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Flashcards in Simulated MBE Deck (36):

To be able to assert a 4th Amendment right, a person must have what?

A reasonable expectation of privacy with respect to the place searched or the item seized. If curtilage is viewed from a public advantage point there is no expectation of privacy. However, the police may not use technology enhanced methods that are not available to the public at large.


When may Congress spend?

Article 1 Section 8: Congress may spend to "provide for the common defense and the general welfare." This spending may be for any public purpose-not merely the accomplishment of other enumerated powers. Congress may impose explicit conditions on the grant of such money if: (1) the conditions are clearly stated, (2) related to the purpose of the program, and (3) not unduly coercive.


When can a third party stop the contracting parties from rescinding or modifying the contract?

Once her rights have vested. Vesting occurs when the beneficiary: (1) learns of the contract and assents, (2) learns of the K and relies on it, or (3) learns of the K and sues.


What is the importance of a pure notice statute?

It allows subsequent purchasers for value and without notice of a prior conveyance to prevail over the prior transferee, regardless of whether the subsequent purchaser records.


What is the "shelter rule"?

It allows a person who takes from a Bona Fide purchaser to prevail against any interest that the transferor-bona fide purchaser would have prevailed against, even if the transferee had actual knowledge of the prior unrecorded interest.


What is the definition of hearsay?

Rule 801(c) defines hearsay as a statement, other than the statement made by the witness while testifying, offered into evidence to prove the truth of the matter asserted. If the statement is removed through 801(d) it is considered excluded. If it falls under an 803 or 804 it is considered hearsay under an exception.


When may a suspect invoke a Miranda (5th Amendment) right to counsel?

At any time prior to or during interrogation. However, the request must be unambiguous and specific. If a defendant agrees to answer orally, but request the presence of counsel before making any written statements, those oral statements are admissible.


Press and tax.

Press and broadcasting companies can be subject to general business regulations and taxes, but generally may not be singled out for special taxes. Moreover, a tax impacting on the press or a sub part of the press cannot be based on the content of the publication absent a compelling justification.


How are converted chattel damages calculated?

Fair market value of the chattel converted. This value is generally computed as of the time and place of the conversion. The defendant receives title as soon as the judgment is satisfied.


What are the three standards of review?

--Strict scrutiny-necessary to achieve a compelling interest-gov proves (race, religious rights, national origin, travel rights, voting rights)
----State and local laws that classify persons based on alienage are subject to strict scrutiny unless the law is discriminating against alien participation in the functioning of the sate government (primary and secondary teachers and police). In that case the law will be based on a rational relation test.
--Intermediary scrutiny-substantially related to an important government interest-gov proves (gender and legitimacy)
--Rational Relationship-rationally related to a legitimate government interest-challenger proves


What does a prima facie case for Negligence consist of?

(1) a duty on the party of the defendant to conform to the standard of care of a reasonable person for the protection of the plaintiff against an unreasonable risk of injury; (2) breach of that duty; (3) the breach was the actual and proximate cause of the plaintiff's injury; and (4) damage to the plaintiff's person or property.


How does a statute affect duty?

The duty imposed by the statute will replace the more general common law duty of due care, if it protects the class intended and the harm is of the type it was designed to protect. In most states, violation of such a statute establishes a conclusive presumption of duty and breach of duty. However, violation of a statute may be excused where compliance would be beyond the defendant's control.


What is an enforceable K?

An enforceable contract must be supported by consideration. Consideration consists of: (1) a bargain for exchange btwn the parties; and (2) an element of legal value to that which is bargained for. Legal value is present if the promisee has incurred a detriment. To have a bargained exchange, the promise must induce the detriment, and the detriment must induce the promise.


How are damages for breach of K for the sale of goods calculated?

Governed by the UCC, where the seller fails to deliver or repudiates, the buyer may measure his damages by the difference btwn the K price and the amount he actually has to pay for replace goods ("cover"). Buyer must mitigate and can also receive incidental and consequential damages.


What liability does a principle for tortious acts of an independent contractor?

The general rule is that a principal will not be liable for the tortious acts of an independent agent. However, where duties are abnormally dangerous or nondelegable the principal is liable.


What are a life tenants tax obligations?

A life tenant is obligated to pay all ordinary taxes on the land to the extent of income or profits from the land. A tax sale, however, will cut off the rights of the remaindermen, so it may behoove them to pay such taxes if the life tenant fails to do so.


When might private action violate the Equal Protection Clause of the Fourteenth Amendment?

Generally it won't, because the clause prohibits only government infringement. However, private action may constitute state action where the private actor is performing an exclusive stat function or the government is significantly involved in the private actor's activities.


