Cal Bar Issue Spotting Version Main Deck Flashcards

Question

Someone dies think of…

Answer 1

Murder Voluntary manslaughter Involuntary manslaughter Felony murder

Answer 2

1. Murder 2. Adequate provocation

Answer 3

1. Killing of another 2. Caused by recklessness or an unlawful act

Answer 4

1. Killing of another 2. In the course of a felony (modern majority rule, at common law just murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, or burglary)

Answer 5

1. Unlawful 2. Confinement of a person 3. Without his valid consent

Answer 6

-False imprisonment -kidnapping

Answer 7

Common law 1. Forcible 2. Abduction or stealing away 3. Of a person 4. From his country 5. And sending him to another Modern Majority 1. Confinement of a person 2. Involving movement or concealment

Answer 8

1. Unlawful 2. Carnal knowledge 3. Of a woman 4. By a man 5. Not her husband (common law, modern majority rule eliminates this requirement) 6. Without her effective consent

Answer 9

-rape -statutory rape -adultery -fornication -incest -seduction -consent criminal defense

Answer 10

1. Carnal knowledge of a person 2. Under the age of consent

Answer 11

1. Sexual intercourse 2. With another 3. Not his spouse 4. Open and notorious 5. Either party is married

Answer 12

1. Sexual intercourse between or open and notorious cohabitation 2. By unmarried persons

Answer 13

1. Marriage or sexual act 2. Between persons who are too closely related

Answer 14

-incest -bigamy

Answer 15

1. Male person 2, induces 3. An unmarried female 4. Of previously chaste character 5. To engage in an act of intercourse 6. On promise of marriage

Answer 16

1. Marrying someone 2. While having another living spouse

Answer 17

1. Caption 2. Aspiration 3. Of tangible personal property 4. Of another 5. By trespass 6. With the intent to permanently deprive

Answer 18

1. Fraudulent 2. Conversion 3. Of property 4. Of another 5. By a person in lawful possession of that property

Answer 19

-larceny -embezzlement -false pretenses -robbery -extortion -receiving stolen property -larceny by trick -trespass to chattels -conversion

Answer 20

1. Obtaining title 2. To the property of another 3. By a knowing false statement of past or existing fact 4. With the intent to defraud another

Answer 21

1. A taking 2. Of personal property of another 3. From the other’s person or presence 4. By force or intimidation 5. With the intent to permanently deprive him of it

Answer 22

Common Law 1. The corrupt 2. Collection 3. Of an unlawful fee 4. By an officer under color of his office Modern Majority 1. Obtaining property 2. From another 3. By threat

Answer 23

1. Receiving possession and control 2. Of stolen personal property 3. Known to have been obtained in a manner constituting a criminal offense 4. By another person 5. With the intent to permanently deprive the owner of his interest in the property

Answer 24

1. Making or altering 2. Of a false writing 3. With intent to defraud

Answer 25

1. Malicious 2. Destruction of or damage to 3. Property of another

Answer 26

-Malicious mischief -burglary

Answer 27

1. Breaking 2. And entering 3. A dwelling 4. Of another 5. At nighttime 6. With the intent to commit a felony therein

Answer 28

1. The malicious 2. Burning (common law, modern majority rule is any destruction) 3. Of the dwelling (common law, modern majority rule is any structure) 4. Of another

Answer 29

-arson -houseburning

Answer 30

1. malicious 2. Burning 3. Of one’s own dwelling 4. Situated either in a city or a town or so near to other houses as to create a danger to them

Answer 31

1. Willful 2. Corrupt 3. Taking of a false oath 4. In regard to a material matter in a judicial proceeding

Answer 32

-perjury -subornation of perjury

Answer 33

1. Procuring or inducing another 2. To commit perjury

Answer 34

1. The corrupt payment or receipt 2. Of anything of value 3. In return for an official action

Answer 35

-bribery -compounding a crime

Answer 36

1. Entering into an agreement 2. For valuable consideration 3. To not prosecute another for a felony or to conceal the commission of a felony or whereabouts of a felon (common law, modern majority rule covers any crime)

Answer 37

Common Law 1. Failure 2. By someone other than a principal or accessory before the fact 3. To disclose or report knowledge 4. Of the commission of a felony Modern Majority Not a crime

Answer 38

Misprision of a felony

Answer 39

1. A disease of the mind 2. Caused a defect of reason 3. Such that the defendant lacked the ability at the time of his actions to know the wrongfulness or his actions or understand the nature and quality of his actions CALFIORNIA VARIATION: if a defendant brings an insanity affirmative defense, the trial is bifurcated. The first phase is guilt. The second phase is insanity.

Answer 40

-insanity defense

Answer 41

1. Involuntary 2. Intoxication

Answer 42

Intoxication defense

Answer 43

Under 7, under 14 accused of rape, or under 14 and no clear proof of appreciation of the nature and quality of his act

Answer 44

1. Without fault 2. Amount of force used was no more then individual reasonably believed necessary 3. To protect herself from The imminent use of unlawful force 4. Upon herself

Answer 45

-Self-defense -defense of others -defense of a dwelling -defense of other property

Answer 46

Reasonable appearance of the right to use force

Answer 47

1. Reasonable 2. belief that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon her dwelling

Answer 48

1. Non deadly force 2. Used to defend 3. Property 4. In one’s possession 5. From unlawful interference

Answer 49

Crime prevention defense

Answer 50

1. Used force because one 2. reasonably 3. Believed necessary to prevent a felony, riot, or other serious breach of peace (majority rule, CALIFORNIA rule is any crime)

Answer 51

Reasonable force and police officer or reasonable grounds to believe the person had in fact committed the crime

Answer 52

-arrest defense

Answer 53

-arrest defense

Answer 54

1. Defendant repelled an attacker 2. Trying to arrest them 3. Defendant did not know that

Answer 55

-resisting arrest defense

Answer 56

1. Reasonable belief 2. That the conduct was necessary to avoid some harm to society 3. That would exceed the harm caused by the conduct

Answer 57

-necessity -duress

Answer 58

1. Threat of imminent infliction of death or great bodily harm 2. Reasonable belief his conduct is necessary to prevent the threat 3. Did not commit intentional homicide

Answer 59

Not a defense

Answer 60

-mistake of law defense

Answer 61

1. Non consensual conduct is an element 2. Voluntarily and freely given 3. By a party legally capable of so giving 4. No fraud was involved in so obtaining

Answer 62

Consent criminal defense

Answer 63

1. The criminal design originated with law enforcement officers 2. Defendant was not predisposed

Answer 64

Entrapment defense

Answer 65

1. Obtaining custody 2. Of the property of another 3. By a knowing false statement of past or existing fact 4. With intent to defraud the other

Answer 66

1. Harmful or offensive contact to the person 2. Intent 3. Causation

Answer 67

1. Reasonable apprehension of harmful or offensive contact to the person 2. Intent 3. Causation

Answer 68

1. Confinement or restraint to a bounded area 2. Intent 3. Causation

Answer 69

1. Extreme and outrageous conduct 2. Recklessness 3. Causing 4. Severe emotional distress

Answer 70

1. Physical invasion of Plaintiff's real property 2. Intent 3. Causation

Answer 71

Trespass to land

Answer 72

1. Interference with Plaintiff's right of possession of chattels 2. Intent to perform the act 3. Causation 4. Actual damages

Answer 73

1. Interference with Plaintiff's right of possession of chattels 2. Intent to perform the act 3. Causation 4. Damages amounting to the property's full value

Answer 74

1. Duty 2. Breach 3. Causation 4. Damage

Answer 75

-Negligence -Strict liability -Public nuisance -contributory/comparative negligence -assumption of risk

Answer 76

1. Absolute duty to make safe 2. Causation 3. Damage

Answer 77

1. Substantial and unreasonable interference 2. With another individuals use or enjoyment of private real property he actually possess or to which he has a right to immediate possession

Answer 78

-private nuisance -public nuisance

Answer 79

Unreasonable interference with the community's health, safety, or property rights

Answer 80

Respondeat superior, partnership, joint venture

Answer 81

Vicarious liability

Answer 82

Respondeat superior

Answer 83

Loss of spouse or loss of child

Answer 84

loss of consortium

Answer 85

1. Defamatory statement 2. In writing or some other permanent form

Answer 86

1. Defamatory language 2. of or concerning the plaintiff 3. Spoken 4. Publication 5. Falsity 6. Fault 7. Damage to reputation

Answer 87

-libel -slander

Answer 88

1. Misrepresentation 2. Scienter 3. Intent to induce Plaintiff's reliance on the misrepresentation 4. Causation 5. Justifiable reliance 6. Damages

Answer 89

-intentional misrepresentation -negligent misrepresentation

Answer 90

1. Misrepresentation made by defendant in their professional capacity 2. breach of duty owed to that particular plaintiff 3. causation 4. justifiable reliance 5. damages

Answer 91

Unauthorized use by Defendant of Plaintiff's picture or name for Defendant's commercial advantage

Answer 92

1. Prying or intruding 2. in a manner highly offensive to a reasonable person 3. into private affairs

Answer 93

1. Publicizing facts that place the Plaintiff in a false light 2. That false light is highly offensive to a reasonable person 3. Actual malice (only required where the published matter is in the public interest)

