):

Answer 339

1. on the defendant’s residence,
2. the place where a substantial part of the relevant events occurred, or
3. the place where the defendant can be made subject to personal jurisdiction.

Question 340

Civil procedure
Venue
When a case is brought with improper venue, the district shall either

Answer 340

1. dismiss the case or
2. transfer the case to any district or division in which it could have been brought (if this transfer is in the interest of justice).

Question 341

Civil Pro

Remove a case to Fed. Court

Answer 341

1. the federal court must have subject-matter jurisdiction over the claim such as diversity or federal question jurisdiction.
2. a defendant seeking to remove to federal court must file, within 13 days of receipt of the initial pleading/summons, a notice of removal in the district court where the state action is pending.
3. removal is a right exercised by the defendant, plaintiffs may not remove to federal court.

Question 342

Civil Pro
An interrogatory is a set of written questions to be answered in writing by the person to whom they are addressed. Each party is limited to ___ questions directed to any other party, unless the parties stipulate otherwise.

Answer 342

An interrogatory is a set of written questions to be answered in writing by the person to whom they are addressed. Each party is limited to 25 questions directed to any other party, unless the parties stipulate otherwise.

Question 343

Civil Pro
Counterclaims are claims the defendant may have against the plaintiff.
If the counterclaim arises out of the same transaction or occurrence as the plaintiff’s claim, it is a compulsory counterclaim and

Answer 343

must be pleaded in the answer or the defendant will be barred from bringing it at a later time.

Question 344

Civil Pro

Temporary restraining orders (TRO) are:

Can TRO be appealed?

Answer 344

short-term pre- trial temporary injunctions. To obtain a TRO, a party must convince the judge that he or she will suffer immediate irreparable injury unless the order is issued.
udges’ decisions on whether or not to issue a TRO, generally, may not be appealed.
But, if the court extends the TRO for more than the 14 days, it will be considered a preliminary injunction and thus appealeable immediately.

Question 345

Civil Pro

Intervention by a third-party may be granted permissively when

Answer 345

1. the applicant’s claim has a common question of law or fact as the main action, and
2. the claim does not destroy complete diversity.

Question 346

Real Property.
In real property contracts, general “as is” provisions do not provide protection to a seller in cases of misrepresentation (false statement of fact),
active concealment (attempt to conceal any defects), or
failure to disclose.
The seller could be liable for failure to disclose (of the defects to the property) to the buyer when:

Answer 346

(i) she knew of the defects;
(ii) the defects were not obvious upon reasonable inspection by the buyer; and
(iii) the defects were serious.

Question 347

Real Property.

A mortgage is a

Answer 347

security interest in real property held by a lender as a security for a debt, usually a loan of money. A mortgage in itself is not a debt, it is the lender’s security for a debt.

Question 348

Constitutional

10th Amendment

Answer 348

Provides that all powers not delegated to the federal government by the U.S. Constitution, are reserved to the states.

Question 349

Constitutional.

Regarding State legislators acting in the course of their official duties, which law should be applied?

Answer 349

State law.

Question 350

Criminal

Robbery

Answer 350

Taking of property of another
by force or the threat of use force
with the intent of permanently deprive the owner of the property

(there must be a nexus between the use of the force and the taking)

Question 351

Criminal

Larceny

Answer 351

Taking and carrying away of the property of another

with the intent of permanently deprive the owner of the property

Question 352

Real Property
Tenancy in the entirety:
could be created over a property between spouses.
Can only ve severed in a few particular ways (4):

(not the same as joint tenancy)

Answer 352

1. Divorce
2. The death of one of the spouses
3. a creditor of both spouses
4. by mutual agreement between the spouses

Question 353

Criminal / constitutional
A state is not constitutionally required to recognized insanity as a criminal defense.
If the state then accepts insanity as defense, is acceptable to shift the burden to

Answer 353

the Defendant / accused to prove it as an affirmative defense

Question 354

Torts
Pure comparative negligence,
allows the Plaintiff to recover for

Answer 354

all the damages minus his percentage of fault.

all damages not attributable to his own negligence

Question 355

Criminal

Involuntary Manslaughter

Answer 355

killing committed
with criminal negligence or
during the commission of an unlawful act.

