MBE High Priority Flashcards
When does a federal court have Subject Matter Jurisdiction?
If: Federal Question jurisdiction exists;* Diversity of Citizenship among the parties; OR* Supplemental jurisdiction is present.*Subject matter jurisdiction is NOT waived if a party fails to raise it at trial.
When does Federal Question Jurisdiction exist?
When a Complaint alleges a claim that arises under:* Federal law;* The U.S. Constitution; OR* United States treaties.*The plaintiff MUST be enforcing a federal right and the federal question of law must be present on the face of the Complaint.
When does Diversity of Citizenship Jurisdiction exist?
When:1. There is complete diversity of citizenship between all plaintiffs and defendants; AND2. The amount in controversy exceeds $75,000.
What is the amount in controversy based on?
It is based on the damages alleged in good faith in the Complaint, unless it is legally certain that the plaintiff cannot recover the specified amount.*A claim for injunctive relief is valued by either the benefit to the plaintiff OR the cost of compliance for the defendant.
When may a federal court exercise Supplemental Jurisdiction over additional state court claims?
When they arise from the same “case or controversy.”Generally, such claims must arise from a common nucleus of operative fact.
How is Supplemental Jurisdiction limited?
- It CANNOT be used to overcome a lack of diversity.2. It DOES NOT apply to claims by the original plaintiff against a third-party defendant.3. The court may decline to exercise it when: * The claim raises a novel/complex issue of law; * The claim substantially predominates over the claim(s) of which the District Court had original jurisdiction; * The federal District Court has dismissed all claims it had original jurisdiction over; OR * In exceptional circumstances.
When may a defendant remove a case to federal court?
When:1. The federal court has subject matter jurisdiction;2. All defendants agree;3. No defendant is a resident of the forum state (if removal is based on diversity jurisdiction); AND4. Removal is sought within 30 days (of either service of summons or receiving the initial pleading).*A plaintiff CANNOT remove a case to federal court.
What are the traditional bases of Personal Jurisdiction?
- Domicile;* Transient jurisdiction (presence in the state when served);* Consent;* Waiver.*The above grounds comport with the Constitutional requirements of due process.
How is Personal Jurisdiction exerted over a non-resident defendant of the forum state?
- The forum state must have a long arm statute; AND2. The Constitutional requirements of due process must be met.*Long-arm analysis requires: (1) the defendant have sufficient minimum contacts with the forum state; (2) so as not to offend traditional notions of fair play and substantial justice. BOTH prongs must be satisfied.
What is the Constitutional Long-Arm Analysis?
Long-arm analysis requires:1. D has sufficient Minimum Contacts with the forum state – either: * General Jurisdiction – contacts so substantial that D is essentially at home in the state; OR * Specific Jurisdiction – a connection between the forum state and underlying controversy.2. Not offend traditional notions of Fair Play and Substantial Justice – it must be fair and reasonable for D to be sued in the forum state.*BOTH prongs must be satisfied*
If the Summons and Complaint is NOT served upon the defendant within 90 days of filing, what must a court do?
Either:* Dismiss the action without prejudice against the defendant; OR* Order that service be made within a specified time.*Service may be made by any person who is at least 18 years old and not a party to the action.
What are the Due Process Clause requirements for service of process?
It requires that notice:1. Be reasonably calculated to make the parties aware of the action; AND2. Give them an opportunity to object.
Where is venue proper?
In any district where:* Any defendant resides (if all defendants are residents of the forum state);* Where a substantial portion of the claim occurred;* Where a substantial part of property is located (if property is the subject of the action); OR* If none of the above apply, then venue is proper in any district in which any defendant is subject to the court’s personal jurisdiction.*Proper venue is determined at the time the suit is filed.
If venue was proper when the case was filed, then when MAY the court transfer the case?
If:1. Needed for the convenience of the parties and witnesses or interests of justice; AND2. The action could have initially been brought in the receiving court.*Following a transfer, the new court MUST apply the same substantive law as the original transferor court.
What MUST the court do if venue was improper when the case was filed?
The court MUST either:* Dismiss the case; OR* Transfer the case to a proper court if the interests of justice require it.*Following a transfer, the law applied is that of the new transferee court.
What law is applied under the Erie Doctrine in federal court?
