MEE Rules Flashcards

Question

If the contract does not mention, where is the place of delivery?

Answer 1

When a contract governed by the UCC is silent as to a term, the UCC will "fill the gap" and supply a reasonable term. When a contract is silent as to delivery, the UCC provides that the place for delivery is the seller's place of business.

Answer 2

However, the terms of an agreement may be supplemented by the parties' course of dealing. A course of dealing is a sequence of conduct concerning previous transactions between the parties that can reasonably establish a common basis of understanding for interpreting their conduct

Answer 3

Under the UCC, a party must strictly perform all obligations under the contract and failure to do so results in breach. Expectation damages are intended to put the nonbreaching party in the same position as if the contract had been performed. These damages are calculated as the difference in the value of performance with and without the breach.

Answer 4

An offer terminates upon the death or mental incapacity of the offeror or the offeree, even if the offeree does not learn of the offeror’s death or mental incapacity until after the offeree has dispatched what he believes is an acceptance. Consequently, the offer with regard to the chairs terminated upon the furniture maker's death

Answer 5

A warranty that the goods are fit for a particular purpose is implied whenever the seller has reason to know that (1) the buyer has a particular use for the goods, and (2) the buyer is relying upon the seller’s skill to select the goods.

Answer 6

One way for a seller to disclaim the implied warranty of fitness for a particular purpose is to make the disclaimer in writing and conspicuous so a reasonable person would notice it. A statement that there are no warranties which extend beyond the description on the face is sufficient to exclude all implied warranties of fitness.

Answer 7

Under the UCC, if either the tender or the goods is nonconforming, then the buyer has the right to accept or reject all of the goods. The buyer has the right to inspect the goods before deciding whether to accept or reject them. Payment does not constitute acceptance if there is no right of inspection before payment. A valid rejection requires the buyer: (1) give notice to the seller (2) within a reasonable time and (3) before acceptance. Upon a rightful rejection, the buyer is entitled to a return of any payments made on the goods.

Answer 8

When a buyer rejects goods or justifiably revokes their acceptance, the buyer may be entitled to recover not only the purchase price, but also expectation damages, as well as incidental and consequential damages. Expectation damages are calculated as the difference between the contract price and the market price. Incidental damages are those incidental to the seller’s failure to perform, such as the costs of warehousing or transportation. Consequential damages are losses resulting from the buyer's general or particular requirements and needs which the seller knew or had reason to know of at the time of contracting.

Answer 9

the compulsory disclosure, by a party to an action, of relevant documents referred to by the other party.

Answer 10

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information.

Answer 11

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Answer 12

Information within the scope of discovery need not be admissible evidence at trial to be discoverable. Instead, the test is whether the information sought is relevant to any party’s claim or defense.

Answer 13

Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business.

Answer 14

A punishment imposed on parties who disobey laws or court orders.

Answer 15

A party may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation. Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

Answer 16

When retrieval of the information is possible, even if typically considered inaccessible due to the cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party.

Answer 17

If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

Answer 18

Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed as long as the civil action is within the subject-matter jurisdiction of a U.S. district court. if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed.

Answer 19

Federal courts may exercise diversity jurisdiction over actions when (i) the opposing parties to an action are citizens of different states and (ii) the amount in controversy in the action exceeds $75,000. Generally, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged.

Answer 20

For the convenience of the parties and in the interests of justice, a district court in which venue is proper may transfer any civil action to any other district or division where it might have been brought.

Answer 21

Venue is proper in a judicial district in which (i) any defendant resides, if all defendants reside in the same state in which the district is located, (ii) a substantial part of the events or omissions on which the claim is based occurred, or (iii) a substantial part of the property that is the subject of the action is located.

Answer 22

A contractual agreement that designates the court and location where the parties would like to have their legal dispute decided.

Answer 23

Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.

Answer 24

Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.

Answer 25

However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Answer 26

The doctrine of claim preclusion (i.e., res judicata) provides that a final judgment on the merits of an action precludes the parties from relitigating an identical claim in a subsequent action. For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded.

Answer 27

The doctrine of issue preclusion (i.e., collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) was a party to the original action (i.e., offensive collateral estoppel). Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Answer 28

However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge may not allow use of offensive collateral estoppel.

Answer 29

A collateral Challege is a challenge on the validity of a prior judgment through a new case rather than by a direct appeal.

