Barbri Mnemonics Flashcards
(147 cards)
1
Q
Lawyer’s duty owed to clients?
A
“Clients Love Fierce Counsel”:
(1) Confidentiality;
(2) Loyalty;
(3) Financial Responsibility; and
(4) Competency
(and other reasonable things)
2
Q
Lawyer’s duty owed to non-clients?
A
“Courts Feel Differently”:
(1) Candor;
(2) Fairness; and
(3) Dignity and decorum
(and other reasonable things)
3
Q
Requirement for business transactions with a client and pecuniary interests adverse to client?
A
“First Discuss Over Coffee”:
(1) Fairness;
(2) Disclosure;
(3) advice to get Outside lawyer; and
(4) Consent.
4
Q
Conflict of interest
A
Lawyer may not accept or continue a representation of clien tif
(1) representation is directly adverse to another C or (2) there is a significant risk that representation of C will be materially limited by L’s responsibilities to another C or former C, or by personal interest
CA: or (3) where L has legal, business, financial, professional or personal relationship with a party or witness in the same matter.
ABA requires written consent, CA requires INFORMED written consent.
5
Q
Lawyer competence
A
ABA: Lawyer must have knowledge, skill, thoroughness and preparation reasonably necessary to represent client
CA: Lawyer may not intentionally, recklessly, with gross negligence or repeatedly fail to perform legal services with competence.
6
Q
Lawyer fees factors
A
ABA: reasonable. “TENT FLAW”
Time limitations
Experience
Nature and length of relationship with client
Time and labor
Fee customarily charged
Likeliehood that acceptance will preclude other employment
Amount involved
Whether it is fixed or contingent
CA: not unconscionable or illegal. “FDSAC” (“Furry Dogs Satisfy Anxious Clients”)
Fraud
Disclosure failure
Sophistication of L/C
Amount
Consent (informed)
CA requires L to submit to arbitration for fee disputes, ABA only encourages it.
7
Q
Elements required for a Permanent Injunction
A
“I’m Feeling Bold and Determined”
(1) Inadequate legal remedy;
(2) Feasibility of enforcement;
(3) Balance of hardships; and
(4) no Defenses.
8
Q
Contract Rescission Elements
A
“Good Dog”
(1) Grounds for rescission (all relate to K formation: mutual mistake, unilateral mistake, fraud, misrepresentation); and
(2) Defenses to Rescission
- Valid D’s: Unclean hands, laches
- Invalid D’s: Negligence of P is not a D to rescission
9
Q
Contract Reformation Elements
A
“Very Good Dog”
(1) Valid K;
(2) Grounds for reformation:
- Mutual mistake, unilateral mistake, misrepresentation
(3) Defenses to Rescission
- Valid D’s: Unclean hands, laches
- Invalid D’s: Negligence of P, SOF, PER
10
Q
Specific Performance of a Contract
A
“Chocolate Cheesecake Is My Favorite Dessert”
(1) Contract
(2) Conditions satisfied
(3) Inadequate legal remedy
(4) Mutuality of Performance
(5) Feasibility of enforcement
(6) Defenses not applicable
11
Q
Class Action Requirements
A
Federal:
“CAN’T”
You CAN’T sue alone in a class action.
Commonality
Adequate and fair representation
Numerosity
Typicality
Type of case:
1) Prejudice
2) Injunction/declaratory judgment
3) Common question predominates
CA:
(1) Ascertainable class and (2) well defined community of interest among class members
12
Q
Class Action Fairness Act
A
Federal courts have jdx over class actions if:
(1) at least 100 members;
(2) any class member (not just the rep) is of diverse citizenship from any defendant; and
(3) the aggregated claims of the class exceed $5M.
13
Q
Justiciable case or controversy
A
“RAMPSE”
Ripeness
Abstention
Mootness
Political Question
Standing
Eleventh Amendment
14
Q
Standing Considerations
A
(1) injury;
(2) causation; and
(3) redressability.