The court will apply its own federal procedural laws, but MUST apply state substantive law.(A federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action)
Under the Federal Rules of Civil Procedure, when may multiple plaintiffs join in one action (Permissive Joinder)?
If:1. Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;2. A common question of law or fact to all plaintiffs exist; AND3. Subject matter jurisdiction exists for each claim.*The process is similar for multiple defendants.
What is the standard on a Motion to Dismiss?
The court must:1. Consider the facts in the light most favorable to the non- moving party; AND2. Determine whether there is any basis upon which relief can be granted for the non-moving party.*The court DOES NOT evaluate the merits of the case.
What are the Motion to Dismiss grounds?
- Lack of subject matter jurisdiction;2. Lack of personal jurisdiction;3. Improper venue;4. Insufficient process;5. Insufficient service of process;6. Failure to state a claim upon which relief can be granted;7. Failure to join a necessary party.*Grounds 2-5 are deemed waived if not raised in the first responsive pleading or Motion to Dismiss.
When will a court grant a Motion for Summary Judgment?
When:1. There is no genuine issue of material fact; AND2. The movant is entitled to judgment as a matter of law.*When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.
When may Issue Preclusion (collateral estoppel) be invoked?
When:1. A valid and final judgment was rendered in the first action;2. The issue is identical to the issue decided in the prior action;3. The issue was actually litigated, determined, and essential in the prior action; AND4. The party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the first action.
What is a Final Judgment?
One which ends litigation on the merits (all claims are resolved) and leaves nothing for the rendering court to do but execute the judgment.(Appeal is thereby precluded from any decision that adjudicates some but not all claims in the action.)
What are the exceptions to the Final Judgment Rule?
- Rule 54(b) Exception.2. Statutory Exceptions.3. Certified Appeal Exception.4. Collateral Order Doctrine.5. Writs of Mandamus and Prohibition.6. Pendent Appellate jurisdiction.7. Certification of Class Action.
Under the Rule 54(b) exception, when is an appeal allowed?
When:1. The action has multiple parties or multiple claims;2. The court directs entry of a final judgment for some of the claims or parties; AND3. The court expressly determines that there is no just reason for delay.*If the above elements are NOT met, then the appeal must wait until after a final judgment for the entire case.
The 11th Amendment prohibits a party from suing a state or state agency in federal court.What are the exceptions to this?
- The state explicitly consents to waive its 11th Amendment protections;* The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;* The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; OR* The suit seeks money damages from a state official.
What is the Negative Commerce Clause?
State and local governments CANNOT pass laws that:* Discriminate against out-of-state commerce; OR* Place an undue burden on interstate commerce.
_Negative Commerce Clause_When is a law deemed discriminatory?
When it is either:* Facially discriminatory; OR* The law has a discriminatory impact because it favors in-state commerce over out-of-state commerce. These laws are typically unconstitutional, unless: * The burden on Interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective; OR * The state/local gov’t is a “market participant.”
_Negative Commerce Clause_When is a law deemed unduly burdensome?
State and local laws that place an undue burden on interstate commerce are unconstitutional when:1. The burden on interstate commerce,2. Is clearly excessive to the putative benefits to the state and local government.*Courts apply this balancing test on a case-by-case basis.
When will a court find “state action” for private conduct?
When the conduct involves either:* A traditional public function – powers traditionally and exclusively reserved to the government; OR* When significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional.
_Equal Protection Clause_What must the government show under Strict Scrutiny, and when will courts apply it?
The government must show that a classification is necessary to serve a compelling government interest.Courts will apply strict scrutiny when:* A classification is based on a suspect class (race, origin); OR* When the law infringes on a fundamental right for a class of people.
_Equal Protection Clause_What must the government show under Intermediate Scrutiny, and when will courts apply it?
The government must show that a classification is substantially related to an important government interest.Courts will apply it when:A classification is based on a quasi-suspect class (gender/sex, non-marital children, & most likely sexual orientation/gender identity)
_Equal Protection Clause_What classes does the Rational Basis test apply to, and what must a plaintiff show regarding the classification?
This test applies to ALL other classes not covered under strict or intermediate scrutiny (age, disability, undocumented aliens, etc.).Under this test the plaintiff must show that the classification is not rationally related to any legitimate government interest.