Answer 30

a legal representative of a decedent's estate will be deemed a citizen of the same state as the decedent—not the state where the legal representative is domiciled.

Answer 31

A party who obtains a judgment in one state may petition a court in another state to enforce the judgment. Under the U.S. Constitution, state courts are required to give full faith and credit to valid judgments issued by state courts in other states. State courts are likewise required to honor valid judgments issued by federal courts as those judgments would be treated by other federal courts. This means that issues decided in one court cannot be relitigated in another court, and the court in the state in which enforcement is sought must honor the judgment of the federal court. However, a party against whom enforcement of a judgment is sought may collaterally challenge the original judgment based on lack of subject matter jurisdiction if that jurisdictional issue was not litigated in the original action.

Answer 32

Under the Federal Rules, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Answer 33

A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO usually must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Answer 34

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in the party's favor; and (4) the injunction is in the public's best interest. Additionally, the party seeking the preliminary injunction usually must provide security like it would for a TRO.

Answer 35

Subject-matter jurisdiction is a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong. For a federal district court to have subject-matter jurisdiction over a complaint, it must have either federal question jurisdiction or diversity jurisdiction. For diversity jurisdiction to exist, both the amount-in-controversy and diversity-of-citizenship requirements must be met.

Answer 36

a. Amount in Controversy The amount-in-controversy requirement mandates that the amount in controversy exceed $75,000. In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to be a legal certainty that the plaintiff cannot recover the amount alleged. b. Diversity of Citizenship For the diversity-of-citizenship requirement to be met, there must be complete diversity between opposing parties when the action is filed. There is no diversity of citizenship if any plaintiff is a citizen of the same state as any defendant. For an individual to be a citizen of a state, the individual must be a citizen of the United States and a domiciliary of the state. In general, an individual is a domiciliary of the state in which she is present and intends to reside for an indefinite period. An individual can have only one domicile at a time. The presumption is that a place of domicile continues until it is definitively changed. An intent to move without relocating to another state will not result in a change in domicile. A corporation is a citizen of its state of incorporation and the state where it maintains its principal place of business. The principal place of business refers to the “nerve center” of the corporation, which is generally the corporate headquarters.

Answer 37

Specific Jurisdiction When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendant’s only contact with the forum state.

Answer 38

The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction over a defendant if the defendant has “minimum contacts” with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. A defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably foresee being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular state.

Answer 39

General Jurisdiction To determine whether a corporation is subject to general personal jurisdiction, the proper inquiry is whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state. A corporate defendant is always at home in the state of the corporation’s place of incorporation and the state of its principal place of business. In exceptional cases, a corporate defendant’s operations in another forum may be so substantial and of such a nature as to render the corporation also at home in that state.

Answer 40

A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party. In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Answer 41

Under the Federal Rules of Civil Procedure, if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. However, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.

Answer 42

The federal rules allow service by delivering a summons and complaint to an individual personally or by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.”

Answer 43

A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice-of-law rules.

Answer 44

If there is an express choice-of-law provision in the contract, then that law will generally govern unless there is no reasonable basis for the parties’ choice, it is contrary to public policy, or there was fraud or mistake and true consent was not given.

Answer 45

Rule 8(a), a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief. There are no special pleading rules for a defamation case under the Federal Rules. Thus, Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.

Answer 46

A district court with original subject-matter jurisdiction over a claim may exercise supplemental jurisdiction over additional claims over which the court would not independently have subject-matter jurisdiction (usually state law claims against a nondiverse defendant). These additional claims must be so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution. In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding

Answer 47

A district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances: (i) the supplemental claim raises a novel or complex issue of state law; (ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction; (iii) all of the claims within the court’s original jurisdiction have been dismissed; or (iv) in exceptional circumstances, if there are other compelling reasons for declining jurisdiction.

Answer 48

Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules. If there is a valid federal rule of procedure on point, then the court must determine whether the rule is valid under the Rules Enabling Act. Specifically, the court must ask whether the federal rule abridges, enlarges, or modifies any substantive right. Pursuant to this Act, the Federal Rules of Civil Procedure have been created, and apply to all civil actions and proceedings in federal court, including actions that raise state law claims. Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief. There are no special pleading rules for a defamation case under the Federal Rules. Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.

Answer 49

Under the Federal Rule of Civil Procedure, persons may join in one action as plaintiffs if (i) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and (ii) there will be any question of law or fact common to all plaintiffs.

