Tests I need to remember Flashcards
Assault (Crim and Tort)
Tort: (i) intentional act or threat by a D that causes a (ii) r_easonable apprehension_ of imminent harmful or offensive contact
Crim: (1) attempted battery or (2) i_ntentionally placing another in imminent fear of bodily harm_
Battery (Tort and Crim)
Tort:
- (i) intentionally causing (single/double intent)
- (i) H/O contact (objective standard):
- (ii) to the person of another
Criminal: (1) unlawful (2) application of force to another (3) that causes (4) bodily harm or offensive touching
Intentional Infliction of Emotional Distress
(1) D acts intentionally or recklessly;
(2) conduct is extreme and outrageous;
(3) causing
(4) extreme emotional distress to P (beyond RP could endure or D knows heightened sens)
If 3P, D liable if does IIED to (A) member of 3P family present at the time who perceives the event, even w/o bodily harm; OR (B) any 3P who is present if it results in bodily harm
Negligent Infliction of Emotional Distress
3 cases where D may breach duty to avoid negligently inflicting ED on a P:
(1) Zone of Danger – he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence + the threat of physical impact caused emotional distress.
- (a) Ds tortious conduct placed P in harms way
- (b) P was in zone of danger of threatened physical impact (i.e. feared for safety bc of Ds neg) and
- (c) threat of physical impact caused emotional distress (most Jx must manifest physical symptoms
(2) Bystander – P outside Zone of Danger can recover if:
- (a) closely related (family) to person injured
- (b) was present at time of injury and
- (c) personally observes it and
- (d) has physical manifestations
(3) Special Relationship – duty to not negligently inflict ED w.o any threat of physical impact or physical manifestations if:
- negligently mishandling loved one’s corpse,
- negligent medical information or diagnosis;
- common carrier mistakenly reports death of relative
False Imprisonment (Tort and Crim)
Tort:
- (i) D acts intending to confine or restrain another within boundaries fixed by the actor and
- (iii) those actions directly or indirectly cause such confinement and
- The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or plaintiff’s property), failure to provide a means of escape, or invalid use of legal authority.
- The defendant’s use of moral pressure or future threats does not constitute confinement or restraint
- A plaintiff is not imprisoned if she willingly submits to confinement.
- The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or plaintiff’s property), failure to provide a means of escape, or invalid use of legal authority.
- (iv) P is aware of OR harmed by it (if only aware –> need prove actual damages)
- Damages (nominal, punitive, actual)
Crim: (1) unlawful (2) confinement of another (3) without consent
Kidnapping (Crim)
(1) unlawful
(2) confinement of another
(3) against that person’s will and
(4) coupled with the movement or hiding of that person
Trespass to Chattels v. Conversion
T2C:
- (1) D intentionally
- (2) interferes with the Ps right to possession by
- (3) either dispossessing, using, or intermeddling with the Ps chattel and
- (4) causes actual harm (damages = actual damages, loss of use, cost repair)
Conversion:
- (1) D intentionally commits an act
- (2) depriving the P of use/possession of chattel OR interfering in such a serious manner as to deprive the P of use.
- Damages are FMV at time of conversion
Factors cts consider in deciding which:
- a) duration/extent
- b) intent to assert a right inconsistent with the rightful owner
- c) Ds good faith
- d) expense or inconvenience to the P
- e) extent of harm to chattel
Tresspass to Land
(1) Ds intentional act that causes
(2) physical invasion of the land of another need not intend tresspass
Defenses:
public necessity – can intrude as necessary to protect a large number of people from a public calamity, as long as act reasonably not liable for damages
private necessity – used to protect the interests of the D or a limited number of persons from serious harm, interference must be reasonably necessary to prevent injury from nature or another force not connected with the property owner, must pay for actual but not nomianl damages
Private Nuisance
an activity that
- (i) substantially (would it be offensive to RP normal in community) and
- (ii) unreasonably (balancing injury w/ usefulness)
- (iii) interferes with anothers right to use and enjoy land can enter to abate after giving D notice of nuisance and D refuses to act, but can only use reasonable force, can be liable for damages defenses: regulatory compliance and coming to nuisance
Public Nuisance
(i) unreasonable interference with (ii) a right common to the general public
abatement – if entitled to recover can abate by self help like in private but in absence of unique injury only public authority can abate remedy for nuisance (pub and private = damages usually)
Duty Owed by Posseser of Land
RST 3 — an owner owes a duty of reasonable care to all, even trespassers, except for “flagrant” trespassers
CA View — RCUTC for all entrants, what kind of entrant they are is a factor
Majority View? *
(1) Tresspassers [on land w/o consent or priv] — (majority) landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.