_Takings (5th Amendment)_Possessory (per se) takings vs. Regulatory takings
Possessory – When the government physically takes or occupies the property (even just a small portion).Regulatory – Three Categories:* Depriving Owner of All Economically Viable Use – is a per se taking* Penn Central Taking* Conditions on Approval of a Permit (a.k.a. a Land-Use Exaction)
_Takings (5th Amendment)_What are the factors for a Penn Central Taking?
To determine whether a taking occurred, courts balance the Penn Central Factors:1. The economic interest of the regulation on the claimant;2. The extent of the interference; AND3. The character of the governmental action.
_Takings (5th Amendment)_When do conditions placed on the approval of permits NOT constitute an uncompensated taking under the 5th Amendment?
If:1. There is an essential nexus between the state interest and permit condition; AND2. The government makes an individualized determination that the condition is roughly proportional to advancing the state interest.
_Free Speech_Public Forumvs.Designated Public Forumvs.Non-Public Forum
Public Forum: Traditionally available to the public for free speech.Designated Public Forum: Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum.Non-Public Forum: Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral.
Free Speech:When are licensing requirements permitted?
If:1. The government has an important reason for licensing;2. Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND3. Procedural safeguards are in place.
What are the elements of a valid contract?
- Mutual Assent (offer and acceptance);2. Consideration; AND3. No defenses to formation.
What law governs contracts for the Sale of Goods?
Article 2 of the Uniform Commercial Code.*Under the UCC, a contract may be made in any manner sufficient to show agreement (i.e. conduct showing parties recognize existence of a contract).*For mixed contracts, the predominant purpose determines which law governs.
What are the elements of Mutual Assent?
- Offer: A manifestation of present intent to contract, with definite and reasonably certain terms, that is communicated to the offeree.2. Acceptance: A manifestation of assent to the terms of the offer, which indicates a commitment to be bound.
When is an offer Terminated?
Offers may be terminated before acceptance by:* Revocation by offeror;* Rejection or Counter-offer by offeree;* Lapse of time;* Death / Incapacity of either party; OR* Supervening illegality.
When may an offer be revoked, and which types of offers are not revocable?
They may be revoked at any time before acceptance through unambiguous words/conduct indicating an unwillingness/inability to contract (effective when received).Irrevocable offers include: option contracts, a merchant’s firm offer, beginning performance for unilateral contracts, and offers that were relied on to the offeree’s detriment.
What is a Merchant’s Firm Offer?
- An offer to buy or sell goods;2. By a merchant;3. In a signed writing;4. Which states that the offer will be held open and is not revocable; AND5. The assurance to keep the offer open must be signed separately by the offeror.*Enforceable WITHOUT consideration.
Rejection vs. Counteroffer
Rejection: Manifestation of intent to not accept an offer (words/conduct) which terminates the offer. Offers CANNOT be accepted after they have been rejected.Counteroffer: Both a rejection that terminates the original offer and a NEW offer.
What is Consideration?
A bargained for exchange of a promise for a return promise or performance (that benefits the promisor or causes detriment to the promisee).*Past or moral consideration is NOT sufficient to support a contract.
When does Promissory Estoppel apply?
Applies when:1. A party reasonably and foreseeably relied to his detriment on the promise of the other party;2. The promisor should have reasonably expected a change in position in reliance of the promise; AND3. Enforcement of the promise is necessary to avoid injustice.
What is the Common Law Pre-Existing Duty Rule?What are the exceptions?
Past performance or performance of a pre-existing duty is NOT adequate consideration.Exceptions:* If there is an addition or change in performance or promise;* Unforeseen circumstances – a fair and equitable modification is made due to unanticipated changed circumstance AND the contract is not yet fully performed by either party; OR* Third-party promise – the duty was owed to a third-person, not the promisor.
Is consideration required for a modification to a UCC Art. 2 sale of goods contract?
NO, consideration is not required for contract modifications made in good faith.BUT, the modification must be in writing if:* It falls within the Statute of Frauds; OR* The original contract states that modifications must be in writing.
Under the Statute of Frauds, which types of contracts require a signed writing to be valid?
- Marriage contracts.2. Suretyships (unless the main purpose exception applies).3. Contracts that cannot be fully performed in 1 year.4. Contracts for the sale of real property (or creating an interest in real property).5. Promises to pay an estate’s debt from the personal funds of the Executor/Administrator.6. Contracts for the sale of goods for $500 or more.