Answer 50

The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of issues of fact or law that have already been necessarily determined in an earlier adjudication. A party asserting that collateral estoppel precludes the re-litigation of a factual issue must establish: (1) the issue sought to be precluded is the same as in the prior action and the relevant facts and applicable law must be identical; (2) the issue must have been actually litigated in the prior action; (3) the issue must have been determined by a valid and binding final judgment; and (4) the determination of the issue must have been essential to the prior judgment. In addition, the party to be precluded must have been a party to the original action.

Answer 51

A dispositive fact is a fact that, if proven with necessary certainty, resolves a legal dispute on its own. Oftentimes, establishing the truth of a dispositive fact will lead to the resolution of the lawsuit as a whole.

Answer 52

Offensive collateral estoppel is asserted by a plaintiff in a suit to prevent the defendant from relitigating an issue previously decided against the defendant, this allowing the paintiff to "win" on that point

Answer 53

a suit by a first-time plaintiff seeking to hold a repeat defendant to the same outcome from a prior suit

Answer 54

The doctrine of mutuality of estoppel provides, generally, that a judgment in a prior litigation will preclude litigation of matter in a sub- sequent action only where both parties to that subsequent action are bound by the prior judgment.

Answer 55

If a defendant is voluntarily present in the forum state and is served with process while there, then the court has PJ over the defendant. However, most courts have two exceptions to this rule. If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on him, then the service will most likely be invalid. A defendant is also immune if the defendant is merely passing through the state to attend other judiciary proceedings.

Answer 56

Venue concerns which court among the courts having PJ and SMJ is the proper forum for hearing the matter. In general, venue in a federal civil action is only proper: (i) where any defendant resides, if all defendants reside in the same state, or (ii) where a substantial part of the events on which the claim is based occurred. If there is otherwise no judicial district in which a claim may be brought, then the fallback alternative is that venue may be proper in a judicial district in which the defendant is subject to PJ.

Answer 57

The Privoleges and immunites clause bans states from discriminating against citizens of other states

Answer 58

The governing body state must treat an individual in the same manner as others in similar conditions and circumstances. Equal protection forces a state to govern impartially and not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights. The individual will need to prove that the governing body's action resulted in actual harm to them.

Answer 59

murder – an unlawful killing committed with malice aforethought—i.e., (1) intent to kill, (2) intent to inflict serious bodily injury, (3) reckless disregard for an obvious or unjustifiably high risk of death, or (4) intent to commit an inherently dangerous felony

Answer 60

voluntary manslaughter – an intentional killing based on (1) adequate provocation or (2) imperfect self-defense and

Answer 61

involuntary manslaughter – an unintentional killing committed (1) with criminal negligence or (2) during the commission of an unlawful act.

Answer 62

Types of insanity defenses M'Naghten (majority rule) Mental illness prevented defendant from: (1) understanding nature/quality of the criminal act or (2) knowing that his/her actions were wrong Model Penal Code Mental illness prevented defendant from: (1) appreciating criminality of act or (2) conforming conduct to law Irresistible impulse Mental illness prevented defendant from: (1) controlling actions or (2) conforming conduct to law Durham/New Hampshire (1) Defendant's criminal actions were product of mental illness

Answer 63

Larceny by trick is a larceny whereby the defendant obtains possession of another's property through fraud or deceit and converts it.

Answer 64

Under Wharton's Rule, if a crime requires two or more participants (e.g., adultery), there is no conspiracy unless more parties than are necessary to complete the crime agree to commit it. However, this rule is inapplicable to a conspiracy for robbery and has no bearing on whether the defendant can be convicted for the murder that was committed in furtherance of the robbery.

Answer 65

Under the Pinkerton Rule, a conspirator can be convicted of all substantive crimes committed by a coconspirator who was acting in furtherance of the conspiracy.

Answer 66

A civilian is justified in using reasonable force to arrest a person who has committed a crime in the civilian's presence.

Answer 67

This means that a suspect is not entitled to the presence of counsel at a corporeal (i.e., in-person) lineup conducted prior to the commencement of judicial proceedings—e.g., at a pre-charge investigative lineup (as seen here).

Answer 68

the Fifth Amendment right to counsel applies to pretrial interrogation

Answer 69

Voluntarily, Knowingly and Intelligently waived

Answer 70

a presumption or belief disappears once there is credible evidence that contradicts it. (Rebuttable Presumption)

Answer 71

Due process requires that the prosecution prove every element of a criminal offense beyond a reasonable doubt to convict a defendant. Therefore, the burden of proof may not be placed on a defendant to negate an element of the offense.