- (a) Undiscovered — Landowners generally owe no duty to undiscovered trespassers; nor do they have a duty to inspect their property for evidence of trespassers
- (b) Discovered/Anticipated Tresspassers — have a duty to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm.
(2) Invitee [land open to public OR persons coming for the purpose of business dealings] A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. However, the duty of care owed to invitees does not extend into areas that are beyond the scope of the invitation, and in such areas, the invitee is treated as a trespasser.
(3) Licensees [someone who enters land w/ express or implied permission] — The land possessor has a duty to make the property reasonably safe, and either correct or warn a licensee of concealed dangers that are known to the land possessor. The land possessor must also refrain from willful or wanton misconduct. No duty to inspect, just need to let them know what you know.
Negligence Per Se
(i) law that imposes duty for protection or benefit of others
(ii) D violates it
(iii) P in class of people designed to be protected by it
(iv) accident = the harm the statute was intended to protect against
harm caused by a violation of the statute defenses: greater risk harm; incapacity; D used rsnb care in trying to comply; vagueness; reasoanble ignorance~
Attractive Nuisance
Under the attractive nuisance doctrine, a land possessor may be liable for injuries to children trespassing on the land if:
- i) an artificial condition exists in a place the land possessor knows or has reason to know children are likely to trespass;
- ii) the owner knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
- iii) the children, because of their youth, do not _discover or cannot appreciate the danger presented by the conditio_n;
- iv) [balance] the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
- v) the landowner f_ails to exercise reasonable car_e to protect children from the harm.
Res Ipsa
P must prove:
(1) accident is the kind that doesnt occur w/o neg
(2) caused by an agent/instrumentality within the exclusive control of the D (cts interpret this broadly)
(3) the harm was not due to any action of the P
Comparative Fault (2 Kinds)
(1) Pure – In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff’s contributory negligence is not a complete bar to recovery. Instead, the plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.
(2) Modified – In a modified (i.e., partial) comparative negligence jurisdiction, the plaintiff is precluded from recovering if he is more at fault than the defendant. (i.e. if 51% at fault barred); some states say if equally at fault barred
SL – Abnormally Dangerous Activities
Abnormally dangerous means that an activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and the activity is not commonly engaged in. Courts also consider the appropriateness of the location and the value to the community.
D liable for harms that flow from what made the thing an ADA, could be cut off by superseding cause
SL – Animals
Landndowners are not strictly liable for injuries inflicted by their animals unless the animals are (i) vicious watchdogs, (ii) wild animals, or (iii) animals known by the animal’s owner to have abnormally dangerous propensities + the harm results from those dangerous propensities.
(ii) Wild animal – The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know. Strict liability also applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal. Domestic (i) [abnormally dangerous animal]
(iii) A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities and the harm that results from those dangerous propensities.
tresspassing animals – tresspassing animal + private property + non HH pet = SL; trespassing animal + private prop + HH = not SL unless know or reason to know intruding on another poroperty in harmful way animal tresspass on public land is NOT SL
SL – Defective Products
Under strict liability, the seller or other distributor of a defective product may be liable for any harm to persons or property caused by such a product.
To be subject to SL for defective product, the D must be in the business of selling or otherwise be distributing the type of products that harmed the P. A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.
The plaintiff must prove
- (i) the product was defective (in manufacture, design or failure to warn);
- (ii) the defect existed at the time the product left the defendant’s control, and
- (iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
Manuf Defect
Manuf Defect: deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test is whether the product conforms to the defendant’s own specifications.