15
Q
Associational or organization standing requirements
A
(1) Individual members have standing
(2) Interests germane to org’s purpose; and
(3) Individual members’ participation in the lawsuit not required.
16
Q
Congressional powers
A
1) Commerce
2) Taxing
3) Delegation
4) Property
5) Speech and debate
6) Impeachment
7) Appropriations
17
Q
Privileges and Immunities Clause
A
Art. IV prevents a state or city from intentionally discriminating against non-citizens regarding rights fundamental to national unity. Corporations not considered citizens under this rule. Test is rigorous scrutiny (noncitizens are a peculiar source of evil and the discrimination is substantially related to this evenly with no less discriminatory means available).
18
Q
Dormant commerce clause
A
State may not regulate interstate commerce in a way that is discriminatory or unduly burdensome.
If state law facially discriminates against out-of-state actors, it is invalid unless it serves (1) important non-economic state interest and (2) no reasonable non-discriminatory alternatives.
If a state law is facially neutral and merely incidentally burdens interstate commerce, permitted if rationally related to legitimate government interest and burden on ISC outweighed by benefits to state.
19
Q
Standards of Review
A
(1) Strict Scrutiny
(2) Intermediate Scrutiny
(3) Rational Basis
20
Q
Strict Scrutiny
A
Government must prove its action is necessary to achieve a compelling governmental interest. Must be least restrictive means and narrowly tailored.
21
Q
Intermediate Scrutiny
A
Government must prove its action is substantially related to an important governmental interest.
22
Q
Rational Basis
A
Plaintiff must prove classification is not rationally related to any legitimate governmental interest.
23
Q
Procedural Due Process
A
Protects persons against intentional deprivation of life, liberty or property without due process of the law.
24
Q
Mathews Balancing Test
A
If “entitlement” is at stake:
(1) Importance of private interest;
(2) Importance of state interests and the burdens on the government that would arise from the additional safeguards; and
(3) Risk of error under current procedures
25
Substantive Due Process
Government may not infringe on fundamental rights.
Strict Scrutiny:
- Privacy (MOPPS: marriage, obscenity, parental, procreation, sexual relations)
- Medical procedures for Death
- Travel
- Vote
- Free association (1st Amendment)
Rational Basis:
- Sexual orientation
Abortion used to be Privacy, but now states can regulate.
26
Takings Clause
Gov’t can’t take private private for public use without just compensation.
(1) Actual/physical taking
(2) Regulatory taking
27
Equal Protection Clause
Government may not deny people equal protection under the law. Applicable to states via the 14th Amendment and to federal government via the 5th Amendment for gross discrimination.
(1) Strict scrutiny:
- (a) Suspect classifications ( race, national origin, state alienage)
- (b) Voting
- (c) Domestic travel
- (d) First amendment rights
- (e) Most fundamental substantive due process rights
(2) Intermediate security:
- (a) Quasi-suspect classes (Gender, Illegitimacy)
(3) Rational basis review:
- Non-suspect classes (age, alienate (fed), disability, sexual orientation, social
- economic, non-fundamental rights
28
Freedom of religion
(1) Free Exercise Clause: bars laws that prohibit or burden free exercise of religion unless compelling gov’t interest
(2) Establishment Clause: prohibits laws establishing a religion.
29
Freedom of speech
First Amendment and applied to states through 14th Amendment, protects free speech.
Two classes:
- (1) content based; or
- (2) content neutral.
30
Content-based speech regulations
Forbid the communicative impact (i.e., the subject) of expression.
Subject to strict scrutiny. Exceptions:
(1) Obscenity (LAPS: lacks serious literary, artistic, political or scientific value);
(2) Misrepresentation and defamation;
(3) Imminent lawless action; and
(4) Fighting words.
31
Viewpoint speech regulations
Restricts speech based on the particular ideology or perspective.