Contracts for the sale of goods for $500 or more MUST be in writing.What are the four exceptions to this rule?
- Merchant’s Confirmatory Memorandum.2. Goods accepted or Paid for.3. Custom Made Goods.4. Admission during judicial proceeding.
What satisfies the writing requirement under the Statute of Frauds?
The writing MUST:1. Be signed by the party to be charged;2. Identify the subject matter of the contract;3. Indicate that a contract has been made by the parties; AND4. State the essential terms with reasonable certainty.*An agreement DOES NOT need to be in one writing, it may consist of several writings.
What are the exceptions to the Parol Evidence rule?
- To correct a clerical error or typo.2. To establish a defense against formation.3. To interpret vague or ambiguous terms.4. To supplement a partially integrated writing.*The parol evidence rule DOES NOT apply to subsequent agreements.
How do courts determine whether a breach is material?
They will consider:1. The extent of the benefit deprived to the injured party;2. The adequacy of compensation for loss to the non-breaching party;3. The extent the breaching party will suffer forfeiture;4. The likelihood that the breaching party will cure; AND5. Absence of good faith and fair dealing by the breaching party.
After the acceptance of goods, when may a buyer later revoke that acceptance?
IF:1. The non-conformity substantially impairs the value of the goods; AND2. Either (a) the defect was difficult to discover (latent), (b) acceptance was reasonably induced by seller’s assurances, OR (c) the buyer accepted the goods on the reasonable assumption that the defect would be cured.*If a buyer successfully revokes acceptance, he is entitled to return of the purchase price.
When does an Anticipatory Repudiation occur?
When a party unequivocally communicates that he is unable or unwilling to perform.*A party that breaches may retract its repudiation and restore the contract UNLESS the aggrieved party has: cancelled, materially changed his position, or indicated that he considers the repudiation final.
When an Anticipatory Repudiation occurs, what may a non-breaching party do?
- Treat the contract as repudiated and sue for damages;* Treat the contract as discharged;* Wait until performance is due and sue when performance doesn’t occur; OR* Urge the party to perform.
The Warranty of Title includes what warranties?
- The title conveyed shall be good and its transfer rightful; AND2. The goods shall be delivered free from any security interest or other lien or encumbrance.
What are Expectation Damages?When are they recoverable?
They arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.To recover, the damages must be:1. Caused by the defendant;2. Foreseeable;3. Certain; AND4. Unavoidable.
What are Consequential Damages?When are they recoverable?
They arise indirectly from the breach, and are awarded because of the injured party’s special circumstances.To recover, the damages must be:1. Reasonably foreseeable at the time of contract formation;2. Arise from the plaintiff’s special circumstances that the defendant knew or had reason to know of; AND3. Reasonably certain (not speculative).
Under the UCC, what remedies does a seller have if a buyer breaches a contract for the sale of goods?
- Withhold delivery of the goods;* Cancel;* Recover cover damages;* Recover market damages;* Recover lost profits if the seller is a lost volume seller;* Stop delivery of the goods when he discovers buyer is insolvent;* Stop delivery of a truckload when buyer breaches; OR* Replevy identified goods.
Cover Damagesvs.Market Damagesvs.Loss-in-Value Damages
Cover: Difference in price between the contact price and price of substitute goods.Market: Difference between the market price and contract price (used if buyer did not cover in good faith or at all).Loss-in-Value: Difference between the value as promised and the value of the non-conforming goods (used if buyer keeps the non-conforming goods).
When will the Waste Doctrine apply?
IF:1. The contractor performs in good faith, but defects nevertheless exist; AND2. Remedying the defects greatly exceeds the value of the completed work.*In this instance, the decrease in value becomes the proper measure of damages.
Choice of Law:Most Significant Relationship Approach
The laws of the state having the most significant relationship to the transaction and the parties will govern the action.
Choice of Law:Interest Analysis Approach
The court weighs the interests of the states involved.To determine which state has a greater interest in having its law applied a court will examine:* Each state’s connections to the parties and events of the action.* The difference between the state laws.* The underlying policies behind the state laws.* The law applied to the facts.
Contractual Choice of Law:For matters of contract validity, when may the parties choose which state’s law applies?
- If a state has some connection with the contract;2. The contract has not been entered into under fraud, duress, or mistake; AND3. The choice of law isn’t contrary to a substantial policy interest of another state that has more of a significant interest in the matter.