Answer 94

1. Public disclosure of private information 2. Highly offensive to a reasonable person

Answer 95

Intrusion upon seclusion

Answer 96

-libel -slander -misappropriation -false light -public disclosure of private facts

Answer 97

-misappropriation -interference with business relations

Answer 98

1. Valid business expectancy 2. Knowledge 3. Intentional interference 4. Damage

Answer 99

1. Institution of criminal proceedings 2. Termination favorable to plaintiff 3. Absence of probable cause 4. Improper purpose 5. Damages

Answer 100

-malicious prosecution -abuse of process

Answer 101

1. Wrongful use of a judicial process for an ulterior purpose 2. Some definite act or threat against Plaintiff to accomplish that purpose

Answer 102

1. Tenant exercises legal right to report housing or building code violations or other rights provided by statute 2. Landlord retaliated in some way related to the housing

Answer 103

Retaliatory eviction

Answer 104

1. Landlord or agents 2. Substantially or materially deprived the tenant of her use and enjoyment of premises 3. notice and reasonable time to repair 4. Tenant vacated after a reasonable time

Answer 105

Constructive eviction

Answer 106

Express showing of actual willingness to submit to defendant's conduct

Answer 107

-express consent -apparent consent -consent implied by law

Answer 108

Reasonable person would infer permission from plaintiff's conduct

Answer 109

Emergency situation

Answer 110

1. Defendant reasonably believed they were being or were about to be attacked 2. Used such force as was reasonably necessary 3. Defendant was not the initial aggressor

Answer 111

1. Reasonable belief that the person being aided would have a right to self-defense 2. Used no more force than that person would have been allowed to use

Answer 112

1. Request to desist or circumstances made such request futile or dangerous 2. Reasonable use of force 3. That did not cause death or serious bodily harm 4. To prevent a property tort

Answer 113

Common law 1. Tortiously dispossessed 2. Of land lawfully possessed 3. Reasonable force 4. Acted promptly Modern majority Does not exist

Answer 114

Re-entry onto land defense

Answer 115

1. Dispossession of lawfully possessed chattel 2. Hot pursuit 3. Reasonable force 4. Not resulting in death or serious bodily injury

Answer 116

recapture of chattels defense

Answer 117

1. Reasonable 2. Detention of an individual 3. By a shopkeeper 4. Who reasonably believed the detainee possessed goods shoplifted from the shopkeeper

Answer 118

Shopkeeper's privilege defense

Answer 119

1. Defendant interfered with another's real or personal property 2. Reasonably 3. Out of necessity to avoid threatened injury 4. Substantially more serious than the invasion undertaken to avert it

Answer 120

Necessity defense

Answer 121

Common law: contributory negligence barred recovery Modern majority: comparative negligence = Plaintiff can recover amount defendant was at fault IF Plaintiff was less than 50% at fault

Answer 122

1. Plaintiff knew the risk 2. Plaintiff voluntarily assumed it

Answer 123

1. Products liability case 2. Buyer did not give seller notice of defect within a reasonable time after earlier of knew or should have known

Answer 124

-strict liability -notice of breach defense

Answer 125

Common law: family members could not sue one another Modern majority: eliminated for spouses suing one another, children suing parents, and all actions over property damage

Answer 126

Family immunity immunity tort defenses

Answer 127

1. Defendant is a government unit 2. and has not consented to suit

Answer 128

Sovereign immunity

Answer 129

Common law: absolute Modern majority: does not exist

Answer 130

Charitable immunity

Answer 131

To libel and slander, it is an absolute defense

Answer 132

-truth defense -absolute privilege -qualified privilege

Answer 133

Libel and slander

Answer 134

-judicial proceedings? -legislative proceedings? -executive proceeding, where statement is reasonable related thereto -communications between spouses

Answer 135

1. Action for libel or slander 2. Statement was an accurate report of a statement that was false, made to an official actor in their official capacity, a commentary on a subject of general public interest, made to defend one's own action, property, or reputation, one the recipient had an interest in and was not made by an intermeddler, or one of common interest between the defendant and the recipient 3. Speaker was not reckless or worse as to the statement's falsity

Answer 136

FEDERAL: The offered evidence has zero tendency to make any material fact more or less likely. CALIFORNIA: the offered evidence has zero tendency to make any material, DISPUTED fact more or less likely.

Answer 137

-relevance -403

Answer 138

When the offered evidence's probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Answer 139

alluding to insurance objection

Answer 140

-Subsequent remedial measures objection -NOTE: in CALIFORNIA this rule only applies in negligence, not strict liability, cases

Answer 141

alluding to settlement offer objection NOTE: in CALIFORNIA this applies to mediations too

Answer 142

alluding to offer to pay medical expenses objection NOTE: in CALIFORNIA this applies to accompanying statements

Answer 143

alluding to plea negotiations objection

Answer 144

The proponent did not produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Answer 145

-lack of authentication objection -not best evidence objection -duplicate substitution exception to best evidence rule

Answer 146

A non-original writing, recording, or photograph is being offered to prove its content. NOTE: in CALIFORNIA this is called a secondary evidence objection

Answer 147

lack of personal knowledge objection

Answer 148

Witness cannot recall objection (goes to competency)

Answer 149

Witness cannot communicate objection (goes to competency)

Answer 150

Witness hasn't been sworn objection (goes to competency)

Answer 151

interpreter not sworn objection (goes to competency)

Answer 152

Witness lacks religious beliefs objection

Answer 153

Infancy objection (goes to competency)

Answer 154

insanity objection

Answer 155

Felon objection

Answer 156

-Witness has an interest objection -Dead man's act objection

Answer 157

Rule that judges may not testify in proceedings they are overseeing

Answer 158

juror as witness objection

Answer 159

When the juror is being asked to testify in a proceeding in which they are a juror, or is being asked to testify about jury deliberations EXCEPT to ask about whether extraneous prejudicial information or improper information being brought to bear on deliberations, mistake on a verdict form, or whether any juror made a clear statement that he racial animus or bias was a significant motivating factor in his voting to convict a criminal defendant

Answer 160

leading objection

Answer 161

Non-adverse witness and not laying foundation

Answer 162

misleading question objection (under 611(a))

Answer 163

Compound question objection (611(a))

Answer 164

-Argumentative question objection -Harassing question objection -Unduly embarrassing question objection (611(a))

Answer 165

Conclusory question objection (611(a))

Answer 166

Assumes facts not in evidence objection (611(a))

Answer 167

Asked and answered objection (611(a))

Answer 168

Calls for narrative objection (611(a))

Answer 169

Calls for speculation objection (611(a))

Answer 170

lacks foundation objection

Answer 171

motion to strike nonresponsive answer (611(a))

Answer 172

-improper opinion objection -motion to strike improper opinion -proper lay opinion testimony exception -expert testimony

Answer 173

-opinion without basis -opinion beyond scope

Answer 174

-Daubert motion -Beyond the scope objection

Answer 175

Beyond the scope objection

Answer 176

Either questions probe an expert witness outside of what the judge qualified him to discuss Or cross questions go into areas not discussed on direct (except credibility, which is always relevant).

Answer 177

FEDERAL AND CALIFORNIA CIVIL: One side attempts to introduce evidence bolstering a witness's credibility before it has been attacked OR the bolstering is done with a prior consistent statement that occurred AFTER a prior inconsistent statement used to impeach CALIFORNIA CRIMINAL: never

Answer 178

-bolstering before witness has been impeached objection -statement of prior identifcation exception

Answer 179

1. Confidential (presumed in CALIFORNIA) 2. Communication 3. Between attorney and client 4. As part of a legal consultation 5. the client is alive or the client is dead but the estate has not been discharged and distributed (CALIFORNIA only)

Answer 180

Federal rules: never California: 1. Communication 2. Between a patient 3. and someone the patient reasonably believes is a physician or their agent 4. For the purpose of seeking medical treatment 5. Objection is made in a civil non-commitment proceeding 6. Physician or their staff had no other legal obligation to disclose the information

Answer 181

1. Confidential (presumed in CALIFORNIA) 2. Communication 3. Between a psychotherapist (including social worker, CALIFORNIA any counselor that does anything mental-health-adjacent although not a court-appointed therapist) and client 4. As part of a psych consultation 5. the therapist had no other legal obligation to report the information (CALIFORNIA only) 6. objection not made in a competency proceeding (CALIFORNIA only)

Answer 182

-privilege objections -spousal immunity

Answer 183

Federal rules two ways. A: 1. Spouse (or registered domestic partner in California_ 2. Called to testify in criminal case (not an element in California) 3. Where their spouse is a defendant B: 1. Spouse (or registered domestic partner in California) 2. Compelled to testify 3. Against their spouse

Answer 184

1. Question probes a communication 2. Made confidentially (presumed in CALIFORNIA) 3. Between spouses 4. During marriage

Answer 185

His answer to the question may expose him to criminal liability.

Answer 186

fifth amendment

Answer 187

1. Confidential (presumed in CALIFORNIA) 2. Communication 3. Between a religious minster and a person 4. As part of a religious consultation 5. Minister routinely receives such communications (California only) 6. Minister's religion requires such communications to be kept secret (California only)

Answer 188

Federal rules: never California: question requires a journalist to reveal a confidential source or unpublished background material

Answer 189

Federal rules: 1. Question seeks communication 2. Of non-public information 3. By or to a government official California: -Federal or state statute forbids disclosure OR -the public interest in keeping the information confidential outweighs the need for disclosure

Answer 190

1. Out of court statement 2. Offered to prove the truth of the matter asserted

Answer 191

-hearsay -crawford -hearsay exceptions -fifth amendment violation -public safety miranda exception -impeachment miranda exception

Answer 192

-hearsay -hearsay exceptions

Answer 193

Questions seeks presidential documents or conversation's disclosure.

