General Bar Review Flashcards
(129 cards)
1
Q
Con: Advisory opinion
A
Not allowed when lacking:
actual dispute between parties or
legally binding effect on parties
2
Q
Con: ripeness
A
Pre-enforcement review of law not ripe unless substantial hardship in absence of review and issues and record are fit for review
3
Q
Con: mootness
A
live if:
in suit for injunctive or declaratory relief, challenged law or conduct continues to injure
in suit for damages, plaintiff not made whole
Exceptions:
injury capable of repetition but lim duration
D voluntarily ceases activity but may restart at will
class action - ongoing injury
4
Q
Con: Standing
A
Injury, causation, redressability
5
Q
Con: injury
A
concrete and particularized
injury occurred or will imminently occur
must be personally suffered (Exceptions: close relationship [parent child], organizations for members, Free Speech overbreadth)
6
Q
Con: causation
A
injury fairly traceable to D
7
Q
Con: redressability
A
favorable court decision can remedy the harm (money or injunction)
8
Q
Con: sovereign immunity
A
Cannot sue state in federal and state courts
Exceptions: waiver, P is states or feds, bankruptcy, clear abrogation by Congress
Can sue: state officers for injunctive relief or money damages from officers; local governments for anything
9
Q
Con: Final Judgment Rule
A
SCOTUS only hears when: final judgment by highest state court capable of rendering decision, fed court of appeals, or special circumstances a three judge district court
10
Q
Con: independent and adequate state grounds
A
No review by SCOTUS if state court decision rests on independent and adequate state law ground (outcome same regardless of how federal question decided)
11
Q
Con: Legislative Powers
A
Necessary and proper: rational means to carry out enumerated powers as long as no Const violation
Tax and spend: to provide for general welfare (any pub purpose not prohib by Const, even if not within enum power)
Spending conditions: strings relate to purpose of spending and not violate Const; not unduly coercive
Commerce: foreign nations, Indian tribes, among states
Interstate Commerce: channels, instrumentalities, an substantial effect. Exception: non-econ activity reg by states, compelling participation in commerce
14th Amend: allows Congress to indirectly ban private discrim. Directly ban discrim under 14th Amend power to enforce guarantee of equal prot)
12
Q
Con: Delegation of power
A
To Agencies: intelligible principle req
To President: no line item veto
To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment
13
Q
Con: Federalism
A
10th Amend: not granted to US, not prohib to states, go to states
General police power to states
Anti-Commandeering principle: cannot compel states to enact or administer federal programs
14
Q
Con: supremacy and preemption
A
Supremacy: federal law preempt inconsistent state and local laws
Preempt:
Express - Congress says so
Implied - 1. Conflict (impossible to follow both or state law impedes fed) 2. Field (fed regs occupy field)
15
Q
Con: Dormant Commerce Clause
A
prohibits state laws that discriminate or unduly burden interstate commerce
protect all out of staters, protects interstate commerce
Discriminatory laws (favor in state): invalid unless nec to achieve important gov purpose and no less discrim alts
Non-discrim laws: valid unless burden on IC outweighs benefits
Exception: congressional approval, market participant
16
Q
Con: Privileges and Immunities
A
Prohibits discrimination against out of state citizens regarding important commercial activities (earning livelihood) or fundamental rights
protect US cits, protects commercial or fund
Discriminatory laws (favor in state cits over out state cits): invalid unless necessary to achieve important gov purpose and no less discrim alts
17
Q
Con: Privileges or Immunities
A
Fundamental right to interstate travel (right to enter and leave state, equal treatment once resident); no fund right to international travel, right to petition fed gov
18
Q
Con: State Action
A
State law, state officials acting officially
Public function: private party performs function by government traditionally and exclusively
State involvement: significant state involvement in private conduct (assistance, encouragement, supervision, entwinement, or approval)
19
Q
Con: levels of scrutiny
A
Rational basis: rational or legitimate interest ends, rationally or reasonably related means; challenger bears burden, law presumed valid
Intermediate scrutiny: important or significant state interest ends, narrowly tailored (substantially related or close fit, not least restrictive); state bears burden, no presumption
Strict scrutiny: compelling state interest ends, narrowly tailored (least restrictive) means; state bears burden, law is presumed invalid
20
Q
Con: procedural due process
A
right to a fair process when government acts to deprive life, liberty, or property. Required to have notice that is reasonably calculated to inform person of deprivation, pre-deprivation hearing unless impracticable (emergency institutionalization), balancing test for nature and extent of procedures, and a neutral decision-maker with no actual or serious risk of bias
Deprivation: intentional (or reckless) rather than negligent
Liberty: physical freedom, constitutional rights
Property: real and personal, tangible and intangible; governmental entitlement to which individual has reasonable expectation of continued receipt
21
Q
Con: substantive due process
A
Denying everyone a fundamental right: substantive due process only