What factors will a court consider for a Contract Action under the Most Significant Relationship Approach?
- The place of contracting;2. The place of negotiation of the contract;3. The place of performance;4. The location of the subject matter of the contract; AND5. The domicile, residence, nationality, place of incorporation, and place of business of the parties.*Factors are weighed according to relevance.
In a will, can a decedent designate a particular state’s law to be applied for matters of construction?
Yes, BUT the validity and effect of a will is ALWAYS determined by the law of the situs state.
What is the Erie doctrine?When does it apply?
Under the Erie doctrine, a federal court sitting in diversity will apply its own federal procedural laws, but MUST apply state substantive law.When a federal case is brought under diversity of citizenship jurisdiction.
Procedural laws vs. Substantive laws
Procedural laws: Civil procedure rules, burden of proof, AND rebuttable presumptions.Substantive laws: Elements of claim/defense, choice of law rules, statute of frauds, irrebuttable presumptions, damages, statute of limitations, preclusion law.
A marriage that is valid where formed is valid everywhere, unless what?
It violates a strong public policy of another state that has the most significant relationship to the spouses and the marriage.*Most states will honor a valid common law marriage established in another state.
In a matrimonial action involving economic or child custody issues, what must a court have for the judgment to be entitled to full faith and credit in other states?
Personal Jurisdiction over the defendant spouse.
Under the Parental Kidnapping Prevention Act (PKPA), states must give full faith and credit to child custody decrees of other states when what occurs?
- The issuing court had jurisdiction under the laws of the state; AND2. The assertion of jurisdiction by that court was consistent with the jurisdictional requirements of PKPA.
What are the elements of a crime?
Elements:1. Physical act (actus reus);2. Mental State element (mens rea);3. Causation (actual and proximate cause); AND4. Concurrence (mental state and physical act occur at the same time).
What does Causation require?
It requires both:1. Actual causation (but for); AND2. Proximate cause (it was foreseeable that the injury would have occurred from the defendant’s physical act).
What is a Superseding Intervening Cause?
It is a third-party’s act that breaks the chain of causation. This normally cuts off the defendant’s liability.An act will ONLY break the chain if the force was:1. Independent of the defendant’s wrongful conduct; AND2. Not foreseeable.
What is the Simultaneous Acts Rule?
A person’s acts will still be the proximate cause of a resulting injury if his wrongful conduct created a condition of peril.A wrongful act that accelerates death is still the legal cause of death, even if the person was going to die eventually.
Under the Common Law, what mental state categories were used?Mental states under the Model Penal Code?
Common Law: Specific Intent, General Intent, Malice, & Strict liability.MPC: Purposefully, Knowingly, Recklessly, & Criminal Negligence.*Willful Blindness Standard: A person acts knowingly when they are aware that certain facts are highly probable OR are intentionally ignorant of them.
_Murder_When is a Malice Aforethought killing established?
Upon a showing of:* An intent to kill;* An intent to inflict great bodily injury;* A reckless disregard of an extreme risk to human life; OR* An intent to commit an inherently dangerous felony under the felony murder rule.
_Murder_Second Degree Murdervs.First Degree Murder
Second Degree Murder: The unlawful killing of a person with malice aforethought.First Degree Murder: Occurs when the killing was willful, deliberate, AND premeditated.
_Murder_Murder under the Model Penal Code (MPC)
The killing of a person either:* Committed purposely/knowingly; OR* Recklessly under circumstances manifesting an extreme indifference to the value of human life.*Recklessness and indifference are presumed if the killing occurred during the commission of or an attempt to commit a dangerous felony (Felony Murder Rule).
_Murder_Felony Murder Rule
A person is guilty of murder if a person is killed during their:* Commission of (or attempt to commit) a dangerous felony; OR* Felony escape.*Dangerous felony = robbery, rape, arson, burglary, kidnapping
What is Voluntary Manslaughter?
An intentional killing of a person without malice aforethought (adequate provocation).Adequate provocation is established if:1. The defendant was provoked;2. A reasonable person would have been provoked;3. There was not enough time to cool off before the killing; AND4. The defendant DID NOT cool off before the killing.
What is Involuntary Manslaughter?