Answer 194

-Attorney-client -Physician-client -psychotherapist-client -spousal -journalist -government -accountant-client -executive

Answer 195

It is not a real, live controversy.

Answer 196

1. It relies on uncertain or contingent future events 2. A party would not have to risk substantial hardship to provoke review

Answer 197

-An issue committed by the Constitution to the executive or legislative branch OR -An issue inherently incapable of resolution and enforcement by the judicial branch

Answer 198

-mootness -ripeness

Answer 199

1. The appeal comes from a state court 2. The state court decided it on state grounds that were fully dispositive of the case 3. Not based on federal law (even by analogy)

Answer 200

adequate and independent state grounds

Answer 201

1. The issue presented is one of federal constitutional law 2. Premised upon an unsettled state law question

Answer 202

Pullman abstention

Answer 203

When asked to enjoin state criminal proceedings.

Answer 204

Younger abstention

Answer 205

-Actions against state governments for damages -Actions against state government for injunctive or declaratory relief where the state gov is named as a party -Actions against state government officials that could result in damages that would be paid out of the state treasury -Actions against state government officials that could result in quieting title to land currently held by the state -Actions against state government officials for violating state law

Answer 206

-Eleventh amendment immunity -Eleventh amendment immunity bankruptcy proceedings exception -Express eleventh amendment immunity waiver -Ex parte young exception -Congressional removal fourteenth amendment exception

Answer 207

-A state's action discriminates against out of state interest to benefit local economic interests -A state's action unduly burdens interstate commerce

Answer 208

Dormant commerce clause

Answer 209

1. A federal law explicitly defined state law types and said they're preempted 2. The state law falls within that definition's ambit

Answer 210

It and a federal law cannot logically be rectified

Answer 211

-preemption -supremacy of laws order

Answer 212

It prevents achievement of a federal law's objective.

Answer 213

1. Congress enacted a federal law 2. It intended to preempt all state laws in that field

Answer 214

-express -implied through actual conflict -implied through objective achievement prevention -field

Answer 215

1. Multiple states enter into an agreement 2. That increases their political power 3. At federal supremacy's expense 4. Without congress's consent

Answer 216

Interstate compacts clause

Answer 217

1. Congress passed a statute 2. Commandeering state officials 3. To regulate their own citizens

Answer 218

anti-commandeering doctrine

Answer 219

When it is no longer an incentive but is equivalent to compulsion or undue influence.

Answer 220

unduly coercive prohibition doctrine

Answer 221

1. state action 2. regulates or discriminates against the federal government

Answer 222

intergovernmental immunity doctrine

Answer 223

1. State action 2. Discriminates against 3. Nonresidents 3. Concerning fundamental rights

Answer 224

1. State action 2. denies their citizens 3. a federal right

Answer 225

-privileges and immunities clause -privileges or immunities clause

Answer 226

A right explicitly mentioned in the constitution OR 1. Deeply rooted in the nation's history and tradition 2. Essential to ordered liberty's concept

Answer 227

It discriminates against out of state businesses.

Answer 228

-equal protection -dormant commerce clause -import export clause

Answer 229

1. State 2. Enacts legislation 3. That retroactively 4. Impairs contract rights

Answer 230

Contract clause

Answer 231

1. Legislative act 2. Inflicts punishment 3. Without a judicial trial.

Answer 232

-bill of attainder -ex post facto

Answer 233

1. Legislation 2. Retroactively alters 3. the criminal law 4. In a substantially prejudical manner 5. So as to deprive a person of any right previously enjoyed 6. for the purpose of punishing that person for a past activity

Answer 234

1. Government taking 2. Of private property 3. Either not for public use or without just compensation

Answer 235

-eminent domain -takings clause

Answer 236

1. Necessary 2. To achieve a compelling government prupose

Answer 237

Strict scrutiny

Answer 238

Strict scrutiny

Answer 239

-race -national origin

Answer 240

1. Substantially related 2. To an important government interest

Answer 241

Appropriate level of scrutiny

Answer 242

intermediate scrutiny

Answer 243

EITHER not serving a legitimate interest OR not rationally related to its interest

Answer 244

As-applied, it did not give fair notice that the sanction conduct was illegal.

Answer 245

fair notice

Answer 246

1. The second amendment's plain text covers it 2. The government cannot show that it is consistent with the country's historical tradition of firearm regulations

Answer 247

Second amendment

Answer 248

Considering historical practices and the founding fathers' understanding, the law is sponsoring a religion

Answer 249

establishment clause

Answer 250

1. Government action 2. Negatively impacts someone 3. The government took that action because of 4. That person's religious beliefs

Answer 251

free exercise clause

Answer 252

-establishment clause -free exercise clause

Answer 253

1. Government regulation of 2. Private citizen's speech

Answer 254

-First amendment -Whether the speech is unprotected

Answer 255

1. Someone is banned from attending a criminal trial 2. Without the trial judge articulating why some other interest outweighs the right of access interest

Answer 256

1. Government action 2. Denied someone of life, liberty, or property 3. Some procedural mechanism was lacking 4. balancing that procedural mechanism's importance against the value of the life, liberty, or property lost, and the government's interest in efficiency, that mechanism should have been included.

Answer 257

Procedural due process

Answer 258

1. Writing 2. written in response to a communication 3. sent to the claimed author 4. letter's content makes it unlikely that it was written by anyone other than the claimed author

Answer 259

1. The statements are relevant 2. They come from a document 3. That has been authenticated 4. That is relevant 5. That was prepared before 1 January 1998 (California rule is document is more than 30 years old)

Answer 260

Federal: 1. The records were generated by an electronic process or copied from an electronic device 2. the records are certified by a custodian or other qualified person 3. The offering party gives the adverse party reasonable written notice and provides fair opportunity for inspection so the adverse party can challenge the records if they want to California: cannot be done

Answer 261

-authentication -best evidence rule -rule of completeness -ancient documents exception -official publications doctrine -business records doctrine -handwriting authentication -business records hearsay exception -hearsay

Answer 262

Either: 1. A witness who has heard the purported speaker's voice before 2. Offers their opinion that the voice is that of the purported speaker Or: 1. The statement was made during a telephone conversation 2. A party to that conversation says that the purported speaker indeed was the statement maker

Answer 263

authentication

Answer 264

1. Part of it is handwritten 2. A lay witness with personal knowledge of the purported writer's handwriting says that the writing on the document is the purported writer's handwriting OR a qualified handwriting expert compares a known copy of the purported writer's handwriting to the document and opines that the purported writer is the writer

Answer 265

1. Must show that the machine was in working order 2. Must show that the operator was qualified to operate it 3. Must establish chain of custody of the x-ray pictrue

Answer 266

authentication and x-ray specific authentication doctrine

Answer 267

1. On cross 2. The act was a past immoral, vicious, or criminal act (California MUST be an act of moral turpitude) 3. That may affect his character 4. And show him to be unworthy of belief 5. Counsel acts in good faith upon reasonable belief that the prior bad act actually happened 6. Counsel doesn't introduce extrinsic evidence of the prior bad act, they only ask the witness themselves about it (California not a rule) 7. Counsel doesn't reference any consequences of that bad act NOTE: in California this is only available in criminal cases, not allowed in civil cases. NOTE 2: if on direct a witness states "I've never X," then a lawyer may impeach and the above doesn't apply

Answer 268

-Prior bad acts rule -Prior convictions rule

Answer 269

NOTE, this is a special area where 401 and 403 effectively don't apply FRE (COMPLICATED) PRIMA FACIE: -crime involved dishonesty or false statement: always -other crime AND witness being impeached IS the defendant in a criminal case: not unless prosecution can show that its probative value outweighs its prejudicial effect -all else: apply 403 EXCEPTIONS, inadmissible if: -more than 10 years since conviction date or release date, whichever is later -conviction was pardoned or equivalent -juvenile conviction offered to impeach the accused -constitutionally defective conviction CALIFORNIA (SIMPLE) -felonies involving moral turpitude: always -misdemeanors involving moral turpitude: criminal cases only -all else: no

Answer 270

Character evidence objection

Answer 271

The insurance evidence is offered to show that a person acted negligently (or worse)

Answer 272

The privilege holder.