The term “reckless” essentially describes a defendant’s simultaneous understanding and disregard of a substantial risk of harm.

Question 356

Actual and proximate cause:

Answer 356

Actual cause: but for the defendant’s acts, the victim would not have been harmed.

Proximate cause: the victim’s harm must be foreseeable, or the natural and probable consequence of the defendant’s conduct.

Question 357

Criminal

Murder is defined at common law as the

Answer 357

Unlawful killing of another with malice aforethought.

The malice aforethought requirement can be satisfied by an intent to kill, an intent to inflict great bodily harm, reckless indifference to an unjustifiably high risk to human life, or intent to commit certain dangerous felonies.

Question 358

Criminal

Voluntary manslaughter is

Answer 358

a killing that would otherwise be murder but is distinguishable from murder by the existence of adequate provocation. This is often described as a killing in the heat of passion.

Question 359

Involuntary manslaughter

Answer 359

unintentional killing that results from recklessness or criminal negligence.

Question 360

Felony murder:

Answer 360

a killing that occurs in the course of a dangerous felony, even an accidental one, may be charged as first degree murder.

Question 361

Felony murder is a killing caused during the attempt or during the commission of an inherently dangerous felony, such as (BARK)

Answer 361

Burglary
Arson
Rape
Kidnapping
or statutorily enumerated felony.

Question 362

Contracts
Volume sellers.
If a buyer repudiates or breaches a contract with a volume seller, then the volume seller can receive damages for their lost of

Answer 362

profit and “costs reasonably incurred.”

even if the item is subsequently resold at the same price

Question 363

Civil Pro

Additur is when

Answer 363

the judge finds the damages inadequate and orders a conditional new trial unless the defendant consents to increase the damages.
Additur is not is allowed in federal practice.

Question 364

Civil Pro

Remittitur is

Answer 364

the plaintiff agrees to a reduction of the damages to a specified amount or the judge can call for a new trial.
Remittitur is allowed in federal practice.
If a federal judge believes the jury’s damages award is too high (excessive) such that it “shocks the conscience,” or, in a diversity case, if the award meets the applicable state standard for excessiveness, the judge may order a new trial or offer the alternative of a reduction in damages (“remittitur”).

Question 365

Evidence
To impeach the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Under the Federal Rules of Evidence (FRE), an inconsistent statement may be proved by

Answer 365

either:
cross-examination or
extrinsic evidence.

Question 366

Evidence
Statement against interest,
the following requirements must be met:

Answer 366

(i) the statement must have been against pecuniary, proprietary, or penal interest when made
(ii) the declarant must have had personal knowledge of the facts;
(iii) the declarant must have been aware that the statement was against her interest and she must have had no motive to misrepresent when she made the statement
(iv) the declarant must be unavailable as a witness.

Question 367

Real Property

Assignment of a promissory note, “note”, without the assignment of as mortgage

Answer 367

The assignment of a note automatically transfers the mortgage to the assignee of the note; a separate document assigning the mortgage to the assignee is unnecessary.

Question 368

Criminal

Arson

Answer 368

(i) the malicious (with intent OR extreme recklessness);
(ii) burning (some damage to structure caused by fire);
(iii) of the dwelling house of another (under common law this means a structure where someone else lives, but on the MBE, it can be non-residential structure owned by the defendant).

Question 369

Evidence / Hearsay
Statements of fact concerning personal or family history contained in family Bibles, genealogies, tombstones, etc, are admissible/not admissible hearsay?

Answer 369

Statements of fact concerning personal or family history contained in family Bibles, genealogies, tombstones, etc, are ADMISSIBLE hearsay.

Question 370

Torts
Defamation
A claim for defamation must prove that

Answer 370

1. there was a defamatory communication of fact made about the plaintiff,
2. which was published to a third person who understood the statement and
3. resulted in harm to the plaintiff’s reputation.

Where defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove (v) falsity and (vi) fault by the defendant.

the fact that a statement is false is NOT enough to qualify for defamation