How are damages measured when a buy breaches a sales of goods K?

When the buyer repudiates or refuses to accept goods, the usual measure of the seller's damages is the difference btwn the K price and market price or the difference btwn the K price and the resale price of the particular goods. However, neither of the general measures are adequate for lost volume sellers; therefore the damages equal K price minus dealer cost.


What is common law murder?

Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if the defendant has any of the following states of mind: (1) intent to kill; (2) intent to inflict great bodily injury; (3) awareness of an unjustifiably high risk to human life; or (4) intent to commit a felony.


What are the Statute of Frauds?

Under the Statute of Frauds, certain agreements must be evidenced by a writing that contains: (1) the identity of the party sought to be charged; (2) identification of the Ks subject matter; (3) terms and conditions of the agreement; (4) recital of consideration; and (5) signature of the party charged, or of his agent.

MY LEGS (where the main purpose or leading object of the promissory is to secure an advantage or pecuniary benefit for himself, the K is not within the SoF, even if the effect is still to pay the debt of another.)


When is a deed considered delivered?

A deed may be delivered by words or conduct without an act of physical transfer. Delivery occurs when the grantor intends that the deed have some present operative effect.


What is a Purchase Money Mortgage?

A PMM is a mortgage typically given to a third-party lender, who is lending the funds to allow the buyer to purchase the property. A PMM, whether recorded or not, has priority over mortgages, liens, and other claims against the mortgagors that arise prior to the mortgagor's acquisition of title. However, PMM priority is subject it being defeated by subsequent mortgages or liens by operation of the recording acts.


What is a race-notice statute?

Under this statute, a Bona fide purchaser is protected only if he records before the prior transferee or mortgagee records.


Does SoF apply to modifications of a K?

Contracts that after modification are less than 500 dollars do not fall under the SoF. However, if the modification cause or maintains an amount in excess of the 500 dollars the SoF do apply.


When does implied preemption apply?

Implied preemption will be found where it was the intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives.
-- For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.


When does a person act recklessly?

A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that a prohibited result will follow and this disregard constitutes a gross deviation from the standard of reasonable care.


When does a person act knowingly?

A person acts knowingly when she knows that her conduct will necessarily or very likely cause such a result.
--when a statute establishes a culpable state of mind without indicating to which element of the offense it applies, the statute will be interpreted as requiring that state of mind for all elements of the offense.


What are the affects of judicial notice?

Judicial notice operates as a substitute for proof as to facts that are matters of common knowledge in the community or are capable of certain verification through easily accessible, well-established sources. When a court takes judicial notice of a fact under the federal rules in a criminal case, the jury may, but is not required to, accept the fact notice; thus, its effect is only to relieve the prosecutor of her burden of producing evidence on the fact.


What happens to a home destroyed during escrow?

Although jurisdictions differ as to which party has the risk of loss, the majority rule is that where property subject to an enforceable K for sale is destroyed without fault of either party before the date set for closing, the risk of loss is on the buyer.


What is the general rule in civil trials as to character evidence?

In civil trials, character evidence is inadmissible to prove that the litigant act in conformity with that character. An exception exists when the litigant's character is directly in issue (e.g. defamation)


Statements by an opposing party?

Also known as party admissions are considered nonhearsay and will not be excluded by the hearsay rule. However, the statement may be excluded if there is a specific rule that applies to exclude it.


Federal rule 408-settlement offers?

Provides that settlement offers and factual statements made during settlement negotiations are inadmissible if offered to prove or disprove the validity or amount of a disputed claim. This only applies when there is a dispute and would rarely qualify at the scene of an accident.


FRE 409-payment offers?

409 excludes evidence of the payment or offer to pay medical expenses if offered to help establish liability for an injury. However, it does not include factual statements made in conjunction with the payment offer.


Stop and frisk?

A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. In such circumstances, if the officer reasonable believes that the person may be armed and dangerous, she may conduct a protective frisk. The scope of the frisk is limited to a patdown of the outer clothing for concealed instruments of assault, but the officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on it's plain feel, is a weapon or contraband.


What are the elements of criminal intent.

(1) a specific intent to commit the crime; and (2) an overt act in furtherance of that intent.


What are the elements of defamation?

Plaintiff must show that the defendant published a defamatory statement of or concerning the plaintiff that damaged his reputation. If the plaintiff is a public figure (or public official) or a matter of public concern is involved, the plaintiff must also prove falsity and actual malice (defined as knowledge that the statement was false or reckless disregard as to its truth or falsity).