Answer 273

1. The conversation occurred as part of a client seeking advice 2. To aid in the planning or execution of something the client knew or should have known was a crime or fraud 3. California only: not about the medicinal or adult use of cannabis

Answer 274

crime-fraud exception

Answer 275

1. It is an exact copy of the original (or in CALIFORNIA other written evidence of the original's content) 2. There is no genuine question about its authenticity 3. Under the circumstances, it would not be unfair to admit the duplicate in the original's place

Answer 276

1. Rationally based on the witness's perception 2. Helpful to a clear understanding of her testimony or understanding a fact in issue 3. Not based on what should be expert knowledge

Answer 277

1. It would help the trier of fact 2. based on sufficient facts 3. Product of reliable principles and methods 4. Reasonably applied

Answer 278

Federal: 1. Tested 2. Published in a peer-reviewed journal 3. Known potential error rate 4. Standards exist that control its operation 5. generally accepted in the relevant field (this is the only factor in California)

Answer 279

I'm unavailable with former testimony Party admissions made against me I made a statemen to my physician and a business records on and a business records on and a business records on Present sense impression a declaration made when you're about to die statements against interest excited utterance statement of conditions that existed then forfeiture by wrongdoing yeeeeaaaaaaah, it's an exception to hearsay

Answer 280

1. Declarant is unavailable 2. The statement was former testimony 3. offered then against the same party or a predecessor in interest (in CALIFORNIA this needs only be someone who had some interest) ALSO, ONLY IN CALIFORNIA, YOU GET AN ADDITIONAL WAY: 1. civil case 2. the statement was former testimony 3. in a deposition 4. the declarant lives more than 150 miles from the trial

Answer 281

It is what it sounds like. Note that under the federal rules this is technically considered "not hearsay," rather than an exception.

Answer 282

FEDERAL: 1. Made for medical diagnosis and treatment 2. Reasonably pertinent to medical diagnosis and treatment 3. Described a person's medical history, past or present symptoms, or their inception or general cause CALIFORNIA: 1. Declarant is a minor at the time of the proceedings 2. Declarant was under 12 when they made the statement 3. Statement was made for the purpose of medical diagnosis or treatment 4. Statement described an act or attempted act of child abuse or neglect

Answer 283

1. Statement described or explained an event or condition (in CALIFORNIA the statement must explain the declarant's own conduct) 2. It was made while or immediately after the declarant perceived that event or condition 3. it was not made under suspicious circumstances (CALIFORNIA only)

Answer 284

1. criminal homicide trial or civil case. (not an element in CALIFORNIA) 2. Made by a now-unavailable declarant (CALIFORNIA must be now dead) 3. While believing his death was imminent 4. Concerned the cause or circumstances of what he believed to be his impending death. (CALIFORNIA must concern cause of death specifically)

Answer 285

1. Declarant is unavailable 2. Statement was so against the declarant's pecuniary or proprietary interest OR had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to legal liability, that the declarant would not have made it if they did not believe it to be true (California this also includes contrary to social interest) 3. At the time it was made the declarant had personal knowledge of the facts 4. and was so aware that the statement was against their interest that they had no motive to lie 5. corroborating circumstances indicating the statement's trustworthiness (FEDERAL CRIMINAL only)

Answer 286

1. Statement made during or soon after a startling event 2. under the stress of excitement of that event 3. The statement related to that startling occurrence Note: in california this is called the spontaneous statement exception

Answer 287

What it sounds like. California rule gives judge discretion to exclude statements made under suspicious circumstances.

Answer 288

1. Declarant is unavailable 2. Testimony is offered against a party that caused that unavailability 3. Wrongfully 4. trustworthy (CALIFORNIA only)

Answer 289

-dead -to sick to testify -beyond subpoena power -privileged out of testifying -refuses -can't recall (in CALIFORNIA this requires total memory loss) -CALIFORNIA: scared to testify

Answer 290

1. Requested (California this is not an element if the facts are universally known) 2. generally known within the trial court's territorial jurisdiction OR can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Answer 291

The importance of the information to be obtained is great and the ease with which it could be obtained through normal courtroom methods is small

Answer 292

-a criminal defendant -the prosecution (1) once that defendant opens the door (2) about the victim's good character for the same trait if the defendant attacked that victim's character OR the defendant's bad character for the same trait (no matter if D went after victim's character or his own) (CALIFORNIA this only can be done to when the defendant introduced evidence that they themselves are not violent) -the prosecution in a homicide case where defendant argues self-defense because the victim was the first aggressor, here the prosecution can only offer evidence of the victim's trait for peacefulness (Not in california) -Impeaching a character witness -sexual misconduct case specific acts of past sexual misconduct (CALIFORNIA criminal only BUT also includes domestic violence and elder abuse)

Answer 293

FEDERAL: -opinion or general community reputation evidence -specific acts of misconduct on cross of a character witness (eg did you know that ...) -specific acts of sexual misconduct against a defendant accused of sexual misconduct when offering party discloses to D at least 15 days before trial or later with good cause (in california this rule only exists in criminal cases, but also applies to acts of domestic violence and elder abuse) CALIFORNIA: opinion evidence, reputation evidence, and specific acts evidence.

Answer 294

Criminal case: 1. some sort of sexual misconduct charge 2. Evidence is offered to prove victim's sexual behavior or disposition (California also covers manner of dress) 3. Not to prove source of semen, injury, or other physical evidence, OR consent (for this last one, only evidence of past sexual behavior WITH defendant can be used) 4. NOT the prosecution OR a defendant after prosecution has opened door (CALIFORNIA only) Civil case: 1. some sort of sexual misconduct charge 2. Evidence is offered to prove victim's sexual behavior or disposition 3. probative value does NOT substantially outweigh harm to alleged victim + unfair prejudice to prosecution No civil ban in california

Answer 295

rape shield

Answer 296

1. Injury 2. Causation 3. Redressability

Answer 297

1. Injury to the members 2. Related to the organization's purpose 3. Claim and relief don't require individual participation

Answer 298

1. Plaintiff challenges a law enacted under congress's tax and spend power 2. For exceeding that power

Answer 299

1. Plaintiff brings a claim that the government restricted substantially more speech than necessary 2. It was not a restriction on commercial speech

Answer 300

-general standing -organizational standing -tax and spend standing -free speech overbreadth standing

Answer 301

1. The suit is brought pursuant

Answer 302

A state officer is being sued for an injunction against future actions.

Answer 303

1. Congress passed a law pursuant to its fourteenth amendment powers to prevent discrimination 2. Congress made its intent to remove 11th amendment immunity clear

Answer 304

YES just pick the best of: -commerce -tax and spend -fourteenth amendment -necessary and proper -war powers -police power -power over citizenship -admiralty power -coin money power fix weights and measures power -IP power -impeachment power Two main reasons a bar question may have a no answer -congress attempts to use the police power outside of where they can -congress exceeds their authority to delegate

Answer 305

It has been expressly or impliedly authorized by the congressional house concerned. NOTE: this power is very broad.

Answer 306

investigatory power

Answer 307

1. For the purpose of effectuating an enumerated power (only an element for congress) 2. For public use (note: construed broadly, Kelo)

Answer 308

Federal gov within federal territories, military bases, indian reservations, and DC The states everywhere else

Answer 309

1. They act within one of their enumerated powers 2. That power is not uniquely confined to congress 3. The delegation includes intelligible standards for the delegate to follow

Answer 310

1. Executive agreement 2. Two-thirds of the senate ratifies it

Answer 311

1. Constitution 2. Federal law or treaty, whichever is latest in time 3. executive agreement 4. State law

Answer 312

-ambassadors -public ministers -scotus justices -other officers of the united states -other positions congress gives him the power to appoint to

Answer 313

appointment power

Answer 314

-cabinet members -sole head of an independent agency that has significant executive authority -all other executive appointees subject to any congressional limitations

Answer 315

removal power

Answer 316

Anyone from past or future federal criminal convictions.

Answer 317

pardon power

Answer 318

Fact that pardon power only covers federal criminal charges

Answer 319

Fact that pardon power doesn't cover these things

Answer 320

-Congress can override with a two-thirds vote -The president has ten days to do so -The president cannot line item veto

Answer 321

Almost always yes, even without a formal declaration of war.

Answer 322

imports: with congressional consent exports: never

Answer 323

1. clear and present danger 2. fighting words 3. obscenity 4. defamation 5. false or deceptive advertising 6. gov demonstrates a compelling interest in regulating the speech

Answer 324

-Federal: limited -State: general

Answer 325

-subject-matter -personal -venue NOTE: analyze venue before personal jurisdiction, because if you don't have venue, you don't have personal jurisdiction

Answer 326

-The state in which the court sits's personal jurisdiction statute doesn't allow it, -The defendant does not have contacts with the state that makes the exercise of jurisdiction fair and reasonable, OR -The defendant was not given appropriate notice and an opportunity to be heard

Answer 327

-service was executed by a minor -service was executed by a party to the action -service was neither personal nor to an authorized agent nor to an active residence of the served party's -service was of a minor or incompetent person and not in accordance with the rules of the state in which service was made -service was not made within 90 days of the complaint's filing and the court did not extend that period for good cause

Answer 328

-Motion to dismiss for improper service of process -service of process exceptions

Answer 329

-service was proper under the rules of the state in which the federal court hearing the action sits -service was proper under the rules of the state in which service was effected -waiver

Answer 330

-the complaint was not answered within 21 days -waiver and the complaint was not answered within 60 days

Answer 331

Motion for default based on failure to answer

Answer 332

Taking the facts (not conclusory statements) pled as true, that the claimed legal violation occurred is not plausible

Answer 333

1. There is no genuine issue of material fact 2. the movant is entitled to judgment as a matter of law.

Answer 334

motion to dismiss for failure to state a claim

Answer 335

1. The case has not yet been submitted to the jury 2. the nonmovant has been fully heard on the matter at trial 3. a reasonable jury would not have a legally sufficient basis to find for the nonmovant on that issue

Answer 336

1. Trial is over 2. It has been less than 28 days after the entry of judgment 3. the movant moved for judgment as a matter of law during trial 4. now, judgment as a matter of law should be granted.