Denying some a fundamental right: substantive due process and equal protection
Fundamental rights: strict scrutiny; Non-fundamental rights: rational basis
22
Q
Con: fundamental rights (strict scrutiny)
A
marriage, procreation, contraception, custody, care, and upbringing of children, living with extended family, interstate travel, voting
abortion (undue burden)
23
Q
Con: non-fundamental rights (rational basis)
A
economic rights, education, physician assisted suicide
24
Q
Con: voting rights
A
state and local: substantially equal
federal: as close to mathematical equality as practicable
25
Con: Equal Protection
Requirements: classification and level of review
Classification: facial or disparate impact an discriminatory intent
26
Con: Equal Protection classifications and levels of scrutiny
Strict scrutiny (suspect class): race, national origin, alienage classifications by states generally, denial of fundamental rights to some
Intermediate scrutiny (quasi-suspect): gender, non-marital children, undocumented alien children
Rational basis: age, disability, wealth, alienage classifications by Congress, alienage classifications by state related to democratic governance (voting, holding elective office, public school teachers), all other classifications
27
Con: takings
May not take private property unless: public use and just compensation
28
Con: physical taking
confiscation, regular or permanent occupation (temporary can be a taking with invasion, duration, etc)
Development exception: conditions on property development not takings if benefits proportional to burdens
Emergency exception: takings less likely to be found if pursuant to public emergency like war
29
Con: regulatory taking
regulation on use does not merely diminish property value but leaves no economically viable use
Ad hoc analysis: economic impact of regulation, interference with investment backed opportunities, and character of government action
30
Con: Public use
any legitimate public purpose, any purpose that the government reasonably believes will benefit the public
31
Con: just compensation
fair market value at the time of the taking
32
Con: Contract Clause
Applicable to state and local laws only
Private contracts: substantial impairment of existing rights invalid unless legit or sig purpose and reasonable or appropriate means
Public contracts: heightened scrutiny
33
Con: Ex post facto laws
neither state nor federal government may pass legislation that retroactively alters criminal liability
Criminalizing act that was innocent when done, crime greater than when committed, greater punishment, reduce evidence required to convict
34
Con: Bill of attainder
neither state nor federal government may pass legislation that designates particular individuals for punishment without judicial trial
35
Con: Freedom of Speech Structure
1. Is it speech
2. Is it protected or unprotected
3. general restriction, public property, public school, public employment
4. Is the restriction vague, overbroad, or a prior restraint
36
Con: speech
words, symbols, and expressive conduct
Expressive: inherently expressive (flag burning) or conduct that is intended to convey message and reasonably likely to be perceived as conveying message
37
Con: Unprotected speech
incitement - intended to produce imminent lawless action and likely to produce imminent lawless action
fighting words - words likely to provoke an immediate violent response
true threats - words intended to convey to someone a serious threat of bodily harm
obscenity - depiction of sexual conduct defined by state law that taken as a whole, by contemporary community standards, appeals to prurient interest in sex, is patently offensive, and lacks serious social value by national standards (nudity, soft-core porn, and dirty words are not obscene)
child porn - actual kids in sexual conduct
defamation with actual malice
commercial speech (false, misleading, or illegal)
38
Con: defamation
recovery barred for speech made without actual malice about public officials, public figures, or matters of public concern
Actual malice (clear and convincing): knowledge of falsity or reckless disregard of the truth
Public officials: hold or run for elective office, public employment in positions of public importance
Public figures: assumed roles of prominence in society achieved pervasive fame and notoriety, thrust selves into public controversies to influence resolution
Public concern: matters important to society and democracy
39
Con: defamation structure
Public official or figure, any subject; actual malice: any damages
Private figure, public concern: actual malice - presumed and punitive; negligence - actual damages
Private figure, private concern: no actual malice, any damages
40
Con: commercial speech
Unprotected: false, misleading, illegal product or service
Protected: all other commercial speech
Test (intermediate scrutiny):
substantial government interest (consumer protection) and narrowly tailored (reasonable fit to least restrictive)
41
Con: general speech restriction tests
Content-based: strict scrutiny (compelling interest, narrowly tailored, burden on state)
content neutral: intermediate scrutiny; looking for time, place, or manner of channeling the speech (important interest, narrowly tailored, burden on state)
42
Con: speech on government property
Traditional public forum: open to public for time immemorial (parks, streets, sidewalks)
Designated public forum: opened by policy or purposeful practice (college kiosks, college email)