Answer 72

Due process prohibits the imposition of a harsher sentence upon retrial of a defendant who successfully appealed a conviction when the harsher sentence is punishment for exercising the right to appeal. In such cases, the sentence should be vacated.

Answer 73

A rebuttable presumption is a conclusion that can be overcome if the opposing party produces sufficient contrary evidence. However, if no contrary evidence is produced, the judge should instruct the jury that it must apply the presumption (Choice A). Here, the state law under which the user brought the strict products liability claim recognizes a rebuttable presumption that an injured plaintiff would have heeded an adequate warning on an alleged defective product had one been given. (Bursting Bubble)

Answer 74

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and (ii) the fact is of consequence in determining the action (i.e., material).

Answer 75

However, a lay witness (non-expert) is generally not permitted to testify as to his opinion, except with respect to the lay witness's common-sense impressions. To be admissible, a lay witness's opinion must be (i) rationally based on the witness’s perception, and (ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.

Answer 76

By contrast, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates to the court that it is more likely than not that (i) the testimony is based on sufficient facts or data, (ii) the testimony is the product of reliable principles and methods, and (iii) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Answer 77

Even relevant evidence may be excluded by the rule against hearsay. Hearsay is an out-of-court statement that is being offered to prove the truth of the matter asserted.

Answer 78

Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.

Answer 79

A business record is excepted from the hearsay rule if the record was (i) kept in the course of a regularly conducted activity, (ii) made as a regular practice for that activity, and (iii) made at or near the time of the act or event by someone with knowledge.

Answer 80

Relevant evidence may be inadmissible because it is privileged. Although there is no common-law privilege covering statements made by a patient to a physician, most states' statutes protect such communications when made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the privilege by placing her condition at issue in a personal injury lawsuit.

Answer 81

An out-of-court statement made by a party to the current litigation is not hearsay when offered for its truth by an opposing party.

Answer 82

Alternatively, a statement describing past or present symptoms is not excluded as hearsay if the statement was made for the purpose of medical diagnosis or treatment. The woman told the doctor, “I have suffered from painful arthritis in my neck for the past five years” as the woman received treatment for her neck pain after the accident. Therefore, the woman’s statement is also admissible because it was made for the purpose of treating her neck pain.

Answer 83

In a civil case, evidence of a person’s character trait is generally inadmissible to prove that the person acted in accordance with that trait on a particular occasion. However, evidence of a person’s habit is admissible to prove that the person acted in accordance with the habit on a particular occasion. A habit is a person’s particular routine reaction to a specific set of circumstances. Because habit evidence can run afoul of the bans on character evidence and prior bad acts evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just consistent but semi-automatic.

Answer 84

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within a hearsay exception or exclusion.

Answer 85

A present sense impression is an out-of-court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. A present sense impression is an exception to the hearsay rule and admissible regardless of the declarant's availability to testify.

Answer 86

An excited utterance is a statement made about a shocking or startling event made while the declarant is under the stress of excitement that it caused. An excited utterance is an exception to the hearsay rule and admissible regardless of the declarant's availability to testify.

Answer 87

A statement that is made for the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial. For an out-of-court testimonial statement (i.e., hearsay) to be admissible against a criminal defendant, the Sixth Amendment Confrontation Clause requires that the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant. To determine whether a statement is testimonial requires an objective analysis of the circumstances regardless of the subjective purpose of the participants.

Answer 88

A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.

Answer 89

In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.

Answer 90

Evidence of a defendant’s crimes or other wrongful acts are admissible for a non-propensity purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Answer 91

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if: (i) it has any tendency to make a fact more or less probable, and (ii) the fact is of consequence in determining the action.

Answer 92

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A hearsay statement may be an oral or

Answer 93

Under the present sense impression exception, a statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

Answer 94

Additionally, a record of an event or condition is not excluded as hearsay if: (i) the record was kept in the course of a regularly conducted activity of a business, (ii) the making of the record was a regular practice of that activity, and (iii) the record was made at or near the time by someone with knowledge.