Answer 337

-motion for summary judgment -motion for judgment as a matter of law -renewed motion for judgment as a matter of law

Answer 338

1. Plaintiff did not join a party 2. Relief could not be accorded without that party OR that party has such an interest in the subject matter that his absence will impair or impede his ability to protect that interest or will leave any other party subject to a substantial risk of incurring multiple or inconsistent obligations 3. The court would have personal and subject matter jurisdiction over the joined party 4. That party is indispensable considering prejudice, adequacy of judgment without the party, and adequacy of remedies plaintiff may be able to have in another forum if the case is dismissed

Answer 339

Were all possible defendants sued, if not, analyze potential motion to dismiss for failure to join an indispensable party.

Answer 340

Either: 1. Final judgment 2. On the merits 3. Same cause of action OR plaintiff previously sued defendant, and the claim arises out of the same transaction or occurrence they previously sued aobut OR plaintiff was previously sued by defendant, and the claim arose out of the same transaction or occurrence defendant previously sued about.

Answer 341

1. Actually litigated 2. Essential to the prior judgment

Answer 342

-claim preclusion -issue preclusion

Answer 343

EITHER 1.multiple plaintiffs or multiple defendants 2. No claim arises out of a transaction or occurrence in which all parties were involved OR It's a crossclaim that does not arise out of the same transaction or occurrence as the main action

Answer 344

Motion to sever claims

Answer 345

1. Numerosity 2. Common question of law or fact 3. Named parties interest are typical of the class 4. Named representatives will ensure the fair and adequate representation of the interests of absent members of the class 5. separate actions would create a risk of inconsistent results, impar the interest of other absent members, injunctive or declaratory relief is appropriate for the class as a whole, OR the common questions of fact or law predominate over individual issues

Answer 346

Class cert

Answer 347

-Some plaintiff does not have a claim against each defendant -You cannot find a common fact or occurrence that gives rise to at least one claim that each plaintiff has brought against each defendant, OR -No common question of fact or law common to all parties

Answer 348

-motion to sever parties -motion to implead

Answer 349

1. Impleading party is a defendant 2. Impleaded party may be liable for all or part of the judgment should the plaintiff recover against them

Answer 350

1. The movant has in good faith conferred or attempted to confer 2. The movant certifies this 3. The discovery sought is relevant 4. The discovery sought is nonprivileged 5. The discovery sought is proportional to the needs of the case

Answer 351

1. Complete diversity between opposing parties 2. Amount in controversy exceeds $75,000

Answer 352

-Diversity -Federal question -Removal -Supplemental

Answer 353

The claim arises under federal law

Answer 354

1. Plaintiff files in state court 2. Defendant moves to remove to the federal court that embraces the state court where the Plaintiff filed the action 3. Federal court would have had subject-matter jurisdiction at the outset 4. Defendant acts within 30 days of when they should have known that the claim was removeable 5. Defendant acts within one year of the action's commencement

Answer 355

1. The claim arises from a transaction or occurrence 2. That gives rise to another claim plaintiff has brought 3. Over which the federal court has some other type of jurisdiction EXCEPTION: this doesn't extend to third-party impleader claims where element (3) can only be met by diversity.

Answer 356

Way 1: claim is brought in a judicial district in which any defendant resides Way 2: 1. All defendants are residents of the same state 2. The judicial district is in that state Way 3: A substantial part of the events, omissions, or property giving rise to the action was/is in that district Way 4: 1. None of the above work 2. That court has personal jurisdiction over any defendant

Answer 357

The defendant is at home in that state.

Answer 358

The cause of action arises from the defendant's in-state activity AND fairness.

Answer 359

1. Government intrusion 2. Into an area where a person has a reasonable and justifiable expectation of privacy.

Answer 360

1. Exercise of control 2. By the government 3. Over a person or thing

Answer 361

-search -warrant -permissible investigatory stop and frisk -permissible automobile search -permissible plain view search -consent to warrantless search -hot pursuit -exigent circumstances -evanescent evidence -emergency aid -contaminated food -highly regulated industries exception -inventory search -airline passengers exception -public school exception -parolee exception -gov employee's file cabinet and desk exception -drug testing exception -border search exception

Answer 362

-seizure -warrant -permissible investigatory stop -permissible automobile stop -permissible plain view seizure

Answer 363

1. The evidence was obtained or derived from exploitation of illegally obtained evidence 2. The only illegality was a non-purposeful miranda violation

Answer 364

fruit of the poisonous tree

Answer 365

1. Significant pretrial constraints on the defendant's liberty existed 2. No probable cause determination was made within a reasonable time (presumptively 48 hours) 3. Evidence was obtained as a result

Answer 366

Motion to suppress as a result of a gerstein violation

Answer 367

Bail was set higher than necessary than to assure defendant's appearance at trial

Answer 368

Excessive bail prohibition

Answer 369

The balance of the following factors tips in the defendant's favor: 1. length of the delay 2. reason for the delay 3. assertion of right 4. Prejudice to him

Answer 370

motion to dismiss for a speedy trial violation

Answer 371

-Defendant lacks a rational as well as factual understanding of the charges and proceedings OR -lacks sufficient present ability to consult with her lawyer

Answer 372

motion to continue because the defendant is incompetent to stand trial

Answer 373

D is charged with at least one offense for which he can be sentenced to more than six months incarceration.

Answer 374

Request for a criminal jury trial

Answer 375

Motion for acquittal not withstanding verdict based on inconsistent verdicts

Answer 376

1. Criminal proceeding 2. Formal charges have been filed

Answer 377

Request for counsel

Answer 378

1. deficient performance 2. but-for prejudice

Answer 379

ineffective assistance of counsel

Answer 380

1. Criminal proceeding 2. Hearsay under the common law definition 3. Statement was testimonial 4. Declarant is available OR defendant had no prior opportunity to cross-examine

Answer 381

The prosecution must prove all elements of the offense charged beyond a reasonable doubt

Answer 382

-the judge's instruction shifted the burden of proof on an element of a crime charged to the defendant -the judge's instruction stated that an element needed to be proved to a level below a reasonable doubt -the judge did not overrule an objection to a prosecutor's argument that effectively accomplished one of the above

Answer 383

-it is grossly disproportionate to the seriousness of the offense -it is a death penalty or mandatory lwop sentence against one who was a minor at the time of commission -the crime punishes someone for having a status -it was a death penalty for non-murder -it was a death penalty for felony murder -it was a mandatory death penalty -it was a death penalty imposed without full information on the defendant -it was a death penalty but the statutory guidance did not give enough guidance -it was a death penalty imposed against one who is insane or retarded or cannot recall the crime -the punishment amounted to torture

Answer 384

1. Prior criminal jury was empaneled and sworn OR the first witness was sworn 2. The latter charge does not require proof of an additional element to that former charge

Answer 385

motion to dismiss on double jeopardy grounds

Answer 386

FOUR WAYS WAY ONE: It was involuntary WAY TWO: 1. Defendant was in custody or accused of a crime 2. Government agent questioning elicited the statement 2. Was not given a proper miranda prior to the questioning WAY THREE: 1. Defendant was in custody or accused of a crime 2. Defendant unambiguously and specifically request a lawyer 3. Statement came after that request and without counsel present 4. Either 14 days hadn't passed OR a fresh set of proper miranda warnings wasn't given WAY FOUR: 1. Defendant was in custody or accused of a crime 2. Defendant invokes his right to remain silent 3. Statement came after that 4. Police either didn't give a new set of proper miranda warnings or did not "scrupulously honor" that invocation.

Answer 387

1. That he has the right to remain silent 2. That anything he says can be used against him in court 3. That he has the right to an attorney 4. That if he cannot afford an attorney, one will be appointed for him if he so desired

Answer 388

1. They are not free to leave 2. They were at the station house OR the same inherently coercive pressure as the station house was present

Answer 389

-it wasn't issued by a neutral and detached magistrate -it was not based upon probable cause OR -it didn't particularly describe the place to be searched or the items to be seized

Answer 390

1. neutral and detached magistrate 2. Probable cause 3. Particularity

Answer 391

warrant requirements

Answer 392

1. Reasonable suspicion of criminal activity 2. based upon articulable facts 3. reasonable suspicion to believe detainee is armed and dangerous (this is only necessary for the frisk)

Answer 393

Non-roadblock: reasonable suspicion Roadblock or checkpoints: 1. cars are being stopped based on a neutral articulable standard 2. closely related to a particular problem pertaining to automobiles and their mobility

Answer 394

Probable cause to believe that it contains contraband or fruits, instrumentalities, or evidence of a crime.