Design Defect
Design Defect = 2 tests:
- (1) consumer expectation test – design defect if it is less safe than an ordinary consumer would expect (i.e. product includes a condition that is not contemplated yb an ordinary consumer that is unreasonably dangerous to him)
- (2) Risk utility – Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, a jury must determine whether the risks posed by a product outweigh its benefits. To succeed, a plaintiff must prove that a
- (i) reasonable alternative design was available to the defendant +
- (ii) the failure to use that design has rendered the product not reasonably safe. The reasonable alternative design must be economically feasible.
Failure to Warn
Failure to Warn = exists if there was a
- foreseeable risk of harm,
- not readily recognized by an ordinary user of the product,
- which risks could have been reduced or avoided by providing reasonable instructions or warnings
Defamation
P must prove D:
- (1) made a defamatory statement
- (2) of an concerning the plaintiff that
- (3) was published to a 3P who understood its defamatory nature
- (4) damage the P resulted [actual]
- ~(5) [if matter of public conern or public official/figure] gotta prove it is false + actual malice (public) OR negligence w.r.t truth or falsity (private person)
Slander – spoken defamation; slander per se (need not plead special damages) where D accues P of: committing crime, unfitness for trade or profession, loathesome disease, or sexual misconduct. In those situations, need not plead special damages unless public figure (or matter of public concern?)
Libel – written defamation
Intrusion on Seclusion
(1) D intrudes
(2) on Ps private affairs
(3) in a manner objectionable to a RP
false light
D:
- (1) makes public, facts about P,
- (2) that place him in a false light,
- (3) which would be highly offensive to a RP
appropriation of right to publicity
when D:
- (1) appropriates another’s name and likeness,
- (2) for the Ds advantage (exploititave),
- (3) w/o consent and
- (4) that causes injury
public disclosure of private fact
D:
- (1) publicizes a matter
- (2) concerning the private life of another
- (3) matter is:
- (i) highly offensive to RP and
- (ii) not of legit concern to the public
False Representation
P must prove:
- (1) D made a false representation of a material fact
- (2) [scienter] w/ knowledge or with reckless disregard of truth
- (3) with the intent to induce P to act or refrain in reliance on it
- (4) it caused actual reliance
- (5) reliance was justified (not justified if obvi false or clear D stating opinion)
- (6) damages – actual, economic, pecuinary loss no nominal
Negligent Misrepresentation
- (i) the defendant provided false information,
- (ii) as a result of the defendant’s negligence,
- (iii) during the course of his business or profession,
- (iv) causing the plaintiff to justifiably rely upon the information, and
- (v) the plaintiff either is in a contractual relationship with the defendant or is a third party known by the defendant as one for whose benefit the information is supplied.
- (vi) damages – reliance and consequential possible
Intentional Interference with Business Relations
(A) Interference with K – Must prove:
- (1) a valid contract existed between P and 3P
- (2) D knew of the contractual relationship,
- (3) D intentionally interfered with the contract, causing a breach, and
- (4) the breach caused damages to the P
(B) Interference with performance other than inducing breach (no K) – d only liable if prevent party from fulfilling K obligations or substantially ads to burden of performance, D conduct must exceed the bounds of fair competition
(C) Interference with Prospective Economic Advantage - D intentionally interferes with prospective biz relationship or benefit b/t P and 3P, in absence of K
Theft Trade Secrets
(1) P owns valid trade secret
(2) not generally known
(3) reasonable precautions taken to protect
(4) D took secret by improper means
Injurious Falsehoods (Trade Libel/Slander Title)
Trade Libel:
- (i) publication of a false or derogatory statement
- (ii) with malice relating to the Ps title to his biz, quality of biz, or quality products and
- (iii) causes special damages as a result of interference w. or damage to biz relationship (need not necessarily damage biz reputation)
Slander of title
- (i) publication
- (ii) of a false statement
- (iii) derogatory to the P title
- (iv) w malice
- (v) causing special damages
- (vi) dminishes value in eyes of 3Ps
Malicious Prosecution
(1) Person intentionally and maliciously
(2) institutes or pursues a legal action
(3) for an improper purpose without PC and
(4) the action is dismissed in favor of the person against whom it was brought
Abuse of Process
(1) use of legal process against a P
(2) in a wrongful and intentional manner
(3) to accomplish a purpose other than that for which the process was intended
(4) proof of damages required
Malice Crimes Mens Rea
act with reckless disregard to high risk of harm,
malice only requires act w.o excuse, justification or mitigation, intent can be inferred from accomlishment of the act
Murder
Unlawful killing of another with malice aforethought
- (1) intent to kill