Answer 95

Alternatively, a statement offered to prove something other than the truth of the matter asserted is not hearsay. For example, a statement offered to show the effect on the person who heard it or to show the person’s state of mind is not hearsay MIMC motive intent lack of mistake common scheme

Answer 96

Under the common law, one who is not the aggressor is justified in using reasonable force against another person to prevent imminent unlawful harm to herself. The harm to the defendant must be imminent, not a threat of future harm, and the person can only use as much force as is required to repel the attack.

Answer 97

the relationship between a party and a witness which might lead the witness to unconsciously or otherwise, give testimony in favor of or against a party Because a witness may be influenced by his relationship to a party, his interest in testifying, or his interest in the outcome of the case, a witness’s bias or interest is always relevant to the credibility of his testimony. Although the Federal Rules do not expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence of bias can be introduced.

Answer 98

Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. However, conviction for a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement

Answer 99

In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. However, if the defendant makes their character an issue in the case by offering evidence of their good character or the victim’s bad character, the defendant opens the door to allow the prosecution to rebut that evidence.

Answer 100

Alternatively, a statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind.

Answer 101

However, a statement made by a party to the current litigation is not hearsay if it is offered by an opposing party

Answer 102

An incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent criminal trial unless the police first provided procedural safeguards effective to secure the constitutional privilege against self-incrimination (i.e., Miranda warnings). Miranda protections apply only to testimonial or compelled communicative evidence by a suspect who is in custody and under interrogation. To be testimonial, the communication must relate to a factual assertion or disclose information. Custody can only be established if a reasonable person under similar circumstances would believe she was in custody.

Answer 103

A written document admitted as a recorded recollection may be read to the jury, but it may not be received as an exhibit unless it is offered as such by the adverse party.

Answer 104

Once a custodial suspect invokes the right to counsel, all interrogation must stop until counsel is present. But, if the suspect voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the suspect that is not made in response to the interrogation (e.g., a statement that the suspect spontaneously blurts out) may be admissible. Initiating communication does not include comments relating to routine incidents of custody. Statements that clearly indicate a willingness to speak about matters relating to the investigation are deemed to initiate communication.

Answer 105

The obligation for the police to honor the invocation of the Miranda right to counsel terminates 14 days after the suspect is released from custody.

Answer 106

Additionally, because out-of-court statements made by a party opponent are considered nonhearsay and are admissible, the defendant's statement is not hearsay.

Answer 107

A criminal defendant may introduce evidence that his/her character is inconsistent with the crime charged. But the defendant may only do so through reputation or opinion testimony—not specific acts of conduct.

Answer 108

A prior inconsistent statement is admissible nonhearsay if (1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and (2) the declarant testifies and is subject to cross-examination. It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about the statement.

Answer 109

the declarant must be an opposing party, allows any prior statement made by the declarant to be introduced

Answer 110

the declarant can be any relevant person to the case who is unavailable to testify at the trial. Only allows those statements which cut against the declarant’s interests. For a statement to be against the declarant’s interests, it must be one that a reasonable person would only make if they believed that statement to be true at the time it was said.

Answer 111

(1) Former testimony; (2) Dying declaration; (3) Statement against interest; (4) Statement of personal or family history; (5) Statement offered against a party that wrongfully caused the declarant’s unavailability

Answer 112

(i) The declarant must be unavailable; and (ii) The defendant must have had a prior opportunity to cross-examine the declarant.

Answer 113

Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

Answer 114

A statement is non-hearsay if offered: (1) To prove that the statement was made (i.e., as legally operative fact); (2) To show the effect on the recipient; (3) As circumstantial evidence of the declarant's state of mind; (4) As circumstantial evidence of identity; or (5) Solely to impeach or rehabilitate.

Answer 115

If a motion for JMOL is denied during trial, the movant can file a renewed motion for JMOL no later than 28 days after the entry of judgment to seek to overturn an adverse verdict

Answer 116

A motion for judgment as a matter of law is used to remove a case from the jury's consideration when there is legally insufficient evidence for a reasonable jury to find in the nonmovant's favor.

Answer 117

Under the final-judgment rule, a federal appellate court generally has no jurisdiction to hear an appeal until the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits. However, the interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.

Answer 118

-the class contains at least 100 members -any class member is diverse from at least one defendant (ie, minimal diversity) and -the amount in controversy exceeds $5 million when the members' claims are aggregated.* *A federal court can acquire subject-matter jurisdiction over class members' claims that do not exceed $75,000 through supplemental jurisdiction.