Answer 395

1. legitimately on the premises 2. in plain view 3. probable cause to believe the items are evidence, fruits, instrumentalities, or contraband of a crime

Answer 396

1. A person with apparent equal right to use or occupy the property 2. Gave voluntary permission to enter those premises 3. The government agent did not exceed the scope of that consent

Answer 397

1. Hot pursuit 2. Of a fleeing felon

Answer 398

1. reasonable belief that evidence is being destroyed 2. officers did not create the exigency through an actual or threatened fourth amendment violation

Answer 399

The evidence was likely to disappear before a warrant to be obtained

Answer 400

1. threat to health and safety 2. if not acted upon immediately

Answer 401

The entry was made to seize contaminated food

Answer 402

1. Place searched was a business 2. In a highly regulated industry

Answer 403

1. arrestee's personal belongings were searched 2. in order to inventory them 3. before incarcerating the arrestee

Answer 404

1. airline passenger searched 2. prior to boarding

Answer 405

1. public school official 2. searching the person or property of a student 3. moderate chance of finding evidence 4. measures chosen reasonably related to the objectives of the search 5. not excessively intrusive

Answer 406

parolee agreed to such a search as a condition of their parole.

Answer 407

1. search was of a gov employee's desk or file cabinets 2. reasonable in scope 3. justified at its inception by a non-investigatory, work-related need OR reasonable suspicion of work-related misconduct

Answer 408

1. drug test 2. justified by special needs

Answer 409

A miranda warning is not required where prompted by reasonable concern for public safety

Answer 410

A statement obtained in violation of miranda can be used for impeachment purposes against a criminal defendant who chooses to take the stand

Answer 411

Sufficient attenuation between illegality and the evidence considering: 1. temporal proximity 2. intervening circumstances 3. misconduct's purpose and flagrancy

Answer 412

When the government cannot show beyond a reasonable doubt that the error was harmless.

Answer 413

The error had a substantial and injurious effect or influence.

Answer 414

-harmless error -habeas corpus

Answer 415

1. the lineup or showing was post-charge 2. defense counsel was not present 3. defendant had not waived this right

Answer 416

1. unnecessarily suggestive 2. substantial likelihood of misidentification

Answer 417

-motion to suppress on sixth amendment grounds -motion to suppress on due process grounds

Answer 418

1. offer 2. acceptance 3. consideration

Answer 419

1. one confers a benefit on another 2. without gratuitous consent

Answer 420

-contract -quasi-contract -covenant of good faith and fair dealing -promissory estoppel -anticipatory repudiation

Answer 421

1. Merchant 2. Offers to buy or sell the goods they deal in 3. In signed writing 4. The writing gives assurances that it will be held open for X time or just held open 5. acceptance occurred before X or before three months if no time was stated

Answer 422

firm offer rule

Answer 423

-regularly deals in certain goods -by occupation holds himself out as having skills or knowledge peculiar to certain goods

Answer 424

1. Promise 2. Promisor should reasonably expect to induce action or forbearance 3. Such action or forbearance is in fact induced

Answer 425

Way one: 1. Land contract 2. at least two of (i) payment in whole or in part, (ii) possession, (iii) valuable improvements Way two: 1. Sale of goods contract 2. specially manufactured OR payment and acceptance Way three: Full performance by one party Way four: D falsely and intentionally told P that the contract was not within the statute of frauds Way five: D admits in pleadings or testimony that there was a contract

Answer 426

Ways contract can potentially be removed from the statute of frauds.

Answer 427

1. at least some breach 2. anticipatory repudiation

Answer 428

1. The contract was NOT for a sale of goods over $500 2. The obligee received substantial benefit of the bargain despite the obligor's defective performance 3. The defective performance was not willful

Answer 429

Minor breach (aka substantial performance) rule

Answer 430

anticipatory repudiation

Answer 431

1. the party having the duty of performance subject to the condition prevents that condition from occurring 2. by way of wrongful action

Answer 432

-failure to cooperate -divisible contract -waiver -impossibility -impracticability -frustration

Answer 433

Reasonable grounds to believe that

Answer 434

1. performance of each party is divided into two or more parts 2. number of parts due from each party is the same 3. each performance is the quid pro quo of the other 4. the contract is NOT expressly indivisible

Answer 435

A reasonable expectation through: 1. a promise, undertaking, or commitment 2. certainty and definiteness in essential terms 3. communication of the above to the offeree NOTE: a non-mirror-image acceptance is a counter-offer, except for sale of goods, then apply the battle of the forms

Answer 436

1. Offer revocation through one of three things: -Direct communication -Publication through means comparable to how the offer was conveyed -offeree (1) indirectly received (2) correct information (3) from a reliable source (4) of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer 2. received by offeree, or published if by publication 3. prior to acceptance's effectiveness

Answer 437

-offer -acceptance -consideration -divisibility

Answer 438

test for whether revocation occurred before acceptance

Answer 439

IF the offer specified how acceptance needed to occur, then the lawyer must show acceptance according to those requirements ELSE, the lawyer must show 1. the offeree knew of the offer 2. the offeree manifested assent to the terms of the offer 3. without attempting to change the terms of that offer (except for sale of goods, then apply the battle of the forms)

Answer 440

Did the offer say when? Then that's the answer If not, Was it an auction contract? Then when the hammer fell If not, Was it an option contract? Then upon receipt If not, then upon dispatch

Answer 441

1. bargained-for exchange 2. legal value

Answer 442

1. shared mistake 2. about existing facts 3. concerning a basic assumption upon which the contract was made 4. material effect 5. the party asserting the defense did not assume the risk

Answer 443

-mutual mistake affirmative defense -unilateral mistake affirmative defense

Answer 444

1. mistake 2. other party knew or had reason to know 3. material effect

Answer 445

1. ambiguous contract language 2. neither party was aware of the ambiguity OR both parties were aware of it but had opposite interpretations

Answer 446

misunderstanding affirmative defense

Answer 447

1. fraudulent misrepresentation 2. justifiable reliance 3. injured party rescinded 4. before ever affirming

Answer 448

1. tricked into giving assent 2. under circumstances that prevented her from appreciating the significance of the action

Answer 449

1. misrepresentation 2. that would induce a reasonable person to agree OR that the misrepresenter knows for some special reason is likely to induce the particular person to agree 3. justifiable reliance

Answer 450

-unilateral mistake -fraud in the inducement -fraud in the factum -material misrepresentation -infancy -mental incapacity -guardianship -intoxication -physical force duress -improper threat duress -undue influence -unconscionability

Answer 451

The consideration or subject matter is illegal

Answer 452

void as against public policy affirmative defense

Answer 453

1. minor at the time 2. disaffirmed as a minor or within reasonable time of after reaching age of majority 3. did not first affirm upon reaching age of majority

Answer 454

infancy affirmative defense

Answer 455

1. mental capacity was so deficient as to be incapable of understanding the contract's nature or significance 2. legal representative disaffirmed OR he disaffirmed when lucid 3. before legal representative affirmed OR he disaffirmed when lucid

Answer 456

mental incapacity affirmative defense

Answer 457

1. then under a guardianship 2. the guardian did not assent to the contract

Answer 458

guardianship affirmative defense to breach of contract

Answer 459

1. was so intoxicated as to be incapable of understanding the contract's nature or significance 2. other party had reason to know of the intoxication 3. he disaffirmed when he sobered up 3. before he affirmed when he'd sobered up

Answer 460

intoxication affirmative defense

Answer 461

1. Physically forced to sign 2. Against her will

Answer 462

physical duress affirmative defense

Answer 463

1. party's assent induced by an improper threat 2. by the other party 3. leaving no reasonable alternative 4. voided 5. prior to affirmance

Answer 464

improper threat duress affirmative defense

Answer 465

1. undue susceptibility 2. excessive pressure

Answer 466

Marriage Year (more than necessary to perform) Land Executor of estate contracting to pay the estate's debts out of his own pockets Goods more than $500 Surety

Answer 467

1. produce a writing 2. that reasonably identifies the contract's subject matter 3. indicates that a contract has been made between the parties 4. states with reasonable certainty the essential terms of the unperformed promises 6. signed by the party sought to be bound

Answer 468

statute of frauds

Answer 469

statute of frauds

Answer 470

statute of frauds

Answer 471

statute of frauds

Answer 472

-statute of frauds -breach of warranty -breach of implied warranty of merchantability -breach of implied warranty of fitness for purpose

Answer 473

statute of frauds

Answer 474

Contract terms so unfair as to shock the conscience

Answer 475

1. breach of contract action 2. the contract was in writing 3. the parties intended that contract to embody the final expression of that bargain 4. other side has attempted to introduce written or oral statements made prior to that writing OR oral statements contemporaneous to that writing 5. for the purpose of arguing the terms of the writing are different from what they say

Answer 476

1. the contract made the defendant's performance conditional upon something occurring 2. that something didn't occur

Answer 477

excuse by non-occurrence of necessary condition affirmative defense

Answer 478

performance has become literally impossible

Answer 479

1. extreme or unreasonable difficulty or expense 2. that difficulty or expense concerns a basic assumption upon which the contract was made

Answer 480

1. supervening act 2. reasonably did not foresee 3. purpose destroyed 4. both parties had realized that purpose at the time of the contract's formation

Answer 481

-impossibility -impracticability -frustration

Answer 482

Way One: 1. a new contract 2. between the same parties or their authorized agents 3. that is enforceable 4. to rescind the old contract 5. new contract in writing IF the old contract was subject to the statute of frauds Way Two: Breach of warranty of title Way three: anticipatory repudiation

Answer 483

rescission affirmative defense to breach of contract

Answer 484

1. there was a warranty of title 2. it was

Answer 485

potential breach of warranty action

Answer 486

1. sale of goods 2. by merchant who deals in those kinds of goods 3. goods not merchantable

Answer 487

1. pass without objection 2. fair average quality 3. fit for ordinary purposes 4. within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved 5. adequately contained, packaged, labeled 6. conform to any promises or affirmations of fact made on the label

Answer 488

1. sale of goods 2. seller is a merchant of those goods 3. seller knows or has reason to know of particular purpose 4. seller knows or has reason to know of buyer's reliance 5. buyer in fact relies 6. goods are not fit for that purpose

Answer 489

1. sale of goods 2. affirmation of fact or promise about those goods (not mere puffery) 3. part of the basis of the bargain 4. came at a time such that buyer could have relied 5. goods didn't conform to that affirmation of fact or promise

Answer 490

non-mirror image acceptance is still acceptance does the contract involve a non-merchant? the offer is the contract. is the contract between two merchants dealing in the goods they're merchants in? An additional term in the acceptance becomes part of the contract if: 1. doesn't materially alter 2. offeror doesn't object within a reasonable time

Answer 491

An estate of full ownership.