An unintentional killing of a person committed:* Recklessly;* Under the Misdemeanor Murder Rule; OR* During a non-dangerous felony.
What is Manslaughter under the Model Penal Code (MPC)?
The killing of a person:* Committed recklessly; OR* Which would otherwise be murder, but is committed under the influence of extreme mental or emotional disturbance.*The MPC doesn’t distinguish between voluntary/involuntary manslaughter.
What are the elements of Larceny?
The:1. Trespassory taking,2. And carrying away,3. Of the personal property of another,4. With the intent to permanently deprive the owner of the property.*Larceny by Trick = when one obtains possession of another’s property by trick or deception.
What are the elements of False Pretenses?
It occurs when one:1. Obtains title,2. To personal property of another,3. Through a known false statement of material fact,4. With the intent to defraud.*Opinion or commercial puffery is NOT false pretenses.
What are the elements of Embezzlement?
- The fraudulent or wrongful,2. Conversion,3. Of personal property of another,4. By a person with lawful possession of the property.
What are the elements for the crime of Receiving Stolen Property?
When a person:1. Receives possession of stolen property,2. Who knows the property is stolen at the time of receiving it, AND3. With the intent to permanently deprive the owner of the property.
What are the elements of Robbery?
- The trespassory taking and carrying away,2. Of the personal property of another person,3. In their presence;4. By the use of force or threat of immediate physical harm,5. With the intent to permanently deprive the owner of the property.*Armed robbery requires the elements above, PLUS the use of a dangerous weapon.
What are the elements of Burglary?
Burglary is:1. The breaking and entering,2. Of a dwelling,3. Of another,4. At night,5. For the purpose of committing a felony inside.*Most jurisdictions have extended burglary to any structure at any time.
What are the four Insanity tests?
- The M’Naghten test.2. The Model Penal Code test.3. The Irresistible Impulse test.4. The Durham test.*A defendant will be acquitted if he meets the applicable insanity test of his jurisdiction.
_Insanity_What is the M’Naghten Test?
- A mental disease or defect; AND2. That resulted in being:* Unable to know the wrongfulness of the conduct; OR* Unable to understand the nature and quality of the acts.
_Insanity_What is the Model Penal Code Test?
As a result of a mental disease or defect, the defendant was:* Unable to appreciate the criminality of the conduct; OR* Unable to conform his actions to the law.
_Insanity_What is the Irresistible Impulse Test?
Defendant’s mental illness made him:* Unable to control his actions; OR* Unable to conform his actions to the law.
_Insanity_What is the Durham Test?
Defendant must show that his unlawful conduct was the product of mental illness.
_Justification – Self-Defense_Deadly Forcevs.Non-Deadly Force
Deadly Force is justified when: (1) the defendant kills another on a reasonable belief, (2) that he was in imminent danger of being killed or suffering great bodily injury, and (3) the use of deadly force was necessary to defend against the danger.Non-Deadly Force is justified when: (1) the defendant reasonably believes, (2) that he is imminent danger of being harmed, and (3) the force used is proportional to the harm threatened.
_Justification – Self-Defense_What is Imperfect Self-Defense?
It’s when the defendant kills another based on a good faith belief that:1. She was in imminent danger of being killed or suffering great bodily injury; AND2. The use of deadly force was necessary to defend against the danger; BUT3. At least one of those beliefs was unreasonable.*This can reduce a murder charge to manslaughter.
What is required to challenge a Search and Seizure?
STANDING.The challenger must have a reasonable expectation of privacy regarding the item or place searched.*Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess.
_Arrests_When does Probable Cause arise?
It arises when the police officer has:1. Trustworthy facts or knowledge,2. Sufficient to warrant a reasonable person to believe,3. That a crime has occurred.*If in a public space, probable cause is all that’s required. If in someone’s home, a warrant is required to make an arrest.
When may a police officer Stop and Inquire?
If the police officer:1. Has reasonable articulable suspicion,2. That criminal activity is afoot.*Allows only a brief detention for questions, after which the suspect must be released.
When may a police officer Stop and Frisk?
If the police officer:1. Has reasonable articulable suspicion,2. That criminal activity is afoot, AND3. That the person has a weapon.*Under the Plain Feel Doctrine, the officer may only seize items during the frisk that he reasonably believes is contraband or a weapon.
What is required for a valid Search Warrant?