Answer 119

To challenge a jury instruction on appeal, a party must preserve the issue at trial by timely objecting to the instruction on the record and stating the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request for a jury instruction has been refused.

Answer 120

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life. The majority rule requires the defendant to be aware of the danger involved.

Answer 121

BARRK: Burglary, Arson, Rape, Robbery and Kidnapping are all felonies that can result in felony-murder.

Answer 122

an act punishable by death or imprisonment over a year

Answer 123

First-degree murder is a statutory offense, and is generally defined as (i) a deliberate and premeditated murder, or (ii) felony murder.

Answer 124

The continuing trespass rule considers a situation where the taking was done without permission, but without the intent to permanently deprive. However, at some time after the initial taking, the defendant forms the intent to permanently deprive the owner. Under this rule, the trespass is considered to continue in order for the criminal act to coincide with the criminal intent, resulting in larceny.

Answer 125

Unintentional killiog of another due to criminal negligence (or recklessness under the MPC); or (ii) During an unlawful act

Answer 126

A robbery is a larceny (i) from the person or presence of the victim, and (ii) achieved by force or intimidation.

Answer 127

Rape is a general intent crime: (i) Unlawful; (ii) Sexual intercourse; (iii) With a female; (iv) Against her will by force or threat of immediate force

Answer 128

Kidnapping is the: (i) Unlawful; (ii) Confinement of a person; (iii) Against that person’s will; (iv) Coupled with either the movement or the hiding of that person.

Answer 129

Embezzlement is the: (i) Fraudulent; (ii) Conversion; (iii) Of the property; (iv) Of another; (v) By a person who is in lawful possession of the property.

Answer 130

No. A defendant is not guilty of felony murder when the defendant's co-felon is justifiably killed by a victim or police officer.

Answer 131

when its a legal impossibility, its not gainst the law when you tell the other parties involved you are abandoning the job and tell law enfircement

Answer 132

(1) Any mistake of fact that negates the required criminal intent can be a defense to specific-intent crimes, but a mistake of fact must be reasonable to be a defense to a general-intent or malice crime. (2) A mistake of law is only if (i) the defendant relied on a court decision/administrative order or official interpretation; (ii) a statutory definition of a malum prohibitum crime was not available before the defendant's conduct; or (iii) an honestly held mistake of law negates the required intent or mental state.

Answer 133

Felony: Punishable by death or imprisonment for more than one year Misdemeanor: Punishable by imprisonment for one year or less, or by a fine, or by both

Answer 134

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search under the 4th amendement.

Answer 135

(1) The defendant must demonstrate that (i) the procedure was impermissibly suggestive and (ii) there was a substantial likelihood of misidentification. (2) The court must consider: (i) The witness’s opportunity to view the defendant at the time of the crime; (ii) The witness’s degree of attention at the time of the crime; (iii) The accuracy of the witness’s description of the defendant prior to the identification; (iv) The level of certainty at the time of the identification; and (v) The length of time between the crime and the identification.

Answer 136

(1) Exigent circumstances (2) Searches incident to a lawful arrest (3) Consent searches (4) Automobiles (5) ""plain-view"" doctrine (6) Administrative, special needs, and inventory searches (7) Stop and frisk (i.e., Terry stops) ESCAPES

Answer 137

(i) Counsel’s representation fell below an objective standard of reasonableness; and (ii) Counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.

Answer 138

(1) Inevitable discovery rule - the evidence would have been inevitably discovered in the same condition through lawful means (2) Independent source doctrine - the evidence was discovered in part by an independent source unrelated to the tainted evidence. (3) Attenuation principle - the chain of causation between the primary taint and the evidence has been so attenuated, by time and/or intervening events, as to “purge” the taint. (4) Good-faith exception - police officers acted in good faith on either a facially valid warrant or an existing law later declared unconstitutional. (5) Isolated police negligence - the police conduct was not sufficiently deliberate such that the exclusionary rule could deter it. (6) Knock and Announce - the search was a violation of the ""knock and announce"" rule. (7) In-court Identification - the evidence is a witness's in-court identification of the defendant.

Answer 139

Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Answer 140

(1) "Transactional" (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony. (2) “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. Note: “Use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary. Therefore, the testimony cannot be used as substantive evidence or for impeachment purposes

Answer 141

1. Obscenity 2. Incitement to violence 3. Fighting words 4. Defamation 5. Commercial speech

Answer 142

An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise. This means that the plaintiff's action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future

Answer 143

it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—

Answer 144

Issue preclusion (i.e., collateral estoppel) bars the relitigation of issues that were actually litigated, determined, and necessary to a valid final judgment. This doctrine can only be asserted against parties to the first action because they have had an opportunity to fully and fairly litigate their claims/defenses.