(E.g., law banning all political speech is content-based, while a law banning only Communist speech is viewpoint-based.)
32
Content-Neutral Speech regulations
Aimed at something other than the communicative impact of the expression.
Intermediate scrutiny and must leave open alternative channels of communication.
33
Time, place, manner regulation of speech
Regulation of (1) public forums and (2) designated public forums must be (a) content neutral (both subject-matter and viewpoint), (b) serve an important gov’t interest, (c) be narrowly tailored and (d) leave open alternative channels.
Regulation of (3) limited public forums and (4) non-public forums must (a) be viewpoint neutral, (b) serve a legitimate gov’t interest and (c) be reasonably related to that interest.
34
Commercial speech
Gov’t may restrict commercial speech (advertising) only if:
(1) Substantial gov’t interest;
(2) Directly advances that Interest
(3) Narrowly tailored.
35
Limitations on free speech regulations
(1) Vagueness
(2) Overbreadth
(3) Unfettered
(4) Prior restraint
36
In person personal jurisdiction requirements
Traditionally based on where D is domiciled, presence in the state and consent. If no traditional basis, then see if long arm statute applies which gives court personal jdx. Some states, like California, give courts power over any person whom state can constitutionally exercise jdx. To be constitutional, factors are 1) contacts, 2) relatedness and 3) fairness. Don’t want to “offend traditional notions of fair play and justice”.
(1) Minimum Contacts
- (a) purposeful availment; and
- (b) foreseeability
(2) Relatedness
- Specific jdx (claim relates to D’s contacts) or
- General jdx (D at home in jdx)
(3) Fairness (only needed for specific jdx)
- (a) convenience;
- (b) state’s interest; and
- (c) other factors (e.g., P’s interest, judicial system’s interest, shared interest of states).
37
Subject matter jurisdiction
(1) Federal questions (i.e., is P enforcing a federal right) or
(2) Diversity
- All Ps in different state than all Ds; and
- EXCEEDS $75,000
Federal: Constitution, treaties, federal law.
State courts can’t hear certain federal cases (patents, bankruptcy, some federal securities and antitrust claims).
Federal courts, even if diversity is met, won’t hear divorce, alimony, child custody or probate matters.
38
Supplemental jurisdiction
Form of federal SMJ to add claims to a case. Common nucleus of operative fact. Occurs when claim arises from same transaction of occurrence.
Step 1: Is there diversity or FQ over additional claim?
Step 2: If no diversity or FQ, check for SMJ.
In diversity cases, P’s generally cannot invoke SMJ (one exception is when there are multiple Ps and claim by one doesn’t meet the amount in controversy requirement).
39
Erie doctrine
In diversity case, federal courts apply state substantive law to non-federal causes of action, but federal procedure rules.
Step 1: Federal law on point that conflicts with state law? If so, apply based on Supremacy Clause.
Step 2: If no federal law on point, apply state law if issue to be decided is “substantive”:
(1) Conflict of law rules;
(2) Elements of a claim or defense;
(3) Statutes of limitation;
(4) Rules for tolling SoL; and
(5) Standard for granting new trial because jury’s damages award were excessive or inadequate.
Step 3: if no federal law and not one of the above, federal judge must determine if an issue is “substantive”. Test (no one knows how to weigh):
- (a) outcome determinative;
- (b) balance of interests; and
- (c) avoid forum shopping.
40
Civil procedure affirmative defenses D may initially raise (FRE)
Motion to Dismiss or Answer 12(b)
(1) Lack of SMJ
*(2) Lack of PJ
*(3) Improper venue
*(4) Insufficient process (defect in summons form)
*(5) Insufficient service of process
(6) Failure to State a Claim
(7) Failure to join an indispensable party.
*#2 to #5 must be be raised or lose.
Must respond within 21 days of service.