Answer 492

As much ownership to A as O has.

Answer 493

As much ownership to A as O has.

Answer 494

An estate that automatically terminates on the happening of a stated event and then goes back to the grantor.

Answer 495

As much ownership to A as O has, until and unless X. And a possibility of reverter to O.

Answer 496

An estate that continues until the grantor exercises their right of termination.

Answer 497

As much ownership to A as O has, until and unless X. And a right of entry to O.

Answer 498

A fee simple determinable or a fee simple subject to condition subsequent, where the possibility of reverter or right of entry, respectively, goes to a third party.

Answer 499

1. A possibility of reverter or a right of entry not held by the original grantor 2. that does not follow a life estate

Answer 500

An ownership interest for life.

Answer 501

As much ownership to A as O has. When A dies, that estate goes back to O.

Answer 502

As much ownership to A as O has. When A dies, that estate goes to B. B has a remainder.

Answer 503

As much ownership to A as O has. When B dies, that estate goes back to O.

Answer 504

As much ownership to A as O has. When B dies, that estate goes to C. C has a vested remainder.

Answer 505

1. A future interest 2. that becomes a present interest upon the natural termination 3. of a life estate 4. and is created in the same instrument as the one that created the life estate

Answer 506

As much ownership to A as O has. When B dies, that estate goes to C if X or back to O if not X. C has a contingent remainder.

Answer 507

1. A future interest 2. that becomes a present interest upon the natural termination 3. of a life estate 4. and upon the happening of another condition 5. and is created in the same instrument as the one that created the life estate

Answer 508

1. Co-ownership 2. With a right of survivorship

Answer 509

As much ownership to A and B, as joint tenants, as O has.

Answer 510

Essentially joint tenancy but between spouses.

Answer 511

A tenancy by the entirety.

Answer 512

1. A concurrent estate 2. with no right of survivorship

Answer 513

1. A lease 2. terminable at the will of either the landlord or the tenant

Answer 514

A tenancy at will.

Answer 515

A complete transfer of the entire remaining lease term.

Answer 516

A partial transfer of the entire remaining lease term.

Answer 517

That which is affixed to the real property.

Answer 518

1. An owner explicitly grants another a 2. right to enter upon the servient tenement 3. and make affirmative use of it

Answer 519

1. An owner explicitly grants another an estate 2. But reserves for their self 2. the right to enter upon the estate 3. and make affirmative use of it

Answer 520

1. An owner divides their estate 2. and grants one part to another 3. At the time of division 4. A use exists on the servient part 5. that is reasonably necessary for the enjoyment of the dominant part 6. the parties intended the use to continue after the estate division

Answer 521

1. a right to enter upon the servient tenement 2. and make affirmative use of it

Answer 522

1. lots are sold in a subdivision 2. with reference to a recorded plat or map 3. that also shows streets leading to the lots

Answer 523

Streets that buyers of lots created by a subdivision have the right to use.

Answer 524

a right to remove a valuable product of the soil.

Answer 525

A right to cross real property as is reasonable to exercise a profit a prendre.

Answer 526

A profit a prendre's creation.

Answer 527

A right to cross another's real property to access a public road or utility line.

Answer 528

1. an owner of a tract of land 2. sells a part of the tract 3. and by this division 4. deprives one lot of access to a public road or utility line

Answer 529

1. open and notorious 2. adverse 3. continuous and uninterrupted for the statutory period

Answer 530

The same ways as affirmative easements, theoretically.

Answer 531

1. actual entry 2. exclusive possession 3. open and notorious 4. adverse 5. continuous for the statutory period

Answer 532

Once a real property estate sale contract is signed, equity immediately regards the buyer as the real property owner, and the seller has an interest in the proceeds of the sale, which is considered personal property.

Answer 533

-a mortgagee extending a loan without having determined the mortgagor's ability to repay -incomprehensible, unfair, deceptive, or abusive loan terms -steering a mortgagor towards a loan not in their interest in order to increase the lender's compensation.

Answer 534

-after a mortgagor has defaulted on a mortgage, the mortgagee must in good faith, consider a mortgagor's request for a mortgage modification or other alternative to foreclosure -the mortgagee cannot file an action to foreclose in court while such a request is pending, and if the request is made after teh action is filed, the mortgagee cannot proceed to foreclosure sale until the request is resolved.

Answer 535

1. the right to have landed supported in its natural state 2. by adjacent land

Answer 536

The right to have the surface of the land kept intact even if one conveys the right to mineral extraction to another. (NOTE: of course, contracts can write over this common law presumption.)

Answer 537

The first person to take water from a source for beneficial use has the right to continue to use that quantity of water for that use.

Answer 538

Reasonable use.

Answer 539

Non-exclusive, but to be free from excessive noise and transit by aircraft.

Answer 540

Title to the land and buildings is held by a corporation that leases the individual apartments to its shareholders.

Answer 541

A building or buildings where each owner owns the interior of their unit and an undivided interest in the exterior and common areas.

Answer 542

to be valid, an interest in property must vest or fail not later than 21 years after a life in being, connected with the vesting of an interest, at the time of the creation of the interest.

Answer 543

-a charitable gift following a charitable gift -reversionary interests

Answer 544

Any restraint on alienation of a title interest in real property (as opposed to some non-title interest, such as a right to enter and extract minerals), is void.

Answer 545

1. Plaintiff is a landlord 2. Defendant is a tenant 3. the tenant negligently 4. damages the property NOTE: of course a contract can write over this.

Answer 546

1. Plaintiff is a landlord 2. Defendant is a tenant 3. the tenant failed to make an ordinary repair 4. necessary to keep the property in the same condition as at the commencement of the lease term NOTE: of course a contract can write over this.

Answer 547

1. Plaintiff is a landlord 2. Defendant is a tenant 3. the tenant made a substantial alteration 4. to a structure leased from said landlord NOTE: of course a contract can write over this.

Answer 548

1. increases the value 2. is performed by a long-term tenant 3. reflects a change

Answer 549

1. discrimination 2. based on race, color, religion, national origin, sex, or disability 3. in the sale or rental of a dwelling

Answer 550

1. landlord 2. failed to permit a disabled tenant to make a modification to existing premises 2. to accommodate their disability 3. that modification was reasonable

Answer 551

1. landlord 2. failed to make an accommodation 3. in rules, policies, or services 4. the accommodation was necessary to afford a disabled person an equal opportunity to use the building the landlord is a landlord of 5. the accommodation was reasonable

Answer 552

1. an explicitly granted right 2. to enforce against another 3. a prohibition on engaging in a certain activity with respect to their real property right

Answer 553

Way One: 1. A valid contract 2. Explicitly granting it Way Two: 1. A valid land grant to another 2. explicitly reserving it for the grantor

Answer 554

WAY ONE: 1. conduct or assertion by the easement owner 2. reasonable reliance 3. change of position WAY TWO: condemnation of the servient estate WAY THREE: destruction of the servient estate

Answer 555

WAY ONE: 1. servient tenement's owner interferes with the easement 2. open 3. notorious 4. continuous 5. non-permissible 6. for the statutory period WAY TWO: condemnation of the servient estate WAY THREE: destruction of the servient estate

Answer 556

1. open and notorious 2. adverse 3. continuous and uninterrupted for the statutory period

Answer 557

-The necessity ending. -condemnation of the servient estate -destruction of the servient estate

Answer 558

1. not a legal interest in land, merely a privilege 2. personal to the licensee and therefore not alienable 3. revokeable at any time by manifestation of the licensor's intent

Answer 559

-licensee has invested substantial amounts of money or labor in reliance, this turns the license into an affirmative easement -the license was coupled with an interest, in which case it cannot be revoked until the interest ends

Answer 560

1. a written promise 2. to do or not do something on land NOTE that you don't need consideration

Answer 561

1. A non-title right in real property 2. upon which a court will enforce and grant ONLY injunctive relief 3. against non-bona fide purchaser successors

Answer 562

WAY ONE: the same way a real covenant is WAY TWO: 1. a common scheme for the development of a residential subdivision 2. notice of the covenants