- (2) intent to do serious bodily injury
- (3) depraved heart – unintentional killing resulting from reckless indifference to an unjustifiably high risk to human life
- (4) intent to commit felony murder – unintentional, foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (BARRK)
Manslaughter
(1) Voluntary – homicide with malice aforethought, but with mitigating circumstances
- (A) heat of passion (in response to a situation that would inflame a RP, not sufficient time for RP to cool down)
- (a) cool down [o/s]
- (b) provoked [o/s]
- (B) imperfect SD (if D start altercation or unreasonably thinks deadly force necessary
- (1) kill on basis of SD + (2) belief in need of SD unreasonable
- OR – D started altercation that lead to need for deadly force
(2) Involuntary MS – is a criminally negligent killing OR a killing of someone while committing a crime that does not rise to the level of felony murder; a killing committed during the commission of a malum in se misdemeanor (if malum prohibitum only if willful). A defendant who engages in criminally negligent conduct and causes a death is guilty of involuntary manslaughter. Criminal negligence is grossly negligent action (or inaction when there is a duty to act) that puts another person at a significant risk of serious injury or death. Requires more than tort neg, but less than depraved heart. For criminal negligence, the ultimate question is – was the defendant’s conduct a gross deviation from standard of care that a RP would have exercised in the situation.
(3) MPC – Under MPC, D must have acted recklessly, which is a gross deviation from the standard of conduct that a law abiding person would observe in the actors situation, and must have been actually aware of the risk his conduct posed
Larceny
tresspassory taking and carrying away of the PP of another with the SI to permanently deprive the owner w/o thier consent
Larceny by Trick
larceny
using fraud/deciet
that results in conversion of property of another
False Pretenses
Requires:
(i) obtaining title to the property; [title can incl $]
(ii) of another;
(iii) through the reliance of that person;
(iv) on a known false representation of a material past or present fact; and
(v) the representation is made with the intent to defraud.
It is not a false representation if the statement made is an opinion, such as sales talk or puffing. The mens rea requires that the D (a) know the representation is false and (b) specifically intend to defraud. Most courts find that a defendant acts knowingly and has knowledge of a particular fact when the defendant is aware of a high probability of the fact’s existence and deliberately avoids learning the truth. Other states require actual knowledge by the D of a particular fact. A defendant has the intent to defraud required to establish false pretenses when the defendant intends that the person to whom the false representation is made will rely upon it.
Robbery
(i) larceny, (ii) from the person or presence of the victim, (iii) by force or intimidation
Embezzlement
(i) fraudulent conversion (the inappropriate use of property, held pursuant to a trust agreement, which causes serious interference with the owner’s rights to the property)
(ii) of the property of another
(iii) by a person who is in lawful possession of the property
(iv) and the D has the intent to defraud the owner of the property
Receiving Stolen Property
(i) receive control of stolen property (Property that is unlawfully obtained through larceny, embezzlement, or false pretense is stolen property)
(ii) have the knowledge that property is stolen (must coincide with the act of receiving the property, some Jx require subjective knowledge others objective (i.e. infer from facts/circumstances)
(iii) have the intent to permanently deprive the owner of the property.
Burglary
@ CL
(i) breaking
* “Breaking” is accomplished by using force to create an opening into a dwelling. Even if a door or window is ajar, if the defendant enlarges it, it will satisfy the breaking element
(ii) and entering
* “Entering” occurs when any portion of the defendant’s body crosses into the dwelling without permission through the opening created by the breaking. [entering to retrieve your own thing = not a felony]
(iii) of a dwelling of another
(iv) at nighttime
(v) with the specific intent to commit a felony therein.
Arson
@ CL – malicious burning of the dwelling of another
Rape
@ CL unlawful sexual intercourse with a female against her will by force or threat of immediate force
Accomplice
Accomplice Liability if:
- intentional aids/abets P before or during crime
- with the SI that the crime be completed
liable for other crimes if natural and probable consequence
@CL only could be convicted if the principal was
modern – can be even if p not tried/convict/given immunity
to w/draw must (1) repudiate prior aid (2) do all possible to countermand assistance (3) before a chain of events set in motion/unstoppable accessory after the fact not an accomplice, liable for a separate crime
Solicitation
Solitiation is
(i) enticing, encouraging, requesting, or commanding of another person,
(ii) to commit a crime,
(iii) with the intent that the other person commits the crime.