41
Civil procedure affirmative defenses D may initially raise or lose them (CA)
(1) Motion to quash to assert:
- (a) lack of PJ;
- (b) improper process; and/or
- (c) improper service of process at special appearance or WAIVED! (Must file within 30 days of service)
(2) General demurrers: Failure to state facts sufficient for a claim, lack of SMJ
(3) Special demurrers: Pleading is ambiguous, lack of legal capacity to sue, misjoinder of parties
42
Requirements from P's complaint
(1) Basis of SMJ
(2) Claims
(3) Relief
FRE: Notice pleading. Must file within 21 days of service.
CA: Fact/code pleading (stating basis claim and relief in more detail than for FRE). Must file within 30 days of service.
43
Civil procedure: FRE v. California terminology
(1) Counterclaim (CA: Cross-complaint)
(2) Crossclaim (CA: Cross-complaint)
44
Impleader
Third-party claim where a defending party (usually D) brings in a new party
45
Intervention
Nonparty absentee brings oneself into the case
Of right or permissive.
46
Interpleader
Permits a person to require two or more adverse claimants to the stake to litigate among themselves to determine which if any has the valid claim to it. (E.g., insurance company).
47
Claim Preclusion
Res judicata.
Prevents relitigation of any part of a cause of action that had been adjudicated on its merits or could have been raised that arises from the same transaction of occurrence between same parties/PRIVIES.
CA: "Primary rights" jurisdiction (i.e., separate causes of action for reach right not precluded). Also requires appeals to have concluded.
48
Issue Preclusion
Collateral Estoppel
Precludes a party from attempting to retry an issue if there has been (1) a valid and final judgment on the merits, (2) the issue was identical, (3) the issue was litigated, determined and essential in the prior action and (4) the party against whom enforcement is being sought against had a full and fair opportunity to litigate the issue.
Defensive non-mutual, offensive non-mutual
CA required appeals to have concluded.
49
Remedies Q order
Legal
Restitution
Equitable
50
Adverse Possession
"COAH"
Continuous
Open and notorious
Actual
Hostile
51
Joint tenancy
"T-TIP"
Four unities:
Time
Title
Interest
Possession
52
Severance of a Joint Tenancy
"SPAM": Sale, Partition And Mortgage
1) Severance and Sale:
2) Severance and Partition:
3) Severance and Mortgage:
53
Tenant’s entitlement when implied warranty of habitability is breached
MRRR
(1) Move out and terminate lease
(2) Repair and deduct
(3) Reduce rent
(4) Remain and seek damages
54
Exceptions to caveat lesser (landlord’s obligations to tenant)
“CLAPS”
(1) Common areas
(2) Latent defects
(3) Assumption of repairs
(4) Public use rule
(5) Short-term lease of furnished dwelling
55
Creation of easement
PING
Prescription
Implication
Necessity
Grant
56
Termination of an easement
“END CRAMP”
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
57
Notice of an easement
"AIR"
Actual
Implied
Record
58
Requirement for real property covenant burden to run
WIT(H)N
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice
59
Real property requirements for benefit to run
WITV
Writing
Intent
Touch and concern
Vertical privity
60
Real property creation of equitable servitudes
WITNES
Writing
Intent
Touch and concern
Notice
Equitable servitudes
61
Specific Intent Crimes
“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
Solicitation
Conspiracy
Attempt
First Degree Murder
Assault
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery
62
Warrant requirements
(1) Probable cause (based on totality of circumstances);
(2) Neutral, detached magistrate; and
(3) described in particularity
63
Warrant exceptions
“SPACES”
Search incident to lawful arrest
Plain view
Automobiles
Consent
Exigent circumstances
Stop and frisk
64
Defamation elements
(1) Defamatory language
(2) Of or concerning plaintiff
(3) Publication (libel: written; slander: spoken)
(4) Damages to Plaintiff’s reputation (damages presumed with libel)
***
Constitutional issues for matters of public concern:
(5) Public person: Standard is malice of D (recklessness)
(6) Private person: Negligence standard
65
Tort/Contract Legal Remedies Requirements
“CFCU” “Chris Farley Choosing Universities”
(1) Causation
(2) Foreseeability
(3) Certainty
(4) Unavoidability
66
Requirements for TRO / Preliminary Injunction
TRO: “Irish Lads Inhale Beer in Dublin”
(1) Irreparable injury
(2) Likelihood of success (over 50%)
(3) Inadequate legal remedy
(4) Balancing of hardships
(5) no Defenses.