To be valid:1. There must have been probable cause;2. The warrant must state with particularity the place to be searched and the items to be seized; AND3. It must be issued by a neutral and detached magistrate.
What are the exceptions that permit a Warrantless search and seizure?
- Plain View doctrine.2. Exigent circumstances.3. Automobile exception.4. Search incident to an arrest.5. Consent.6. Inventory searches.7. Stop and Frisk.8. Where the U.S. Supreme Court has concluded there is a special need.
What are the Miranda Warnings?
Miranda warnings inform suspects that:1. They have the right to remain silent;2. Anything they say can be used against them in court;3. They have the right to talk to an attorney and have one present when they are questioned; AND4. If they cannot afford one, an attorney will be provided to them.*These rights only attach when there is a custodial interrogation of a suspect.
When may a custodial interrogation be reinitiated after the right to counsel has been invoked?
If:1. The suspect has been re-advised of his Miranda rights;2. Has provided a knowing and voluntary waiver; AND3. Either:* Counsel is present,* The suspect initiates the communication; OR* At least 14 days have passed since the suspect was released from custody.
When does the Exclusionary Rule NOT apply?
If:* The police had an independent source for the secondary evidence;* The discovery of the evidence would have been inevitable regardless of the illegality;* Through the attenuation doctrine;* The police relied in good faith on a defective search warrant; OR* Violation of Knock-and-Announce Rule.
What are the limitations on the Exclusionary Rule as applied to Miranda Violations?
Limitation #1: Failure to give warnings DOES not require suppression of the physical evidence.Limitation #2: Statements made after Miranda warnings are admissible, UNLESS a non-mirandized statement was the result of coercive police tactics offensive to due process.Limitation #3: Statements obtained in violation are inadmissible in the prosecution’s case-in-chief, BUT may be used to impeach a defendant on cross examination.
When is evidence Relevant?
- When it has any tendency to make a fact more or less probable than it would be without the evidence;AND2. The fact is of consequence in determining the action.
_Rule 403 Exclusions_A court may exclude evidence if its probative value is substantially outweighed by a danger of what?
- Unfair prejudice;* Confusing the issues;* Misleading the jury;* Undue delay;* Wasting time; OR* Being needlessly cumulative.
When is evidence Unfairly Prejudicial?
When the evidence is:1. Unnecessary;AND2. Might cause the jury to improperly sympathize or dislike a party.
When is evidence of Subsequent Remedial Measures NOT admissible?
To prove:* Negligence;* Culpable conduct;* A defect in product or design; OR* A need for a warning or instruction.*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.
_Character Evidence_Character evidence may be offered as circumstantial evidence to prove propensity (that a person acted in conformity with the character trait) in what limited circumstances?
- Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.2. Victim’s character (in non sex-offense cases) – to prove defendant’s innocence; prosecution may rebut.3. Homicide cases – by defendant to show self-defense, prosecution may offer evidence of victim’s character for peacefulness if defendant claims victim was aggressor.4. Sex offense cases – not admissible, unless exceptions apply.5. Civil cases – only if sex offense cases exception applies.Priority: HIGH
_Character Evidence_What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?
- Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).2. Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.
_Character Evidence_How may character evidence be proven?
By Reputation or Opinion — In all instances.By Specific Acts/Instances — Only allowed: a) on Cross-Examination of a character witness; OR b) if “Character in Issue”.*Note: Special rules apply to evidence of a Victim’s Character in Sex-Offense cases.Priority: HIGH
Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?
Proving:* Motive;* Identity;* Absence of mistake or accident;* Intent;* A common plan or scheme;* Opportunity;* Preparation; OR* Knowledge.
What must a proponent show in order to offer Prior Bad Acts as evidence?
- That the prior act was committed by a preponderance of the evidence (vague references are insufficient);2. That its probative value substantially outweighs the danger of unfair prejudice; AND3. Proper notice (in criminal cases).Priority: HIGH
When is evidence of a person’s Habit or an organization’s Routine Practice admissible?
To prove that on a particular occasion the party acted in accordance with the habit or routine practice.*This may be admitted regardless of corroboration or eyewitnesses.
Evidence of prior convictions may be admissible to attack a witness’s character for truthfulness in which instances?
- Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.2. In Felonies that DO NOT involve dishonesty when: * The witness is not a criminal defendant (criminal/civil); * In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.*A felony is a crime punishable by death or imprisonment over 1-year.*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.