Answer 563

1. A single wall that stands on and divides the property of two adjacent landowners 2. that both landowners co-own

Answer 564

-valid contract -implication -prescription

Answer 565

the owners agree to be mutually responsible for maintaining it

Answer 566

1. A single driveway that stands on the property of two adjacent landowners 2. that both landowners co-own

Answer 567

-valid contract -implication -prescription

Answer 568

the owners agree to be mutually responsible for maintaining it

Answer 569

1. enacted to reasonably control the use of land 2. for the protection of the health, safety, morals, and welfare of its citizens

Answer 570

1. enacted pursuant to a state enabling act 2. reasonably control the use of land 3. for the protection of the health, safety, morals, and welfare of its citizens

Answer 571

WAY ONE: 1. the state in question has a notice statute 2. the prior grantee did not properly record WAY TWO: 1. the state in question has a race-notice statute 2. the defendant properly recorded before the prior grantee properly recorded (if ever)

Answer 572

a notice statute

Answer 573

a race-notice statute

Answer 574

WAY ONE: death of either spouse WAY TWO: divorce WAY THREE: mutual agreement WAY FOUR: execution by a joint creditor of both spouses

Answer 575

1. the cost of the sale, attorneys' fees, and court costs get paid out of the sale proceeds 2. the principal and interest of the foreclosed loan gets paid off from the sale proceeds (if that doesn't cover the outstanding debt, the foreclosing party can sue the borrower personally for the rest) 3. junior vendor purchase money mortgages get paid off, to the extent possible, in their recording order, and then in their execution order, and then the borrower is personally liable on the rest 4. junior third-party purchase money vendor mortgages get paid off, to the extent possible, in their recording order, and then in their execution order, and then the borrower is personally liable on the rest 5. junior non-purchase money mortgages get paid off, to the extent possible, in their recording order, and in then in their execution order, and then the borrower is personally liable on the rest 6. senior secured interests are not affected, the buyer at the foreclosure auction takes subject to them. She is not personally liable, but she can and may have to to prevent another foreclosure auction

Answer 576

-for privileges, witness competency, and the effect of presumptions: STATE -for all else: FEDERAL

Answer 577

FEDERAL: never CALIFORNIA: 1. civil case 2. expression of sympathy 3. relating to the pain, suffering, or death of an acident victim

Answer 578

expression of sympathy objection

Answer 579

FEDERAL: never CALIFORNIA: 1. civil case 2. for personal injury or death 3. evidence is of a person's immigration status

Answer 580

evidence of immigration status objection

Answer 581

FEDERAL: never CALIFORNIA: 1. civil case 2. hospital staff 3. records of a hospital morbidity or mortality study

Answer 582

records of morbidity or mortality study objection

Answer 583

FEDERAL: never CALIFORNIA: in civil cases

Answer 584

FEDERAL: never CALIFORNIA: 1. criminal prosecution objection 2. defendant was a victim of or witness to any serious felony, assault, domestic violence, extortion, human trafficking, sexual battery, or stalking 3. the prosecution attempts to introduce evidence that the defendant engaged in an act of prostitution at or around the same time

Answer 585

act of prostitution objection

Answer 586

FEDERAL: civil cases CALIFORNIA: all cases

Answer 587

FEDERAL: 1. sign, tag, or label 2. purporting to have been affixed in the course of business 3. indicating ownership, control, or origin CALIFORNIA: never

Answer 588

trade inscription self-authentication

Answer 589

FEDERAL: no such thing CALIFORNIA CIVIL: the witness couldn't recall the thing prior to hypnosis CALIFORNIA CRIMINAL: -the witness couldn't recall the thing prior to hypnosis, -the substance of the pre-hypnotic memory was not preserved in writing prior to the hypnosis, -the hypnosis wasn't recorded on video, OR -the hypnosis was done in the presence of law enforcement, prosecution, or defense.

Answer 590

FEDERAL: the witness refreshed recollection before trial CALIFORNIA: always

Answer 591

motion to compel production of that document

Answer 592

FRE: judge's discretion Cal: testimony based thereon must be stricken

Answer 593

1. documents 2. prepared by an attorney 3. for his own use 4. for prosecuting his client's case 5. not a case of necessity

Answer 594

attorney work product objection

Answer 595

FEDERAL : never CALIFORNIA: always

Answer 596

voter's secret ballot objection

Answer 597

FEDERAL: never CALIFORNIA: always

Answer 598

personal records of police officer or prison guard objection

Answer 599

upon request a judge must (may in CALIFORNIA) exclude witnesses except -party -presence is essential to a party's presentation of a claim or defense -statutorily authorized

Answer 600

1. CALIFORNIA criminal case 2. statement made by a kidnapped or murdered declarant 3. now unavailable 4. because of acts of the defendant 5. for the purpose of preventing the defendant's arrest or prosecution

Answer 601

statement of kidnapped or murdered declarant hearsay exception.

Answer 602

1. California state court 2. declarant is unavailable 3. statement of past physical or mental condition, including intent 4. that condition is an issue in the case

Answer 603

past physical condition or state of mind hearsay exception

Answer 604

Cal only: 1. unavailability 2. statement describes, narrates, or explains the infliction or threat of physical injury on the declarant 3. was made at or near the time of the infliction of the treat or injury 4. was made under circumstances that indicate trustworthiness 5. is either in writing, recorded, or made to a law enforcement official or medical personnel.

Answer 605

statement describing infliction or threat of physical injury hearsay exception

Answer 606

1. writing or record 2. made as a memorandum of any act, event, condition, opinion, or diagnosis 3. made in the regular course of any business 4. it was the regular course of that business to make such writings or records at the time of the act, event, condition, opinion, or diagnosis or within a reasonable time thereafter

Answer 607

1. California criminal case 2. declarant was 12 or under at the time of the statement 3. declarant is still a minor at the time of trial 4. statement described an act of child abuse or neglect 5. sufficient indicia of reliability 6. declarant testifies at trial OR declarant is unavailable and further corroboration evidence exists

Answer 608

1. Intent (of the original parties) 2. Notice (to subsequent owners) 3. Touch and concern (almost always, just means affects the land, hard to find a way for this element to not be met.)

Answer 609

The equitable servitude elements + 4. horizontal privity (the original agreement was part of a grantor-grantee relationship) 5. Vertical privity (the successors in title interest must get the same amount of estate, not smaller)

Answer 610

You can only get an injunction to enforce an equitable servitude. But, you can get both an injunction and/or money damages for a real covenant. to get the injunction for the latter, you just have to seek to enforce it as an equitable servitude.

Answer 611

1. The action might have been brought in the other forum, 2. (a) the transferring judge had venue but the alternative district would be more convenient, (b) the transferring judge doesn't have venue, or (c) the parties had a valid forum selection clause to the receiving district and the public interest doesn't dictate not transferring.

Answer 612

1. The judge has venue 2. The action might have been brought in another forum 3. That forum is in another judicial system 4. That forum is more convenient

Answer 613

-An order on an injunction (NOT a TRO) -An order on a receiver -An order on property possession -1292(b) -collateral order doctrine -writ of mandamus -order on class cert + within 14 days of order + appellate court exercises discretion

Answer 614

1. trial judge certifies the interlocutory order contains a controlling question of law as to which there is substantial ground for difference of opinion, and immediate appeal may materially advance the ultimate termination of the litigation 2. within ten days of the trial judge issuing that certificate, the party seeking the appeal takes that certificate and asks the court of appeals to hear the case wit 3. the court of appeals agrees

Answer 615

1. separable 2. collateral 3. too important

Answer 616

Has trial started yet?

Answer 617

-The party hasn't yet amended that pleading before and 21 days have NOT passed since they served it -The party hasn't yet amended that pleading, a responsive pleading is required, and 21 days after the service of that response or a motion to dismiss or strike have not passed -the opposing party gives written consent -justice so requires

Answer 618

-(1) allowing amendment would aid in presenting the merits (2) the non-amending party would not be prejudiced in their action or defense on the merits -an issue not raised by the pleadings was tried by express or implied consent of the parties

Answer 619

Caveat Emptor

Answer 620

Latent defects

Answer 621

A dangerous condition that could not be discovered upon reasonable inspection

Answer 622

(i) the witness at one time had personal knowledge of the facts stated in the writing; (ii) the writing was made or adopted by the witness; (iii) the writing was made while the matter was fresh in the witness’s mind; (iv) the writing is accurate; (v) the witness has insufficient recollection to testify fully and accurately; and (vi) offered by a party NOT during their case in chief (for the writing to be admitted as an exhibit, if you just want the notes read into evidence, this element's unnecessary.)

Answer 623

Statement of a party opponent

Answer 624

A motion to dismiss because of defects in the documents and their content.

Answer 625

All crimes are general intent except: -inchoate crimes (including assault) -theft crimes -premeditated murder

Answer 626

-M'Naghten -Irresistible Impulse -Durham -MPC

Answer 627

1. mind disease 2. caused a reasoning defect 3. lacked the ability at the time to (a) know the action's wrongfulness or (b) understand his actions' nature and quality

Answer 628

-Unable to control his actions -Unable to conform his conduct to the law

Answer 629

product of mental disease or defect

Answer 630

1. mental disease or defect 2. cause a lack of substantial capacity to 3. (a) appreciate the criminality or (b) conform his conduct to the law's requirements

Answer 631

-single plaintiff may aggregate all their own claims -multiple plaintiffs may aggregate their claims only where they seek to enforce a common or undivided interest

Cal Bar Issue Spotting Version Main Deck Flashcards

(676 cards)