TRO required “immediate” irreparable harm. Preliminary injunctions preserve the status quo until trial.
67
How agency is formed
“ABC”
Assent
Behalf
Control
68
Types of authority
(1) Actual express authority
(2) Actual implied authority
(3) Apparent authority
69
Definite and certain terms of a contract
“Q-TIPS”
Quantity
Term of performance
Identify of parties
Price
Subject matter
70
How to form a general partnership
(1) Association of 2 or more persons
(2) to carry in a business
(3) for profit
(4) as co-owners
71
CA Community Property Rule
California is a community property state. Property acquired during marriage is presumptively CP. Property acquired before, during permanent separation, or after dissolution of the marriage, and property acquired by gift, will or inheritance is presumptively separate property.
72
Quasi Community Property
Property acquired by either spouse that would have been CP had the spouse been domiciled in CA at the time of the acquisition.
73
Improvement by community of spouse
1) If CP used to improve own SP, community entitled to reimbursement (greater of cost of improvement or increase in value to SP)
2) If CP improved other’s SP, split authority (between gift or reimbursement)
3) If SP improved CP, SP has right of reimbursement
4) If SP improved other’s SP, SP has right of reimbursement
74
Anti-Lucas Statute
Jointly titled property acquired by a married couple from and after 1987 is presumptively CP at divorce, but any SP used for purchase is entitled to reimbursement. At death (with no divorce), SP used to acquire jointly titled property is presumed to be a gift with no reimbursement unless otherwise agreed.
75
Contract
Mutual assent (offer and acceptance) plus consideration.
76
Statute of Frauds
"MY LEGS"
(1) Marriage;
(2) Year or more;
(3) Land;
(4) Executors;
(5) Goods of $500 or more; and
(6) Sureties.
77
UCC Exceptions to SoF:
“SWAP”
(1) Specially manufactured goods
(2) Written confirmation by merchant
(3) Admission in court
(4) Partial performance
78
Sale of Goods governed by?
Governed by UCC Art. 2
Everything else is common law.
79
Offer
Manifestation of a reasonable expectation in the offerer is willing to enter into a contract.
Must include definite terms (LSK: land and price; service: nature of work; UCC: quantity)
80
Mailbox rule
Acceptance of an offer effective when dispatched.
Contrast with revocation of an offer which is effective when received.
81
Specific Intent Crimes
“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
(1) Solicitation
(2) Conspiracy
(3) Attempt
(4) First Degree Murder
(5) Assault
(6) Larceny
(7) Embezzlement
(8) False Pretenses
(9) Robbery
(10) Burglary
(11) Forgery
82
General Intent Crimes
“BRICK AF”
Battery
Rape
Involuntary manslaughter
Common law murder (without specific intent)
Kidnapping
Arson
False Imprisonment
83
Defenses to general intent crimes
(1) Involuntary intoxication
(2) Reasonable mistake of fact
84
Defenses to specific intent Crimes
(1) Involuntary intoxication AND
(2) Voluntary intoxication
(3) Reasonable AND
(4) Unreasonable mistake of fact (if in good faith)
85
Murder at common law
Unlawful killing of another human being with malice aforethought.
Malice can be demonstrated by:
(1) Intent to kill
(2) Intent to commit grievous bodily injury
(3) Depraved heart (reckless)
(4) Intent to commit a dangerous felony
86
First degree murder
(1) Premeditation and deliberation or (2) killing in inherently dangerous felony (First Degree Felony Murder).