Limited public forum: reserved for particular topics or speakers (courtroom, university classroom university student activity fund)
Non-public forum: not opened by tradition or designation as free speech zone (post office, DMV, airport)
43
Con: levels of scrutiny for speech restriction on governmental property
Public forum: content based is SS, content neutral is IS
Limited / non-public: reasonable given nature of forum (SS if viewpoint based)
44
Con: public school speech
Personal student speech: cannot be censored absent evidence of substantial disruption (no promotion of illegal drug use)
School speech: can be censored if reasonable related to legitimate pedagogical concern
45
Con: public employment
Unprotected:
private concern at workplace (gossip)
public concern but pursuant to official duties (TPS report)
Protected:
private concern outside workplace (dinner convo)
public concern as citizen rather than pursuant to official duties at or outside workplace (political chat at lunch)
46
Con: vagueness
if persons of common intelligence cannot tell what speech is prohibited and what is permitted
47
Con: overbreadth
prohibits substantial amount of speech that the government may not suppress (ban on First Amendment activities at LAX)
48
Con: prior restraints
preventing speech before it occurs - heavily disfavored (content-based get very strict scrutiny)
Licensing systems: sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials
49
Con: Freedom of Religion
government may inquire into sincerity of religious beliefs, but not their truth
Test:
Discriminatory laws: strict scrutiny
Neutral laws of general applicability: not subject to Free Exercise clause (Exception - exempts religious orgs from neutral employment laws)
50
Con: Discriminatory laws against Freedom of Religion
Not neutral facially with respect to religious belief, conduct, or status
Not generally applicable but targeted at religion generally or a religion in particular
51
Con: Establishment Clause
Various tests: neutrality with respect to religion, no directly or indirectly coercing individuals to exercise religion, Lemon Test: primary purpose is sectarian, primary effect is sectarian, excessive entanglement with religion; endorsement
52
Contracts: Which law applies
Article II: Sale of goods
| Common law: any other contract
53
Contract: types
express contract: oral or written
Implied in fact: conduct
Restitution: protect against unjust enrichment
54
Contract: bilateral and unilateral contracts
offer can be accepted in any reasonable way; offer can only be accepted by performing
55
Contract: offer
manifestation of an intention to be bound (reasonable person standard)
56
Contract: ad
ad is not an offer unless there is a quantity
57
Contract: indefiniteness questions
open price term in sales contract: UCC - court reads in reasonable price; common law - will not read in price
58
Contract: requirements contracts in Article II
can say that they will buy all requirements from company. Cannot have the amount jump really high from one year to another, and must use operative language
59
Contract: termination
lapse of time: after stated time or reasonable time passed (look for over one month)
revocation (effective on receipt): offeror revokes (can be done before acceptance) direct - indicates to offeree, indirect - engages in conduct indicates change in mind and offeree is aware of the conduct
Exceptions:
Option - promise supported by consideration
Firm Offer (Art II) - 1. merchant 2. signed writing 3. keep offer open
Foreseeable reliance - before acceptance offer can still be revoked, after cannot be revoked
Starting to perform on unilateral contract - start, no revocation; mere preparation, can revoke
rejection: offeree rejects
1. Counter-offer: operates as rejection; mere bargaining does not
2. conditional acceptance: rejection and counteroffer
3. adding terms: common law mirror image, sale of goods term included if both parties merchants, not a material change, no objection within a reasonable time (customary is not material)
death: before acceptance terminates
60
Contract: acceptance
language of the offer controls
Bilateral contract: starting performance is acceptance; implied promise to finish
Unilateral contract: starting performance is not acceptance, completing performance is acceptance
61
Contract: improper performance
is an acceptance and a breach
62
Contract: offeree's silence
general rule is silence is not acceptance; however, can have custom creates duty to speak
63
Contract: timing of acceptance
Mailbox rule: when mailed
Exceptions:
offer states otherwise: say one time and mailed on that date but received afterwards, knocked out
irrevocable offer: no mailbox protection (get within the option)
Rejection sent first then acceptance: what arrives first
64
Contract: consideration
Bargained for legal detriment / benefit (can be promise, performance, or forbearance)
Past consideration is not consideration
Adequacy of consideration irrelevant: can pay more or less
Contract modification:
Common law: new consideration is required to modify. performing preexisting duty not enough (but be careful for something being added in or saying they won't sue)
Article II: modification needs no consideration, but needs good faith
Partial payment of debt that is due and undisputed: no consideration (they can come after you for the rest)
Time barred debt as an exception to consideration: written promise to pay debt (even if collection barred by SOL) must be paid even without consideration
Promissory estoppel: substitute to consideration; foreseeable reliance may make promise enforceable even without consideration
