GENERAL TERMS

Question 1

Clear & convincing Evidence:

Answer 1

Clear and convincing evidence

A medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt. In order to meet the standard and prove something by clear and convincing evidence, a party must prove that it is substantially more likely than not that it is true. This standard is employed in both civil and criminal trials.

Question 2

Preponderance of the evidence

Question 3

Beyond reasonable doubt

Question 4

To satisfy Strict Scrutiny Gov must prove:

• Suspect Classes that will receive Strict Scrutiny for Equal Protection violations:

Answer 4

ONLY 3 suspect classifications: RIO

• R: RACIAL discrimination
• I: Documented legal IMMIGRANTS
• O: National ORIGIN

To satisfy Strict Scrutiny Gov must prove:

1. The challenged classification serves a compelling gov objective, AND
2. Racial discrim is nec to achieve that objective.

Universities are permitted to encourage diversity ONLY if:

• race is used as one factor in a narrowly tailored, holistic admissions policy (NO quotas)
• CT must apply SS on whether Univ has offered sufficient evidence to prove that no other race neutral alternative would produce the same educational benefits of diversity
• Thus violation of EP IF:
  
  • There is a race neutral way to achieve diversity w/in student body

Question 5

Preemptory Challenge:

• NY vs MBE:
  
  • Permissible numbers in NY
  • Right to new trial
• Burden of proving discrim in jury exclusion:

Answer 5

Preemptory Challenge:

Each side is given preemptory challenges which allow a party to exercise the right to excuse a juror w/out any explanation given to the CT:

• NY: only 3, (NYLO-593)
• D felonies 10,
• B or C felonies 15, and for
• A felony = 20
  
  • BUT amounts don’t double if 2 Ds are tries jointly

MBE: trial CT’s mistake in disallowing D counsel for preemptory strike = NOT basis for new trial

• Since no const right to preemptory challenges

BUT in NY – Auto basis for new trial – NOT harmless error

Although Const applies only to state action:

ú Since jury selection takes place w/ assistance and authority of CT it amounts to State action

Burden of proving discrim in jury exclusion:

§ On the party asserting it

§ CT must conduct a hearing and apply 3 step test:

ú 1) Prima facie showing that preemptory challenge was racially or gender motivated

ú 2) L who removed juror must offer race neutral explanation for removal,

Does not have to be persuasive or even plausible (silly, bad haircut)

ú 3) Burden shifts back to challenger to show the race neutral explanation was merely pretext for discrim, and the race or gender was real reason