Voluntary intoxication reduced to Second Degree Murder, but not to manslaughter.
87
Inherently dangerous felonies
"BAARK"
(1) Burglary
(2) Arson
(3) Rape
(4) Robbery
(5) Kidnapping
88
Second degree murder
Malice is implied where there intent to kill without premeditation, intent to cause serious bodily harm, reckless indifference to human life (depraved heart, extreme negligence) or intent to commit an inherently dangerous felony.
Voluntary intoxication is not a defense.
89
Felony Murder
Any death caused in commission or attempted commission (substantial step toward completion of an inherently dangerous felony. Co-felon liability, but redline limitation for co-felon deaths.
90
Manslaughter
Unlawful killing without malice. Two types:
(1) Voluntary MS: Intentional killing resulting from adequate provocation (heat of passion).
(2) Involuntary MS: Unintentional killing caused by criminal negligence (recklessness under MP)
91
Misfeasance
Involuntary homicide where one with a legal duty to act may be guilty of murder for failing to act
92
Battery
Unlawful application of force to the person of another resulting in bodily injury or offensive touching.
93
Assault
Attempted battery or intentionally putting victim in a reasonable apprehension of imminent bodily harm.
94
Kidnapping
Unlawful confinement of victim without consent via movement or concealment of victim in a secret place.
95
False imprisonment
Unlawful confinement of a person without consent.
96
Rape
At common law, unlawful carnal knowledge of a woman who not her husband without effective consent. Modernly, no marriage exception or gender restriction and slightest penetration is sufficient.
97
Larceny
(1) Trespassory
(2) taking and
(3) carrying away of the
(4) personal property of
(5) another
(6) with the intent to permanently deprive the owner.
98
Embezzlement
Intentional fraudulent conversion or misappropriation of another’s personal property
99
Larceny by trick
Obtaining custody or possession of another’s personal property by a fraudulent representation by D with the intent to defraud
100
False Pretenses
Misrepresentation of material past/present fact that prompts V to pass title to his property to P who knows the misrepresentation is false and intends to defraud.
Contrast with Larceny by trick which concerns POSSESSION rather than TITLE.
101
Robbery
Larceny+
Taking personal property of another from the person or presence of the person with the intent to permanently deprive by force or threat of immediately physical injury or death
102
Extortion
Obtaining property by threat of harm or exposing information
103
Forgery
Creating or altering a writing with apparent legal significant so that it is false with intent to defraud
104
Burglary
Breaking and entering of the dwelling of another at nighttime with intent to commit a felony therein.
Modernly, not required at night and can be any building.
105
Arson
Malicious burning of the dwelling (modernly any structure) possessed by another. Charring is required.
106
Solicitation
Asking, inducing, urging or otherwise encouraging another to commit an actual crime
107
Attempt
An intent to bring about a criminal outcome plus an act beyond mere preparation in furtherance of that intent
108
Conspiracy
(1) An agreement between 2 or more persons to commit a crime,
(2) An intent to enter into such an agreement; and
(3) An intent to achieve the same objective of the agreement.
Modernly, an overt act is required.
109
Criminal Defenses: Excuses
(1) Mistake of fact: SI crimes, any mistake; GI crimes, reasonable mistakes only
(2) Mistake of law: Generally no defense, but could be for crimes requiring knowledge
(3) Intoxication: For SI crimes: any intoxication before forming specific intent; for GI crimes: involuntary invocation only
(4) Insanity
(5) Necessity
(6) Duress
(7) Entrapment
110
Insanity defense type
(1) M’Naughten Rule: D entitled to acquittal if a mental disease or defect of reason CAUSED D at the time of offense not to (i) know the wrongfulness of or (ii) understand the nature and quality of actions.