65
Contract: lack of capacity
minors, intoxicated, mentally incompetent
Right to disaffirm the contract, but can retain it (and enforce against you)
Implied affirmation after gaining capacity: still using it, can be enforced
Exception: incapacitated party liable for necessaries for reasonable value
66
Contract: mutual mistake
does not have to perform if both parties mistaken
67
Contract: unilateral mistake
still have to perform if one party mistaken
68
Contract: unconscionability
empowers a court to refuse to enforce all or part of agreement
unfair surprise and oppressive terms are the two tests
Tested at the time the agreement was made
69
Contract: duress
look for a bad guy that makes an improper threat and a vulnerable guy with no reasonable alternative
will not have to perform under those circumstances
70
Contract: Statute of Frauds
within the statute of frauds:
Marriage: in consideration of marriage
Year: cannot possibly be completed in one year or less
Land Sale
Executor: estate paying debts from other source of funds
Goods $500+
Surety: promise to answer for (guarantee) the debt of another person (not a mere promise to pay money)
Modification of contract only requires writing if contract as modified falls within SOF
71
Contract: SOF writing
Sale of goods (Article II): quantity and signed by party to be charged with breach
Common law: writing must have all material terms and be signed by defendant
72
Contract: Exceptions to SOF
Do not need a writing where:
1. Land sale rules: leases of one year or less; part performance of a land sale contract (one of three - some payment, possession, and / or improvements)
2. Full performance of service contract satisfies the SOF, part performance does not (if you were to work for two years, and then work for two years, writing not required)
3. Sale of Goods for $500 or more
a. Goods accepted or paid for by buyer: get a check and cash it but don't deliver, no writing required
b. Custom made goods: substantial beginning
c. Judicial admission - satisfies SOF: admit under oath a deal existed, waive defense
d. Merchant's confirmatory memo: both parties merchants, writing claims agreement and has quantity, and no written objection within 10 days
4. Suretyship: main purpose exception
73
Contract: Parol Evidence Rule
keep out evidence of a prior or contemporaneous agreement (either oral or written) that contradicts a later writing. does not apply to later events - that is modification
Exception - evidence gets in regardless:
1. Correct clerical error
2. establish a defense against formation
3. interpret a vague or ambiguous term - parol evidence ok
4. add to partially integrated writing: final statement of the terms but not a complete statement of all terms agreed to
74
Contract: conduct as source of terms
1. Course of performance: how parties performed under previous installments of this contract
2. course of dealing: how parties performed under prior contracts with each other
3. usage of trade: what other in the trade do with similar contracts
75
Contract: seller's warranties in a sale of goods
Express warranty: describe goods, promise facts about goods, showing sample or model
Implied warranty:
merchantability: goods fit for ordinary purpose (merchant deals in goods of the kind)
fitness for particular purpose (seller knows of special purpose and relying on seller to select suitable goods (not required to be a merchant))
76
Contract: disclaimer
seller can disclaim implied warranties but not express warranties. Look for language like "as-is" or "with all faults," or conspicuous disclosure
77
Contract: limitation of buyer's remedies
seller can limit buyer's remedies for breach of any warranty as long as not unconscionable
Exception: limiting remedies for personal injury with consumer goods presumed to be unconscionable
78
Contract: risk of loss in sale of goods
If seller bears risk: provide new goods for buyer with no additional cost or be liable for breach
If buyer bears risk: buyer must still pay contract price even though goods are destroyed
Hierarchy:
1. agreement allocates risk
2. breaching party bears risk
3. delivery by common carrier: risk of loss from seller to buyer when seller completes delivery obligations
- shipment contract: seller must get goods to a common carrier, make delivery arrangements, and notify buyer
- destination contract: seller must get goods all the way to a specific destination
4. non-carrier cases (buyer picks up or seller delivers)
- merchant seller: seller bears risk until buyer takes possession
- non-merchant seller: buyer bears risk of loss once seller tenders the goods (makes them available to buyer)
79
Contract: performance of common law contracts
performance does not have to be perfect: substantial performance (cannot commit a material breach)
80
Contract: performance of Article II sale of goods contracts
Perfect Tender rule: seller must deliver perfect goods in the right place at the right time. if tender not 100% perfect buyer has right to reject
Option to cure: if time has not expired, has time to cure. if time expired, no right to cure unless reasonable grounds to believe improper tender would have been acceptable
81
Contract: installment contract
requires or authorizes seller to deliver in separate installments
perfect tender does not apply - must be substantial impairment
82
Contract: buyer's acceptance of goods
implied acceptance: keep gods after having opportunity to inspect
83
Contract: consequences of buyer's acceptance
cannot reject but can get damages for breach