SI defenses avail factual imposs not a defense
Under the MPC, voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime solicaition merges
Attempt
An attempt requires a specific intent to commit a criminal act coupled with a substantial step taken toward the commission of the intended crime.
@ CL once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime because of a change of heart. Upon the completion of a substantial step, the cri
me of attempt is completed; there can be no abandonment or withdrawal. Some Jx recognize defense where abandonment is voluntary (not voluntary if motivated by avoiding detection, the decision to delay till more favorable time etc) SI defenses avail factual imposs not a defense, but legal imposs could be (i.e. intended act not a crime) attempt merges
Conspiracy
@ CL – Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. When only one conspirator has the intent to agree, such as when the other conspirator is a governmental agent there is no conspiracy unless another participant is involved;
(MPC) allows for unilateral conspiracy Other Jx – require an overt act as well; when an overt act is required, the conspiracy crime is not complete until the overt act is performed in furtherance of the conspiracy. The overt act can be performed by any co-conspirator, with or without the knowledge of all co-conspirators
Misc rules:
- D can be convicted even if others not
- A conspirator may be convicted of all substantive crimes committed by his co-conspirator in furtherance of the conspiracy
- withdrawl:
- (@CL) cant w/draw but can limit liability by informing co conspirators of w/drawl and timely advising law enf;
- (fed/MPC) can w/draw prior to overt act by communicating intent to withdraw and timely advising law enforcement , after overt act can only help thwart success
- Wharton 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 the crime.
- factual imposs not a defense; legal might be
Mistakes
A mistake of fact is a defense to a
- (1) specific-intent crime, even if the mistake is unreasonable, because it negates the element of mens rea;
- (2) general intent if reasonable; MPC – mistake that negates a required state of mind for material element
Mistake of law – generally not defense except if:
- (1) reliance on official decision later erroneous
- (2) lack notice
- (3) SI + mistake reasonable and honestly holds belief (i.e. intend to do something that isnt against the law)
- (4) MPC honest mistake of law that negates mental state (purposefullly) for material element (i.e. intend to do something that isnt against the law)
Intoxication
Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including general as well as specific-intent and malice crimes. To be considered involuntary, the intoxicating substance must have been taken without knowledge of the intoxicating nature of the substance, including substances taken pursuant to medical advice. Voluntary = intentional taking of a substance knowing it is intoxicating Is a defense to: (1) SI if intox prevent intent (2) MPC not a defense: (1) SI if intent to do crime before intox (2) GI (3) SL
Self Defense
A person who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself. (the person (1) had a reasonable belief of i_mminent danger of unlawful bodily harm_ and (2) used the amount of force reasonably necessary to prevent such harm)
- Deadly force is force that is intended or likely to cause death or serious bodily injury.
- Deadly force may be justified in self-defense only when it is reasonably necessary to prevent
- (A) death or serious injury or
- (B) to prevent the commission of a serious felony involving a risk to human life.
- Deadly force may be justified in self-defense only when it is reasonably necessary to prevent
An initial aggressor gains the right to act in self-defense when an aggressor using nondeadly force is met with deadly force or the aggressor, in good faith, completely withdraws from the altercation and communicates this fact to the victim. Defense of property – only non deadly, gotta rsnb believe RP in imediate danger of unlawful tresspass or PP in immediate danger + force necessary to protect; deadly only if forcible entry into dwelling and reasonble belief intended felony inside
Duress (Crim)
A third party’s unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the defense of duress.
Necessity
necessity can be used as a defense if forces of nature cause the defendant to commit what would otherwise be a crime
Exceptions to Warrant Requirement
(a) Exigent Circumstances – based on the TOC Exigent circumstances exist if:
- (i) evidence is evanescent (evidence would dissipate or disappear in the time it would take to get a warrant);
- (ii) necessary to prevent imminent destruction of evid;
- (iii) police are in hot pursuit of felon and evidence in PV; (
- iv) emergency aid exception applies – to render emergency assistance to injured person or protect a person from imminent injury
(b) Search incident to Arrest – at time of lawful arrest or contemporaneous with it officer may conduct certain searches of arrestee that is reasonable in scope (including person, clothing, wingspan or immediately surrounding area to: keep officer safe +/or preserve evidence.