(2) Irresistible Impulse: D is not guilty where mental defect kept him from controlling his actions.
(3) ALI/MPC Test: As a result of mental disease/defect, D lacked substantial capacity to (i) appreciate the criminality of the conduct or (ii) conform conduct to requirement of law (mix of #1 and #2)
(4) Durham Test: Unlawful act would not have been committed by for the mental defect/disease.
111
Criminal Defense justifications
(1) Self-defense
(2) Defense of others
(3) Defense of property
(4) Crime/felony prevention
(5) Arrest
112
Exclusionary rule
Evidence obtained in violation of D’s constitutional rights are inadmissible in criminal trial.
113
Exceptions to exclusionary rule
(1) Grand jury
(2) Good faith reliance on warrant
(3) Knock and announce violations don't automatically trigger
(4) Independent source
(5) Inevitable discovery
(6) Intervening act of free will by D
(7) Impeachment of D's testimony only
(8) Attenuation
(9) Miranda violation is not a poisonous tree
114
Using Prior Crimes or Bad Acts to Prove Something Else besides Character
"MIMIC"
(1) Motive;
(2) Intent;
(3) Mistake (absence of)
(4) Identity (signature crimes-uniqueness); and
(5) Common plan/scheme.
115
Warrant requirements
(1) Issued by neutral, detached magistrate;
(2) Based on probable cause (taking into account the “totality of circumstances”); and
(3) Described with particularity the place to be searched or item/person to be seized.
116
Stop and inquire vs. Stop and frisk
Permitted if police officer
(1) has reasonable articulated suspicion
(2) that criminal activity is afoot.
Frisk also requires (3) reasonable suspicion that the person has a weapon.
117
Right to confront witnesses
Criminal D guaranteed the right to confront his witnesses under the 6th Amendment
118
Evidence opening rule statement
Only evidence that is both logically and legally relevant will be admitted.
119
Logical relevance
Relevant if it tends to prove or disprove a material fact (*in CA, a material fact “in dispute”)
120
Legal relevance
FRE 403 / CEC 352
Considers whether probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
121
CA Proposition 8
Under Proposition 8 to the California Constitution, any evidence that is relevant may be admitted in a criminal case, subject to an exception for balancing which gives court discretion to exclude relevant evidence if it is probative value is substantially outweighed by a risk of unfair prejudice.
“Right to truth in evidence” in Victims’ Bill of Rights
122
Exceptions to CA Pop 8
“CHOP SUR”
(1) Constitution
(2) Hearsay
(3) Open the door (character)
(4) Privilege
(5) Secondary evidence rule (CA’s version of best evidence rule)
(6) Unfair prejudice
(7) Rape shield statutes
123
Forms of character evidence
“ROSA”
(1) Reputation
(2) Opinion
(3) Specific acts
124
Not Hearsay
Not offered for proof of matter asserted.
“ELVIS”
Effect on Listener
Verbal acts or legally operative facts (contracts or defamation)
Impeachment
State of mind
125
Hearsay Exclusions
Also deemed “exceptions” under CEC.
(1) Prior statements by a witness
- (a) Prior inconsistent statement
- (b) Prior consistent statement
- (c) Prior identification
(2) Admissions by a Party (or on its behalf)
- (a) Party
- (b) Vicarious
- (c) Adoptive
- (d) Co-conspirators
126
Hearsay exceptions
(1) Unavailabilty
- (a) Declarations against interest
- (b) Dying declarations
- (c) Former testimony
(2) Reliability exceptions
- (a) Excited utterance (CA: “spontaneous statement”)
- (b) Present sense impression
- (c) Bodily condition
- (d) Present state of mind
(3) Documentary exceptions
- (a) Past recollections recorded
- (b) Business records
- (c) Official/public records
(4) Others
- (a) Ancient documents
- (b) Learned treatises
- (c) Federal catch-all (trustworthy and necessary in interests of justice, with notice)
127
Expert witness testimony
FRE (Daubert): “TRAP”
(1) Testing of principles or methodology;
(2) Rate of error;
(3) Acceptance by other experts in same discipline;
(4) Peer review and publication
CA:
Generally accepted in relevant scientific community.