84
Contract: revocation of acceptance of goods
buyer cannot revoke acceptance
Exception: non-conformity substantially impairs value and was difficult to discover (a latent defect)
85
Contract: consequences of rejection / revocation of acceptance
Return: at seller's expense
Refund: get back any money paid
Damages: for breach of contract
86
Contract: buyer's obligation to pay
cash unless otherwise agreed. Check can be refused, but then reasonable time must be given to come up with cash
87
Contract: excuse for non performance - other party's breach
Sale of goods (Article II): if not perfect, free reign - reject all, accept all, reject some and accept the rest
Common law: can recover damage for any breach of contract, no matter if material. Only a material breach provides excuse to suspend innocent party's performance
88
Contract: anticipatory repudiation
Excuse unless repudiation is retracted
89
Contract: failure to give adequate assurances
reasonable grounds for being insecure about other party's performance may, in writing, request adequate assurances that the other party will perform
90
Contract: a later agreement excusing original obligations
Rescission: mutual agreement to cancel contract
Modification: agreement to replace existing contract with a new one - takes effect immediately
Accord / satisfaction:
accord - agreement to accept different performance in future satisfaction of an existing duty
suspended by the accord but is not excused until accord satisfied
Novation: agreement to substitute a new party for an existing one
91
Contract: impossibility as an excuse
later unforeseen event that makes performance impossible may provide with excuse
Article II: doctrine is impracticability
A. destruction of something necessary for performance
Common law: provides excuse for non-performance
Sale of goods: same with two exceptions
Risk of loss: seller who bore risk of loss when goods damaged or destroyed is excused by impracticability
Unidentified goods: seller excused only if goods that were damaged had been identified to the contract (think set aside versus in a warehouse)
92
Contract: death / incapacity of essential person as an excuse due to impossibility
Must be someone essential for performance. look for the special skills of someone like a painter
93
Contract: frustration of buyer's primary purpose
frustrated if both parties knew of the purpose
94
Contract: failure of an express condition is an excuse
language of the contract
Express conditions: strict compliance
Condition precedent: event that must occur before performance
Condition subsequent: event that cuts off existing duty
Excusing a condition: later action or inaction of the person protected by the condition
Satisfaction clause: reasonable person standard unless art or matters of personal taste (look for the person that just doesn't like the work even though it is fine)
95
Contract: non-monetary remedies
1. Specific performance (usually for land, maybe for goods, never for services)
Land - usually given even if land boring
Sale of goods - unique goods or other proper circumstances
Personal service contracts - specific performance not available but injunctive relief may be
2. Unpaid seller's right to reclaim goods
Not available under Article II
Exception: buyer insolvent when it received the goods and seller makes a demand within 10 days after buyer received them
96
Contract: monetary remedies
Expectation damages: general rule - put injured party in as good a position as full performance
(reliance damages: return to status quo - put back to start; restitution damages: benefit conferred)
Sale of goods: expectation damages
97
Contract: Seller's damages if buyer breaches
Resale damages: contract price minus resale price (if resells in good faith)
Market damages: contract price minus market price (does not resell in good faith or does not resell at all)
Contract price: if seller cannot resell
Lost Profit: if seller is a lost volume dealer [look for an instance where profit would have been made but sold for the same price)
98
Contract: Buyer's damages if seller breaches
Buyer's damages if seller breaches:
Cover damages: cover price minus original contract price (covers in good faith)
Market damages: market price minus contract price (does not cover in good faith or at all)
Loss in value: value as promised minus value as delivered (IF KEEPING NON-CONFORMING GOODS)
99
Contract: punitive damages
not available for breach of contract
100
Contract: liquidated damages
upheld if
damages difficult to estimate at the time of contract
reasonable forecast of probable damages but
cannot operate as a "penalty"
101
Contract: incidental damages
ALWAYS RECOVERABLE
costs to injured buyer or seller of transporting / caring for goods after a breach and of arranging a substitute transaction
102
Contract: consequential damages
indirect results from breach
reasonably foreseeable to breaching party at the time the contract is formed
Note: not available to sellers under Article II
103
Contract: avoidable damages
cannot recover damages that could have been avoided with reasonable effort
104
Contract: entrustment
owner who entrusts goods to a merchant who deals in goods of the kind has no rights against a BFP
105
Contract: third party beneficiary
Entering contract to benefit a third party. TPB is present at the start
Intended beneficiary: not party to contract but has rights under contract because it was intended to benefit them. Promisor - promises to perform for third party. Promisee - one who secures promise.
Promisor liability to third party beneficiary: liable if they do not perform as promised
Promisor liability to promisee: can recover if they do not perform as promised
106
Contract: rescission and modification of third party deals
promisor and promisee can rescind or modify until rights of third party have vested
Exception: contrary language in contract controls
107
Contract: Assignment of rights to third party
two people make a contract; later, one transfers rights to a third party. Assignee appears later on.
Must assign through present transfer: not a promise to assign
No consideration required
108
Contract: restrictions on assignments
contract language controls: prohibits versus invalidates
Prohibit ("not assignable"): can collect as long as person did not know
Invalidate ("void"): cannot collect
Cannot substantially change duties of obligor
109
Contract: Obligor liability to assignee after assignment
Assignee can sue if they don't receive money, but if failure to perform service, cannot receive money
If obligor is unaware of the assignment and pays the assignor, obligor not liable to assignee
110
Contract: multiple assignments
Gift assignments easily revoked: last gratuitous assignee takes
Assignment for consideration: first one wins over later ones and over gratuitous (gift) assignees
Exception: does not know and is the first to get payment from or judgment against an obligor
111
Contract: delegation
transfer of contract duties (not rights)
may be delegated without consent of the person to whom performance is owed
Exceptions:
contract language controls - if you cannot assign, you also cannot delegate
person with special skill or reputation cannot delegate
112
Contract: delegation and rights of the obligee
delegating party always remains liable and a delegate who gets consideration is liable
113
Evidence: relevance
any tendency to make a fact of consequence more probable or less probable than would be the case without evidence (low bar)
materiality: of consequence
probativeness: any tendency to make the proposition more or less likely
114
Evidence: admissibility
irrelevant evidence is admissible no exception
relevant is admissible unless specific exclusionary rule or court uses Rule 403 discretion to keep it out
115
Evidence: Rule 403
exclude otherwise relevant evidence if it determines that probative value of evidence is substantially outweighed by: danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, unduly cumulative
116
Evidence: similar occurrences
involves some other time, event or person, irrelevant or inadmissible
Exceptions:
Accident history - cause of damages is at issue (not for showing accident-prone) - Similar accidents caused by same event or condition - same condition and substantially similar circumstances admitted for existence of dangerous condition, causation, prior notice to defendant
Intent in issue: prior conduct inference of intent on later occasion
Comparable sales on issue of value
Habit: circumstantial evidence of how the person acted on occasion (frequency and particularity - always, invariably)
Industrial custom as standard of care
117
Evidence: public policy exclusions
liability insurance: inadmissible to prove fault, but may be admissible to show ownership / control of instrumentality or location, impeachment of witness (bias)
subsequent remedial measures: inadmissible for negligence, culpable conduct, product defect, need of warning - admissible if controverted like proof of ownership or control and feasibility of safer condition
Settlement in civil case: inadmissible to prove liability, impeach through prior inconsistent statements or contradiction; statements of fact during course of settlement also inadmissible - can be used to impeach witness for bias
Disputed claim required: claim disputed as to validity or amount of damages
Plea discussions in criminal cases: inadmissible to show
offer to plead guilty (here or in later litigation)
withdrawn guilty plea (here or subsequent)
plea of nolo contendere (no contest) (here or subsequent)
statements of fact - if you admit fault, it does not get in
BUT a plea of guilty itself admissible in subsequent litigation
Offer to pay medical or hospital expenses: inadmissible to prove liability. Note special rule: for the paying of medical expenses - if you admit fault, it gets in
118
Evidence: character evidence, criminal cases
evidence of D character to prove conduct not admissible during prosecution's case in chief
D may introduce evidence of relevant character trait (REPUTATION OR OPINION) and open door to rebuttal by prosecution
Prosecution's rebuttal: may
cross examine D's character with "have you heard" or "did you know" questions about specific acts and / or
calling its own reputation or opinion witnesses to contradict
119
Evidence: character evidence, victim's character in self-defense case
D may introduce evidence of victim's violent character to prove conformity - circumstantial evidence that victim was the first aggressor
Character witness may testify to victim's reputation for violence and may give opinion.
Prosecution may then rebut with RO testimony of victim's good character and / or defendant's bad character
If defendant was aware of victim's violent rep or prior specific acts of violence, may be proven to show D's state of mind
120
Evidence: Character evidence, civil cases
Inadmissible to prove conduct in conformity
Admissible when character directly at issue (negligent hiring or entrustment, defamation, child custody)
121
Evidence: character evidence, D's other crimes or acts for non-character purpose
crimes or specific bad acts are not admissible during prosecution's case in chief if only purpose is to show more likely to have committed the crime
Exception: if other crimes or bad actions show something specific about the crimes charged, may be admissible
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Motive
Intent
Mistake or accident (absence of)
Identity
Common scheme or plan
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Proof: by conviction or by other evidence (witnesses) that proves crime or act occurred
Conditional relevancy standard: just need to produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime
Pretrial notice of intent to use MIMIC evidence upon D request
MIMIC can be used in tort actions for fraud and assault
122
Evidence: other sexual misconduct to show propensity in criminal or civil sex crime case
prior specific sexual misconduct is admissible for any relevant purpose, including defendant's propensity for sex crimes
123
Evidence: writings
must be a showing of authenticity: sufficient evidence from which reasonable juror could conclude document genuine
If X is author:
Witness's personal knowledge - saw signing of doc
proof of handwriting - lay witness testifies as to familiarity with X's handwriting in normal course of affairs (can become familiar for the sole purpose of testifying)
Expert comparison: handwriting compared between source and sample
Jury comparison: compare source with sample
Ancient document rule: if document is 20+ years old, facially free from suspicion, and found in a place of natural custody
Solicited reply doctrine: authenticated by evidence received in response to a prior communication to the alleged author
124
Evidence: photographs
witness: personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed
125
Evidence: self-authenticating documents
official docs, cert copies of public or private records on file in public office, newspapers or periodicals, trade inscriptions and labels, acknowledged docs, commercial paper, certified business records
126
Evidence: best evidence rule
in order to prove the contents of a writing, recording, or photograph, the original must be produced
produce original or excuse for absence; if acceptable, use oral testimony or copy
Use BER when:
writing is a legally operative document
witness is testifying to facts learned solely from reading about them in a writing
Does not apply when someone with personal knowledge testifies to a fact existing independently of a writing that records the fact
Originals are:
writing itself, any counterpart, any negative of film or print from negative
Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original
Rule on duplicates: admissible to same extent as original unless it would be unfair or genuine question of authenticity
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Evidence: excuses for non-production of original writings
lost or cannot be found with due diligence
destroyed without bad faith
cannot be obtained with legal process
Escapes:
voluminous records can be presented through summary or chart
certified copies of public records
collateral documents
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Evidence: witness competency
personal knowledge and oath or affirmation
Dead Man Statute (must be told there is one): civil action, interested party incompetent to testify in support of own interest against estate of decedent regarding communications or transactions between interested party and decedent
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Evidence: writings in aid of oral testimony
refreshing recollection: witness may not read from prepared memorandum, must testify based on current recollection. If memory fails them, they may be shown a tangible item to jog memory
Adversary has right to inspect memory-refresher, use it on cross, introduce into evidence (not allowed if before witness testifies without court approval)
Recorded recollection: doc fails to jog memory, witness had personal knowledge, document made or adopted by witness, making when event was fresh in mind, witness can vouch for accuracy