- If arrest in a home can do a protective sweep
- If a suspect is arrested in an automobile, the police may also search the entire interior or passenger compartment if
- (a) officer has reason to believe evidence relevant to crime/offense arrested for might be discovered or
- (b) arrestee is in reach of the passenger compartment and as a result, there is an actual threat to PO safety or protection of evidence (i.e. that the arrested person is unsecured and could gain access to vehicle at time of the search)
(c) Automobile Exception – officer can search auto if have PC to believe the evidence, instrumentalities, or fruits of crime exist in it (includes trunk if PC in trunk)
(d) Consent – must be given voluntarily. if 3P give consent + its thier prop that is ok; if it is D prop, 3P cant give consent unless agency relationship or D gave 3P rights to consent such that D AOR they might consent; if Joint O’ship if D present, cant rely on 3P consent, but if D not present, 3P can consent, but cotenent can only consent to a search of areas over which he has control (i.e. common spaces his private area)
(e) Plain View (and feel) – an officer, who is lawfully present in the area that he is in, may seize an item if it is immediately apparent that it is contraband or evidence of a crime. In public could seize w/o warrant
(f) Admin Search – (1) officer can search arrestee and impounded vehciles (2) public school officials can search students + personal fx if RS (3) random drug testing permitted for public school kids involved in any extracirric (4) need no wrrant for fire/health code inspections (regulatory inspections)
(g) Stop and Frisk – to stop only need RS that criminal activity is afoot needed for officer, to frisk need rsnb relief suspect armed and dangerous
Same Offense for DJ
blockburger test – if each crime contains an element that the other does not, they are not considered same offense; but if only one contains an element that the other does not they are lesser included offenses
requirements for warrant
neutral and detached magistrate
based on PC
describes the objects, property and place to be searched w particularity
supported by oath/affidavit
D can attack only if – knowingly contains false info from affiant (that PO aware of or reckless wrt) + false info was necessary for PC
IAC
(A) D must show
- (1) counsel’s rep fell below an objective strd of reasonableness
- (2) that prejudcied the D (there is a reasonable prob that had counsel performed effectively there would have been a different result)
(B) COI – must show (1) actual conflict and (2) COI affected atty performance
Exclusionary Rule
evidence obtained in violation of 4/5/6 CANNOT be introduced at trial to prive D guilt + applies to fruit of poison tree
- 4th– regular rule S2 below exceptions
- 5th – can be used for impeachment, but if lead to fruits they can be admitted 6th
- 14th – involuntary confession – both confession and fruits not admissible for ANY purpose
However, evid (primary or deriv) may still be admissible if:
- (1) independent discovery rule – P can prove evid would have inevitably been disco thru lawful means
- (2) independent source rule – relevant evid disco on basis of indep source unrelated to taint
- (3) attenuation in the causal chain – intervening events and passage of time can remove taint (e.g. uncon stop but find warrant bc of it)
- (4) good faith – if PO act in GF (objective of RPO) on either a facially valid warrant later determined invalid or existing law later found unconstitutional, evid seized as a result can come in unless:
- (i) no RPO would have relied on the affidavit underlying it (bare bones)
- (ii) warrant defective on its face
- (iii) obtained by fraud (iv) magistrate wholly abandoned judicial role
- (iv) warrant improperly executed
- (5) K+A – exclusionary rule does not apply to evid disco from valid warrant but violates K+A rule
- ~(6) isolated police negligence – will not necessarily trigger exclusionary rule, to trigger, police conduct must be sufficiently deliberate such that exclusion can meaningfully deter it (requires deliberate reckless gross negligence or sometimes systematic neg)
4th Amendment Standing
The Fourth Amendment limits governmental action; it does not restrict the acts of private parties unless the private person is acting as an “instrument or agent of the government.”
Relevance Evid
The general rule is that evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule or law.
Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Character Evidence Admissibility
impeachment – ok Civil In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.