128
Present possessory estates
(1) Fee simple absolute
(2) Fee simple determinable (possibility of reverter)
(3) Fee simple subject to condition subsequent (right of re-entry)
(4) Fee simple subject to executory interest (third party)
Frank Sinatra Didn’t Prefer Orville Redenbacher
129
Landlord duties
(1) Duty to deliver actual possession of premises
(2) Implied covenant of quiet enjoyment
(3) Implies warranty of habitability (residential only)
130
General warranty deed
6 covenants of title:
PRESENT
(1) Seisin (title)
(2) Right to convey
(3) Against Encumbrances (no liens, easements)
FUTURE
(4) Quiet enjoyment
(5) Warranty (promise to defend v. reasonable claims of title)
(6) Further assurances
131
Special warranty deed
Seller warrants no title defects occurred during ownership
132
Quitclaim deed
Seller makes no warranties and conveys whatever interest he has
133
Recording statute types
(1) Race (first to record wins) “first record”
(2) Notice (subsequent BFP wins) “for value and without notice”
(3) Race-Notice (subsequent BFP to record first wins) “for value and without notice” and “first record”
134
Battery (Tort)
Harmful or offensive contact with P’s person where D intended such harmful or offensive contact with imminent apprehension of such contact with P’s person
135
Assault (Tort)
Act by D creating reasonable apprehension in P of imminent battery (harmful or offensive contact P’s person), where D intended such apprehension and caused such apprehension
136
False imprisonment (tort)
Intentional confinement of P to bounded area against P’s will caused by D’s act/ommission
137
Intentional infliction of emotional distress
Extreme and outrageous conduct intentionally or recklessly intended by D that causes severe emotional distress (actual damages).
3P liability if close family relative witnesses
138
Trespass to land (Tort)
D’s intentional act causes physical invasion of P’s real property
139
Trespass to chattel (Tort)
Intentional interference with P’s possessory right to personal property
140
Tort defenses
“CSDDN”
Carlos Santana Doing Drugs Nearby
(1) Consent
(2) Self-defense
(3) Defense of property
(4) Defense of others
(5) Necessity (public or private)
141
Negligence
(1) Duty of care (reasonable person standard. Cardozo zone of danger v. Andrew’s everyone). Standard of care subject to reasonably prudent standard.
(2) Breach
(3) Causation (actual and proximate)
(4) Damages
142
Landowner duty of care responsibilities
(1) Unknown trespassers: None
(2) Anticipated trespassers: warn or make safe known artificial (man-made) highly dangerous conditions
(3) Licensees (social guests): Warn of or make safe known dangers
(4) Invitees (land open to public for economic benefits): reasonable care and to inspect/make safe
143
Product liability
Any commercial supplier in distribution chain of product has an absolute duty to supply safe products to any foreseeable P. Privity not required.
Five theories:
(1) Strict liability:
- (a) Manufacturing
- (b) Design
- (c) Inadequate warning
(2) Negligence
(3) Warranty
(4) Misrepresentation
(5) Intent
144
Implied warranties by sellers:
(1) Merchantability
(2) Fitness for particular purpose
145
Valid Will
Requires testamantory capacity and consent with formalities:
(1) In writing
(2) Signed by T
(3) Signed in front 2 witnesses
(4) Signed by witnesses
(5) Witnesses understood that it was a Will
Holographic wills valid.
146
California intestate rules
Modern per stirpes (i.e., per capita with right of representation)
147
Valid trust
(1) Settlor intent
(2) Settlor capacity
(3) Identifiable trust property
(4) Ascertainable and definite beneficiary(ies)
(5) Valid trust purpose