In what circumstance may a witness’s credibility be attacked on cross-examination with specific instances of conduct (i.e. prior bad acts)?
Only when:The conduct is probative of the witness’s character for truthfulness or untruthfulness.**BUT, extrinsic evidence is NEVER admissible to attack/support such instances of a witness’s credibility.
When is Refreshing a Witness’s Recollection using a document permitted?
When:1. The witness once had a personal knowledge of the matter,2. But is unable to recall the matter when testifying.**Only the opposing party may offer the document into evidence.
What is a Lay Witness?When is Lay Witness testimony admissible?
Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are competent to testify (competency is presumed under the FRE).They must take an oath to tell truth and only testify to matters of personal knowledge.
When may a Lay Witness offer an opinion?
If it is:1. Rationally based on the witness’s perception;2. Helpful to clearly understand the testimony or to determine a fact in issue;AND3. Not based on scientific, technical, or other specialized knowledge.
When is Expert Witness testimony permitted?
When the:1. Witness is qualified as an expert;2. Testimony is helpful to the trier of fact;3. Testimony is based on sufficient facts/data;4. Testimony is based on reliable principles/methods; AND5. Witness reasonably applied the principles/methods to the facts of the case.
_Expert Testimony_What is reliability based on?
On the methodology’s:1. Testability;2. Publication & Peer Review;3. Error Rate;4. Standards & Controls; AND5. Whether it’s generally accepted in the field.
What is Hearsay?
- An out of court statement,2. That is offered to prove the truth of the matter asserted.*Hearsay is ONLY admissible if it falls under an exception.*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).
What is Non-Hearsay?
An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.Non-Hearsay includes:1. Verbal acts of independent legal significance.2. Statements to show the effect on the listener.3. A prior inconsistent statement used to impeach.4. Circumstantial evidence of the speaker’s state of mind.
What is a Statement by a Party Opponent?(deemed non-hearsay under the FRE)
- Any statement offered against an opposing party,2. That either: * Was made by the party in an individual or representative capacity; * Is adopted or believed to be true; * Was made by an authorized person; * Was made by the party’s agent or employee; OR * Was made by the party’s co-conspirator in furtherance of the conspiracy.
When are Prior Statements by a declarant witness deemed Non-Hearsay?
- If the declarant testifies;2. If the declarant is subject to cross examination; AND3. If the prior statement was: * Inconsistent with their testimony and given under penalty of perjury; * Identifies a person as someone they perceived earlier; OR * Is consistent with the declarant’s testimony and is offered to rebut that they are lying or to rehabilitate their credibility when attacked.
_Hearsay Exceptions_What is a Present Sense Impression?
A statement describing an event made by the declarant;* While observing the event; OR* Immediately thereafter.
_Hearsay Exceptions_What is an Excited Utterance?
A statement:1. Relating to a startling event or condition,2. Made while the declarant was under the stress of excitement that the event/condition caused.
_Hearsay Exceptions_Business Records are an exception to the Hearsay rule. When are they admissible?
If it is:1. A record of events, conditions, opinions, or diagnoses;2. Kept in the regular course of business;3. Made at or near the time of the matter described;4. Made by a person with knowledge of the matter;5. The regular practice of the business to make the record;AND6. The opponent party does not show a lack of trustworthiness in making the record.
_Hearsay Exceptions_Are Statements made for Medical Diagnosis or Treatment an exception to Hearsay rule?
YES, when:1. It’s made for and reasonably pertinent to a medical diagnosis, AND2. It describes medical history or symptoms (past or present).
_Hearsay Exceptions_Are Statements of Mental, Emotional, or Physical Conditions an exception to the Hearsay rule?
Yes, the declarant’s then existing state of mind (motive, intent, or plan) OR their emotional, sensory, or physical condition are exceptions to the Hearsay rule.HOWEVER:Statements of memory or belief offered to prove a fact believed or remembered are NOT admissible, unless it relates to the validity/terms of the declarant’s will.
What types of statements are testimonial in nature?
- Statements made to grand juries;2. Affidavit or Certified Report with forensic lab results; AND3. Statements made to police whose primary purpose is to collect testimony to be used at a later trial.(It is NOT testimonial if used to assist police in an emergency.)