However, character evidence is admissible,, when
- (1) character is an essential element of a claim or defense, rather than a means of proving a person’s conduct.
- Character is most commonly an essential element in defamation cases (character of the plaintiff)
- When character evidence is admissible as evidence in a civil case, it may be proved by specific instances of a person’s conduct as well as either by testimony about the person’s reputation or by testimony in the form of an opinion.
- (2) case based on D sexxual misconduct Criminal 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.
- (3) In a criminal case, the D is permitted to
- (1) introduce evidence of his good character as being inconsistent with the type of crime charged, as long as the evidence is in the form of the Ds reputation in the community or opinion testimony by another witness. The community includes people that the defendant engages with on a regular basis. Opens the door for prosecution to call own witness R/O to contradict or cross about R/O/A
- (2) introduce evidence of R/O of the victim’s character/pertinent trait when relevant to a defense asserted. Opens door for pros to call witnesses to give R/O rebuttal or introduce evid that D has same trait he accuse vic of having
Ways to Impeach
(1) Character for Truthfulness/Untruthfulness
- (a) R/O
- (b) Criminal Convictions
- (c) Prior Inconsistent Statements - litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case. Ext ev of the prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. If that extrinsic evidence is a writing, then it must be admissible w/r/t to the hearsay rules.
(2) Bias/Interest
(3) Sensory Competence
(4) Contradictory Evidence
Once your witness has been attacked you can bolster with character for truthfulness, prior consistent statment, or give witness chance to clarify explain
Using Criminal Convictions to Impeach
A criminal defendant has no obligation to testify under his right against self-incrimination. If he does, however, he is subject to cross-examination and impeachment, which can include questions about his past crimes, under certain circumstances.
A witness may be impeached with evidence that he has been convicted of a crime, subject to certain limitations.
- Any crime involving dishonesty or a false statement, whether a felony or a misdemeanor, may be used to impeach if it is less than 10 years old.
- Any crime not involving dishonesty that is less than 10 years old may be used for impeachment only if the crime is a felony.
- [If witness CD] evidence of a felony is admissible only if its PV outweighs the prejudicial effect to that D.
- [If regular witness] generally admissible S2 regular 403 balancing
- If more than 10 years have elapsed since a conviction, or release from imprisonment (whichever later) evidence of the crime is not admissible unless the court determines that the probative value substantially outweighs its prejudicial effect.
A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either (i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony. In this case, the witness was pardoned and has not been subsequently convicted of another felony, so the conviction would be inadmissible.
Juvenile Adjudication
- Civil Case – Under FRE 609(d), evidence of a juvenile conviction is never admissible in a civil case.
- Criminal Case — never can use against CD, other witness: even in criminal cases, evidence of juvenile convictions has limited admissibility. Evidence of a juvenile conviction may be used to impeach a witness other than the defendant only if (i) it is offered in a criminal case, (ii) an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and (iii) admitting the evidence is necessary to fairly determine guilt or innocence. arrest only cant use appeal pending can
Victim’s Sex Predispo Admissible if
Civil Evidence offered to prove a victim’s sexual conduct or predisposition is generally not admissible in a civil proceeding involving alleged sexual misconduct, such as a sexual harassment action.
- Such evidence may be admitted, however, when the court determines at an in camera hearing that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party. Victim=victim of sexual misconduct (includes title 9, not defamation)
- Generally reputation ok only if the victim puts it at issue.
Criminal In general evidence of vic past sex behavior not admissible in criminal proceeding involving sexual misconduct unless:
- (i) to rove someone other than CD is source of physical evidence
- (ii) vic past sex conduct with CD to show consent (
- iii) certain circumstances where as a constitutional matter unfair to limit evidence presented If it is about Ds sexual conduct + accused of sex crime, can admit any evidence on any relevant matter s2 403, not limited to convictions, can do acts not just R/o; but if going to use must disclose to other side at least 15 days before trial unless apply to court for good cause
Refreshing Witness Recollection
Present Recollection Refreshed
- A witness may examine any item (e.g., writing, photograph) in order to refresh the witness’s present recollection,
- but the witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself.
- When the item used to refresh a witness’s recollection is a writing or other record, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence.
