Missed/Uncertain MBEs

Question 1

Federal court judgment enforcement in another state

Answer 1

A judgment entered by a federal court with PJ over D can be enforced by federal court in another state–even if the defendant does not have minimum contacts with the state.

(Full faith and credit applies to STATE courts)

Question 2

Acceptable methods of service of process

Answer 2

(1) following the rules of the state where the court is located or where service is made, (2) personal service to D or agent, (3) leaving summons and complaint at D’s dwelling with resident of suitable age.

Question 3

Deadline to answer amended complaint

Answer 3

14 days after amended complaint was served

Question 4

Sanctions for violating 11(b) based on certifying complaint when there is not clear evidence at the time of submission but expected through discovery

Answer 4

No sanctions

Every filing with the court must be signed by attorney or unrepresented party certifying that all factual assertions have OR WILL HAVE evidentiary support after a reasonable opportunity for further investigation or discovery.

Question 5

Whether the court should allow a suit by P that was unaware of class action on the matter

Answer 5

No

In prejudicial risk and final equitable relief class actions, a court may (but not required to) provide notice to class members, who do not have a right to opt out and file separate suits.

Types of class actions:
- Prejudicial risk (separate actions would create risk of inconsistent decisions)
- Common question
- Final equitable relief (Injunctive or declaratory relief is appropriate bc the opposing party’s actions generally apply to whole class)

Question 6

Deadline and contents for pretrial disclosures

Answer 6

Must include (1) name, address, and phone number of each witness, (2) deposition testimony that will be used at trial, and (3) all documents and exhibits.

Must be made at least 30 days before trial.

Question 7

Third party standing requirements

Answer 7

(1) parties share inextricably close relationship AND

(2) obstacle prevents third party from suing (e.g. privacy/retaliation concern)

Question 8

13th Amendment

Answer 8

Prohibits government and private actors from engaging in slavery/involuntary servitude

Question 9

14th Amendment

Answer 9

Prohibits states from denying equal protection, due process, or privileges/immunities of national citizenship

Question 10

15th Amendment

Answer 10

Prohibits states and federal government from denying or abridging voting rights based on race, color, or previous servitude

Question 11

Issue with Congress creating legislation to protect a religious minority

Answer 11

Improperly creating new equal protection rights.

Equal protection is to protect specific protected classes. Congress may remedy/deter violations, but cannot expand or limit those rights.

Question 12

Substantive due process application and scrutiny

Answer 12

Deprivation of life, liberty, or property.

Ordinary rights: economic, employment, education, social welfare
– RATIONAL BASIS

Fundamental rights: 1st Am., voting, interstate travel, privacy
– STRICT SCRUITINY

Question 13

Fundamental rights

Answer 13

First Amendment rights
Voting
Interstate travel
Privacy

Question 14

Procedural due process

Answer 14

Generally requires that a state provide an individual with notice and a hearing when it attempts to deprive of life, liberty, or property

Question 15

5th Amendment taking based on conditioning the issuance of a building/construction permit

Answer 15

An exaction occurs when a local government conditions the issuance of a building or construction permit on a landowner’s promise to dedicate party of the property for public use.

Constitutes a taking, requiring just compensation unless gov establishes:

• An essential nexus (imposed condition substantially advances a legitimate gov interest) AND
• Rough proportionality (the proposed development’s impact on the community is roughly proportional to the imposed condition’s burden on landowner

Question 16

Ex post facto clauses

Answer 16

Prohibit enactment of retroactive criminal laws that:

• Criminalize previous legal conduct
• Impose greater punishment than previously prescribed
• Eliminate previously available defenses
• Decrease prosecution’s burden of proof

Question 17

TPM restriction on public forum

Answer 17

Must (1) be narrowly tailored to serve a substantial gov interest, and (2) leave open ample alternative channels of communication

Question 18

Unprotected speech

Answer 18

FIDO

Fighting words/threats
Inciting crime
Defamation
Obscenity

Question 19

Restriction on regulating unprotected speech

Answer 19

Government cannot regulate or prohibit fighting words based on the speaker’s viewpoint (e.g. fighting words against specific classes)

Question 20

Exclusions from accomplice liability

Answer 20

• Member of protected class
• Exempted necessary party
  (When crime requires multiple participants but statute only imposes liability on one, others are immune from liability)
• Withdrawal

Question 21

M’Naughten test (majority rule)

Answer 21

Mental illness prevented D from:

• understanding the nature or quality of the criminal act OR
• knowing their actions were wrong

Question 22

Durham test

Answer 22

D’s criminal actions were product of mental illness

Question 22

Irresistible impulse test

Answer 22

Mental illness prevented D from:

• controlling actions OR
• conforming conduct to the law

Question 23

Modal Penal Code insanity test

Answer 23

Mental illness prevented D from:

• appreciating criminality of act OR
• conforming conduct to law

Question 24

Satisfying breaking element of common law burglary

Answer 24

- breaking with force - breaking without force (includes using a key with it is without consent) - breaking within dwelling *Use of force to exit is NOT breaking

Question 25

Defense of arrest

Answer 25

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

Question 26

Common items with no reasonable expectation of privacy

Answer 26

Bank records, things exposed to public, physical characteristics, conversations with undercover officers and informants, pen registers (records of dialed phone numbers), smells, inmate's cell, car VIN

Question 27

Burden of proof on D to negate an element of an offense?

Answer 27

Due process requires that the prosecution prove every element of a criminal offense beyond a reasonable doubt to convict a defendant. Therefore, BoP cannot be placed on D to negate an element of offense.

Question 28

Imposing a fine for appealing

Answer 28

Due process prohibits the imposition of a harsher sentence upon retrial of a D who successfully appealed a conviction when the harsher sentence is punishment for exercising the right to appeal.

Question 29

Instruction to jury if D fails to offer contrary evidence to a rebuttable presumption

Answer 29

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.

Question 30

When D can present evidence of his good character

Answer 30

Essential element: - reputation/opinion testimony - specific instance of conduct Pertinent trait: - reputation/opinion testimony

Question 31

Criminal D offering evidence of victim's character

Answer 31

May offer evidence of V's character to show conformity if it is pertinent to the case. (e.g. supporting D's defense)

Question 32

Impeaching a witness with felony conviction >10 years old

Answer 32

Conviction for crime of dishonesty is automatically admissible to impeach ANY witness when the conviction OR RELEASE FROM CONFINEMENT is less than 10 years old.

Question 33

Inadmissible felony convictions to impeach a witness

Answer 33

A conviction that was the subject of a pardon, annulment, or certificate of rehabilitation based on (1) a finding of innocence, or (2) a finding of rehabilitation with no subsequent felony convictions is inadmissible to impeach a witness.

Question 34

Privilege for statements made in front of attorney and doctor/consultant

Answer 34

Communications made before an attorney's representative (person employed to assist the attorney in the rendition of legal services) remain protected. Attorney representatives include experts hired by the attorney to assist in litigation effort or to consult on issues requiring outside expertise, but not experts hired to testify at trial.

Question 35

Admissibility of out of court statements used to demonstrate damages suffered

Answer 35

Not hearsay because not used for the truth of the matter

Question 36

Hearsay exceptions for unavailable party

Answer 36

- Dying declaration - Former testimony - Statement against interest - Statement of personal/family history - Statement offered against a party that wrongly caused unavailability (If party's threats cause witness to refuse to testify, court may admit that witness's statements that would otherwise be hearsay)