Answer 145

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to (1) have the writing produced for inspection, (2) cross-examine the witness about the writing, and (3) introduce into evidence any portion of the writing that relates to the witness's testimony.

Answer 146

Actual authority can be express where the agent is expressly given authority to act for the principal

Answer 147

The Blockburger determines whether 2 or more crimes constitute the same offense for double jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense

Answer 148

Miranda warnings are not required if the suspect is unaware that the interrogator is a police officer or informant.

Answer 149

Statements taken in violation of a defendant's Sixth Amendment right to counsel cannot be used directly in deciding guilt or innocence. But such statements can be used for the limited purpose of impeaching the defendant's inconsistent testimony.

Answer 150

Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit Immunity is not limited to federal prosecution despite the “separate sovereignty” doctrine. However, it is limited to criminal prosecutions.

Answer 151

Offensive collateral estoppel is asserted by a plaintiff in a suit to prevent the defendant from relitigating an issue previously decided against the defendant.

Answer 152

Definition: A spendthrift trust restrains “both voluntary and involuntary transfer of a beneficiary’s interest.” A beneficiary may not transfer an interest and, generally, a creditor may not reach it before its receipt by the beneficiary.

Answer 153

A trust is valid if it has a trustee, beneficiary, and trust property.

Answer 154

will that makes a gift to a trust is valid so long as the trust is identified in the testator’s will and the terms are incorporated in a writing executed before or concurrently with the execution of the will. (The trust can be revocable or amendable.)

Answer 155

Revocable = amendable: A revocable trust is amendable even if the trust instrument does not expressly grant the settlor the power to amend. The theory is that if the settlor has the power to revoke, she also has the power to modify the trust.

Answer 156

When can a trust be modified? i) Under the common law and the UTC, a court may order “equitable deviation” from the terms of a trust when an unanticipated change in circumstances would otherwise “defeat or substantially impair the accomplishment of the purposes of the trust.”

Answer 157

The settlor is the party that creates a trust, usually the donor. The settlor transfers legal title in some asset to the trustee. The settlor then provides in the trust instrument how that trust property is to be used for the beneficiaries.

Answer 158

Rule of convenience: when a class gift is made to a group of individuals, such as the children of a named person, the class closes (i.e., additional individuals may not join the class by satisfying the class eligibility requirements) when at least one member is entitled to distribution.

Answer 159

in most states, an inter vivos trust is revocable unless the instrument expressly states otherwise.

Answer 160

The Claflin doctrine is a US law doctrine that states that a trust cannot be modified or terminated if it would go against the settlor's original intentions for creating the trust

Answer 161

Uniform Prudent Investor Act (UPIA): Almost all states have adopted this, in one form or another. This states that a trustee must invest trust assets prudently.

Answer 162

A settlor may terminate the trust if all beneficiaries are in existence, and all agree to the termination. If the settlor dies, even an irrevocable trust can be terminated if both the income beneficiaries and the remaindermen unanimously consent and if there is no material purpose of the trust yet to be performed.

Answer 163

) Purpose: a person writing a will or trust can give his or her beneficiaries a power of appointment, which enables the beneficiary to designate who will receive specific trust or estate property.

Answer 164

special power of appointment A special power of appointment is a legal authority granted to a person (the donee) under a trust or will, allowing them to designate who will receive certain property or assets, subject to specific limitations. The objects of the power in a special power of appointment cannot be the donee themself, their estate, their creditors or the creditors of their estate.

Answer 165

A general power of appointment (GPA) is a legal authority that gives the holder, or donee, the power to distribute the property of a deceased person to anyone they choose

Answer 166

Under common law RAP, no interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interests. Further, if there is any possibility, however improbable, that an interest might vest too remotely, that interest would be invalid even though it actually vested in a timely manner. Thus, an interest cannot vest more than 21 years after everyone who is alive at the time the grant was made has died.

Answer 167

A life in being is any person who is alive at the time the grant is made.

Answer 168

A support trust is a trust that contains a provision directing the trustee to pay to the beneficiary as much of the income and principal as is necessary for the beneficiary's education and support. The beneficiary’s interest in the trust is protected from creditors to the extent necessary to fulfill the trust’s support purpose. If a creditor’s claim would jeopardize the support function of the trust, the attachment is void. Unlike discretionary trusts, a support trust mandates distributions to cover the beneficiary’s basic needs and maintenance.

Answer 169

A discretionary trust is va type of irrevocable trust where the trustee has complete discretion on when and what amounts of assets to distribute to the beneficiaries. The beneficiaries have no right to distributions from the trust. The trustee typically has no limits on discretion besides those imposed by fiduciary duties. This structure prevents creditors from acquiring assets from the trust because the beneficiaries technically have no rights to distributions. Also, a discretionary trust must be cautiously made as the trustee retains such high levels of discretion that they may go against the intentions of the grantor.

Answer 170

A class remains open and may admit new members until (i) at least one class member is entitled to obtain possession of the gift, or (ii) the preceding interest terminates (such as when the holder of the present life interest dies).

Answer 171

A gift to a group of individuals with an automatic right of survivorship is a class gift

Answer 172

The remainder is vested because the holders (Settlor’s children) are ascertainable and there is no express condition precedent required before the interest becomes possessory(i.e., the trust document does not require survivorship.)

Answer 173

Pinkerton liability allows defendants in criminal conspiracy cases to be found guilty of crimes committed by their co-conspirators.

Answer 174

A resulting trust is an equitable reversion that arises by operation of law when a person has created an express intentional trust, but the express trust either fails or does not fully dispose of the trust property. This type of trust ensures that the property returns to the original owner or settlor when the intended purpose of the trust cannot be fulfilled or when there is remaining property after the trust’s objectives have been achieved.

Answer 175

"Buyer in the ordinary course of business" means a person or entity who (1) buys goods, including farm products, (2) In good faith, (3) without knowledge that the sale violates the rights of another person in the goods, and (4) in the ordinary- course of business from a person or entity in the business of selling goods of that kind.

Answer 176

The filing of a statement of qualification, which transforms a partnership into an LLP, does not create a new partnership. An LLP is a partnership in which a partner’s personal liability for obligations of the partnership is eliminated. In other respects, an LLP is governed by the same rules as a partnership.

Answer 177

Under the duty of care, a partner is prohibited from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of the law.

Answer 178

A partnership agreement cannot prevent a partner from withdrawing from the partnership, but it can require that the partner’s notice of withdrawal be in writing.

Answer 179

* Although some jurisdictions have recognized the “de facto” LLC doctrine where there has been a good-faith but failed attempt to form the LLC, this doctrine insulates members only from liability to third parties; it does not create an LLC as between the members themselves.

Answer 180

Once a partnership has been dissolved, but before the winding up of its business is complete, the partnership may resume carrying on its business as if dissolution had never occurred. To do so, all partners (including any properly dissociated partners) must agree to waive the right to terminate the partnership. When a partner dissociates from the partnership but the partnership is not dissolved, the partnership must buy out the dissociated partner’s partnership interest. A dissociated partner may maintain an action against the partnership to determine the buyout price and to compel the partnership to pay that amount to the partner. The action must be commenced within 120 days after the partnership has tendered payment or an offer to pay or within one year after written demand for payment if no payment or offer to pay is tendered.

Answer 181

Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market. Under the alternative causation doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm. Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable. Here, there is no evidence that the companies were acting together or tortiously.

Answer 182

In a criminal or civil trial involving sexual assault or child molestation, evidence that the accused committed any other sexual assault or child molestation is admissible for any relevenat purpose - even to show the accused propensity to conduct the assault or molestation

Answer 183

In addition, the Federal Rules of Evidence generally do not apply to sentencing proceedings. Despite this, answer choice C is incorrect because the rules regarding privileges apply to all federal court cases and proceedings, including sentencing proceedings.

Answer 184

 The business judgment rule is where in the absence of fraud, illegality and self -dealing the good faith actions of the BoD and Officers will not be disturbed.

Answer 185

Courts rely on various theories to pierce the corporate veil, including the “mere instrumentality” test, wherein a member would have to show that (i) the members dominated the entity in such a way that the LLC had no will of its own, (ii) the members used that domination to commit a fraud or wrong, and (iii) the control and wrongful action proximately caused the injury.

Answer 186

There must exist some circumstances that would justify piercing the veil on equitable grounds, such as undercapitalization of the business, commingling of assets, confusion of business affairs, or deception of creditors.

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