- When an adverse party seeks to introduce a writing used to refresh a witness’s memory, the writing typically will be admissible for only the purpose of impeaching the witness’s credibility.
Past Recollection Recorded If a witness is unable to testify about a matter for which a record exists, the substance of the record may be admitted into evidence if
- (i) the record contains a matter about which the witness once had knowledge,
- (ii) the record was prepared or adopted by the witness when the matter was fresh in her memory,
- (iii) the record accurately reflects the witness’s knowledge, and
- (iv) the witness states that she has insufficient recollection of the event to testify fully and accurately, even after consulting the record while on the stand.
- –> Even if all of these elements are satisfied, it may be read to the jury, it may not be introduced as an exhibit unless it is offered by the opposing party. Comes in under hearsay exception
Lay Witness Opinion Testimony
If the opinion
- (i) is rationally based on the witness’s perceptions and
- (ii) would be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
Expert Witness Opinion
Can testify if
- (1) SM is sci/tech/specialized
- (2) it will help trier of fact understand evidence or determine fact in issue
As long as reliable and relevant expert can testify if:
- (a) qualified as an expert by skill/edu/experience/traininng
- (b) testimony based on sufficient facts/data
- (c) testimony based on reliable princples/methods
- (d) experts applied those principles/methods to the facts of the case
Expert must base opinion on: personal observation; evid @ trial; info experts in the field reasoanbly rely on even if not admissible
Spousal Immunity
Spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in any criminal proceeding. In federal courts (and a majority of states), the witness-spouse holds the privilege and may choose to testify but cannot be compelled to do so.
Minority – party spouse holds (and so can prevent spouse from testifying)
Timing – if no longer married does not apply exceptions – if spouse charged with crime against spouse/kids
Confidential Marital Comms
protects:
- (a) a communication made between spouses
- (b) while they were married
- (c) if the communication was made in reliance on the sanctity of marriage.
Held by both spouses and applies in both civil and criminal cases.
- Maj view - either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage, continues to apply even after the termination of the marriage to communications made during the marriage. Furthermore, a legal separation does not terminate a marriage; there must be an annulment or divorce. exceptions – spouse suing e/o, charged w/ crime against other spouse/kids
Dr/Patient
Although there is no CL priv covering statements made by a patient to a physician, most states protect such communications by statute, so long as communications were made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the priv by placing her condition in issue in a personal injury lawsuit
HS Exclusions
(1) Certain Prior Statements of Testifying Witnesses
- (a) Prior Inconsistent Statements – Under FRE prior inconsistent statement, which otherwise would qualify as hearsay, is treated as non-hearsay. A prior inconsistent statement may be used to impeach a witness. Further, if a prior inconsistent statement is made under oath at a trial, hearing, or deposition, it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies at the present trial or hearing and is subject to cross-examination concerning the statement. The witness need not actually be cross-examined, so long as she is subject to cross-examination at the present trial.
- (b) Prior Consistent Statements – oath or not admissible to rehab credibility or rebut charge that recently fabricated (if made before reason 2), can be substantive evid?
- (c) Prior Statement of ID - A previous OOC id of a person after perceiving that person is not hearsay and may be admissible as substantive evidence. 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
(2) Opposing Party Statement – A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. Unlike with the statement against interest hearsay exception, an opposing party’s statement need not have been against the party’s interest at the time that it was made. (if admission made in this lit = conclusive, but prior one, admissible but rebuttable)
- Adoptive admissions – An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own Silence in response to a statement is considered an adoptive admission if:
- (i) The person was present and heard and understood the statement;
- (ii) the person had the ability and opportunity to deny the statement; and
- (iii) a reasonable person similarly situated would have denied the statement. Vicarious Statements -
- EE/agent, authorized party, co conspirators statement made during and in furtherance of conspiracy
Declarant Unavail for HS
Unavailable if:
- cant bc priv,
- refuse testify,
- lack memory statement,
- unable to testify (death/sick/disabled),
- absent and cant be subpoenad
not unavil if party wrongfully made person unavail
Former Testimony HS Exception
Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if
- (i) declarant unavailable and
- (ii) the party against whom the testimony is being offered (or, in a civil case, a party’s predecessor-in-interest)
- (iii) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination
